Preferential Treatment, page 25
“Well, unfortunately, I probably won’t get that crack at him. I’ve associated with another lawyer in the case by the name of Jack Fabian. The way we split up the work, he’ll be doing the direct examination of you and the cross of the defense expert at trial.”
“Whatever. I was kind of looking forward to working with you.”
“Thanks, but that’s our agreement. Fabian’s getting ready to take the deposition of Montgomery, and he would like to meet you and talk about your theories in the case before he deposes him. Can we set that up?”
Blakely checked his schedule. “How about August 24, around one o’clock?”
“Sounds great. We’ll see you then.”
Darnell telephoned Fabian to tell him about his conversation with Dr. Blakely. “He scared the hell out of me at first.”
“What do you mean?” asked Fabian.
Darnell then proceeded to tell Fabian about Sienna’s attempted shake down of Blakely and his consequent defection from his duties as chairman of the neurosurgery department and teaching.
“Would have freaked me out, too. So, he’s still on board?”
“Yep, and he’s going to meet with us in Burlington on the twenty-fourth of August at 1:00. I’ll make the travel arrangements.”
“Okay, and by the way, when you said Sienna’s name, he wouldn’t be Antonio Sienna by any chance, would he?”
“Yeah, I’m pretty sure that’s his first name. Why? Have you heard of him?”
“I’ve seen his name pop up in a few articles I’ve read during my research. I doubt there are too many Antonio Siennas that are neurosurgeons.”
“Blakely said he wouldn’t be surprised to see him show up in our case on the other side.”
“Had to be somebody. Might as well be him. And while we’re at it, let’s set Montgomery’s deposition.”
“I’ll make it for a Saturday. That way Woodall won’t be able to claim a scheduling conflict to put it off. Plus, he’ll probably have a hot golf game arranged that the deposition would interfere with. That ought to piss him off.”
Fabian laughed. “Great strategy, Ben. You’re learning this plaintiffs’ game pretty fast.”
On Friday, July 24, Woodall received the Notice of Deposition of Ancil Montgomery, M.D. A wave of panic washed over him. He realized that Fabian and Darnell were obviously trying to move the case far faster than he wanted. He checked his calendar and saw that the deposition date, September 3, was a Saturday. In the block for that date and the following two days the penciled in words read, “Club Championship.”
Damn, thought Woodall. This was my year to win it all. I’m playing so good nobody can beat me. I’ve got to come up with some reason to get this changed. Maybe Montgomery’s got a conflict.
Woodall grabbed the phone and called Montgomery’s office. His secretary checked the doctor’s calendar and assured him that the date was, in fact, free.
Frustrated, Woodall resigned himself to the fact that he had no valid excuse to postpone his client’s deposition. He also was becoming increasingly irritated that the case was seriously impinging on his free time and his golfing exploits. Having to miss his club’s championship was the last straw.
Time for Plan B, thought Woodall.
Woodall and Amanda Cohen sat across the table from one another at Fred’s Diner. Amanda munched on her tossed salad. Woodall worked on a fish sandwich and a huge plate of greasy fries.
“Amanda, I’ve been extremely pleased with your work so far in the Gunther case.”
“Thank you. I’m trying the best I can.”
“You know, you’re on a fast track for partnership based on past performance,” he said. “The partners and I have been impressed with your work ethic and demonstrated abilities. I would like to see that process accelerated. If my plan for you succeeds, you’ll have made partner faster than any associate in recent history.”
“Thank you, Mr. Woodall.” Cohen fumbled nervously with her napkin under the table. I feel a setup coming, thought Amanda. What kind of “plan” does he have in mind? “I’ve tried to work as hard as humanly possible. Sometimes I feel overwhelmed by the crush of work, but I know it will pay off. Somehow the work always gets done.”
“Yes, I know how you feel about the crush of work. I’ve been under that pressure all my working days. It takes some getting used to as an associate in a fast-paced law firm. But it’s worth it.”
