Preferential Treatment, page 30
Cohen looked relieved at this news. It had not been a great day for her expert, her client, and her case. It was about to get worse.
“Doctor,” Fabian began. He folded his hands in front of him on the deposition table and slightly hunched his shoulders forward, “you say you have attended several medical meetings over the years at which Dr. Blakely was in attendance and spoke, correct?”
“Yes.”
“Do you recall a medical meeting in the fairly recent past in Seattle during which you and some of your colleagues confronted Dr. Blakely at the meeting evening cocktail party about his agreement to serve as an expert in this case?”
Sienna nervously looked at Cohen. “I don’t really know where you’re going with this,” Sienna blurted.
Cohen, a puzzled look on her face, shrugged her shoulders but said nothing. What the hell’s this all about? she wondered.
“Where I’m going with this, Dr. Sienna, is that you and some of your colleagues expressed extreme disagreement and disappointment with Dr. Blakely’s intending to testify against a fellow neurosurgeon, true?” Fabian raised his eyebrows as if to challenge the doctor to deny the allegation.
“I don’t know if I’d say we expressed extreme disagreement and disappointment, but we did want to discuss the seriousness of his negative testimony and what it might do to Dr. Montgomery’s reputation. We neurosurgeons work very, very hard to attain our credentials in this specialty, and all of us are keenly aware that frivolous lawsuits hurt our reputations and make it difficult for us to do our important work. Lawsuits are a distraction, to say the least.”
Cohen winced. Fabian caught the gesture out of the corner of his eye.
“It’s distracting, I’m sure, Doctor, but not half as distracting as something as serious as what happened to my client at the hands of Dr. Montgomery, is it?”
Cohen needed to stop the bleeding. “Objection!” she shouted. “Argumentative.”
Fabian grinned at Cohen then continued. “Now, Doctor, with Ms. Cohen’s objection noted, can you answer my question?”
“You can’t blame Mr. Gunther’s problems on Dr. Montgomery,” Sienna parried.
“Oh, we’ll let the jury decide that one. Now let’s explore this a little farther, if we may. When you and your gang …”
“Objection. That’s a total mischaracterization of these doctors as being some kind of gang,” Cohen protested.
Fabian ignored Cohen and continued. “When you and these other neurosurgeons expressed your displeasure with Dr. Blakely’s participation in this case, did you suggest to him to withdraw as an expert?”
“I don’t remember that.” The doctor’s discomfort with this line of questioning was rapidly becoming apparent.
“Well, let me refresh your recollection, and I remind you that you are under oath. Did you or did you not, during this discussion get at least the impression, or maybe even a more direct answer, that Dr. Blakely had every intention to remain on the case as the plaintiffs’ neurosurgical expert?”
“I do recall that it seemed to be Dr. Blakely’s mind set to stay on as the expert, yes.”
“And you didn’t leave it there, did you?”
Sienna’s discomfort became evident. He pulled a handkerchief from his hip pocket and mopped his brow.
“I don’t know what you mean, ‘leave it there.’”
“Let me help you with your foggy memory. Do you recall reminding him of a neurosurgeon who was brought before a state medical licensing board after he testified for a plaintiff in a malpractice case and that they tried to suspend him from practicing and that he, Dr. Blakely, could suffer the same fate?”
Cohen looked horrified and did little to disguise it. She knew Fabian would not ask such a question unless he had testimony to back up the allegation.
Sienna looked like a deer caught in the headlights. “I do think one of the group pointed that out to Dr. Blakely. We didn’t want that to befall him.”
Fabian suppressed a loud guffaw. “Very magnanimous of you and your group, Doctor.” Fabian feigned a hurt look. “And did you refer to me or my co-counsel, Mr. Darnell, during this discussion as ‘some jack-legged lawyer?’”
Sienna fiddled with a pen he had nervously picked up from the table. “I didn’t know who the lawyers were.”
“But you don’t deny referring to the lawyer who engaged Dr. Blakely to testify as an expert in this case as ‘some jack-legged lawyer,’ do you?”
“No,” Sienna said meekly.
