Juror Margaret Gardiner objects to Judge Edward Hogshire's reasons for reducing the award to the estate of Jessica Scott Lester.
The $722K in sanctions against attorney Matt Murray and his client are unheard of in Virginia. So is a juror calling out the judge for his "incorrect assumptions."
FILE PHOTO BY WILL WALKER
Nearly a year after a jury made one of the largest wrongful death awards in Virginia, the plaintiff and his attorney have seen the $10.6 million slashed– and been hit with one of the largest sanctions in Virginia legal history. And there's another nearly unprecedented development in the case stemming from the concrete truck rollover that killed Jessica Scott Lester four years ago: a juror has issued a written critique of the judge.
On October 21, ten months after a Charlottesville jury awarded widower Isaiah Lester $8.6 million– $2.35 million for his personal injuries and $6.227 million as the beneficiary of Jessica's estate– and Jessica Lester's parents, Gary and Jeanne Scott, $1 million each, Judge Edward Hogshire signed the final order in Lester v. Allied Concrete. Citing misconduct by plaintiff's attorney Matt Murray and Isaiah Lester for spoliation– destruction– of evidence, Hogshire ordered that Murray pay $542,000 to the defense's law firm and that Lester pay $180,000.
"That sounds like the largest sanction I've ever heard of in Virginia," says Hook legal expert David Heilberg of Murray's amount; of Lester's, he says: "Yikes."
Still, it's less than the more than $900,000 in added legal costs the D.C.-based Patton Boggs and Charlottesville-base Zunka, Milnor & Carter say they incurred after Murray and Lester withheld a party-time Facebook photo of Lester wearing an "I [heart] hot moms" t-shirt and then lying about its existence.
"That's a very high award," says Jim McCauley, ethics counsel with the Virginia State Bar, speaking of the combined $722,000 in sanctions. "I was very surprised when I read it."
As the controversy swirled in July, Murray resigned from Allen, Allen, Allen, and Allen, the largest personal injury firm in Virginia and which, nearly four years ago, recruited him to open its Charlottesville office. While Judge Hogshire reported Murray to the Virginia State Bar, Murray remains a member in good standing as an investigation advances, says McCauley.
Murray, whose troubles come just a few months after his January induction as a Fellow of the Virginia Law Foundation, was also serving as the president of the Virginia Trial Lawyers Association. Also a past president of the Charlottesville-Albemarle Bar Association, Murray "enjoyed an excellent reputation in the legal community," says McCauley, who calls his actions "puzzling."
Murray declines to comment.
In a September 1 order, Judge Hogshire set aside the $6.2 million the jury had awarded Lester as beneficiary of his late wife's estate. Contrasting the amount with the $1 million each of her parents received, Hogshire chopped the amount to $2.1 million and called it "so excessive on its face as to suggest that it was motivated by bias, sympathy, passion or prejudice rather than by fair and objective consideration of the evidence."
And that's what motivated juror Margaret Gardiner, who sent a two-page letter to the judge.
"We were vigilant about following instructions," she informed Hogshire. "It saddens me to see those efforts criticized in the public record based on incorrect assumptions about our motivations."
Specifically rejecting the idea that courtroom theatrics on either side swayed the jury, Gardiner made particular mention of the alleged irrelevance of the defendant's destitute family and of Murray's "counterfeit tears."
"We all opined with disgust that both sides attempted to inject sympathy into the trial while simultaneously urging us not to base our verdict on emotion," Gardiner wrote.
"All of us thought [Murray] was over the top," Gardiner adds in an interview. A UVA grad student in English, she reveals that the verdict was the easy part– that Allied Concrete driver William Sprouse was responsible for the accident– but that coming up with a dollar amount took hours of careful deliberation.
"We didn't want to be one of those juries that made the paper for handing out unreasonable sums of money," she says. At the same time, she says, the jurors felt frustrated.
"It would have been helpful if the judge had given us some instruction on how to come up with the number," says Gardiner. "If it's excessive, I'm glad he fixed it. I just wish he rested it on something besides maligning our decision-making process."
Ironically, the controversial Facebook photos of widower Isaiah Lester drinking and socializing after the accident were irrelevant to the jury, says Gardiner. What was important, says Gardiner, was that driver Sprouse pleaded guilty to involuntary manslaughter in 2008 and that the widower suffered post-traumatic stress disorder. Further considerations included the testimony of an economist who estimated Jessica's future lost wages as well as the jury's sense of what it would be to lose a grown daughter or spouse.
In a letter of his own, Judge Hogshire– noting that "only in very unusual circumstances do judges set aside jury verdicts"– told Gardiner that he would consider her comments.
"Please note, however, that once jurors are discharged from their duties, absent a substantiated claim of misconduct (which I have rejected in this case), there is no legal basis upon which to require jurors to return to court to explain the reasons for their decisions," he wrote.
"It would seem to me either you need to respect the jury's decision, or have some mechanism for finding out how they reached it– and not set it aside on assumptions that are so wrong," says Gardiner.
Isaiah Lester filed notice October 27 that he accepted the judge's reduction of the jury's award "under protest," reserving all rights. The $2.35 million for personal injuries and $2.1 million from Jessica's estate puts his total award at $4.45 million.
Lester did not respond to requests for comment from the Hook. Nor did Ben Chew, attorney for Patton Boggs. His client, Great American Insurance Company, has 30 days from the October 21 final order to file an appeal.
In his order, Hogshire referred allegations of perjury against Lester to the Commonwealth's Attorney, but no charges have been filed.
One matter not addressed in the judge's order was whether Allen & Allen– which, on November 1, filed a request for clarification– is responsible for the sanctions incurred by Murray, who was a managing partner at the law firm. Allen & Allen president Doug Barry did not return multiple phone calls from a reporter.
Updated November 8 to clarify Isaiah Lester's award for his personal injuries and as beneficiary of his wife's estate.