November 16, 2017

Two more calls for a mistrial in UNMH whistleblower case

Andy Lyman

Second Judicial District Court in Albuquerque

For a second day in a row fireworks lit up behind the scenes, without the jury present in a whistleblower lawsuit filed against the University of New Mexico Hospital.

Dr. Cynthia Herald, a former medical resident, filed the lawsuit, alleging she was fired after telling her bosses that a male colleague raped her.

Update: The two sides reached a settlement

Like Wednesday, tensions between lawyers simmered Thursday morning, prompting District Judge Shannon Bacon to address both counsels.

“You all hate this case,” Bacon said to lawyers for both UNMH and Herald.

Bacon’s comment came after UNMH lawyers requested a mistrial, the third request so far in the two-week-long trial.

During cross examination of Dr. James Harding, a retired anesthesiologist and Herald’s former supervisor, Herald’s lawyer Randi McGinn referred to movie producer Harvey Weinstein, presumably tying the cover up of his sexual misconduct to what Herald says happened at UNMH when she reported being attacked by a fellow resident.

UNMH lawyers objected, and the judge cleared jurors from the court. After a brief recess, the medical school’s lawyers requested the judge throw the case out on the grounds that the Weinstein reference would create a prejudiced jury.

Bacon did not honor the request for a mistrial, but took both sides to task for being “cantankerous” towards each other throughout the whole trial.

“I was fine before yesterday,” McGinn told Bacon.

“Oh, I disagree,” Bacon interjected.

Addressing the Weinstein comment, Bacon told McGinn the sexual misconduct surrounding the movie producer was not “apples to apples.”

Yesterday, it was McGinn who requested a mistrial, for a similar reason. She argued a witness’ testimony that Herald alleged, but did not report, she was also raped by an ex-boyfriend would have also created a prejudice jury. Bacon ultimately ordered that testimony struck from the record and instructed the jury to disregard it.

McGinn doubled down on her motion Thursday morning and repeated her request.

The second half of the day was devoted to UNMH’s witnesses. Each testified that Herald’s poor performance reviews reflected her actual work, and were not an attempt to illegally push her out of the program. Thursday also marked the last day of testimony for both sides.

Closing arguments and jury deliberation will begin Friday morning.