New trial ordered for Small Smiles case

2013 11 18 17 15 05 637 Gavel 200

A New York judge on November 18 ordered a new trial in the Small Smiles case after ruling that a lawyer for the insurance company stalked the jury during the trial. The judge found that the lawyer's misconduct intimidated the jury and probably influenced the verdict in favor of Small Smiles.

In October, the jury found that Small Smiles dentists did not perform unnecessary dental procedures on Jeremy Bohn. Justice Deborah Karalunas found that corporate ownership of the clinics was illegal under state law, but the jury found no liability by the company or the dentists.

But after the jury's verdict, jurors complained about a man who "stalked them throughout the trial," according to the November 18 ruling by Justice Karalunas in the New York Supreme Court.

Jurors complained that Scott Greenspan, an attorney who works for the National Union Fire Insurance Company, was following them and videotaping them. National Union is the insurer for Forba Holdings, the former operator of Small Smiles, and the three dentists named in the lawsuit. The jurors said Greenspan followed them when they went out to lunch, took smoking breaks, and when they were in the elevator.

“Mr. Greenspan's conduct violated the sanctity of the jury ... and was prejudicial and likely to influence the verdict.”
— Supreme Court Justice Deborah

"He followed us everywhere," one juror told the judge. "And it bothered me." Another juror said the stalking "scared" him. "I didn't like it. It was creepy," he told Justice Karalunas.

Greenspan explained that he was just monitoring the trial so he could report back to the insurance company about his "mental impressions as to what was going on" and "whether there any implications for the insurance coverage issue," according to the ruling.

During one lunchtime recess, the jurors told the judge that they ducked into a restaurant to see if Greenspan was following them and watched as he panicked because he thought he lost track of them.

Justice Karalunas ruled that Greenspan's actions "constituted improper misconduct" in her 13-page decision.

The case involves Jeremy Bohn, who between May 2006 and March 2008 received four root canals and crowns, seven fillings, two extractions, and one crown at a Small Smiles clinic in Syracuse, NY, according to court records. The boy was restrained on at least two occasions, and on three occasions the dentist gave him fillings without using anesthesia, the complaint states. The suit claimed the treatment was inappropriate, and the dentists' primary goal was to generate revenue for the company rather than the medical needs of the children.

The lawsuit accused dentists Koury Bonds, DDS; Naveed Aman, DDS; and Yaqoob Khan, DDS, of performing care on Bohn that was "below the applicable standard of care which caused him to suffer injuries," according to the complaint.

"Mr. Greenspan's conduct violated the sanctity of the jury, raises ground for suspicion that the decision was founded on something other than the evidence, and was prejudicial and likely to influence the verdict," Justice Karalunas said. October's verdict for Small Smiles is a "stronger indication that the perceived intimidation was successful," she said.

In a strongly worded rebuke, Justice Karalunas concluded: "This is not a matter of an isolated elevator conversation, cake for juror appreciation day, or expressions of condolence. This is a case where jurors over a 15-day period believed that they were stalked, videotaped, and closely monitored by a person they believed worked for the defendants. This is a case where the administration of the law was imperiled."

Bohn is one of 30 children included in two lawsuits filed in 2011 in New York State Supreme Court in Onondaga and Schenectady counties on behalf of 10 families in each county. The suits seek damages for alleged "unnecessary, inappropriate, unsafe, and excessive dental procedures" performed on young children at various Small Smiles clinics in those counties between 2005 and 2009. Battery, false advertising, malpractice, negligence, and breach of fiduciary duty also are alleged.

The parents who filed the lawsuits are requesting punitive damages due to the "egregious nature" of the dentists' alleged conduct. They allege their children were subjected to an "emotional and physical nightmare," often "struggling, screaming, and crying during dental procedures," the complaint states.

Plaintiffs' attorney Jim Moriarty of Houston told "The court has recognized that conduct of the AIG (which owns National Union) lawyer went far beyond the bounds of appropriate attorney/client representation." He called Greenspan's stalking "straight out of a crime novel."

Defense attorney John McPhilliamy declined to comment.

Small Smiles was named in a July report by a U.S. Senate committee as one of the dental chains that should be excluded from the Medicaid program for encouraging dentists to perform unnecessary treatments to boost profits. It followed a two-year Senate investigation by Sens. Charles Grassley (R-IA) and Max Baucus (D-MT) of dental chains owned by private-equity firms.

In 2010, Small Smiles paid $24 million to settle allegations of Medicaid fraud brought by the U.S. Department of Justice. A total of $3.45 million of that went to the state of New York, where the company operates several clinics.

More than 90% of the company's $161 million in revenues in 2011 came from Medicaid and the state Children's Health Insurance Program.

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