The Defense Strikes Back
The defense for Cost Plus only had two expert witnesses. Both very eminent. Both reviewed all the depositions that had been given and all the medical records. And both had examined the plaintiff, though just once. In one case, the examination took an hour. In another, it was only about eight minutes.
Both defense medical experts had the same conclusion, that the plaintiff did not have CRPS. While they each said they wouldn’t ever claim a person did or didn’t have pain, they each felt that none of the records they saw or exams they performed showed any instance of CRPS, which requires certain, specific symptoms to be present. And it requires these symptoms to appear within a certain time period after a trauma occurs. (The trauma is usually an injury, but it can also be a surgery.) And for both defense witnesses, they felt that the plaintiff wasn’t experiencing the pain she was claiming. And if she did have CRPS – which they did not see – it could only have come from an elective surgery she chose to have later.
The plaintiff’s rebuttal was basically – you only examined the patient once, and briefly. Your exams occurred within days after she had had pain management treatment. These other doctors were almost all her treating physicians, not just expert witnesses being called to make a judgment. Most of them saw the plaintiff numerous times. Since her doctors were all eminent medical experts in the field who either diagnosed CRPS, or saw symptoms of possible CRPS, does that mean they’re all wrong, and you alone are right?
The defense witnesses did have responses to all these question, not especially compelling ones, but did have answers. And they both felt, yes, I’m right and they’re all wrong. But what was most pronounced in the cross-examination is what I referred to before, when the plaintiff counsel’s heated reactions stood out.
For both defense witnesses, when the plaintiff’s attorney began his cross, he was…well, I think the common expression is “spitting bullets.” He started loud and got louder as he went on, almost yelling it seemed. Belligerent towards the witnesses (one of which, he not only knew personally, but had sent clients to for treatment), and getting louder all the time, to the degree that you felt if this went on at the same pace his head might eventually explode. Several things set him off, but the most was the suggestion by the second defense witness that his client was lying and couldn’t be trusted. This went on until the defense counsel cried out his objection about how opposing counsel was actually yelling and badgering and acting inappropriately.
Both times the judge (most understandably) agreed, and admonished the plaintiff counsel to tone it down. The attorney apologized, explained how emotional this was and promised to do better. He still remained emotional for a bit both times, though eventually would calm down to an even-keel and continued calmly the rest of the way, if pointedly. (He also got the doctor who had written in a report that the patient’s word was untrustworthy to acknowledge that it was an inappropriate choice, and retracted it.)
Needless-to-say, it added a wee bit of spark to the proceedings.
It also allowed him to get across his point to discredit the witness, which he did. Actually, it’s almost fair to say the witness discredited himself. This was widely agreed in the jury deliberation. More on that later.
He also drove home a point with the first defense witness. The witness was very accomplished as, I believe, an orthopedic surgeon and scholar. But he’d only studied CRPS 27 years before in medical school, and in the subsequent period, only had dealt with 25 cases of CRPS out of 40,000 patients. By contrast, the CRPS expert for the plaintiff handled two CRPS cases a month, every month, for years. He saw as many cases of CRPS in one year as this remaining defense witness saw in his 27-year career.
Additionally, he refuted the defense suggestion that even if CRPS existed, it had to have only come from an elective surgery the plaintiff had, by repeating testimony from his CRPS experts that CRPS cannot occur from the cosmetic surgery she had.
And so the week ended, with only final arguments in sight before the case went to the jury for deliberations.
Coming back from the weekend, from the moment we walked into the courtroom on Monday, ready for final arguments, it was clear that things were different. The room was packed. (One of the jurors commented to me, “If I knew it’d be this crowded, I would have dressed nicer.”) Whereas during the trial, there were usually only about five to seven people watching, now almost every seat was full, close to 30. Most seemed to be lawyers – either that or it was the best-dressed group of courthouse visitors in the world.
The plaintiff counsel’s final arguments were quite long, probably about 90 minutes. Very detailed with PowerPoint visual aids to reiterate his points. He acknowledged that there would be computer glitches, and there were. Like a list that began with #1, and for its second point became #5. And not realizing that when you click the remote to move the slide, you have to point it at the computer, not the screen. It was all just straight graphics, except at one point there was a single, slight “animation” – when the Scales of Justice, filled with plaintiff evidence, tilted. “It’s like we’re Pixar,” he quipped.
