FEDERAL JUDGE OVER RULES A PEOPLES JURY

THINKS HE`S ABOVE THE LAW

Health verdict tossed
By BARBARA HOBEROCK World Capitol Bureau
8/26/2003

A new trial is ordered in the lawsuit filed by mental health care providers. OKLAHOMA CITY -- U.S. District Judge Joe Heaton tossed out a multimillion-dollar verdict Monday against two current and one former Oklahoma Health Care Authority administrators and ordered a new trial.
A federal jury earlier this year agreed with a group of mental health care providers that the officials had retaliated against them for exercising their right to free speech.

The jury awarded damages of $34.4 million, which Heaton later reduced to nearly $31.9 million.

The suit was brought by mental health care providers against Oklahoma Health Care Authority Chief Executive Officer Mike Fogarty; Behavioral
Health Services Director Terrie Fritz; and former Government Relations Director Dana Brown.

The plaintiffs said they were retaliated against when they sought information and began asking questions about funding and policy at the state Capitol.

Heaton ruled Monday that the jury award was not supported by the evidence and law and must be set aside.

"Where the trial judge believes the jury's verdict to be contrary to the weight of the evidence, or that the damages awarded by the jury are
excessive, or that the ends of justice otherwise require it, the verdict may be set aside and a new trial ordered," Heaton wrote.

Evidence of retaliation by the plaintiffs is "extraordinarily thin," the judge wrote.

Relying on circumstantial evidence is appropriate and in some cases the only way to prove certain facts, Heaton wrote.

"Here, however, much of the evidence offered to establish retaliatory activity bordered on pure speculation and, in some instances, was based on little more than proof that the particular defendant was a supervisor of some activity at OHCA," the judge wrote.

He also ruled that the evidence supporting the awarding of damages was not sufficient, thus warranting a new trial.

Heaton found fault with how the jury awarded damages to corporate plaintiffs and individual plaintiffs.

"The damages awarded to the individual plaintiffs, being based largely, if not exclusively, on recovery for emotional or mental anguish, are plainly excessive," Heaton wrote.

An attorney for the authority said he was pleased with the ruling.

"Mike Fogarty, Terrie Fritz and Dana Brown have performed their jobs admirably for the people of Oklahoma, especially our poor and vulnerable citizens," Andrew Tevington said.

The agency looks forward to presenting its case to a new jury, he said.

"The judge noted the evidence of any wrongdoing by any defendant was extraordinarily thin," Tevington said. "The judge also noted the awarded damages were excessive, and the jury's decision shocked the judicial conscience."

Steven E. Holden, a Tulsa attorney representing the plaintiffs, said Tevington predicted that the judge would throw out the damages.

He said his office recently received very disturbing information.

Holden, who would not elaborate, said he expects to present the information to the judge soon.

"We will be asking the court to reconsider the decision on damages because the process has been tainted by improper influences that were never disclosed," he said.

Tevington said Holden's allegation of new information is innuendo, which has been characteristic of this case. He said he has no idea about the content of the information Holden allegedly received.

If a new trial is held, Holden said, he will ask that the issue be on damages only.

"There definitely will be an appeal," Holden said. "The judge, in our opinion, did not find (that) the OHCA did not commit the acts charged. He didn't say these folks didn't do it. He talked about the evidence of damages."

Holden said an appeal would go to the 10th Circuit Court of Appeals in Denver.

"This case has been an uphill battle for the plaintiffs," he said. "The state has tried to silence them. Additional hurdles will not break them. These are the little people that are in a day-to-day struggle with a corrupt governmental agency. They will not give up the fight. This is America. Justice will prevail."

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Barbara Hoberock (405) 528-2465
barbara.hoberock@tulsaworld.com