Preferential Treatment, page 22
“My best take is to just forget about it. No harm, no foul. Like I said, we shared no secrets about the case. Neither of our clients was harmed. Nothing was compromised.”
“Just chalk it up to a bad experience, huh?” Cohen said.
“I wouldn’t go that far,” Fabian retorted. “I had a great time in the sack, didn’t you?”
“Get lost, Fabian. Let’s get back to the deposition. I have some work I need to do.”
Cohen was back at her office desk at 3:00 p.m., only hours after the conclusion of the Jane Thomas deposition. At 6:00 she was still working on a few matters in other cases that required her immediate attention. Her head continued to swirl from her experience from the night before. She was still pissed at herself for being so stupid ending up in bed with Fabian, but at the same time she couldn’t help reliving the experience which, she had to admit, was some of the best love-making she had ever experienced. What was there not to like, thought Cohen. He was handsome—a real hunk, witty, smart, and best of all tremendously sexy. She could still feel the effects from the night before lingering in her groin.
A rap on her open office door interrupted her musing. She looked up as Jeffrey Woodall stepped into the room, adorned in yellow golf slacks and a light blue polo shirt.
“Got a minute?”
Cohen blushed as if Woodall had had the ability to read her thoughts about Fabian. “Sure, come in, please.”
Woodall sat in the chair opposite his associate. “Well, how did things go in Columbus?”
Cohen smiled nervously. Jesus, does he somehow know what I did? Is he setting me up? Am I about to get the ax? She attempted to compose herself. “Well, it was interesting,” she stammered.
“So, any surprises?” asked a quizzical Woodall.
If you only knew—or do you know? thought Cohen. “No, not really. Pretty much routine questioning of a fact witness that didn’t shed much light on the case. Fabian concentrated mostly on the experience angle.”
“That’s not surprising. Anyway, I wanted to tell you I’m sorry for dropping this on you at the last minute. Something came up unexpectedly that I had to take care of,” Woodall lied. “You know as litigation chair there are always fires popping up that have to be stomped on before they get out of control.”
Cohen looked at him sideways. After she was told via interoffice email at the last minute that she would have to drive to Columbus and attend the deposition of Jane Thomas, she snuck into Woodall’s office and had stolen a glance at his calendar. Sure enough, his “fire” that he had to stomp out was a noon golf game at his country club.
“Sure, I understand,” Cohen said. “I understand completely.”
“Great,” Woodall exclaimed. “I just wanted to explain so we don’t get off on the wrong foot.”
“No problem.”
“Now that I have that out of the way, how are you coming on finding us a neurosurgeon to be our expert? I think we need somebody pretty quick since the other side seems to be trying to steam-roll us. I don’t want them trying to set Dr. Montgomery’s deposition before we get a chance to have him talk with our expert. We need them on the same page. What do you think?”
“Oh, I totally agree,” said Cohen, relieved that the subject of how things went in Columbus had been exhausted. “I have several names I’ve found in our book of experts. Unfortunately, one of the best-looking resumes in the bunch belongs to none other than Robert Blakely, the guy that authored the scathing screening certificate of merit plaintiff filed.”
“Yeah, I figured Darnell probably had used him in the past.”
“That may not be all bad,” Cohen said. “At least we have some old depositions he had given before. I’ve already had my paralegal pull all the ones he could track down. I ought to have them on my desk soon. Hopefully, someone would have asked him who he thought was an authority in the field of neurosurgery, and we can try to grab him or her as our expert.”
“Great work, Amanda! I like the way you think.” Woodall grinned broadly, pleased with his selection to help him with the case. “It sounds like you’ve got things in focus. Let me know what you find out, sooner rather than later. Like I said, these guys are trying to shove this case down our throats, and we have to show them we’re ready.”
