As a litigator, I do my best work by making myself informed, anticipating obstacles to desired outcomes, and engineering a plan to overcome them. Be it procedural, evidentiary, or one of client management, I have long believed there is rarely an issue that cannot be “lawyered around” with thoughtful practice. Then the pandemic struck, and the courts closed. No amount of creative advocacy or command of expert examinations could remedy the unforeseen challenges 2020 brought us.
So, like the rest of the civil bar, I’ve waited—but not idly. While many Americans adjusted to quarantine—distracting themselves baking homemade sourdough bread or binging the latest Netflix series—trial attorneys had to live with the uncomfortable reality that our clients’ cases—real people’s life-changing legal matters—would live in an uncertain, liminal space indefinitely. One of the ways I coped was to reflect more deeply on past cases, and lessons therein learned.
Robbie Nason’s case immediately came to mind.
In 2013, Robbie injured his wrist while working as a craftsman at Old Town® Canoe. Unable to return to work without repair, he sought treatment at Eastern Maine Medical Center (EMMC) where he underwent fracture reduction and fixation surgery that involved placement of a screw. Unfortunately for Robbie, his surgeon left the screwhead protruding above the bone surface where it irritated and damaged adjacent cartilage. Robbie could tell there was something wrong, but his concerns were rebuffed. Eventually he sought a second orthopedic opinion which revealed the medical error. Several surgeries later, Robbie was still left with diminished function and substantial pain.
My partner Susan Faunce and I prosecuted Robbie’s malpractice claim through a Prelitigation Screening Panel and then in Superior Court. At trial, with the surgeon still refusing to take responsibility, we asked the jury to assess damages of $1 million. The jury returned a verdict of $2 million.
What was it about Robbie’s claim that had compelled a result beyond our expectations? What did the jury see in the courtroom that might explain their verdict? And more importantly—can it be replicated when the courts re-open for civil litigation? The more I thought about what we had done well, the more I realized that the good outcome was also a product, in part, of the doctor’s untenable defense. Here are several observations that underscore the importance of identifying, building upon, and allowing a poorly constructed defense to fail:
Defendants’ Inconsistencies and Lack of Experience
At trial, the surgeon’s testimony was plagued by shifting versions of the facts. We made sure the jury didn’t miss this. For example, though he conceded in discovery that proper surgical technique requires seating the screwhead below the bone surface so as not to irritate adjacent cartilage, at trial he said that this was not necessary—likely to match the testimony of the expert he had called.
Discovery brought out how little experience and training this surgeon had in this kind of procedure. Meanwhile, we also showed that, when it became clear Robbie needed this surgery, EMMC had several other surgeons with training and experience in this particular procedure but nonetheless wrongly allowed this ill-prepared surgeon to proceed.
We Factored in a Jury’s Tendency to Defer
In medical malpractice cases, defendants typically, and often arrogantly, argue that medicine requires real-time judgment calls, even intraoperatively, and that it is inappropriate to “second-guess” their trained, seasoned judgment. Thus, in putting together your case, it is not enough to have the facts on your side—you have to factor in jurors’ inclinations to defer to the caregiver. Here, however, we were able to guide the jurors to see that not only was there an operating room error but also a refusal by the hospital to acknowledge the mistake. In sum, the defense alienated the jury and capitalized upon this miscalculation.
Post-verdict, the defendants moved for a new trial. In the alternative, they sought a reduction of the verdict on the basis that it was excessive on the facts. Defendants’ appeal was defeated.