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'RESOLVED FROM EVERY LEGAL
CONSIDERATION'
By Vin Suprynowicz, Las Vegas
Review Journal, 08-13-00, RJ Focus Section
As we might have anticipated, Clark County District Court Judge
Nancy Saitta on Wednesday dismissed Russian immigrant Anya Shapiro Duke's
civil suit against local eye doctor Roger M. Simon.
Plaintiff contents Dr. Simon and an associate misdiagnosed the
minor eye problem with which she was referred to them nine years
ago. She contends Dr. Simon performed an inappropriate surgery,
causing her partial blindness. Over the years, - during which she
and her husband were drained to the tune of $100,000 in legal costs until
Mrs. Duke was left to plead her case by herself last week - a strong of
local attorneys handled the matter in what might be called a less than
exemplary manner, until one legal expert described her case as having been
"stipulated away; the other side just papers you to
death."
Wrapping up the somewhat bizarre proceedings, Judge Saitta ordered
Mrs. Duke not to mention to Wednesday's jury the fact that she has been
partially blinded, or much of anything else, restricting plaintiff's brief
to the single question of whether the last remaining defendant had
comported himself according to established standards of medical
care.
Sort of like convening a hearing into whether the White Star Lien
failed to properly honor Frequent Sailor Vouchers for passengers aboard
the Titanic.
"During my first five minutes of presentation, the jury had to come
out twice," Mrs. Duke recounts. "The first time the judge sent them
out of the room because she wanted to caution me and chew me out and you
name it. The jury was seated at 8 o'clock, and by 9 o'clock it was
all over."
Having allowed Mrs. Duke to deliver part of her prepared opening
statement - interrupted by the aforementioned pauses, during which Mrs.
Duke was lectured by the judge not to mention anything that might actually
indicate she had a cause for action - Judge Saitta cheerfully invited
defense attorney David Mortensen, of the politically well-connected law
firm Alverson, Taylor, Mortensen, Nelson & Sanders, to move for
dismissal.
Taking the hint, attorney Mortensen - who until then had been
making noises about seeking a mistrial - moved to dismiss, and the judge
did exactly that. No witnesses, no cross-examination, no arguments -
neat as you please.
"With a motion for a mistrial, Mortensen could have asked for
another jury," explains former District Judge Don Chairez. "But now,
with a motion to dismiss and a dismissal, there's no right for another
trial.
"People's image of what the legal system is about... is very
different from a lawyer's version. The rhetorical question would
be: Is it a judge's job to make sure that justice is done in their
courtroom, or just to make sure that all the procedural technicalities are
complied with? I personally believe it's the former," Chairez
said.
I asked Judge Saitta whether justice was done in her courtroom
Wednesday.
"Yes," she said. "I'm quite comfortable that we did as best
we could given the facts and the law... Oftentimes, simply believing that
you have a case doesn't make it a case in the true sense of the legal
world."
Sure, judges dismiss frivolous complaints all the time. But
this case was not dismissed; it was allowed to go to trial, or at least
some rude and unconvincing simulacrum of a trial.
"I didn't come anywhere close to suggested it was a frivolous
claim," she said. "The case was dismissed because of a valid legal
motion. There was a legally well-founded motion to which there was
no basis for me to do anything but dismiss the case."
"That sounds like lawyer-talk," I said.
"I am a lawyer," the judge replied.
"I thought you were a judge," I said.
Judge Saitta volunteered she did not understand the
distinction.
"Well, is it the job of a judge to see that justice is done in her
court, or simply to make sure that all the proper legal procedures are
followed?" I asked.
"I don't know what you're trying to get me to say. ...I think
assuring justice on behalf of the whole community while complying with the
rules of evidence go hand in hand," the judge replied. "It is
certainly resolved from each and every legal consideration. ...I
think if you'll refer to the court file you'll find that both sides in
this case were given ample opportunity."
So the case was actually settled long ago, during all those
pre-trial motions, long before the court went through the empty motion of
seating a jury for a single hour Wednesday morning?
"I think it's time to bring this conversation to a close," said
Judge Saitta. "I'm not going to have my words twisted when I'm
trying my very best to stay within my ethical bounds as a
judge."
As usual, offered a chance to explain what happened to Mrs. Duke in
his office back in August of 1991, Dr. Roger M. Simon declined to come to
the phone or return my phone calls. His lawyers won't talk,
either.
Because, you see, "It is
certainly resolved from each and every legal consideration."
WORKING TOGETHER TO ATTAIN
FAIRNESS | 