Woodall arose and walked toward the door of Cohen’s office. He stopped suddenly and turned. “Oh, and by the way, you obviously had no trouble handling the first O.R. witness this morning. Why don’t you plan on doing the other fact witnesses scheduled for tomorrow and Wednesday, too. I’ll be there with you, but you do the questioning, okay?”
Cohen started to voice a protest to the crush of work she was facing soon—five more depositions in the next two days coupled with her other considerable case load, but she was so relieved that she still had a job she bit her tongue. Looks like little or no sleep for me in the near future. “Sure thing. I’ve got it covered.”
By midnight, Cohen had had enough. She was dog tired from her hours of preparation for the upcoming depositions in just a few hours and more so from her bedroom antics from the night before. She turned off the light in her office, walked down the dimly lit hallway, punched the code on the keypad of the office security alarm, and jumped into a waiting elevator. As was the case more often than not these days, she was the last to leave the office.
CHAPTER 19
The following day, Tuesday, June 14, Fabian was the first lawyer to arrive at Ben Darnell’s office. Darnell had reported to Fabian the previous evening that he would be out of the office meeting with his life care planner he had hired in the case. The expert lived in Lexington, Kentucky, so Darnell needed to leave early. Darnell’s secretary introduced herself and poured Fabian a cup of coffee.
Promptly at 9:00 a.m., Amanda Cohen and Jeffrey Woodall arrived with the first witness of the day, Susan McGuire, Montgomery’s circulating nurse. Cohen stiffly introduced Fabian to Woodall, and the two men shook hands. No small talk was exchanged. Fabian was all business today. He had a lot of work to do.
The depositions of Susan McGuire, the circulating nurse, and Jake Baldwin, the CRNA, yielded few surprises for Fabian. As he anticipated, neither of these members of Montgomery’s operating team had worked with the doctor prior to the Gunther surgery, and, like Jane Thomas, the scrub nurse, neither could recollect having scrubbed in with any of the others on the team during an intracranial aneurysm surgery. They both admitted such surgeries were rare occurrences at St. John’s Hospital.
Also as in Thomas’s deposition, neither recollected anything outside of what was in the chart; however, the CRNA, Baldwin, did recall things getting “a little hectic” when Gunther’s aneurysms ruptured. He couldn’t elaborate on exactly what he meant, although Fabian did his best to try to elicit testimony from him that Montgomery basically panicked when things started to go haywire. During both depositions, neither Cohen nor Woodall asked a single question.
The next witness to be deposed, Marie Cabot, the physician assistant that began Gunther’s surgery as Montgomery’s primary assistant, provided the first drama of the case. It was apparent from her demeanor that she was not happy to be part of the party Fabian was throwing. After Fabian questioned her on her education and training, he decided to push a few of her buttons to see if he could either fluster her or make her angry.
“Now, Nurse, you did not ever operate with Dr. Montgomery prior to this occasion, true?”
“What difference does that make? And I’m a physician assistant, not a nurse.”
“I’m asking the questions here, Ms. Cabot. The way this works is I ask the questions, and you answer them. Okay?”
“Sure, whatever.”
“So do you remember my question?”
“Yes, and the answer is, no, I had never had the pleasure of working with Dr. Montgomery before this particular surgery.”
“And had you ever, subsequent to your training as a P.A., participated as an assistant in an aneurysm surgery?”
“I really don’t see what you’re getting at.”
Amanda, seeing that Fabian was easily getting under the skin of the witness, tried to calm her down. “Ms. Cabot, please answer his question. I’m sure you want to get out of here as quickly as possible.”
“Okay, sorry. No, I had never participated as an assistant in an aneurysm surgery subsequent to completion of my training, but I did watch several during my training.”
“I didn’t ask you about your training, but thank you for volunteering that information. And with regard to other members of the operating team, had you had experience in the O.R. with them?”
“I’m sure I have, but I don’t recall what kind of surgeries they were.”
“Ms. Cabot, on the date you were the physician assistant for Dr. Montgomery in Joseph Gunther’s case, were you a licensed P.A?”