Amanda resisted rolling her eyes. “I’m sure it is. What’s your plan that you said you have?”
“As I said, your work so far in the Gunther case has been exemplary. I want to give you more responsibility going forward. That way I can monitor your progress and brag about you to the other partners. When the case is successfully completed, I’ll push for your quick ascension to the status of junior partner.”
“I appreciate that. What additional responsibilities will I have?” Jesus, I’ve already carried the ball on just about everything so far.
“Of course, you understand that I’ll be with you every step of the way. I’ll give you advice on what to do when you need it, but I want you to take the lead in the rest of the discovery and at trial.”
Amanda’s eyes widened. She knew that so far the case looked to be potential trouble for the defense and that huge money was at stake should the jury find Montgomery liable. Any bad outcome would be foisted upon her shoulders. Woodall would see to that. “I’m flattered, Mr. Woodall, but don’t you think my being lead counsel on a case of this magnitude is risky in light of my relative inexperience?”
“You’ve been second chair in dozens of med mal cases. Surely, you have learned from watching some of the good lawyers in the firm. It’s time for you to spread your wings and fly! There’s always a first time for everything.”
Yeah, thought Amanda. Just like Dr. Montgomery. He spread his wings and crashed and burned on his maiden voyage. I don’t want the same thing happen to me.
“I don’t know if I’m ready to take on that responsibility.”
“Nonsense. I have every confidence in you. I’m sure you won’t fail. Here’s what I’ll do. If, at any time, you feel like you’re not doing all you can for the case or if I see you are not up to the job, I’ll jump in and take over. How does that sound?”
Amanda shrugged. “If that’s what you really want,” she said with little conviction.
“Okay. You’re now officially in charge.”
Amanda once again shrugged noncommittally. What the hell am I supposed to do? If I tell him “no” I’m a goner at the firm. If I agree and lose, I’m a goner, too. A Hobson’s choice. “Okay. I’ll give it a try. I hope this is a good idea.”
“Trust me, Amanda. You’ll shine,” Woodall beamed. “Now where are you on getting your expert neurosurgeon?”
“I’ve tried a couple I found in our expert file. They all say they’re too busy, but I think we’ve got our guy. I talked to Dr. Montgomery, and he suggested his old friend and mentor, Dr. Antonio Sienna. Our client was one of his residents. Last night I checked his credentials. He’s not as prolific a writer as Dr. Blakely, but he does have some articles to his credit in the area of aneurysm surgery. Dr. Montgomery told me he’s discussed the case a little with him and thinks he’ll back him up. With the time deadlines we’re under and our client’s deposition coming up soon, it looks like Sienna is the one if he’s agreeable. What do you think?
“Your call. You’re in charge, remember?”
“Right. It’ll take a little getting used to, I guess. I’ll set up a phone conference with Sienna and our client and try to get him on board.”
“Sounds great. Have we set Blakely’s depo yet?”
“No, but that’s one item on the To Do list. One of the hundreds. I plan to set him as soon as we get our ducks in order with our expert and learn his opinions.”
“You’re a champ, Amanda. You’re going to do just fine.” Woodall downed the last French fry on his plate and chased it with a long drink of lemonade. “Well, we’d better get back to the office and get to work.”
What’s this “we” nonsense. You mean it’s time for me to get my ass in gear.
Once back in her office, Amanda contacted Sienna. After a brief conversation, he eagerly agreed to serve as Montgomery’s liability/standard of care expert neurosurgeon. Throughout the conversation, Sienna repeatedly hurled epithets toward plaintiffs’ medical malpractice attorneys calling them “scumbags, ambulance chasers, and shysters.” Cohen attempted to engage the doctor in a conversation about Blakely’s opinions to which each one enumerated was met with an emphatic, “Nonsense.” Sienna abruptly ended the conversation with Amanda, telling her to send the chart and Blakely’s Certificate of Merit.
