standard of care in delivering medical treatment for the deceit and in the middle of the trial the jury was bombarded by media coverage that was extraordinarily prejudicial and directly related to the key issue in the case dr bailey's medical skill and confidence multiple jurors heard or read news accounts to the effect that dr billy's license was suspended by the state that he took over medicated patients that five other patients had died under his care and that mr mckeith case involved drugs and that mr mathieson family saw three million dollars in damages they didn't say that they actually heard all that though they when questioned they they heard or limited bit of information well not what you just described but i know the news reports did indicate they heard the news report the news report is on video for you all in volume four and at page fifteen zero four you can read what the news report says there were four different news reports  so basically what the judge did is he talked to the four who saw it saw something and then he asked the others who had heard anything because they talked amongst court did talk to rest the steps but you you would agree that correct was not correct so so four of them were impacted directly but they tell me jurors were either there were twelve  and so seven of them in total are impacted because three of them say they heard something when they were talking in the jury room now here's the odd part miss bartlett who heard what was going on in the jury room all she says what she has to say and then the judge doesn't even interview the last two people who heard talk and that's it j nine ninety nine and twenty two and nine twenty four so basically the judge knows that the people he's talked to have sugar coated it a little bit and on frankly he had to really drag out of mr bedwell that he told the other  didn't volunteer that so the issues raised by most of the jurors said that what they heard is for the five so that what they heard was something about overmedicating correct well that's that's an yes that's what they heard the entire jury panel heard that during jury selection that night they did that that does the most of them were strong but there were a lot of them out there and it doesn't mean that for this you want to just to do here well what we wanted the judge to do was either grant a mistrial when when this happened all and we moved for that or we wanted a new trial or you know we jurors all well we got a curative instruction that was pretty weak did you ask the judge to knock these jurors off the jury i don't there were too many of them they during the during the trial now here's the other problem at the end we asked for a specific instruction defense exhibit twelve that says don't consider the bad stuff that you know you tell me that he told them in an oral instruction the did go back to the jury and it was very much what all it took jurors are bound by the oral instruction written instructions aren't any better it is good well that they don't go back to the jury well i know  juries did follow it this judge had no reason to believe the jurors followed the oral instruction because they hadn't followed any other one that they had been given they were told don't watch the news they were told  don't click social media stories they were told don't talk with your family don't talk amongst yourselves if you violate any of these so freeport they did none of those and the judge knew that they had done none of those and then had to drag out of them just how bad what they'd done was a j a six forty in this case the judge noted he couldn't trust them to follow a contributory negligence instruction this jury gave every indication they didn't follow these instructions and the problem is is that this evidence is terribly prejudicial in a mid mouth case it can't get any worse and what happened is the court gave this brief get this out of your mind instruction a change nine thirty one and then within ten minutes appleby reintroduced the suspension issue ten minutes later a chain nine forty two forty chastised him for doing it particularly where it was in agreement the judge said he knew about the agreement that the doctor had his license when he cared for mr mchugh he surrendered it it wasn't suspended and  his this dealt with a nurse practitioner and his family practice it didn't deal with this emergency room or it had nothing to do with the surrender but here's here's the important part it goes back to what judge that aker asked  one whit juror who said well i read on about drugs the suspension is in the same sentence if you watch the news his office is padlocked they knew about the suspension and the court added there's no way to explain the license suspension there's no way to explain this surrender and that made all of this doubly prejudicial he said ajay ten ten  revived the issue on friday afternoon all this happened on a friday the court thought about it over the weekend and gave another grief oral instruction to ignore the improper court a very shot a fix that on friday he had not yet ruled that it was inadmissible he said he wanted to think about it he thought about it and in the post trial he said in the totality of this it's just too late it's just one of their arguments is how long does the jury have this in bad information in their breast and the answer is they had a long time and so then what you have is you have to get question what  exactly is wrong if the guy's death biotin as an actor with disclosing that he doesn't have a life well this isn't that pretty relevant whether he's an actor as the judge said and there's been no peel of this the judge s it at jay one thousand one thousand one in one thousand font he said there are a proper way to do this but it wasn't done here this was an ambush he said you might come up with the question but in one hundred out of one hundred case said he looked at it a are over the weekend he said you raise it in limon the first you don't spring it for the first time in front of the jurors and the reason for that is look what happened he gave them an instruction that said don't pay attention to this mountain of bad stuff that was on the t v and in the internet and ten minutes later they're saying bring this in and what does it really saying that same oath some of that stuff was true well but the question i was asking is that if he's testifying as an expert why did the judge even need to give that structure meaning i don't have a life that i am as an expert that seems to me like it goes if if you raise it in advance as the judge said you know if you want to reverse what the judge said the judge said this was wrong and it was wrong because you didn't give me a chance to say if you ask him that question then they're allowed to that they will not rain and sion he area regardless of what happens at trial well it's it's the agreement was that they would not raise it unless it came up was wrong so if you want to reverse what the judge said then but we think he was correct in his discretion there somebody should have been on notice the judge said he was clueless had no idea and that it was not only prejudicial but doubly prejudicial and unfairly prejudice now under the case law the controlling burden should be on his big area when you have this onslaught of evidence to show it's usually abuse of discretion this is a modified abuse of discretion and if you get the rimmer test wrong if you apply the wrong test it's a mistake of law here the test is there's no reasonable possibility that the plaintiff only asked for two million in front of the jury j a ten ninety eleven hundred this was the lead story on the news and each time it trumpeted the three million dollars and they only asked for two million because that's the maximum recover in virginia under the med now statute nonetheless the jurors after hearing in the lead story in the news that applebee's saw three million awarded two point seven five million the prejudicial  have to prove