“I’m hurt. But let’s take this a little farther.” Fabian smiled, paused, and looked directly at an aghast Cohen. “You actually lodged a protest with some of the officials at Dr. Blakely’s medical school where he was head of the Department of Neurosurgery and asked them to intervene didn’t you?”
Sienna knew he was cornered. “I did ask them to try to reason with Dr. Blakely.”
Fabian paused and looked at his watch. He reassessed his promise to quit. He weighed the pros and cons of hammering away at Sienna, but he concluded that it was best to end on this high note.
Fabian looked at Cohen and said, “I’m sure Judge Grant will be interested to hear about this witness’s attempt to intimidate Dr. Blakely into not testifying, don’t you agree, Ms. Cohen?”
“You’re not taking my deposition here, Mr. Fabian,” Cohen snapped. “Do you care to continue or are we through?”
“Sure, I’m ready to call it quits.” Fabian chuckled. “Let me just jot down a reminder to myself to bring this to the good judge’s attention by way of motion to disqualify this expert as a witness at trial. I think the grounds may include witness intimidation.”
And she could very well grant that motion leaving us without an expert at trial. Cohen shuddered at the thought of her case going down in flames.
Fabian jotted a note on his legal pad, jammed his notes, charts, and medical articles in his giant brief case, and stood.
“It was good to see you again, Ms. Cohen, and Doctor, it was a real pleasure to make your acquaintance.” Fabian strode toward the conference room door, stopped abruptly, and wheeled around. “Just one more question, Doctor. Could you please state your name for the record?”
CHAPTER 25
After all discovery had been completed, Gunther, et al. vs. Montgomery, M.D., was ripe for the mandatory mediation required by the newly enacted tort reform statute. In preparation for what by all was predicted to be a futile effort to resolve the case, Cohen, Woodall, and Susan Pavlik huddled in the offices of Darnell-Smyth to discuss their next move.
“So, what is your assessment of our chances?” asked Pavlik.
Woodall, eager to show he was in charge blurted, “We’re in great shape. We’ve completed all discovery, and we should be ready for the mediation and trial,” he said. “We’ve got a great liability expert in Dr. Sienna, and he’s prepared to support our theories to the hilt. He’s of the opinion that regardless of the care the plaintiff got, he would have ended up with a bad result. Kind of a ‘shit happens’ thing.”
Pavlik frowned. “Is that all we’re relying on?”
“No,” said Woodall. “He’s also of the opinion that our doctor did nothing wrong, so we have two avenues of attack. Not only that, since the hospital is the largest employer in the county, we have a good chance of getting some of its employees on the jury. I doubt any of them would go against one of their own.”
Amanda, appalled by Woodall’s bluster, was caught off guard when Pavlik asked, “Amanda, are you in agreement with Jeffrey’s assessment?”
Woodall glared at Cohen, daring her to disagree with him. Cohen picked up on the signal, swallowed hard, and dutifully agreed. “I agree that it will come down to jury questions on both breach of standard of care and causation. If they believe Dr. Sienna over plaintiffs’ expert on either issue, we win outright.”
“And if they don’t? How bad can it turn out?”
“We’re not going to let that happen,” Woodall interjected.
“Amanda?” said Pavlik.
“If we lose the liability issue, we can be reasonably certain that the jury will award plaintiffs the full-half million capped amount that the law allows for general damages—pain, suffering, loss of enjoyment of life. Since Gunther is severely and permanently disabled, it’s likely that the jury would award him his past and future lost wages and medical bills, and maybe even costs for renovation of his home to accommodate his disabilities. Based on what the plaintiffs’ attorneys have disclosed, the total could come to somewhere around $2.8 Million.”
Pavlik shook her head. “That’s eight hundred thousand over the policy limits Montgomery carries. That being the case, I expect with those numbers we’ll be getting a letter from some lawyer that Montgomery hires that threatens us that if we don’t settle for policy limits and there is an excess verdict, a bad faith suit will follow. We could be on the hook for not only policy limits, but also the excess plus whatever damages a jury would award for our bad faith refusal to settle.”
