The Classic Reaction

January 14, 1993

                A very lengthy trial ended today. 

The case involved a claim of Obstetrical negligence causing avoidable brain damage.  The child has cerebral palsy.

There were two different Obstetrician defendants each represented by his own attorney.  One rendered care to the mother during her pregnancy.  The claim against him was that he failed to take appropriate steps when the mother complained of decreased fetal movement.  The other was providing coverage for the first when the mother called to complain of an emergency; she had felt no fetal movement whatsoever for many hours.  He told her to meet him at the hospital, which she did.  He monitored the baby’s heart rate for three hours and ultimately delivered the baby by Cesarean section.  The claim against him was that he failed to recognize fetal distress and delayed the Cesarean section.

We started taking testimony in early December 1992.  My Obstetrical expert was on the witness stand on December 16, 1992.  The defense lawyer brought boxes of transcripts of his prior testimony into the courtroom on a hand truck.   He spent all afternoon using those transcripts for what trial lawyers call “collateral attack”.  In plain English, it means throwing dirt.  The lawyer is trying to discredit the witness using information which is not directly related to his testimony on direct examination, but which may show bias, prior bad acts or otherwise reflect poorly on credibility.

                The attack was withering, and by day’s end, he had not finished, meaning that the witness would have to come back another day.  When the Judge told that to the jury, they sent him a note.  They wanted to take a break for the Christmas and New Year’s holidays and come back in January to hear the rest of the case.

                The Judge read the note to me and the other two lawyers.  We conferred and decided it was best to accede to the jury’s request.  It was the luckiest thing that possibly could have happened to me.  My wife and I had scheduled a vacation with our son who was four years old at the time, to go to Disneyworld in Florida during that holiday season.  As the departure date neared and the trial was nowhere near completion, we made arrangements for my Mom to go in my place.  Thanks to the jury, I was able to travel with my family.  Sorry, Mom.

                The schedule was set; we would interrupt the trial until January 4.  On that day, today’s witness would return following which defense counsel would present their witnesses, followed by summations and charge.

                We were all amazed when the jury did in fact return.  Needless to say, my adversary had used the time well, and was armed to the teeth to conclude his cross examination.

                We were able to finish taking the testimony and complete the trial.  The summations ended yesterday afternoon.  The Judge charged the jury this morning.

                Shortly before 5 o’clock we were advised that the jury had reached a verdict.  The court clerk held a copy of the questions that the jury has been given to answer.  He asked the foreperson of the jury to rise and read the first question and asked “What is your answer?”  He proceeded in the same way until all of the necessary answers had been given.

                Today I enjoyed the biggest victory of my career to this point; the jury awarded my client $10 million dollars and they found both defendants 50% responsible.

                After the jury had been excused some routine legal matters were addressed.  The lawyers almost always shake hands and congratulate one another on a job well done.  Today was no exception.  At one point, the Judge observed to his law secretary aloud, “I believe this is the largest verdict we’ve ever had.”

                One of my adversaries (the guy with the hand truck) is a little bit of a wise guy.  Don’t get me wrong, he’s an extremely talented and very dangerous person to try a case against.  During the course of the trial, he and the attorney for the other doctor cooperated to the greatest extent possible, as is very common.

                Immediately upon hearing the Judge’s remark and without missing a beat, he turned to the other attorney and said “Congratulations!” Both were smiling broadly as they gave each other a hand shake from above their heads to below their waists.   

Out of Town Deposition

Monday, December 16, 1991

I was in my office when the senior partner came to the door.  I knew something was wrong, because he never came to my office.  My office was in a corner of our building facing the street.  His office was at the opposite end of the building.  It was on the other side of the building.  My office could not possibly be further away from his unless I was on another floor.  In fact, some years ago, when I returned to the firm after a brief hiatus working elsewhere, I was in a completely different building while construction was being done here.

Not only was it unprecedented for him to come to my office instead of summoning me to his, but he was standing just outside the office in the doorway, shifting uncomfortably from one foot to the other and avoiding making eye contact with me.

“David”. He said.

“Yes”?  I replied.

“There is a deposition on Friday on the such and such case in North Carolina.  Gil is on trial, so you have to do it”.

Yes.  Gil was on trial.  He was trying a case on behalf of a brain damaged child where the claim was Obstetrical negligence.  It was a file that had been stagnating while it was assigned to one of the other attorneys in the office.  Then it was reassigned to me.  I did the depositions and certified it as ready for trial.  Then it was assigned to Gil to try.  I may have felt a bit slighted.

