The Bag of Jelly

             
I recently completed a trial in Bronx County.  The trial was characterized by a great deal of acrimony between defense counsel and me, and between me and the court.  Several of the incidents were so humorous that I decided to recount them here.

The first story is so improbable that if I hadn’t witnessed it myself – if someone told me about it; I don’t think I would believe it.  Therefore, rather than tell the story I am simply providing a short narrative to give context to the verbatim transcription of what took place in the courtroom by the court stenographer.

            The case involved a claim that a doctor had delayed the diagnosis of a GIST (gastrointestinal stromal tumor).  The doctor’s records included notes on an almost monthly basis starting in September 2001 up through March 26, 2002 which reflected that he felt something when he examined the surface of the patient’s abdomen which he described initially as a “fullness” and later as a mass.  On each occasion, the finding was followed by a notation that the patient had been advised to go for a gastrointestinal workup including abdominal CT or sonogram and that she refused to do so.

            Two days after the last visit the patient was seen by a surgeon who similarly examined the surface of the abdomen and documented a finding of a mass measuring 10 inches by 10 inches.  I had questioned the defendant about the fact that he had never documented any measurement of the mass or any increase in its size.  (At some point testimony was adduced that this type of tumor has a gelatinous consistency.)  On cross examination by his own attorney, the following is what transpired:

            DEFENSE COUNSEL:  I would ask that this white bag be marked as the next Defendant’s Exhibit, it is a bag of jelly, as Defendant’s “D” I think we’re up to.

            THE COURT:  Counsel?

            MR. POLLACK:  I haven’t seen it, Judge.

            THE COURT:  Okay.  Mark it as Exhibit “D” for identification.

            (Whereupon, the item referred to was received and marked Defendant’s Exhibit “D” for identification.)

Q.        Dr. Defendant, I would ask that you come off the witness stand.

            (Whereupon, the witness exits the stand.)

Q.        I want you to stand in front of the jury and I want you to look at the jury and I want you to put your hands behind your back, still looking at the jury, and I want you to touch this exhibit with your palm, and then Iwant you to tell the jury how big it is, what are the dimensions?  Touch the top of it, not the sides, just the top.  Can you tell me what the dimensions are?

A.        No.

Q.        Would you resume a seat on the witness stand.

            (Whereupon, the witness takes the stand.)

During summation I picked up “Exhibit D”.  I told the jury that I considered it to be symbolic of the “quality” of the evidence submitted by the defense.  I then re-enacted the scene recounted above by the court stenographer’s transcription to remind the jurors of what they had seen and I told them that it was the most ridiculous display I had witnessed in any courtroom in thirty years – a comment to which defense counsel objected.  The objection was sustained.  ( I can only assume the court had seen more ridiculous displays).

            At one point I was questioning the defendant about his notations indicating the patient’s refusal to follow his advice regarding the “finding” he made in her abdomen.
Q.        Did she get a sonogram in Jamaica?

A.        She got a sonogram in Jamaica.

Q.        Did it show the mass?

A.        It showed the mass.

Q.        And you say that for five months she was refusing your suggestion to have either a sonogram or a CAT Scan?

A.        That’s correct.

Q.        Did you ask her how come you refused to do it while you told her to and then you go and do it in Jamaica?  Did you ask her that?

A.        It was an inappropriate question.

Q.        You weren’t curious?

A.        She was now worried about the findings and I’m not going to make her feel any worse.

Q.        This patient that kept coming back to you since 1987,who you told us you had a good relationship with and she trusted you, you didn’t want to know why she refused your advice for five months and then did the same thing somewhere else?

A.        I did not want to offend her even more.

Q.        She wasn’t offended by being told it’s all in her head, was she?

            MR. DEFENSE LAWYER:  Objection.

            THE COURT:  Doctor, do you know whether they have nationalized health care in Jamaica?

            MR. POLLACK:  Judge, please, what are you doing?