Within one week, Amanda got the reply she was looking for and expected. Dr. Sienna called her at 9:00 a.m. on Thursday, August 11. She eagerly accepted his call.
“Hello, Doctor. Have you had an opportunity to review the material I sent you?”
Sienna got directly to the point. “Yes, I have, and here’s the bottom line the way I see it. Dr. Montgomery was an excellently trained neurosurgeon under my tutelage and that of other fine neurological surgeons at my hospital. He did the proper pre-surgical workup on his patient and conducted the surgery within accepted standards of care for neurosurgeons practicing their profession. When first seen, the patient was in bad shape and had two aneurysms, one of which had leaked or ruptured—a dangerous problem in and of itself—and one aneurysm was in a very difficult place to operate on, even in my skilled hands. This result that the patient suffered was most likely to occur no matter what technique was employed to approach the aneurysm or who performed the surgery. Was it a bad result? Sure. Bad things happen to folks who are unfortunate enough to develop these nasty actors, but that’s a risk every neurosurgeon operating on these things faces.”
“So, is it fair to say that even if Dr. Montgomery did not follow the standard of care, Mr. Gunther would have likely ended up in the same condition anyway?”
“Absolutely. But he did operate within the standard of care.”
“Could you put a number on what percentage of patients in Mr. Gunther’s situation would have had the same result he had regardless of the level of care they received?” Cohen paused then hastily added, “In West Virginia under our law, a patient suing his doctor can’t recover, even if he can prove that there was negligence on the part of his treater, unless he can also prove that he had a greater than twenty-five percent chance of an improved result with proper treatment.”
Sienna immediately picked up on Cohen’s not so subtle hint. “I guess you put it in the form of a hypothetical since Dr. Montgomery handled the case properly, but if you want me to play odds maker, I am confident in saying that the patient had a less than twenty-five percent chance of an improved result even in the most experienced hands with no negligence involved.”
Perfect, thought Cohen. We’ve got our expert to testify that there was no negligence, but even if there were, the result would likely be the same. That’s two ways to win this case.
“Will you be willing to testify to these opinions in a deposition and a trial, if there is one?”
“Absolutely.”
“Thank you, Doctor. I’m sure Dr. Montgomery will be delighted to hear that you support him. He’s going to be deposed in early September. Would you be willing to meet with us in St. Louis sometime prior to his deposition?”
“Just tell me when, and I’ll be happy to. I’d love to see Ancil again.”
“I’ll set it up at your convenience. By the way, could you tell me your fee for your services? The insurance company will want to know.”
“No charge. Just expenses if I have to travel. Consider it a favor for him.”
CHAPTER 21
At 9:00 a.m. on Saturday, September 3, Amanda Cohen and her client were ushered into Darnell’s conference room. Conspicuously absent was Jeffrey Woodall who was suiting up for the pursuit of his country club’s annual golf championship. Introductions were made, and the defendant doctor and the lawyers assumed their seats.
Awaiting his interrogation, Montgomery nervously fidgeted in his chair mulling in his mind the strategy discussions had recently with his attorney and his former mentor and expert, Dr. Sienna. He felt totally prepared for whatever the opposition threw his way.
“Swear the witness,” Fabian ordered the court reporter.
“Dr. Montgomery, can you tell me why you failed to utilize a ligature on Joseph Gunther’s left external carotid artery to give yourself a better chance of gaining proximal control of his aneurysms in the event that they ruptured during your attempted intracranial aneurysm repair on November 24 of last year?”
Both the doctor and Cohen were stunned by Fabian’s “bottom-line” question right off the bat. It was one of Fabian’s favorite tactics. Cohen knew this could be an effective tool to knock her client completely off stride unless she acted quickly to give him an opportunity to regroup.
“Aren’t you going to ask him his name first?” Cohen blurted.
“Answer my question, Doctor.” Fabian pressed, ignoring Cohen’s interruption.