I did have a problem.  My wife and I had purchased tickets nine months earlier for the biggest hit on Broadway, “Miss Saigon”.  The tickets were for Thursday night.  We were bringing her parents and my mother who we had purchased tickets for as their Chanukah gifts.

Also, the following Wednesday was Christmas.  We were planning to go to Vermont on Friday and stay until Christmas day.  We had a share of a house together with another couple.  We would bring my three year old son, they would bring their two year old daughter.  I don’t ski, so I would watch the kids while the other adults were at the mountain.

“I have plans with my family”, I said.

“Change them” was the reply.

I made some phone calls.  There was a very early morning flight to where I had to go.  The defense attorney agreed to move the deposition starting time from 10 am to 11 am so I could fly in that morning rather than the night before.  I would be able to attend the show with my family and still do the deposition.  He told me that he had spoken to Gil who said that it would only take an hour to do this deposition. 

Tuesday, December 17, 1991

The senior partner summoned me to his office. 

I sat across the desk from him.  He held up a sheaf of papers.  “I’ve prepared some questions for you to ask at the deposition” he said.  He was holding twelve typewritten pages of questions. 

I was stunned and hurt.  I had been working for him as an attorney since 1981 (minus 16 months between September 1984 and February 1986).  I was a law clerk in his office for a year and a half before being admitted to the bar.  I had deposed hundreds of witnesses in that time.  Even when I was completely green, doing my first deposition of a doctor, nobody had ever written out questions for me.  In fact, I was unaware of anybody ever having written out questions for anybody for any reason.  I was also angry.  If this deposition was going to be done with the benefit of a script, why was it necessary for me to go to North Carolina to do it?  Why couldn’t anybody capable of reading do it?  I expressed my consternation.

“I can’t believe you” he said.  “I’m trying to help you and you’re ungrateful”!

Well, I attended Miss Saigon with my family on Thursday night.

I was on an early flight to North Carolina the next morning.  I took a cab from the airport to the air force base where the doctor who had been a resident at the time of the alleged malpractice (in Ohio) was serving his commitment to the military in exchange for paying for his medical education.  I conducted the deposition using the “script”, but also asking follow up questions and generally putting forth my best effort, as I always tried to do.

By the time I had completed the questioning of the witness, the defense attorney and I were both late for the flight we were taking out of North Carolina which would take us to connecting flights – for him back to Ohio and for me back to La Guardia in New York.  Luckily for me, he had rented a car.  He offered me a ride to the airport.  When we got to the gate, I ran out to hold the plane while he returned the car.  That is literally what happened.  We just made the flight.  We parted when the plane landed, and I caught my flight back to New York.

It was about 10 pm Friday night when I got into my car in the short term parking lot.  From there, I headed for the house in Vermont where my wife and son and our friends already were.  When I arrived at the house shortly after 2 in the morning Saturday, the adults were waiting for me.

The next morning, we were all in the kitchen.  I was making breakfast for everybody.  At around 10 am the phone rang.  My brother-in-law was staying at our house watching the dog so we didn’t have to board her.  I answered the phone.  “Dave” he said.  “Your boss just called.  He wants you to call him at the office.  He sounded really angry.”

“Okay.  Thanks, Alan”.

I called the office and he answered the phone himself.

 “When were you going to report to me”? he asked. 

“What do you mean, report to you”?  I replied.  I was really puzzled now. 

“When were you going to tell me what happened at the EBT “?*

“I hadn’t really thought about it”, I said.  “I guess next week.”

“What do you mean”, he said.  “What about Monday?”

“Well, since we’re off Tuesday and Wednesday I thought I’d take Monday off.”

“Who gave you permission”? He demanded. 

“I didn’t think I needed permission to take one day off after all these years.”

“When were you going to report to me”?

“I don’t know” I said.  “I guess when I got back”.  Nobody had ever showed the least interest in hearing about a deposition I’d done before, not even when I tried to tell them.

“Back from where”? He asked. 

“Vermont”, I said. 

“I told you not to go”, he said.  He sounded really angry.

“I did the deposition”, I replied.  “I didn’t see any reason why I shouldn’t go”, I said. 

“You’re not being smart”, he said.  “I like smart attorneys working for me”.

Now I was fuming.  It was then and there that I made up my mind to look for another job and leave his firm for good.  I felt as though he believed he owned me and I couldn’t even have time with my family.

