Attorney won’t shy away from race in negligence suit

It’s safe to say any motion before the court that begins with a quote from Harper Lee’s “To Kill a Mockingbird” is designed to confront the issue of race in the legal justice system.

“In our courts,” Lee wrote in her 1960 novel, “when it’s a white man’s word against a black man’s, the white man always wins. They’re ugly, but those are the facts of life.”

If that weren’t enough of a scene-setter, and lest anyone be confused about the direction the case is going, the court document recently filed by attorney Robert Eglet and his legal team in the medical negligence litigation associated with the death of 8-year-old Nikhelais Costa is actually titled, “Plaintiff’s Motion to Affirm Black Lives Matter.” The voire dire questionnaire motion was filed on behalf of plaintiff Nyiesha Costa and the estate of her late son against Summerlin Hospital Medical Center and several local physicians. Filed Oct. 9 in District Court, the motion and its exhibits run 68 pages.

When Costa took her young son for an MRI May 14, 2010, at Nevada Imaging Center, she was attempting to address the child’s suspected developmental disorder. Sedated for the MRI, he went through the process and afterward appeared to be recovering normally from the anesthesia. But when he vomited and developed difficulty breathing, he was taken to Summerlin Hospital for emergency treatment for aspiration pneumonia.

In the hospital for the next two weeks, he received increasing doses of anesthesia and died May 25. In his May 26, 2010, autopsy report, Medical Examiner Dr. Timothy Dutra ruled Costa’s death an accident that was “the result of acute lung injury due to anesthetic drug reaction.”

The facts of the case will be argued at trial, but the voire dire questionnaire motion promises to set off fireworks inside the Regional Justice Center. In it Eglet argues he ought to be able to ask pointed questions about whether potential jurors hold racial biases due to the nation’s long and painful history of racial injustice inside the legal system.

Quoting Lee was child’s play compared to invoking the names of Trayvon Martin, Michael Brown, Eric Garner, Freddie Gray and other young black men killed by police or a troubled citizen with an itchy trigger finger. That’s just the beginning.

 

While the motion adds drama to an already tragic case, it’s way over the top to lump the police shootings deaths of young black men with the hospital death of an 8-year-old black boy. But if it was Eglet’s intention to get the court’s attention on the issue of race in the jury box, he surely accomplished the task with a strong emotional argument.

The seven proposed questions are as in-your-face as the motion. Among the queries: “Do you have any bias against black people?” and “Do you feel that a black person endures less pain than a white person when in the same situation?”

There’s even a proposed question about whether a potential juror has ever “been a member of a racially biased group or organization.”

“It has been too long that this issue has been left unaddressed in the courtroom, while we put our heads in the sand and hope for the best from the jury we have selected,” Eglet writes. “It is time to move forward, toward a time where the color of one’s skin does not determine the value of a person’s life.”

Eglet is known for his bold moves and big scores in the courtroom, but it wouldn’t be a stretch to say he’s playing the race card. By raising the “Black Lives Matter” banner, he’s fanning the whole deck.

Be he also has the awful weight of American legal history on his side, and that is an ugly but undeniable fact of life.

John L. Smith’s column appears Sunday, Tuesday, Wednesday, Friday and Saturday. He can be reached at 702-383-0295 or jsmith@reviewjournal.com. On Twitter: @jlnevadasmith

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