“I had a temporary license. I had not yet gained my certification.”
“You mean you weren’t even fully licensed by the State of West Virginia to serve as a P.A. on that date?”
“On that date, Mr. Fabian, it was not possible for me to be ‘fully licensed’ as you put it due to the fact that I had not yet taken and passed the National Commission on Certification of Physician Assistants exam.”
“And why not?”
“It’s only given at specified times, and after I graduated from my program, I had to wait for the exam to be offered. So, I was practicing on a temporary license. That’s how it’s done.”
“But just to be clear, it’s true you were an uncertified P.A. assisting in Mr. Gunther’s surgery.”
“Yes.”
Upon further questioning, Fabian elicited from Cabot that she recalled parts of the surgery, mainly the bleeding that occurred. To Fabian’s surprise, when she described the bleeding during the time that the other neurosurgeon, Hall, was assisting, she characterized the bleeding as “massive.”
As it was with Jake Baldwin, Fabian had no luck persuading Cabot to admit that Montgomery panicked when the massive hemorrhage occurred. It was obvious that she was well- coached by Cohen to answer only the questions asked and volunteer nothing.
Fabian continued. “Now there came a time during the surgery that you were replaced as the primary assistant, correct?”
“I wasn’t replaced. Dr. Montgomery had asked that Dr. Hall be called in.”
“Well, Dr. Hall did, in fact, take your place assisting in the surgery, correct?”
“He was called in.”
“He took your place, correct?”
“I wouldn’t call it that. I became second assistant and Dr. Hall was first.”
Fabian was irritated by Cabot’s refusal to agree with the obvious, but was heartened by the fact that he knew she would come across as evasive and combative at trial, something that few jurors like to see in a witness.
“Let’s attack this word game from another direction,” Fabian scowled.
“Objection, mischaracterization of the testimony,” Jeffrey Woodall spat. These were the first words he uttered during the entire day.
“Whatever,” Fabian retorted dismissively. “Now, Ms. Cabot, it is my understanding from the chart’s operative report that you were designated as ‘first assistant’ at the beginning of the surgery, am I right?”
“That’s my recollection.”
“And as first assistant, your duty, among others, was to assist Dr. Montgomery in suctioning the unwanted blood from the operative field, true?”
“Yes.”
“And you in fact accomplished that task after the first rupture of one of the aneurysms?”
“With guidance from the surgeon, yes.”
“And later on in the surgery, this duty was taken over from you by Dr. Hall, isn’t that true?”
“That is correct.”
“So, he did, in fact, take your place, isn’t that a fact?” Cabot knew she had been corralled.
“Yes, I guess,” she hissed.
Fabian thought he would give her one more jab. “And you will admit, will you not, that the reason the surgeon asked for other help was because you didn’t have the skill or training sufficient to properly conduct your duties and responsibilities as the first assistant?”
“Objection!” screamed Woodall, his face a crimson red. “She will admit nothing of the sort!”
Fabian grinned at Woodall. “Now Mr. Woodall, you know from your vast experience as a trial attorney that speaking objections are impermissible. I ask a question, and if you have a proper objection, you object and state your grounds. You don’t tell the witness how to answer a question or what to say. If you persist in this conduct, I will have to adjourn this deposition and bring the issue before Judge Grant. I will, I can assure you, ask for sanctions and attorney fees.”
“Don’t lecture me,” Woodall screeched.
“Then what are your grounds for the objection?”
“Improper question,” Woodall said, being unable to think of anything else off the top of his head.
“That’s inventive,” Fabian smirked. “I didn’t learn that one where I went to law school.”
“Just ask your next question, please,” Woodall said through clenched teeth.
Fabian directed his attention back to the physician’s assistant. “I have one pending. Ms. Cabot, can you answer my question?”
“No, I can’t.”
“And why can you not answer?”