“And we’ve got an obligation to tell Dr. Montgomery that he could be potentially exposed for any excess found at trial,” said Amanda. “So, not offering a settlement within limits is going to be a gamble, in my opinion. You never know what a jury’s going to do.”
Pavlik turned to Woodall. “So, Jeff, what’s you assessment of our chances at trial?”
“I think they’re excellent, frankly. We have a great expert, we have the natural bias that jurors ordinarily have against plaintiffs who sue doctors, and we have an American-trained doc, born and bred in the U.S.A. As icing on the cake, we have a judge who hates plaintiffs’ lawyers.”
Amanda feared retribution from her boss if she disagreed. “We do have all those things going for us,” she said meekly.
Pavlik ignored or failed to appreciate Cohen’s hedge. Satisfied with Woodall’s assessment, she said, “So, at the upcoming mediation we offer nothing.”
“Sounds like a plan,” said Woodall.
The mandatory mediation took place on July 6, 2006. Fabian and Darnell demanded policy limits, and Woodall and Cohen, at the direction of Pavlik, offered nothing. As the lawyers were leaving the courtroom, Fabian said to the two defense lawyers, “I guess you know what’s coming next. You’ll be getting a letter from us setting out our position on the case and our assessment of the potential damages we’ll most likely recover. We’ll give fair warning in the correspondence that if the case isn’t settled promptly, we will withdraw the offer one month before trial. Then, when we get an excess verdict, we’ll fully intend to execute on the doctor’s assets—his house, his cars, his bank accounts, his office furniture—virtually everything he owns. As you know the excess could be well in the hundreds of thousands. Of course, we’ll send you an extra copy of our letter so you can send it to your doctor. That way he’ll know the risks of going to trial and what he stands to lose. I only wish I were around to see the look on his face when he gets it. It ought to be priceless. So, if you wish to reconsider your position on or before August 5, let us know. Otherwise, see you in court.”
“We’re looking forward to that,” said a cocky Woodall.
CHAPTER 26
August 5, one month prior to the scheduled first day of trial, came and went without any offers of settlement from the defense. Convinced that the prospects for settlement were nil, Fabian and Darnell began the tedious and difficult task of final trial preparation.
Fabian checked into the Abbington Days Inn where he planned to set up his office, affectionately called his “War Room.” He had reserved two rooms for sleeping, one for him and one for his secretary, and a third room where documents were assembled and computers and printers were set up, ready to crank out whatever was necessary in order to put the final touches on his prep.
Darnell’s office was cluttered with trial preparation materials. He pulled two bankers boxes marked “Jury” from a shelf in his conference room where his own personal “War Room” had been organized. The boxes contained stacks of jury research compiled by a local private investigator whom Darnell had hired to research the fifty prospective jurors who would be called. This pool of citizens would be whittled down to twelve, the number of jurors who would eventually hear and decide Gunther’s fate. Each prospect was assigned a file and a dossier of information was placed in each. Included in each file was a completed questionnaire that had been mutually agreed upon by the respective sides and mailed to the prospects ahead of trial.
As Darnell pored through the dossiers and completed questionnaires, he became increasingly dismayed by the responses to many of the questions dealing with juror attitudes toward lawsuits in general and medical malpractice cases in particular. Many opined that too many were filed, and the verdicts were excessive. Several others indicated that “frivolous” medical malpractice cases were driving the doctors of the state either to other locales or out of the practice completely. Most expressed the view that such cases were driving up the cost of health care.
Darnell, after seven exhausting hours of reviewing the information on the fifty prospective jurors, created four stacks: strike, probably strike, maybe, and okay. Out of the fifty, he found only eight that he thought were reasonably capable of being fair. The rest were either involved in or close to the health care professions, insurance companies, or had expressed in their questionnaires a negative bias against plaintiffs who filed negligence actions. Those in the “okay” pile at least, Darnell thought, may not have been tainted by the endless propaganda against medical malpractice lawsuits that had filled the editorial pages of the local newspaper over the years.
Darnell looked at his watch. 9:35 p.m. He yawned, stretched his arms high over his head, and reached for the phone to call his co-counsel who he presumed was also working late. To his dismay, he learned from Fabian’s secretary that he had checked out for the night and was “across the street.”