            THE COURT:  Asking a question.

            MR. DEFENSE LAWYER:  Objection.

            THE COURT:  It might be a whole different system.  I don’t know.

            THE WITNESS:  I’m not aware.

            THE COURT:  Okay.

Q.        You are not an expert on the medical system, medical delivery system in Jamaica?

A.        No, I’m not.

            THE COURT:  But it wouldn’t have been HIP, would it?

Q.        Maybe she paid out of her own pocket, do you know if she did that, Doctor?

A.        I don’t know.

Q.        She refused to have a test that would have been covered when you suggested it, but she went to Jamaica and paid out of her own pocket, is that what you think happened?

            THE COURT:  We don’t know whether she paid out of her own pocket.

Here are a few other humorous examples of incidents which took place between myself, the court and defense counsel:

Q.        So, this is a false medical record, is what you are telling us?

            MR. DEFENSE LAWYER:  Objection.

            THE COURT:  I’m sorry, I was talking to my law secretary.

            MR. POLLACK:  I know, but I would have waited if I realized that.  I guess you want to hear the question again.

            THE COURT:  Okay.

            (Whereupon, the Court Reporter read back what was requested.)

            THE COURT:  If that’s your question?

            MR. POLLACK:  There was an objection.

MR. DEFENSE LAWYER:  Yes, there was an objection.

THE COURT:  And what was the primary answer?

MR. POLLACK:  He says the nurse writes down anything she wants even if that’s not so.

MR. DEFENSE LAWYER:  Objection, that’s not what he said.

Q.        Doctor, you are telling us - -

THE COURT:  Doctor, why don’t you explain the situation?

MR. POLLACK:  Judge, please.

THE COURT:  Excuse me.

MR. POLLACK:  This is in the nature of cross-examination, he’s an adverse party.  Ciaccio versus Houseman gives me the right to a cross-examination.

THE COURT:  Yes, Counsel.

MR. POLLACK:  So, can I ask my own questions and not have the Doctor explaining things.  He can do that when his attorney is questioning him.

THE COURT:  Oh, thank you Counsel.  Maybe we should just break for the day and get back together in the morning.

MR. POLLACK:  That’s up to you, Judge.  You wear the robe.

THE COURT:  No, it’s up to you whether you want to stop being spleenish or not.

MR. POLLACK:  I’m not squeamish.

THE COURT:  Spleenish.

MR. POLLACK:  I don’t have a spleen.

THE COURT:  I’m sorry if that’s the case.

MR. POLLACK:  Can I continue my examination?

THE COURT:  Yes, if you can get over your animosity, because, I have no animosity whatsoever towards you.

Q.        Doctor, are you telling us that the information recorded on this document that’s part of your medical records, that says that this patient had left quadrant abdominal pain is incorrect?

A.        Yes, it is in a certain sense.

Cross-examination of defendant by his attorney:

Q.        If the patient’s complaint of gas was due to a tumor displacing or pressing against the colon, the large bowel, would Pamine give her any relief?

            MR. POLLACK:  Objection.  Asked and answered.

A.    No

MR. POLLACK:  He’s signaling him to answer in spite of the objection.

MR. DEFENSE LAWYER:  Yes, I am.

MR. POLLACK:  And he is answering while you are trying to make a decision.  I’d like the answer stricken or a ruling on the objection.

THE COURT:  (Holding up a wooden gavel in one hand)  Let me instruct you on the purpose of a gavel.

MR. POLLACK:  As long as you don’t throw it at me.

MR. DEFENSE LAWYER:  Throw it at him.

THE COURT:  It gives a shock to everyone’s adrenal system, it gives you such a shock reaction.

MR. POLLACK:  Is that what it is?

THE COURT:  It really stops everyone in their tracks.  I don’t like using it.

MR. POLLACK:  I’d like a ruling without giving and signaling the answer before you gave your ruling.

THE COURT:  I gave a ruling, but you were talking during it.

