Friday, August 20, 2004

Eye surgeon seeks new site for lawsuit trial

Lawyer argues news coverage requires change of venue


By PAT MURPHY
Express Staff Writer

An attorney for Dr. Stephen Graham filed a motion Thursday with 5th District Court requesting that a jury trial scheduled to be begin Sept. 9 be moved to another county, claiming the Ketchum eye surgeon could not get a fair trial in Blaine County.

Boise attorney Richard Hall filed the motion within hours of the Wednesday, Aug. 18, edition of The Idaho Mountain Express being distributed, claiming potential jurors in Blaine County could not be impartial because of articles about Graham.

The Express published two stories Wednesday about Graham. One was about his medical license being suspended in Idaho and later being placed on pro-bation in Utah and Arizona. The other dealt with a lawsuit filed by Dr. Jerrold Goldman, of Sun Valley, a retired physician, who alleges he lost sight in one eye after Graham performed cataract surgery in July 2000. All the information came from official documents of the three states? medical boards, and from depositions given by Graham that were filed in court papers by Goldman?s attorney.

Graham, 50, who?s also an optometrist, operates the Boston Eye Center in Ketchum.

The attorney for Goldman, Lee Schlender, opposed the change of venue motion, writing that Graham?s attorney had not cited any errors in the Express articles, had not produced any polls to show a lack of impartiality among potential jurors, and said information published by the Express is available to the public in court documents.

?The motion (to change venue) is therefore made in a vacuum, without any tangible evidence as to how Dr. Graham may be prejudiced,? Schlender wrote Thursday in his reply.

Subsequent to the surgery on Goldman, Graham?s Idaho license as an ophthalmologist was suspended last year for five years by the Idaho Board of Medi-cine for prescribing medications to persons he had not met or examined, but merely talked to on the telephone.

State medical boards in Arizona and Utah each also placed Graham on probation for a year after alleging the same practice of prescribing medicines in behalf of Internet pharmacies.

According to the Idaho and Arizona state boards, Graham received fees for issuing of a total of more than 20,000 prescriptions this way in Idaho and in Arizona to more than 6,000 patients in return for fees of about $25 each prescription.

Graham?s license as an optometrist is not affected by the disciplinary actions, which were imposed after Graham signed consent agreements but denying the allegations. His right to practice eye surgery in Arizona and Utah is not affected by the Idaho medical license suspension.

In seeking a change of venue to another county, attorney Hall asserted that Graham had been ?greatly prejudiced by these inflammatory (Express) articles published on the eve of the trial,? with ?the potential jury pool in Blaine County (being) irreparably tainted.?

Hall cited several court decisions as grounds for his motion.

He also said that simply asking potential jurors whether they had read the Express articles would jeopardize Graham?s defense.

?By the time questioning of the panel is completed,? Hall wrote in his motion, ?every juror will be tainted by these inflammatory, prejudicial and irrele-vant matters simply by virtue of listening to the questions that must be asked of the prospective jurors ? .?




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