Missouri SC tosses wrongful termination damages

Chris Rizo Feb. 11, 2010, 2:58am

Mary Russell

ST. LOUIS, Mo. (Legal Newsline)-The Missouri Supreme Court this week tossed out a damage award over an alleged wrongful termination because of anti-Semitic comments made by a juror.

The case involved the Pepose Vision Institute PC of Chesterfield, Mo.

In 2007, a St. Louis County jury awarded $95,000 in punitive damages and $30,000 in actual damages to a woman who claimed she was fired in 2003 because she had helped the U.S. Department of Labor investigation of the company.

Michelle Fleshner claimed that Dr. Jay Pepose ordered her dismissal after she cooperated with federal authorities who were probing the medical practice's payment of overtime.

Court papers indicate that after the damage award was issued it came to light that a juror described Pepose's wife as a "Jewish witch" and a "penny-pinching Jew."

For his part, Pepose claimed juror misconduct. However, the trial court, rejecting the motion for a new trial, ruled that jury deliberations are sacrosanct and that the juror's alleged comments did not constitute jury misconduct.

The state Supreme Court ruled unanimously that the case back to St. Louis County.

"This Court finds that if a juror makes statements evincing ethnic or religious bias or prejudice during jury deliberations, the parties are deprived of their right to a fair and impartial jury and equal protection of the law," the ruling said. "Accordingly, the trial court should have held a hearing to determine whether the alleged anti-Semitic comments were made."

The Supreme Court decision in Michelle Fleshner v. Pepose Vision Institute was authored by Judge Mary Russell.

Russell was appointed to the high court in 2004 by then-Gov. Bob Holden, a Democrat.

She was retained in 2006 for a 12-year term that expires in 2018. Russell previously served as a judge on the Missouri Court of Appeals.

From Legal Newsline: Reach staff reporter Chris Rizo at chrisrizo@legalnewsline.com.

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