MR. POLLACK:  He signaled the witness to answer while I made my objection before you ruled, and I didn’t hear your ruling.

MR. DEFENSE LAWYER:  Can we have the question read back?

THE COURT:  Can we strike this whole little bit of colloquy.

MR. DEFENSE LAWYER:  Yes.

THE COURT:  So stricken.  Let’s go back.

MR. POLLACK:  I want it on the record for a review.

Redirect examination

Q.  And the very first time that you ever saw this patient in May of 1987 you have anote about a sonogram being negative, do you remember that?

A.  Yes.

Q.  How  did you know she had a negative sonogram in May of 1987?

A.  I got a report from Dr. Prager.

Q.  Where is it?

MR. DEFENSE LAWYER:     Objection.  It assumes a fact.

THE COURT:  I don’t know if he would have kept the report.  I’m not sure - -

MR. POLLACK:  Then he can answer my question and we will know.

THE COURT:  No.  You would have to ask another question first.

Q.  Was it a written report or a verbal report?

THE COURT:  Or was it a report the patient had and he gave back to her?

MR. POLLACK:            Judge, why are you suggesting an answer to a witness?  This is so improper.  I can’t believe it.  (The Court bangs her gavel on her desk.)  You know what?  I can do that too.  (Plaintiff’s counsel bangs his fist on the table.)

THE COURT:  Good.  Then we will break for the day.  See you in the morning.  Ten o’clock, please.

The Buggy Whip Business

Henny Youngman had a joke that went something like this:

        A man calls a lawyer's office. The phone is answered, "Schwartz, Schwartz, Schwartz and Schwartz." The man says, "Let me talk to Mr. Schwartz." "I'm sorry, he's on vacation." "Then let me talk to Mr. Schwartz." "He's on a big case, not available for a week." "Then let me talk to Mr. Schwartz." "He's playing golf today." "Okay, then, let me talk to Mr. Schwartz." "Speaking."
       In January of 1986 I had a job interview in an office where two of the partners were father and son.  I was interviewed by the son (older than I was at the time by at least 20 years).  I was led into his empty office and left alone there to admire the many diplomas on his “vanity wall” and all of the other interesting souvenirs of a storied legal career.  I was well acquainted with this technique, as I had been routinely instructed to lead clients into the office of one of the partners in the first firm I worked for and leave them alone there to absorb the evidence of what a great man they were about to meet.  That office belonged to a man who had been a physician and became an attorney and then a partner in a very successful medical malpractice firm.

          The office had beautiful wood paneling on the walls.  Behind the desk were all of the diplomas, certificates and licenses that he had been able to accumulate by getting medical and legal licenses in every state that would offer one by reciprocity.  In the rear of the room was a sofa and coffee table with a very attractive and expensive chess set on it – a chess set that had never been used to my knowledge.  Part of that seating group included a replica of President John F. Kennedy’s rocking chair. 

          As my interviewer entered the room, he said “So you’re in the buggy whip business”.

AWKWARD!  I had no idea what he was talking about, and was forced to admit that, rather than try to have a conversation without doing so.  He was referring to the package of legislative “reforms” which had become effective on July 1, 1985.  These included shortening the time to start a suit and reducing the fees of attorneys who handle medical malpractice cases to name a few.  I did not really see how those changes would render our professional niche “obsolete” and I left his office wondering how the interview could have gone more poorly.

          Over the course of the ensuing twenty years I did begin to see an impact of those changes on the profession and thought of that interview many times.

          Now, thirty years later, a democratic Governor has submitted a budget bill to the legislature which contains a $250,000 limit on compensation for pain and suffering and would deprive children whose brains are damaged by negligent Obstetrical care of the same right to be compensated as other people injured by someone who is not a physician.  In other words, if Governor Cuomo has his way, I and many people like me will be as employable as a worker in a buggy whip factory.  Anybody know where I can find one of those?