Preferential Treatment, page 31
After a long day of writing, re-writing, and re-writing again, she was satisfied with her product. She hoped Woodall would be pleased.
The following morning, Woodall breezed into the office, tanned and looking rested. He poured a generous mug of coffee, and headed toward Amanda’s office. Without knocking, he charged in and found her hunched over her desk putting the finishing touches on her opening statement.
“Good morning, Amanda. How was your weekend?”
“Busy. How about yours?”
“Terrific. Shot the best round of my life yesterday,” Woodall boasted.
Cohen smiled weakly but did not reply. Woodall frowned, disappointed that his associate didn’t appear to appreciate his accomplishment. Woodall suddenly turned serious.
“How did you do on your assignment?”
Assignment? Jesus, this isn’t grade school. I’m preparing for a goddamned trial that could result in getting my ass handed to me, Amanda thought. She picked up the pile of papers she had in front of her, straightened the stack, and shoved them across her desk toward Woodall.
“Here’s my first draft. No pride in authorship. Take the red pen to it, and tear it apart if you want.”
Woodall scooped up the pile of papers and headed for the door. “I’ll look it over and give you my thoughts. I promise only constructive criticism. I’m sure it’s a masterpiece,” he said grinning widely. “By the way, how’s the rest of your trial prep coming?”
“Swimmingly,” Amanda seethed. “Everything’s under control.”
Woodall spun toward the door and said, “Great. Just let me know if there’s anything I can do to give you a hand.”
“You bet.”
CHAPTER 27
The next two weeks were a blur of activity for both sides. As promised, Woodall had gotten a letter from Fabian threatening to attach his client’s assets in the “likely event of an excess verdict in the case.” Montgomery, as predicted, had secured outside personal counsel after he got the news that his stuff was in jeopardy of being taken by the plaintiffs if there were a bad result at trial. Protecting her client’s interests, Montgomery’s private attorney warned Woodall, Cohen, and APIC that in the event of an excess verdict against her client, a first party bad faith civil action would be filed seeking any excess amounts over the two-million-dollar insurance limits together with other damages, including punitive damages. In the letter was the standard demand by the doctor’s attorney to settle the case within the insurance policy limits and that failure to do so would “constitute egregious bad faith and breach of APIC’s implied duty of good faith and fair dealing with its insured.”
This threat prompted another meeting among the doctor’s attorneys and Pavlik. Cohen staunchly favored settlement. She pointed out the obvious weaknesses in the doctor’s case, the superior quality of Fabian’s expert witness, and the horrendous injuries to the plaintiff that were certain to engender a huge amount of sympathy from most jurors. Omitted from her argument was the not so small fact that this was her first medical malpractice case as lead counsel and that the supposed star of the defense team, Woodall, was taking on a meager advisory role in the case. Woodall added little to the conversation hoping that the adjuster would stick to her guns and refuse settlement thereby guaranteeing his firm a fat fee.
To Amanda’s dismay, Woodall got his wish. Settlement was categorically ruled out, and orders came from APIC’s adjuster that “she had the utmost faith in the trial skills of Woodall and his team, and a jury trial was the only path forward.”
The line drawn in the sand, both parties put the finishing touches on their trial preparation.
On the morning of Tuesday, September 5, 2006, a somber looking fifty prospective jurors reported to Courtroom No. 4, the courtroom of the Honorable Rowina Grant. The prospects sat randomly in the gallery and chatted quietly, wondering what was to take place over the following days. From the jury questionnaire that had been mailed to each prospect prior to trial, most had gleaned that they were called to decide some sort of medical case.
Obedient to Judge Grant’s order, the attorneys assembled in her chambers to take care of any housekeeping matters that needed to be resolved prior to the beginning of jury selection.
“Any progress on settlement?” asked the judge. “I’d love to clear my schedule so I can get to other cases on my overburdened docket.”
“None, Your Honor,” Darnell reported. “We’ve offered to settle for policy limits and the defendant has offered nothing. Believe me, we’ve tried to negotiate, but that’s fallen on deaf ears.”
The judge frowned and directed her stern stare towards Woodall. Woodall slouched slightly in his chair.
“Is that your position, Mr. Woodall?”
“We’ve been directed by the defendant’s insurance carrier to offer nothing and to vigorously defend Dr. Montgomery through verdict, Judge.”
“Who’s the insurance carrier?” asked Grant.
“American Physicians Indemnity Company, Your Honor.”
“Figures,” the judge spat. “I’ve been on the bench for a good while, and I’ve very rarely seen APIC open its wallet to get a case settled. Sometimes it works for them, I’ll admit; however, sometime it backfires, and they get hammered. But that’s why they build courthouses, I suppose. Anything else?”
There was no response from either of the parties. “Good,” said Grant. “Let’s get started.”
The attorneys filed out of Grant’s chambers and took their seats at their respective counsel tables. Mary Gunther had been waiting nervously in the courtroom while the in camera discussions were being had. She was dressed in a subdued grey print dress, a single strand of pearls around her neck, and plain black leather low-heeled shoes. Darnell scooted his chair close to Mary, placed his arm around her, and gave her a gentle hug. He whispered in her ear words of reassurance hoping to keep her calm.