“Uh,” Montgomery stammered. He paused and tried to compose himself. After what seemed an eternity to all in the room, Montgomery said, “I wasn’t trained in that particular technique.”
“Then what was your plan to gain proximal control of the bilobulated paraclinoid aneurysm if it ruptured prior to repairing it?”
Montgomery, thrown off guard by Fabian’s unanticipated first question, began a rambling chronicle of the surgery he performed.
Fabian listened patiently, happy to get the doctor talking. The more he said and the more he elaborated, the more Fabian knew he could use his long-winded rants against him at trial. He learned through his experience that if you could get a deponent off script, they were bound to say something stupid and harmful to his case. Montgomery was clearly off script.
Cohen squirmed impatiently. Her client was doing exactly what she had cautioned him against. Just answer the question like I told you over and over in our preparation.
Hearing enough of Montgomery’s meandering non-answer to his question, Fabian held up his right hand in the ‘halt’ position. “Let’s hold on just a minute.”
“And Doctor, please listen to the question and answer only the question asked,” Cohen beseeched her client. She expected a rebuke from Fabian for her interruption, but she felt it was necessary to remind her client of her earlier instructions and get him back on track.
It didn’t take Fabian long to give her what she knew was coming. “Counsel, I let your first interruption pass without comment—the one right after my initial question. I remind you that if you have a legitimate objection to my questions, make it and concisely state your grounds. Otherwise, your improper conduct will be brought to the attention of Judge Grant after I adjourn this deposition for a hearing on the matter. You know as well as I that she would not be happy with this type of tactic, and I can assure you I will ask for sanctions, including attorney fees, for not adhering to the Trial Court Rules. Now, may I continue, or will you continue to insist upon interrupting this deposition?”
Ben Darnell had been quietly observing how his former protégé would handle herself in what was the most important deposition in the case. So far, she was, in his opinion, managing damage control the best she could under the circumstances. In an avuncular sort of way, he felt sorry for her not being able to control her runaway client, but she was now, he reminded himself, the enemy, and his empathy promptly subsided.
“Please continue, Mr. Fabian,” Cohen said.
Fabian abruptly changed the direction of his examination.
“Doctor, you have reviewed Joe Gunther’s chart prior to today, have you not?”
“Yes.”
“Is there anything in the chart that you have found to be incomplete or inaccurate?”
“No, I haven’t seen any errors that jump out at me.”
“Can you tell me why you felt it necessary to call in Dr. Hall when you did? Was it because you felt you needed competent help or that you were in over your head?”
“Objection. Compound question. Which question do you want him to answer?” Cohen said.
“Fine,” said Fabian. I’ll ask them one at a time. First of all, Doctor, why did you feel it necessary to call in Dr. Hall?”
“I felt I needed another experienced hand to assist me in the surgery.”
“And was that because you felt that you first assistant, Ms. Cabot, did not provide you with the assistance you needed?”
“No, it’s just that Dr. Hall had more experience in these types of surgeries, and I thought it would speed up the process with his help.”
“Doctor, is it fair to say that you had no idea what prior experience Ms. Cabot, your P.A., had in assisting in intracranial aneurysm surgeries?”
“It didn’t matter what her experience was. I assumed that she would know what she was doing since she was a P.A. I’ve worked with P.A.s many times in my residency, and they are trained to do the duties assigned.”
“I didn’t ask you that, Doctor. I asked you if you knew what Ms. Cabot’s experience was in assisting in intracranial aneurysm surgeries.”
“No, it was the first time I had ever met Ms. Cabot.”
“Doctor, the record shows that during the surgery the deeper of the two aneurysms began to bleed first, is this a correct statement of what occurred?”
“Yes, it was the first aneurysm to bleed during surgery.”
“And was the initial bleed significant enough to cause or contribute to the injuries suffered by Mr. Gunther as a result of this surgery?”
“Objection,” screeched Cohen. “Assumes that the injuries were caused by the surgery.”
“You may answer the question, Doctor.”