probable there is a reasonable probability possibility under the rumor test that the prejudicial exposure from an xterm no source affected the verdict in fact was i question and while the court gave lip service to the rumor presumption it ultimately concluded that there was quote no evidence the jury didn't follow the cautionary instruction that chief fifteen thirty five and that isn't the river  your point that is our point and it's also the finding that is made you know if you're looking for any possibility how can you say that when literally eight there's a listing in here every other oral instruction they were given they violated and by the way under both lawson enjoin or when the presumption that cautionary instructions are followed evaporates if the prejudice is is high and this but not good morning your honor a pleasure to be here i'm here on behalf of karen gary and i'd also like to introduce my co counsel trey smith and ben byrd who were trial counsel in this case the defense does not c prejudice was found when media exposure was discovered during a trial and they just report gave a cautionary instruction indeed in the vast majority of cases cited by the defense the improper influence was discovered after the trial when it was too late to remedy any problem as this court has stated in lawson the remedial steps taken by the district court are critical to understanding whether there was possible prejudiced and therefore this case must be viewed in context of both what the district court did for its investigation and the curative instruction that it gave now i do want to address very specifically exactly what at the trial and exactly what the jurors were supposed to the judge first brought out the entire jury question all of them to find out who had heard it four people raised their hands even separated them from the rest of the jury individually question five forgers all the forgers they all indicated that they could be fair and impartial and question them both about the stent in the nature of their exposure three out of the indicated that they heard the amount sued for but only two  specific amount one just said i heard an amount when you say a specific amount you're talking about three million remember that's correct four out of those parties indicated that they heard the names of the parties in this case which certainly did not cross any sorry not evidence but it is fair game an argument your honor it's a three heard about overprescribing but they attributed it to inaccurate reporting now and that i also heard that already during jury selection the entire panel yes your honor now at that point the judge then brings the whole group back in again questions them about has anybody else heard this can you be fair and impartial all of them affirm the record shows that they could be fair and impartial but at that point m bartlett raises her hand and says there was some discussion in the jury room and what happened in this is clear on page eighteen not sorry nine thousand and nine twenty is that after the judge raised this whole issue somebody said well who's heard it you know and kilgore says you know my wife had seen the t v that the t v news she came to me and said oh now i know what the case is about to get about overmedicating and it's three million dollars and this is what this see all i would compare that to this worse case and actually were a juror on three different occasions had phone conversations with media outlets and they lasted less than six minutes twenty seconds i don't know what i retain  so these are all factors that support the district court's opinion we would also point out that this was a strong case on liability and even stronger case on damages the defense has referenced again the the verdict part of the plaintiff and the defendant doctor it was it everybody agree that it was not an issue in this case but the church steps to make sure that it would not insert itself into the case but there was some evidence relating to that there was a suggestion conversation with the bailiff and say you know bring them what he was bringing them back out again you know he said if we did we talked to everybody did we did we question everybody and the people and my aunt says there's no white house judge and then brings them back out again double checks you know at that upheld the conviction of someone what if your instruction was given so that doesn't that doesn't have any bearing on this particular case and i ask you question about that man statute yes issue in this case  given information to the emergency room personnel about the health condition of the us yeah that's ads that sounds be like have information that ought to be available under some exception initially excluded it but then let it in so there could not be any possible to that or the word about well they're complaining about that but there's no basis to complain i mean there could possibly there couldn't possibly be earlier about when it was actually allowed in now let me this is it nine thirty six to thirty seven he testified at trial that he couldn't get a c t scan because the the the emergency department that's right that the x ray department head had a policy and hospital policy was mckee couldn't possibly know what the hospital policies were so when we said oh you need to give this instruction because there wasn't collaboration on that point that was correct but there is even a bigger reason why the croatian instruction list was correctly fact and we decided in our brief multiple cases that stand for both of those propositions but the district court what they're asking is just a court should have decided whether it was sufficiently corroborated as a matter of law that's inconsistent with virginia  that's why they were operation instruction it was proper if i could use some of the remainder of my time to briefly talk about the license suspension there are there are a few points that i'd like to make here to put your own you know client on the stand to offer standard of hear testimony when you had to qualified and licensed experts to do so the judge back or twelve eighty two is where the expert designation is he was him as an expert as her treating physician is not did not indicate he'd be a standard of care expert and there were other standard of care experts designated there and it's highly the question is is there a reasonable possibility that the verdict was orders influence then it was and there is lots of evidence and one of the things we just heard that this was a big margin of victory well it wasn't that judge that she a fourteen ninety fox that this was a very close case especially as to cause a shock and yet the jurors  counsel and you're opposing counsel this would never happen he said what you do is you bring it in limited they didn't have to ask that question and there were two other experts and if you let this go in limb and you would never happen that's better because it would have come in because it's relevant to my question you know isn't it relevant if you had a doctor on the stand who was testifying about standard of care when he does not own a ballot medical license surely you would think it was relevant for you to ask him about that but when you have an agreement that it won't come in and use it or not just an agreement that it won't come in period it's agreement that it won't com thank goodness none of them have heard about the suspension even though we think that's wrong because it's in the same sentence as the narcotics he says thank goodness they don't know about that let's proceed nobody says a word that's already happened ok that's most of them all of a sudden nine pages later i mean that is what it is but it's not the way they were and that it yeah i agree it probably wasn't the best way test and that's what happened this was extraordinary prejudicial and we haven't heard that it wasn't i mean we've heard well the economy knew well yeah there was a curative instruction given and then they were