We also found out the total amount they were asking for. The past and future “pain and suffering” was around $3.75 million, so together with past and future medical costs the total was about $8.2 million.
Needless-to-say, the defense counsel’s final arguments disagreed. Fairly vehemently. Their suggestion was in the $27,000 range.
Well, okay, so that’s why the two sides didn’t settle.
Over the weekend, and before final arguments began, I began to do my pondering and had various thoughts. I really wasn’t completely set in my mind, but was leaning to voting in favor of the plaintiff. There were some questions and uncertainties, since all pain, but notably chronic pain and especially CRPS is so subjective, but the weight of 15 highly-knowledgeable people most of whom actually were attending physicians carried more weight for me than two high-end experts who examined her for an hour and eight minutes respectively and had attendant question marks with their testimony. Yes, they also reviewed the records, but so did the attending doctors on the other side.
It would be one thing to say, “I see zero evidence of CRPS,” which is a fair-enough observation to make. But when so many other people said that they did see evidence of it, some considering their evidence to be symptoms, and some seeing enough to actually diagnose it, then having that many “seeing” it was substantive. Especially since the exams where it didn’t seem to appear were done soon after the plaintiff was on treatments for pain management and might well have had the pain more under control at those time.
Through the trial (and final arguments) there was a question about why it didn’t seem to be diagnosed for 15 months. But when the expert in CRPS had testified earlier, he explained that he was in the midst of doing a study about CRPS during its first year, and he noted that it’s incredibly difficult to find participants since most people aren’t diagnosed with CRPS for over a year, even though CRPS is there. In fact, in the two months they’ve been trying to find subjects who qualify for the study, they’ve thus far found…zero. He said that’s because usually either no one is looking for CRPS yet, or because doctors see the symptoms but see them as related to something else. (Yes, there’s pain in the shoulder, but there was shoulder surgery, so of course having pain there is to be expected. That must be what the pain is. Only later, when the normal shoulder pain should have disappointed, and other CRPS symptoms keep showing themselves, do evidence of CRPS become more clear.)
Did the plaintiff, in fact, have CRPS? I didn’t know for certain, though it seemed likely. Did even if not CRPS, did she at least have some sort of chronic pain? I didn’t know that either, though I did think that was probable. And if it was CRPS, when did it occur? I had no idea to that either, though if it existed, then it probably occurred early on, likely from the chair collapse, and got exacerbated by her first surgery. But ultimately, the details of the case and realities of her life made it seem to me that for this all to be a “scam” would take an effort far too convoluted for far too long – two necessary surgeries and over a hundred doctors’ appointments and physical therapy sessions, and (importantly) make her less available to her young children, especially one with a terminal illness than one would think reasonable to consider. Was it possible that there was no CRPS or chronic pain? Sure? Was it probable? I was leaning toward not. Especially since the only burden of proof for there to be CRPS, or just chronic pain at all is 51% likelihood, not certainty or beyond a reasonable doubt. But I was curious what the other jurors were perceiving it all.
And then, in the end, which was the core of the trial, if she indeed did have CRPS, then how much money was she due? Not just for the medical treatments past and future, but pain and suffering. And for that, I really had no idea, though did have some thoughts. For that, however, I wanted a closer look at the documentation of the “life plan” that had been prepared by the plaintiffs.
Mixed into my thinking about all this was a reality I felt I had to recognize about products in general. Not that it necessarily had a direct bearing on the case, but it still impacted what was being dealt with. We know, after all, that some products seem to have a particularly high level of responsibility when being built with special care for safety. Cars, guns, power saws, lawnmowers, electrical wiring, things like that. But for other products, like constructing a chair, while craft and attention to detail is important, it isn’t the kind of item that one considers central to causing $8 million worth of injuries. What I mean is that a chair that fails isn’t a case of thoughtless attention to a person’s life-safety, but a pure accident. Especially when there isn’t a record of countless chairs made by the company failing. Ultimately, as I said, that isn’t a factor to be considered during deliberation. And if the costs needed are in fact such that they do total that much, then so be it, I would be absolutely fine awarding it, if that’s what is actually required. But believing something is a pure accident, rather than gross negligence – even if it wasn’t something we had to decide – was still something I felt hovering over the case in my mind. And I remained as curious as every to hear other jurors’ experience and views on all this.
Tomorrow: The exciting conclusion as we go inside the jury room for deliberation, and then post-trial conversations with the lawyers for both side, as well as the plaintiff.