*(examination before trial – another term meaning deposition or pretrial testimony)

Captive Audience

A trial lawyer’s “performance” in the courtroom is unique among professional efforts in its ephemeral and unappreciated quality.  Ironically, every word that is uttered is transcribed verbatim, but unless there is an appeal, no one will ever read it.   It would be easier to get your friends and relatives to look at pictures of your vacation.

Months or even years of preparation may be invested into the trial of a case.  During the trial, a lawyer may forgo all other activities to be devoted body and soul to the effort, even to the point of losing sleep and weight.  Unlike an actor or musician, the result of that effort is witnessed by no more than a dozen people or so, and it is really only the six who ultimately make the decision that matter (which may often include one of the alternate jurors). 

Nobody volunteers to listen to a trial lawyer.  The Judge and the court staff are paid to be there.  The jurors receive a summons and appear under threat of legal penalty if they do not appear.  Yet once they are chosen, the jurors become imbued with the power to make a decision which will affect the lives of strangers and will have the force and effect of law.  Right or wrong, the decision they make will represent justice for the parties to that case.

From the beginning of voir dire (or more likely from the time it is first anticipated), until the verdict is returned and perhaps even longer, the trial lawyer is obsessed with the jury.

That’s not hard to understand.  In any given case our success or failure will be determined by the jury.  They are the sole source of any sense of approval or rejection.  During a trial, everything we do or say is conceived and executed for the sole purpose of persuading those six people that at the end of the case they should find in favor of our client.  Make no mistake; any effort to win a jury trial is synonymous with winning over the jury.

Unsurprisingly therefore, books have been written about how to select a jury.  People earn a living as “jury consultants” advising lawyers what questions to ask and which prospective jurors to accept or reject.  A substantial body of research has become available based upon the behavior and responses of “focus group” jurors and interviews of actual trial jurors in the immediate aftermath of their decision, all in an effort to aid an attorney in identifying and selecting jurors who may be more receptive to his client’s proof, and perhaps more importantly, identifying and excusing potential jurors who would be incapable of finding in favor of the client based upon life experiences, relationships or firmly held beliefs.

What an awesome responsibility it is that we thrust upon ordinary citizens.  If the process had no history, one might question the wisdom of such a method.  Yet it has been essentially unchanged since this country was founded, and for literally hundreds of years before that.

A famous author by the name of Anna Quindlen wrote an essay entitled “Duty?  Maybe it’s Really Self-help” about her own experience with jury duty[1].  The courtroom she says is “undoubtedly a place in which trust is put squarely in human beings” with all due respect to the inscription in most courtrooms that it is “In God We Trust”.

Those in whom this trust is reposed endure much; hours of waiting, tedious questioning (sometimes personal) to determine bias or interest, days or weeks of intense listening and the sacrifice of attendance at work and other activities.  At the end, they have a decision to make which may be difficult; there may be disagreements among them from which somehow a consensus must be reached.

Yet Ms. Quindlen’s perception is that “…service on a jury remains perhaps the only public service that, for all its shortcomings, its inconveniences, its impracticalities, still has the power to elevate an ordinary citizen.”

She also opined: “Serving well on a jury requires the highest level of human nature, the part that is thoughtful, intelligent, empathetic and fair.”

It is because of the sacrifice and the good intentions of every juror that a lawyer feels gratitude to those who served, even if they disagree with or are disappointed by their decision.

A lawyer should never blame the jury for an unwanted result; it should be viewed as a lesson – there was failure on the lawyer’s part to make things sufficiently clear or to provide all of the information the jurors needed, or perhaps an error in voir dire in allowing one or more people to serve who were too strong willed or adverse to the client’s interests, and sometimes, perhaps in taking the case to trial at all.

---

[1] Newsweek magazine, May 7, 2001

The Legal Pad Lady

May 1987

I represented a plaintiff at her examination before trial.  She was questioned by a nervous, inexperienced female attorney.

I knew I was in trouble when she set herself up across the table from us with no fewer than 5 different legal pads.  The questioning was tedious, as it always is.  A discovery deposition is different than trial testimony in several ways.  Rather than try to focus on the main point of the case, it is an opportunity to ask a wide range of questions in a search for information that might be helpful to your side later on.  There is no jury to be disgusted by the personal or offensive nature of a question.  There is no Judge present to rule on objections, so you either allow the witness to answer or face the possibility that your objection will be overruled at a later date and your client required to reappear to answer questions not previously answered.

I think some lawyers conduct these depositions as if they live in dread of being criticized for leaving a particular question unasked, and so they keep going until they have simply exhausted their imagination and cannot think of another question to ask.