“You’ll have to ask the surgeon what his motives were.”
A pretty shrewd answer, thought Fabian. You’re quicker on your feet than the moron that’s sitting beside you.
“You bet I will, Ms. Cabot. I have no further questions of this witness.”
After the long day of depositions, Fabian was tired and thirsty. After he ushered Woodall and Cohen to the door, he heard Ben Darnell’s voice coming from his office. He sounded as if he were dictating.
Fabian stuck his head in Darnell’s door, and Darnell put down his microphone. “How’d it go in Lexington?” Fabian asked.
“Hey, Jack. Things went well. The guy’s a star. He’s had a lot of experience in life care planning, especially for brain injured folks. He’s got some amazing services that he thinks Joe will need based on his review of the rehab and other records I’d sent him. Of course, all these things cost money—lots of money. He ought to be able to put up some numbers that are off the charts.”
“Cha-ching, cha-ching,” Fabian laughed. “Any ball park figure?”
“No, not yet. He said he’ll do a detailed report for us and give us a few scenarios that we can present to the jury, from a bare bones plan offering just the basics to a Cadillac plan. He said the plans could vary by several hundred thousand dollars. He wants to come to Abbington soon and spend some time with Joe, Mary, and the family so he can testify that he actually met the family and observed Joe’s condition.”
“Sounds good,” Fabian said. “I guess he’s been around the block before.”
“Yeah. Not only has he testified in over twenty jury trials, but he has extensive experience working with people like Joe. He actually ran a facility for a while that cared for these folks on a long-term basis. So, how’d your depos go today?”
“Jesus, Ben. It’s like a parade of rookies. Not only is the operating surgeon fresh out of training but his first assistant, the P.A. I deposed today, was so new she hadn’t even taken her test for certification. She was working on a temporary license. As icing on the cake, Montgomery, based on his personnel file I subpoenaed from the hospital, had only been granted provisional credentials—still in a monitoring period. I bet our expert will eat this news up.”
“Nice work. Let’s keep the heat on,” Darnell said.
“Yeah. I agree. You got time for a drink? It’s 5:15, and I’m thirsty. I’m buying.”
“Thanks, but I’ve been out all day, and I need to get some work done,” said Darnell.
“You’re no fun at all. I’m out of here. I’ll be in bright and early tomorrow. We’ve got the anesthesiologist and the other neurosurgeon. Ought to be an interesting day.”
The following morning, the case went from good to better. As an unexpected bonus, an addition to the all-star lineup of medical rookies participating in Joe Gunther’s surgery was the first deponent of the day, Dr. Laura LaCava, the attending anesthesiologist. She had only completed her residency program a few weeks before Montgomery had completed his. She, like Montgomery, was still on monitoring status at St. John’s awaiting the granting of full staff privileges by the hospital’s board of directors.
“Dr. LaCava, after completion of your residency training, was your first job in the capacity of an anesthesiologist at St. John’s Hospital?” Fabian inquired.
“Yes, Sir.”
“And you started when?”
“I believe it was mid-September, 2004.”
“I will represent to you that Joe Gunther’s surgery was on November 24, 2004. That would have made you roughly two months at St. John’s prior to the surgery?”
“Two months and a few days, correct.”
“How many aneurysm surgeries did you participate in during that period of time?”
“None that I can recall.”
“Did you participate in any craniotomies during that time period?”
“I’d have to check on that, but I’m fairly certain that I did a few during that time.”
“From the answers to discovery we have obtained from the defendant’s counsel, we have learned that Mr. Gunther’s surgery was the first surgery of any kind that Dr. Montgomery had performed since beginning his practice at St. John’s. Assuming that to be true, is it fair to say that this was your first surgery you had been involved in when Dr. Montgomery was the operating surgeon?”
“Yes, that would be a fair statement.”
“Along the same line, did you participate in any aneurysm surgeries as a resident in anesthesiology?”
