Colleagues had warned me to stay out of Centre County. Juries in central Pennsylvania, they cautioned, are loath to find that a physician in their community committed an act of malpractice. Young and a bit naive, I convinced myself that my case was the exception. It involved a knee surgery that had actually been videotaped by the defendant physician. A subsequent treating doctor of my client was willing to narrate the playing of the videotape for the jury and detail where he believed the treatment had been substandard.
I'd also been told that I might impede my client's success at trial, on account of my association with a Center City law firm, in a part of the state where the term Philadelphia lawyer was not a compliment.
I was on the defensive from the outset. The judge had conducted jury selection in advance of the trial's start. I remember him asking a packed courtroom of prospective jurors if anyone was familiar with the defendant or other members of his orthopedic practice. Most of the assembled raised their hands. The follow-up question was whether those who knew the physicians could nonetheless be fair to all parties, and every individual who had first raised a hand said yes.
The testimony lasted a few days. The defense lawyer was a local fellow, about as well-known to the jurors as the defendant, and he made sure to highlight my hometown. He was folksy, and he effectively portrayed my expert witness as a hired gun by extracting from him what he was being paid for his time to testify - which mirrored what he was forgoing in earnings from one day of surgery so he could testify.
When the jury deliberations passed the two-hour mark, my confidence grew. I was in a hallway near the judge's chambers, nervously passing the time and chatting with opposing counsel, when the trial judge greeted us. I naively asked him when he'd last presided over a malpractice trial that resulted in a plaintiff's verdict. With no hesitation, he quickly replied: "Never."
A member of the judge's staff interrupted our conversation to report that the jury was ready. In the courtroom, the foreman read aloud the verdict. Within minutes, I had loaded my trial exhibits into my car and commenced the long ride east.
I'd had no choice but to litigate the case in the area where the defendant enjoyed the respect of his community. And though it's been a few years since my experience, central Pennsylvania remains arguably the most conservative venue in the commonwealth. It's still the heart of the "T" that pundits recognize as the bedrock of support for GOP candidates.
That reputation and those community values will not bode well for Jerry Sandusky in a criminal trial on the child sexual-abuse charges he faces. However, in a civil trial, it is the victims who will be at a disadvantage. (The consensus seems to be that Penn State is not a commonwealth agency and therefore doesn't have immunity from civil actions.)
The same attitudes that weigh against an injured patient who seeks redress against a physician seen as a pillar of the community may likewise disadvantage adult victims of sexual abuse who are making claims against a beloved institution that is the single most important economic and cultural force in that part of the state. It's conceivable that jurors could view the awarding of substantial damages against Penn State as a continuation of a tragedy that they and their neighbors are anxious to leave behind. That wouldn't be fair to the victims who, assuming their claims are legitimate, would be entitled to substantial sums.
Thankfully, there is an alternative. The rules of civil procedure would permit civil claims based on sexual abuse to be brought in any county where the defendant regularly conducts business. Penn State maintains campuses throughout the commonwealth, and as a result, it can and should be held accountable far away from Centre County, in a place where the victims would be on equal footing with the defendants. Philadelphia is also an option. Penn State maintains an office in the city, meeting the legal test for venue.
Without a change in venue, home-field advantage won't refer to Penn State's Beaver Stadium. It will be another name for the Centre County Court House.
Contact Michael Smerconish
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