This attorney could not ask a question without referring to one of her legal pads.  All of her questions were written out, but she was constantly switching from one pad to another.  She would then flip the pages of the pad looking for questions she did not remember asking.

Towards the end of the day I began to become extremely upset and impatient.  I began to behave badly.  When there were pauses of several minutes between questions, I started threatening to terminate the deposition unless she asked another question.  I repeatedly asked her during the pauses if she had any further questions.

What had been an ordeal for my client and I had now become an ordeal for her.  By the end of the deposition, she had to take a break because she had begun to weep.  I was not sympathetic. 

Flashback:  April 1982

The first time I met the girl I married was when she showed up as a freelance court reporter sent to take the testimony of a witness I was questioning in Brooklyn. 

The deposition went a little late.  She happened to mention (and I believed I detected a note of annoyance in her voice) that she had missed her train to Eastern Long Island.  I offered her a lift.  She replied (in what I interpreted as an unnecessarily scornful way) that I could not give her a lift because it was too far out of my way.  I told her I didn’t mind.  She refused again.  The defense lawyer razzed me in a juvenile, locker room way about being rejected unceremoniously.  His exact words may have been "Oh!  Snagged".

December 1987

I threw a surprise party for my wife on the occasion of her 30^th birthday.  She was very surprised when we walked into the house and it was filled with our friends yelling "Happy Birthday!" at her.  But by far the bigger surprise was that I had successfully planned and executed a party without help and successfully kept a secret.

The following week she was at an office in Manhattan to work on a case with a woman attorney she had become friendly with.  While they were waiting for the other attorneys to show up she began showing her pictures which had been taken at the party. 

At that moment, one of the defense attorneys – a woman – entered the room.  “Pictures!”  she exclaimed.  “I love pictures.  Can I see”? 

After looking at a couple of pictures, she came to one of my wife and I seated together on my recliner.  “Is that your husband”?   She gasped.  “I hate him!”

“Well I don’t” said my wife indignantly.

She told me the story when she got home.  It had been the legal pad lady.

Lesson Number One for Trial Lawyers

Tell me a fact and I'll learn. Tell me a truth and I'll believe. Tell me a story and it will live in my heart forever.   Indian Proverb

You could write a book about the things they don’t teach you in law school.  Once you begin working in a legal practice as a law clerk, and later as a lawyer, you learn more.  Trying cases to a jury is a whole other story.  The education never ends.  You never know it all.  There is at least one lesson in every case.

My first trial was in Federal Court.   It was toward the end of 1981, my first year in practice.

James A worked for the Federal Reserve Bank in New York City as a Bank Examiner.  He would occasionally travel out of town to conduct audits of banks.  In December 1978 He was doing exactly that in Rochester New York.

            One of the senior bank examiners that he worked with was retiring.  On Saturday evening, there was a retirement party being given for him at a floating restaurant known as the Robert Fulton which was located where the South Street Seaport is now.

            James returned to the City for the weekend so he could attend the retirement party for his friend.  The bank had a facility near the restaurant where he was able to place his luggage in a locker during the party.  This was not the same location where James’ office was.

            During the evening, James became very drunk.  So much so, that a security guard was called to remove him from the restaurant.  Unknown to any of the partygoers, and certainly unknown to James, the guard on duty that evening had a criminal record for violent crime.  He handcuffed James behind his back and removed him from the restaurant.  Tragically, he also took the opportunity to beat James about the head and face.  While James was attempting to escape, he fell off of the dock and into the river.   By the time he was pulled from the water, his life was over.

            The bank provided its employees with a policy of travel accident life insurance.  The policy provided that the coverage was in effect when an employee traveled on the business of the bank including any sojourns, until the employee returned to his or her regular place of employment.  The benefit was $45,000.00.

            The insurance company denied coverage on two grounds; first, that James had returned to New York, and second, that this death resulted from his own unlawful conduct.

            I became involved in the case before I was admitted to practice while I was a law clerk at the law firm I was working for.  The senior associate gave me the assignment of making a motion for summary judgment based upon the policy.  Even if we won, we would still need a trial on the second cause of action which alleged fraudulent conduct on the part of the insurer and sought punitive damages.

            The motion was denied.  By the time the case was reached for trial, I had been admitted to practice.  I suppose in retrospect that the firm did not have great hopes for the punitive damages cause of action.  Since the value of the case was limited by the policy amount, and since I was familiar with the file based on having prepared the motion papers, I was assigned to try the case.