While the attorneys were in the judge’s chambers, Ancil Montgomery had been sitting at the defense table nervously pretending to make notes on a legal pad stationed before him. In reality, he had scribbled unintelligible nonsense in an attempt to occupy himself in agonizing anticipation of the trial that would decide his fate. His stomach was performing dramatic flip-flops, and his starched white shirt under his navy blue sports coat was drenched in sweat. Woodall and Cohen approached him, warmly smiled at the nervous doctor, shook his hand, and gave him a reassuring pat on the shoulder.
Behind each counsel table were stacks of boxes with exhibits, visual aids, and anatomical models of the head and brain. Fabian had purchased a life-size model of the bottom half of the human skull without the brain inside. At the base of the model was a series of small red rubber tubes attached together which were designed to replicate the main arteries supplying blood to the brain and the entry point into the skull of each of the four major arteries supplying blood to the Circle of Willis. Significantly for Fabian and his neurosurgery expert witness, the model superbly demonstrated the area where the internal carotid artery entered the skull just under the clinoid process, the location of the disastrous aneurysm rupture that caused Joe Gunther’s horrific injuries. The model graphically demonstrated how little room the defendant would have had to successfully stop the blood flow to the aneurysm in the event of a rupture. To Fabian, this visualization of the difficulty Montgomery faced was critical in explaining to the jurors why the exposure of the carotid artery in Joe’s neck and the placement of a ligature around it prior to beginning the dissection of his aneurysms were so important.
Also, in the corner of the courtroom was a large television monitor on a rolling cart that each counsel had planned to use. Fabian and Darnell planned to show the jury the “day in the life” movie that they had professionally produced to chronicle what Joe’s daily life was like since his surgery. The movie was made intentionally long, especially when dealing with the tedium of the daily aspects for the occupational, physical, and speech therapy that had been prescribed for Joe, even though he would have no ability ever to work, effectively use his limbs, or carry on a conversation. The film also well-demonstrated the shortcomings of the house within which Joe and Mary were still forced to live. The lawyers hoped the jury would decide to provide ample funds either to remodel Gunther’s home or replace it with a new one suitable to accommodate Joe’s needs.
For the defense, Sienna had produced a video of one of his aneurysm surgeries as seen through an operating microscope. He hoped to demonstrate the complexity of the structures of the brain, the location of Joe’s aneurysms, and the difficulties of aneurysm surgery. While Amanda doubted the efficacy of such a demonstration to discredit plaintiffs’ case, she capitulated when Sienna insisted on demonstrating his handiwork.
In the gallery, the prospective jurors waited nervously. Each wondered how much of his or her near future would be consumed listening to witness after witness drone on about a subject that was soon to be revealed. Immediately behind plaintiffs’ counsel table were several of Joe and Mary’s friends who had agreed to sit throughout the trial for moral support. Behind defense counsel’s table sat Cassandra Farwell, Montgomery’s fiancée. She was sure to be introduced by the defense lawyers in opening statement in hopes of humanizing their client.
Suddenly, the door of the court’s chambers flew open. Judge Grant strode into the courtroom and mounted the bench as all in attendance stood. The judge smiled broadly at the gallery as court was called to order by the bailiff.
“Be seated, please,” Judge Grant commanded.
After the judge introduced the parties and the lawyers to the gallery, the jury selection process began. “Will the clerk call the first prospective juror.”
Before the deputy clerk stood a jury wheel, a steel ribbed cage that contained the names and numbers of each of the fifty prospects summoned.
As each of twenty names were called, Darnell pulled his jury research and set the files aside. From his previously sorted stacks of those designated strike, probably strike, maybe, and okay, twelve were in the strike or probably strike categories and six in the maybe category. Only two had been deemed okay. Darnell’s stomach churned as he did his tally.
After the prospective twenty jurors had been seated, the process of jury selection known as voir dire began. As a result of many of the answers to the questions posed in the jury questionnaires filled out by each juror in advance, both the plaintiffs’ and defendant’s attorneys were anxious to individually question a number of them. The questioning of many of these prospects revealed to Fabian and Darnell that their case faced a tough group.
While the judge was renitent to keep jurors who were former or present patients of Montgomery and hospital employees on the panel, she was equally reluctant to strike jurors for cause who merely expressed their views that large medical malpractice verdicts were driving up the cost of medicine or causing doctors to flee the state. She also was completely unsympathetic to those who tried to escape their duties by pleading that their businesses or incomes would suffer if they were forced to serve.
After individually questioning thirty-two prospects, the court was satisfied that twenty were qualified to hear the case fairly. Accordingly, the parties were faced with the task of ridding the panel of eight prospects, whether it was because of their attitudes expressed or just because they didn’t like them. No reason needed to be given for these peremptory challenges. Each side would strike four and the remaining twelve would constitute the jury that would decide the outcome of the case.
