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JAMIE THOMPSONLawyers in a $120-million malpractice case can't agree on enough jurors, but they can agree on a mistrial.
CLEARWATER - Attorney Barry Cohen spent hours asking strangers from across Pinellas County about family, jobs, marriage and divorce, what they liked to read, what they did for fun.
"Nervous?" Cohen asked one woman.
"A little," she said.
"Don't be," he told her. "Get comfortable."
The woman smiled.
The exchanges unfolded like an extended round of speed dating, with Cohen and other attorneys posing questions, and potential jurors revealing intimate details of their lives.
Inevitably, Cohen dwelled on his most pressing question: Could they, if the evidence was strong enough, award his client an admittedly large sum: $120-million?
On Thursday, four days after jury selection began, the attorneys had exhausted a jury pool of 104, unable to agree on six jurors and three alternates.
"They have gone through every available juror," said Jacque Avise, manager for jury services. "That is very unusual."
Attorneys on both sides agreed to a mistrial. The case that had gone on for seven years probably would have to wait until fall.
Selecting a jury is perhaps the most important act lawyers perform during a trial. Whoever gets the most sympathetic listeners will have the best chance of winning. It is a process that has grown into an art, with lawyers hiring expensive consultants and questioning jurors for hours.
Cohen had been polishing his jury selection skills for months, memorizing case law, rehearsing in mock trials. His firm already had spent hundreds of thousands of dollars on the case.
Until last week, attorneys still talked of a deal. They joked about which side would blink first before a jury was sworn.
"I'm not going to blink on the courthouse steps," Cohen was overheard telling one of his opponents. "Give me $40-million, and I'll walk away."
Too much, said an insurance lawyer for the other side.
Cohen believed his client deserved that and more.
John Darling is a 44-year-old Clearwater man who alleges that an unlicensed HealthSouth employee ruined his back during physical therapy.
Darling said his back began to ache in the late summer of 1995. The former television news cameraman had laser surgery to repair a herniated disk.
"Honestly, it was a miraculous recovery," Darling said in a 1999 deposition.
Darling got a prescription for physical therapy. The doctor recommended a "gentle but progressive stretching exercise program."
Darling scheduled an appointment at a HealthSouth clinic in Clearwater. After a few visits, a physical therapy assistant turned him over to a technician, Tyler Isenberg, in April 1996.
Isenberg was a 19-year-old minimum wage worker whose other duties included doing laundry and cleaning the exercise machines. He was not licensed and had no formal training.
Darling says the teenager led him to a leg extension machine and set it on 60 pounds.
Darling thought it was too much weight. He reminded Isenberg he had back surgery about 11 weeks earlier. He asked if they could lower the weight limit.
"Well, you're a pretty big guy," Isenberg said, according to Darling. Isenberg does not recall the encounter, according to court records.
Darling lifted the weights twice. It hurt.
He moved the weights down to 30 pounds.
By that time, the licensed physical therapy assistant who had been working with Darling rushed over, he said. She saw the weights and said, "That's way too much," according to Darling.
Darling's back had begun to ache.
He says he was never the same.
Nine years later, Darling says he has been forced to apply for disability and take methadone pills three times a day for his pain. He says his dreams of becoming a television news anchor have been dashed. He says he spends most days lying in a reclining bed with small motors massaging his back.
HealthSouth disputes his claims. Darling already suffered from serious back pain that perhaps the surgery did not cure, it says.
At best, HealthSouth says, Darling's claim is a garden-variety negligence case, not worth anywhere near the $120-million Cohen wants.
But Darling's lawyers believe his injury fits into a larger pattern of fraud and negligence at the Alabama company. They say HealthSouth's business plan at the time encouraged clinics to use unlicensed employees to perform physical therapy.
That allowed their licensed therapists to perform more expensive tasks, bringing in more money at clinics. Darling, his lawyers say, was a casualty of corporate greed.
HealthSouth denies the charge.
Attorney Cohen wants up to $20-million for medical bills, lost wages, pain and suffering. And he wants $100-million in punitive damages, to punish HealthSouth.
Cohen arrived at the Clearwater courthouse early this week in his shiny golden Hummer driven by one of his employees.
He stepped out of the car in a dark tailored suit, his mane of silver hair perfectly styled. He was accompanied by an entourage of men and women carrying cardboard boxes and black notebooks.
Cohen was averaging about four hours of sleep. He had moved into the presidential suite at the nearby Belleview Biltmore Resort. A group of staff members was staying there, too, and had converted a conference room into a virtual war room.
Cohen was handling jury selection for his team.
As the trial began, he had an initial pool of about 30 people to question.
Some jurors quickly were excused because they could not be away from their jobs or families for three to four weeks, the estimated length of the trial.
Cohen spent a great deal of time questioning the jurors about tort reform.
He told them how much money he wanted, and asked for their response.
"It's an awful lot of money," one prospective juror said.
One woman, like many other jurors, thought big awards were taxing the system.
"I feel as if people are being overcompensated in certain cases ... and the inflated cost of medical care and insurance is what's causing a lot of people to not be able to afford health care."
During the conversations, both teams of attorneys were looking for clues about which jurors might be on their side. If they read business publications, for instance, they might be more inclined to side with HealthSouth.
If lawyers believed a juror might be against them, they would attempt to reveal any bias that might help disqualify them.
Of the first panel, Cohen asked the judge to strike eight jurors from the panel for various legal reasons. She agreed to strike five. HealthSouth lawyers asked her to strike one additional juror, and the judge agreed.
One by one, jurors were dropping like flies.
On Tuesday, the clerk's office sent over roughly 50 jurors more.
Right off the bat, many said they couldn't serve for three weeks and were released. Cohen thought many of the excuses were flimsy.
"I'm sitting here listening to one lame excuse after the other," he said, noting the vast majority of potential jurors had been released after saying they did not want to serve.
Cohen continued his questions, and before long four more jurors were released.
On Thursday morning, senior Pasco-Pinellas circuit judge Helen Hansel spoke up.
"I have never had a jury take so long to be picked," she said.
"Well, judge," Cohen replied. "I don't know how to respond to that."
He opted for a joke. "You haven't been on the bench enough years."
The 83-year-old judge smiled.
The clerk's office sent over 10 more jurors. All but two said they couldn't serve three to four weeks.
By noon, the clerk's office was out of jurors.
The attorneys had been through 104 people. Of those, roughly 20 remained.
Some likely would be released for legal reasons. And each side still had six peremptory strikes, meaning they could excuse a total of 12 people from the pool.
The lawyers didn't think they had enough, so they agreed to declare a mistrial.
"It appears Pinellas County was not able to provide us with enough jurors," Cohen told the judge.
"This court stands adjourned," she said.
Cohen headed for a massage at the Biltmore.
The main HealthSouth lawyer, Christopher Schulte, said he might spend the rest of the afternoon on his fishing boat.
When asked whether the court clerk's office should have summoned more jurors, or whether the shortage had more to do with the lawyers, jury manager Avise said: "I'm not touching that one."
Times researcher Cathy Wos contributed to this report.