            There really was no contest on the punitive damages part of the case.  James’ brother, George worked in the insurance business.  He was the only witness called to support the claim of fraud.  In New York, to recover punitive damages, you must prove not only that the defendant defrauded you, but that the conduct was part of a larger scheme to defraud the public at large.

            As for the claim on the policy, we really should have won the motion for summary judgment.  The party who drafts a contract will have ambiguities interpreted against their interests.  James had not returned to the building where his office was, so there really was no question of fact – he was on a sojourn during business travel and the coverage applied.

            The jury – which was basically selected by the Judge (because we were in Federal Court) – found in our favor on the policy and against us on the punitive damages claim.

            The hours of waiting for the jury’s verdict are tense.  You cannot read.  You cannot concentrate on work or puzzles or much of anything.  If you are lucky enough to be in a courthouse where you know people, you can pass the time in idle chatter.  You might stop into another courtroom to observe what’s going on, but you also don’t want to be unavailable if the jury has a question or a verdict.  You don’t feel like eating.  So you pace. 

While our jury was deliberating, George and I were pacing together in the Courthouse halls.  He was a very nice guy and my only companion during the trial.  He was very complimentary while we were waiting, and I know he meant no offense, but shortly before the jury announced their verdict, he revealed to me his philosophy for finding good legal representation.  “I always said, if you want a good lawyer, find yourself a hungry Jew.”

            It was jolting at first.  Fortunately, there have been very few times in my sheltered life that I was aware of somebody perceiving me as a “Jew”, let alone mentioning it to my face.  In his mind he was paying me a compliment much like Archie Bunker boasting about his lawyers; "Rabinowitz, Rabinowitz and Rabinowitz – the Killer Jews."  

            After the trial, I was briefly congratulated by the senior partner in the firm.  He told me that I had done a good job then added “All of the great trial lawyers lose their first case”.  Now you tell me?!. 

            Oh well, if you want to be a trial lawyer, you’ve got to have a thick skin.   Lesson learned.

I've Never Lost A Malpractice Case

January 31, 1990

Today I took a verdict in Supreme Court, Queens County.  The case involved a claim of obstetrical negligence.  It has been a very difficult trial.  The Judge didn’t like me or the case.  My adversary was much more experienced than I, and much more physically imposing.  I am about 5’8”; he is well over 6 feet tall and fairly heavy.  He was a little on the arrogant side and was the type who did not hesitate to avail himself of any opportunity to take advantage of a situation whether fair or not.

The Judge had inquired about the possibility of settlement before we opened to the jury.   I had been instructed that I could settle the case in the range of $350,000 to $500,000.  When the Judge asked what our demand was, I told him exactly that.  He then asked defense counsel if there was any offer.  There was not.  He told him to call the insurance company and get $250,000 and the case would be settled.  I told him that I did not have that authority, but he was already angry and didn’t care.

I realized afterwards that a demand of the amount I gave him was as good as telling him that it was not a case.  Nobody would settle a truly meritorious case involving brain damage to an infant for such an amount if there was a realistic chance of winning.

When defense counsel returned and informed the Judge that they would not make an offer, he nearly spat at me.  “Counsel!  They won’t even pay $250,000 for this case.”  “I know,” I said.   “Your honor, I am prepared to proceed.”

The Judge was apparently an officer in the State National Guard reserves.  Every morning when he entered the courtroom, the court officer stood at attention saluting the Judge.  Once the Judge ascended the bench, he would face the officer, return the salute and seat himself.

There were quite a number of incidents during the trial which reflected the Judge’s attitude toward me and my case, which I won’t get into now.  Suffice it to say that at one point, I found myself at the top of the courthouse steps in the morning, holding a trial bag in either hand, and literally had to force myself to go through the door to enter the courthouse and be subjected to the unpleasant treatment that was occurring on a day to day basis.

First thing this morning we gave our summations, and the Judge charged the jury.  They got the case right before lunch.  When we came back from lunch about an hour and a half later, there was a note requesting the direct testimony of plaintiff’s pediatric neurology expert.

The Judge called both lawyers to the bench to disclose the contents of the note.  He then asked defense counsel if he wanted to make a telephone call.  “No, Judge.”  The Judge said, “If I were the defense attorney and the jury asked for the direct testimony of plaintiff’s expert neurologist, I would run, not walk to the phones”.

“Judge,” he said.  I’m sure they’re just convincing one holdout.  I’ve never lost a malpractice case.”

It took a while for the testimony to be read back to the jury.  Just about two hours later, we received word that they had a verdict.  It seemed awfully fast, and I was not anxious to hear what it was.