The judge checked her watch and was pleased with the progress thus far. It was now 3:30 p.m. She dismissed all but the remaining chosen twenty and thanked the unselected for their service and time.
“Counsel, you may begin your peremptory challenges.”
After the lawyers alternately used each of their four peremptory strikes, the jury list was handed to the judge by the bailiff. “Ladies and Gentlemen, as I read your name, please take a seat in the gallery.” The judge rattled off the names of the stricken jury prospects, thanked them for their service, and reassured them that they had been eminently qualified to serve; however, the process required the parties to whittle down the jury to the statutorily required twelve. Most, but not all, of the stricken prospects seemed to be relieved at being released.
Once the released jurors departed the courtroom, Judge Grant administered the oath to the panel and addressed the remaining eight women and four men. “Ladies and Gentlemen, I want to thank you for your being here to undertake one of the most important duties and privileges of citizenship here in the United States and the State of West Virginia. I know many of you are giving up your time to serve at great sacrifice. You are away from your jobs, family, and loved ones to be here and sit in judgment of your fellow man. Your attentiveness thus far has been exemplary, and the parties, lawyers, and I appreciate that. I’m confident you will maintain that interest throughout this trial and will give the attorneys and witnesses you will hear your undivided attention.
“I am going to begin by giving you some basic instructions regarding the conduct of this proceeding. I will be as brief as possible so that we can get underway.” The judge paused and opened a notebook that she had used many times before.
The judge cleared her throat and began her preliminary instructions to the jury. She meticulously outlined Gunther’s allegations against the defendant doctor and his denial of the allegations. She instructed them about judging the credibility of the witnesses and admonished them to avoid all persons other than their fellow jurors during the entire trial. She also instructed them to refrain from discussing the case among themselves until the case was submitted to them for final deliberation. She concluded her remarks by instructing them when they should report in the morning and when they could expect to be set free each evening.
“Anything to add at this time, Counsel, before we began?”
“Your Honor,” said Fabian, “may we approach the bench?”
“Come up.”
The four attorneys gathered in front of the judge. “Your Honor, it is now 4:00,” said Fabian. “It’s been a long day. Would it be agreeable to all if we could start opening statements bright and early in the morning? If you’re only going until 5:00, I doubt that both sides will have time to get in opening statements. I know mine will take up a good portion of the next hour.”
“That would be agreeable with the defendant, Judge,” Woodall chimed in.
Judge Grant frowned and shook her head. “I’m not agreeable. We’d be wasting a valuable hour of the Court’s time. I want to get this case concluded expeditiously, and I’m committed to using every available minute to accomplish that. So, let’s get going.” The attorneys scampered back to their respective tables.
“The plaintiffs’ attorney will now give his opening statement. Mr. Darnell? Mr. Fabian?”
Fabian jumped to this feet. He buttoned the top button of his suit jacket and gave a quick tug at the stiffly starched French cuffs of his white shirt.
“May it please the Court?”
“Mr. Fabian,” replied the judge.
Fabian slowly approached the jury box and stationed himself squarely in front. “And may it please you Ladies and Gentlemen. At 7:30 a.m. on November 24, 2004, Joe Gunther, my client, was just what he wanted to be. He was an ordinary, hard-working guy, a husband and a father. He worked as a journeyman machinist at Franklin Machine Shop here in Abbington and had worked there since he graduated from Abbington High School. His wife of twenty-five years, Mary Gunther, also my client and seated here with us today, and Joe have four children, two of them still minors and living at home with them. Joe enjoyed life. He was an avid hunter and fisherman, a real outdoorsman who had taught his kids the joys of nature and all that it had to offer. He was in excellent health. He could walk in the woods for miles, work at his job, and enjoy his free time with family and friends. On November 24, 2004, Joe Gunther was forty-four years young and was looking forward to decades of health, joy, and life. But by 5:45 p.m. that day, in an operating room of St. John’s Hospital, the lives of Joe and Mary and those of his children changed forever.
“For the remainder of Joe’s days on this earth, he is and will be a shell of the man he once was. Today, Joe cannot walk, cannot talk, and is dependent upon other people for virtually everything he needs to function. He cannot bathe himself. He cannot feed himself. He cannot take care of his own personal hygiene. He cannot carry on a conversation with his wife or family. He cannot work to make a living. One thing Joe can do, however. Joe can still think, feel, and has somewhat of an understanding of what is going on around him. Probably a mixed blessing. The hours of the days that Joe spent in his life working, being with friends and family, and pursuing his love of the outdoors are now occupied by boredom, sleep, and watching television in a small room of his home that now serves as his living and sleeping quarters. Joe Gunther is alone in his own hellish world a good bit of his days, only seeing friends when they have the time to come to see him, but those visits have become less frequent as the days and months pass. The only time he leaves his room is when Mary or one of the other family members takes him, which is extremely difficult to do.”
Fabian paused and perused the jury. They were transfixed on his remarks thus far and he felt he was already gaining their trust and sympathy for his client.
