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3d Reggie Lewis lawsuit sought

Appeals Court asked to allow another trial

Ten years after Celtics star Reggie Lewis collapsed and died of a heart ailment, his widow renewed her case yesterday against the cardiologist whose negligence, she argues, caused her husband's death.

A lawyer for Donna Harris-Lewis argued to a panel of state Appeals Court judges that she should get a third chance at convincing a jury that Dr. Gilbert H. Mudge Jr. committed medical malpractice in treating her husband. The lawyer, Pamela Harris-Daley, argued that jurors in the second trial, who ruled in favor of Mudge, were prejudiced by testimony about Lewis's alleged cocaine use and about insurance money Harris-Lewis received after her husband died.

Lewis was shooting baskets in a Brandeis University gym on July 27, 1993, when he collapsed and died. Harris-Lewis sued, arguing that Mudge had failed to diagnose a lethal heart condition.

The first jury to hear Harris-Lewis's case deadlocked in 1999, and the judge declared a mistrial. In the second case the following year, a jury decided 13-3 that Mudge was not to blame for Lewis's death.

Yesterday, Harris-Daley told the justices that her client should get a chance at a trial without the "incredibly prejudicial evidence." Although the trial judge told jurors that they could not consider testimony about Lewis's alleged drug use as evidence, Harris-Daley argued that the instruction was insufficient. "It's too much to forget," she said.

Harris-Daley argued that the judge should have granted a mistrial. But Appeals Court Justice William I. Cowin asked whether she had grounds for an appeal on that issue when Harris-Lewis's trial lawyer, Neil Rossman, didn't request a mistrial at the time.

Harris-Daley responded that there are other grounds for ordering a new trial and that her client should not be denied an appeal because of the actions of her trial lawyer.

But Mudge's lawyer, William J. Dailey Jr., argued yesterday that the case should be put to rest. A lower court judge who allowed Harris-Lewis's appeal to go forward did not have the authority to make such an order, Dailey argued.

He also argued that the trial evidence, without the testimony the jurors were instructed to ignore, supported the jurors' decision. And, Dailey pointed out, Rossman acknowledged after the verdict that the trial had been fair.

During the trial, Mudge's lawyers argued that Lewis had disobeyed his doctor's recommendations by failing to take medication and by exercising strenuously. Mudge said he could not accurately diagnose Lewis's condition because the basketball player did not admit that he used cocaine until two weeks before his death.

No one disputes the complexities of the case, which has a 10,000-page appendix. "It is clear that this case is probably one of the most complicated, expensive, and time-consuming litigations this state has ever seen," Harris-Daley told the justices.

The appeal has been working its way through the legal system since 2000. The trial judge first dismissed Harris-Lewis's appeal of the jury verdict in favor of Mudge after she missed a filing deadline. But after Harris-Lewis, represented by a new team of lawyers, asked that the case be reopened, Superior Court Judge Thayer Fremont-Smith agreed.

But the judge wrote in his decision that he could find "no legal merit" in Harris-Lewis's grounds for appeal.

Health concerns about Lewis, a National Basketball Association all-star, began after he fainted in Boston Garden during a playoff game in April 1993. The following day, he checked into New England Baptist Hospital, where he underwent tests and was examined by a team of doctors. They concluded that Lewis suffered from a serious heart ailment that threatened his basketball career.

However, the Celtics player checked himself out of the hospital against doctors' orders and transferred to Brigham and Women's Hospital, where he was treated by Mudge. The new doctor concluded that Lewis had only a benign fainting disorder and could continue his basketball career.

While playing basketball at Brandeis 11 weeks later, Lewis collapsed and died. An autopsy found no evidence of drugs in his system, and his death certificate listed adenovirus, a relatively minor infection, as the cause of scarring in his heart.

Harris-Lewis, who was pregnant and had a 1-year-old son when Lewis died, attended the arguments yesterday but declined to speak about the case.

But her lawyer said Harris-Lewis was pressing forward to clear her husband's name. "We've been very eager for this day," Harris-Daley said.

Kathleen Burge can be reached at kburge@globe.com.

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