The defendant doctor was sitting in the back of the courtroom when the jury filed in.  In response to the question whether the defendant departed from accepted standards of care, they answered “Yes.”  The defendant doctor let out a yell and bolted from the courtroom.  In response to the question whether the departure was a proximate cause of injury to the child, they again answered “Yes.”  Finally, they were asked the amount of damages they awarded.  I can’t tell you what the breakdown was between past and future damages.  All I can tell you is the total award was for $5 million dollars.  I had never had a case where the amount even nearly approximated a million dollars before.

I left the courthouse in shock.  All I could think of was how easily the answer could have been “No,” despite the fact that I would have expended the same amount of time and effort.

I did have one other thought – my adversary would never be able to repeat his claim to the Judge.

Plaintiff's Verdict - Nassau County

November 23, 2010

I took a jury verdict today in Nassau County Supreme Court.

Included below are redacted images from a PowerPoint presentation used during my summation.

The case involved a colonoscopy performed on November 18, 2005.  My client needed the procedure because he had a family history of colon cancer, a personal history of having a precancerous polyp removed from his colon, and a personal history of inflammatory bowel disease which increases his risk for colon cancer.

It was clearly documented in the record and the procedure room log that the procedure was done early in the morning and complete just a few minutes after 8am.  Normal vital signs were recorded in the recovery room at 8:15, 8:30 and 8:45.  The recovery room nurse checked off that he met all of the criteria for discharge.  There were no recorded complaints. 

He went home at 9:10am and around 3:30 he called the doctor who did the procedure (who was home at the time and returned a message to his answering service) and complained that he felt weak, washed out and felt as if he was having a stroke.

At 8:40 pm, an ambulance was called by a 9-1-1 dispatcher, and he arrived at the hospital nearest his home by 9pm.  A CT scan showed large amounts of blood in his abdomen.  He was taken to the operating room shortly after 11 pm.  His spleen was completely ruptured and out of its capsule and there were over two liters of clotted blood.  His blood pressure was 60/0!

The defense argued that there was no unusual trauma during the procedure.  It was their position that due to the fact that the patient had a splenic hematoma following a colonoscopy in 1999 by a different physician, “there must be something about” him that made him more susceptible to this rare complication.  They also suggested that it may have happened due to adhesions (scarring) which would decrease the mobility of the spleen and the bowel.  They claimed that the adhesions may have formed due to inflammation from Crohn’s disease which crosses the bowel wall.  They claimed that long term steroid usage (for an unrelated medical condition) may have caused a dysfunction of his platelets that made him bruise easily.

The medical records in evidence contained a report from a hematologist who saw him in 2001 to assess why he had the 1999 splenic hematoma.  The impression was a “probable” qualitative platelet disorder, meaning he had a problem clotting.  The defense argued that he therefore had a propensity to bruise or bleed easily and that this might explain the ruptures of his spleen.

There was not one single other medical record or note suggesting a bleeding problem or bruising.  The patient had undergone 9 colonoscopies, a flexible sigmoidoscopy and numerous upper endoscopies with biopsies on almost every one of those occasions and multiple biopsies on many of them, without ever having a bleeding complication.

The defendant himself had written a report to the primary care physician after his first evaluation of the patient in which he stated that the 1999 splenic hematoma had been due to “probable colonoscopic trauma”.

A report by his current gastroenterologist indicated that the patient had asked him what caused the 1999 splenic hematoma and he told him it was most likely an anatomic abnormality (meaning adhesions).

A surgeon who evaluated the patient for the hematoma reported in July 2000 that it had resolved to the point where it was a benign cyst which would appear on future CT scans, but would have no clinical significance.

The defendant testified at his examination before trial that before he performed his first colonoscopy in 2002 the hematoma had “completely resolved”.

The jury was also aware that the defendant had performed colonoscopy on this patient on two prior occasions; December 2002 and January 2005.  The goal of colonoscopy they were told, is to visualize the entire colon from the anus to the cecum and if possible to visualize the terminal ileum. 

The defendant had failed to pass the colonoscope beyond the hepatic flexure during either of his first two procedures.  In spite of this, his November report indicated that he saw polyps in the ascending colon “which were unchanged from the previous colonoscopy”.  At trial, he claimed the report was erroneous even though he had testified at his examination before trial that there were no corrections or additions to be made to that report.

Even though his report described visualizing the ascending colon, he did not take photographs of the cecum or any of the relevant landmarks documenting that he had performed a successful colonoscopy (reached the cecum).

