November 16, 2017

Near-mistrial, heated words in UNMH whistleblower lawsuit trial

Joe Gratz


A judge nearly threw the case out and a lawyer made a witness cry on the seventh day of trial in a whistleblower lawsuit against the University of New Mexico Hospital.

Former UNM medical resident Dr. Cynthia Herald alleges UNMH officials unlawfully dismissed her from the residency program after she reported a colleague raped her.

Update: The two sides reached a settlement

After almost a full day of routine testimony, the judge came close to declaring a mistrial and had sharp words for Randi McGinn, one of Herald’s lawyers, over her comments to a witness outside the courtroom.

Toward the end of the day’s proceedings, Dr. Sally Vender, an anesthesiologist, testified on behalf of UNMH. Vender described her friendship with Herald, which started when they were both first-year medical interns. Vender said in their second year of residency, Herald told her she was raped by a male resident.

“I gave her my advice,” Vender said. “I told her she needed to press charges.”

Vender said Herald “giggled” when she said she thought it would ruin her career if she reported a rape.

Vender also said Herald later told her she had been raped by her former boyfriend, who was also a resident. One of Herald’s attorney’s, Lisa Curtis, challenged Vender’s recollection and referenced a prior deposition during which Vender said Herald never mentioned any other attack besides the one she reported to school officials.

At this point, McGinn called for the jury to be removed and asked for a mistrial based on Vender’s testimony. No other witnesses testified to hearing or knowing about a second rape allegation.

The former boyfriend testified earlier in the day that after his relationship with Herald ended he was called to the emergency room to pick up Herald after she was mugged. He said he took her home and slept on her couch because he  wanted to keep an eye on her in case she had a head injury. According to Vender, Herald said the former boyfriend raped her that night.

McGinn argued her client would not get a fair trial based on Vender’s testimony without bringing back all previous witnesses to ask about Herald’s former boyfriend.

While District Judge Shannon Bacon considered the motion, McGinn confronted Vender in the hallway, to the dismay of UNMH lawyers and, later, Bacon.

Patricia Williams, one of the UNMH lawyers, escorted a tearful Vender back into the courtroom and asked Bacon to address McGinn’s conduct.

McGinn volunteered to recount, for the judge and the court record, what she said to both Vender and UNM lawyers.

“That was chickenshit, and you’re some friend,” McGinn repeated to Bacon, explaining  the first part was directed at UNM lawyers and the second at Vender.

Bacon sternly warned McGinn to stop talking to witnesses outside the courtroom and then denied her  request for a mistrial. Bacon said Curtis successfully showed that Vender’s court testimony contradicted that of her deposition, also known as witness impeaching.

“Ms. Curtis impeached the blank out of the witness,” Bacon said.

Bacon called the instance “remarkable” but “not mistriable.”

The jury was not in the room to hear McGinn’s comments, and they were later instructed to disregard Vender’s testimony.

After one more day of testimony, closing arguments are expected to start on Friday.