Darnell knew the Days Inn neighborhood well, and “across the street” was Nell’s Place, a favorite dive for the locals. Shots and beers their specialty.
Darnell entered the front door of Nell’s and immediately spied Fabian slouched over a half-drunk glass of brown liquor. “I thought you didn’t drink while you were in trial mode,” chided Darnell.
Fabian, not looking up, said, “I finished trial mode about forty-five minutes ago, Mom. Now I’m in Scotch mode. How’d you find me?”
“I have my ways. Mind if I join you?”
“Have a seat. What’s on your mind? I charge by the hour, you know.”
Darnell sat and ordered a Bud Light. “Jesus, Jack. I’ve just been through a wonderful evening of poring over our jury research. It looks like a murders row of prospects. Twenty-three of the fifty are in some way tied directly to health care or insurance, and a majority of the rest have preconceived notions that med mal verdicts are way out of hand and driving docs from the state.”
“Relax, Man. We’re in the Rust Belt and just lost a brutal battle that handed us the tort reform the docs have been beating their chests about for years. The good ‘ole boy working man that toils in the factory or the coal mines that we plaintiff guys love to have on our juries is pretty much a thing of the past. When we do find one, he’s probably been tainted by all the bullshit the world has been bombarded with. Most of the working men and women’s jobs are gone, and all that’s left in your town and mine are service jobs, many of them in health care or insurance. Hell, I’m used to that kind of jury makeup. It’s something we just have to deal with. Luck of the draw. Hopefully, we’ll get some that are fair and will just listen to our case—at least nine of the twelve we need to convince. If we do, we win. If not, …”
“We’re toast,” Darnell interrupted.
“That’s why they pay us the big bucks, My Friend. Now, other than that Mrs. Lincoln, how did you enjoy the play?”
Darnell frowned and chugged the remainder of his beer. “Thanks for making me feel better. See you tomorrow.”
Darnell left Nell’s and headed for home. He was dog-tired and was anticipating an early rise in the morning to continue trial preparation. The weary lawyer drove through downtown Abbington and passed the office building that housed his old law firm, Darnell-Smyth. The façade of the building on the street side was pitch black except for one window on the fourth floor that glowed brightly. He knew it to be the office occupied by his former associate and now adversary, Amanda Cohen. Jeffrey Woodall’s corner office was conspicuously dark.
Inside her office, Cohen sat at her desk rubbing her eyes. She had come to the office at 7:00 a.m. It was now 10:30 p.m., a Saturday. She knew most normal folks were home watching television, on a date, or having a late-night snack at the local drive-in. Her mentor, Woodall, had not been spotted near the office the entire day, Saturday being one of his beloved golfing days.
Cohen thumbed through the deposition of Dr. Blakely whom she had the duty to try to discredit before a jury in two weeks’ time. It was a daunting task and one that she dreaded. The literature is against me, the facts are against me, and I have a jerk for an expert that’s going to try to convince the jury he’s God’s gift to medicine.
Cohen closed Blakely’s deposition, made a few notes, and laid her head on her desk. She soon fell into a deep slumber.
At 2:00 a.m., she awakened with a start. Her whole body ached from her awkward sleeping position at her desk. She glanced at her watch, groaned, and stumbled to the bathroom. She looked in the mirror and recoiled at her appearance. Although it was Sunday, she knew that she needed to hurry to her apartment, grab a couple hours of shut-eye, shove down some breakfast, get a shower, and head back to the office for another day of preparation.
Later that morning, she returned to her office, still a little fuzzyheaded from her lack of decent sleep but focused on the task ahead. She had promised her boss that she would have a draft of her opening statement ready to be reviewed by him on Monday morning. Although she had a folder stuffed with random notes containing ideas that had popped into her head throughout the course of the litigation, she had not yet begun to assemble them into any coherent presentation that she would recite to a jury. She had no plans to read her opening statement, but Woodall had suggested that she first write it out so he could review it and give his critique and input prior to her committing it to memory.