In the end, the jury believed that there was no evidence that any of the alternative causes of the injury to the spleen were supported by the evidence.  

The jury found that the defendant doctor performed the colonoscopy in a traumatic manner that departed from accepted standards of care which caused the otherwise unnecessary surgery to remove the spleen, the near death experience and an increased susceptibility to infection due to loss of the spleen and two incisional hernias.  The hernias have not been operated upon because he is diabetic, on long term prednisone which suppresses his immune system and has no spleen.  He therefore wears an abdominal binder to prevent the hernias from strangulating which could lead to a surgical emergency and even death.

The defendants also argued that the damages were minimal due to the fact that the plaintiff was already debilitated by as many as 20 pre-existing conditions.

The award of damages included $250,000.00 for pain and suffering from November 18, 2005 until the date of the verdict, and $250,000.00 for pain and suffering from the date of the verdict for the rest of the plaintiff’s life, which the jury estimated will be another 7 years; 7 years less than the statistical average.

Justice Is Blind (and sometimes dozes)

March 2, 1992

-         Author’s note:  This week’s story describes another incident from the same trial as last week’s entry, but which took place one week earlier.

Today, I called our Obstetrical expert to the stand and I conducted his direct examination.  One aspect of the case deals with interpretation of tracings of the fetal heart rate patterns made by electronic fetal monitors connected to the mother during labor. 

Here is an example of what these tracings look like:

 

When the tracings come out of the machine, they are continuous.  When copies are made for the parties to a lawsuit, the copies are made on normal 8.5 x 11 inch paper, meaning that each segment is no bigger than that.  In order to give the jury a sense of the continuity of the tracing over time, I taped the segments end to end and posted them on large boards displayed on two side by side easels in the Courtroom.  I then asked the expert to stand next to the easels and interpret the tracings for the jury.

            The Judge’s bench is centered in the Courtroom.  The jury box is against the wall on his left side.  Our Judge has a habit of sitting with his back to the Jury and listening to the evidence with his eyes closed.  Whenever an objection is made, all eyes turn to the Judge, who then swivels around in his chair and makes his ruling.

            Apparently, today, he found the interpretation of the tracings to be a little tedious.  As I was questioning the witness, my adversary raised an objection on the ground that I was characterizing the witness’s testimony.  All eyes turned to the Judge for his ruling.  The Judge did not move or speak.  My adversary gleefully commented that it was an eloquent commentary on my exciting presentation.  There was a fair amount of laughter in response, which appeared to startle the Judge, who then opened his eyes and turned around.

            My adversary was kind enough to explain to the Judge why he had objected.  Although it was clear that he had not heard the question at issue, the Judge sustained the objection. 

            The exchange was memorialized to the best of the Court Stenographer’s ability as follows;

Q. Okay. You have next mentioned that some of these decelerations look like variable decelerations?

A.    Correct.

Q. And some of them you said you can't tell what it is. Why can't --

MR. [Defense attorney]: I am going to object to counsel's characterization of the testimony, with something as significant as these tracings, Judge.

I will withdraw my objection.

Judge, did you hear what I said?

THE COURT: Not exactly.

MR. [Defense attorney]: Well, this is eloquent commentary on how exciting Mr. Pollack is this afternoon.

THE COURT: I just heard you say you had withdrawn your objection.

MR. [Defense attorney]: I am going to object to counsel characterizing what the doctor said. The doctor can describe what he saw.

THE COURT: Yes, let's get the answer from the witness.

I am sure that I am not the first trial lawyer to have a Judge rule against him in his sleep.  I look forward to the day when a sleeping Judge rules in my favor.

Falling Off The Roof

March 10, 1992

Sometimes, your adversaries give you a gift. 

Today, they called a witness who performed a “psycho-educational” evaluation on my client who is claiming to have sustained a brain injury at birth due to negligence of the doctor who delivered her.

            The witness, on direct examination described herself as a “reading specialist and learning consultant”.  After eliciting that fact, my adversary (and the Court) had a very odd and eventually prophetic exchange with the witness):

Q         Sit back and relax. Have you ever done this before; have you ever testified?

A         No, I never have.

Q         It's just like falling off the roof of a building; it's very easy, just relax.

THE COURT: Except when you land.

            The defense position in the case was that there had been no negligence in the care rendered.  The child had a condition known as congenital ocular motor apraxia – an abnormality in the muscles controlling eye movements.  The defense was that the child’s intellectual difficulties were most likely due to the same unknown cause as this condition, and exacerbated by it. 

            On direct examination she described the educational tests she administered and the results.  Her conclusion was that with remedial assistance of the type provided by someone in her profession, the child should be able to improve substantially by the end of her educational career.  She also advised the jury that the school system was required by federal law to provide special assistance to the child during her school years.

            She immediately conceded on cross examination that she did not have a doctorate degree, was not licensed in psychology, and therefore was not qualified to administer standard intelligence tests.  In response to my initial question about her employment she said she is “currently self-employed”.  It turned out on further questioning however, that she had been “self-employed” for the entire twenty years, with only an occasional part time job for a school district.  It was also revealed that she was introduced to the defense law firm by a neighbor who is a pediatric neurologist who frequently appeared in Court as a defense expert.

            Review of the test books she used with my client revealed mathematical errors on her part in the scoring of the exams as well as erasures.  She admitted that she did not apply the time limits on one test which resulted in a higher score than would otherwise be the case.  None of the tests she used were the current version, meaning that revised versions were available.  With all of that, the child tested in the normal range on only one test – which involved testing vocabulary based upon picture recognition.  She used the 1959 edition of that test – in 1989!  She also revealed that she had not seen any of the child’s school records until 2 days before her appearance in Court.  The school records included testing administered by people with doctorate degrees in education using the current versions of the tests with results showing the child functioning at a significantly lower level than her test results did.

            In addition to all of that, my client, the child’s mother approached me during a break to tell me that the witness was repeatedly looking over to the defense lawyer and that there was silent communication going on between them during my questioning.  I did not believe it; I had and still have a very high opinion of the lawyer who defended that case.  But I decided after the break to stand next to the jury box so that the witness would have to look to her left (away from where defense counsel was seated) to see me.

            Once it had been brought to my attention, I noticed the witness looking away from me and the jury on several occasions.  Here is an excerpt of the transcript which reflects what occurred when I brought it up:

            Q         Do you think that Justine has multiple handicaps?

A         Justine has many problems.

Q         And do you think that her problems interact with one another and impact on her overall function?

A         That's possible.

Q         You say it's possible. You evaluated her, didn't you?

A         Yes, I did evaluate her.

Q         You keep looking over there.

A         No, I'm sorry; I’m not trying to be coached, if that's what you think.

Q         I wasn't suggesting that, I just notice that you keep looking over there.

A         Yes, I did evaluate her.

Q         And in your evaluation, did the different handicaps that she has interact with one another and impact on her overall function?

A         Yes

            The witness conceded that it was not acceptable in her profession to draw conclusions based upon the results of a single test which evaluates only an isolated area of function.  However, as we went through her report for the conclusion of my cross examination, it was clear that based upon her own tests, the child’s function was below normal in every category except the picture recognition test.  At that crucial point, in the conclusion of the questioning, here is another excerpt from the trial transcript:

Q         Did you?

A         It says, "However, considering that her receptive language abilities are intact" shall I go on?

Q         Yes.

A         "It is likely that Justine's reading and math could be brought to grade level and that her fine motor skills could be significantly strengthened by intensive prescriptive individualized instruction from a reading specialist or learning disabilities teacher".

Q         Isn't that what I read?

MR. [Defense lawyer]:     I’ll object, Judge.

Q         Why are you looking at Mr. [Defense lawyer]?

A         I don't know. I’m not looking at him for any reason.

Q         What that sentence means, Mrs. [witness], is that based upon this finding of what you described as intact receptive language abilities, all of this other, all of these other problems can be corrected, correct?

A         The math --

THE COURT: Is that what it means?

THE WITNESS:         Yes. The math and reading, I didn't say all these other problems.

Q         You said that it was likely that "reading and math could be brought to grade level, correct"?

A         Right.

Q         You said, "Fine motor skills could be significantly strengthened"?

A         Right.

Q         So, you're saying that these problems can be resolved because you found intact receptive language, right?

A         I found intact receptive language through the tests that I administered to Justine.

Q         Would you tell me where in this report, where you comment on the receptive language, other than in connection with the Peabody Test?

A         Not in that report, but as I explained to you before, the Slingerland, the - -

Q         I’m asking about the report. Where in the report do you describe anything about receptive language abilities, other than in connection with Peabody?

A         I do not. 

            I never realized that I miss so much of what goes on in the Courtroom.  From now on, I will ask my clients to be observant and to report to me any reactions they perceive on the part of jurors, witnesses or even the judge while I am questioning and perhaps too focused to notice.