Speaking for Victims: Lessons Learned

LESSONS LEARNED: IN AND OUT OF COURT

TABLE OF CONTENTS (please use page #'s at bottom of the actual document) Introduction ------i - viii Chapter 1 (A Summer Lesson) ------1-8 Chapter 2 (The Cowboy Way) ------9-27 Chapter 3 (We Are What We Were) ------28-37 Chapter 4 (Ten Cents on the Dollar) ------38-53 Chapter 5 (Good Facts Made Bad Law) ------54-64 Chapter 6 (Setting a Precedent in Redneck Country) ------65-74 Chapter 7 (Trials Can Be Fun) ------75-88 Chapter 8 (Lose the Battle, Win the War – Petard Objection) ------89-129 Chapter 9 (Bad Clients – Good Law) ------130-141 Chapter 10 (Maybe Small Things Aren’t So Bad) ------142-168 Chapter 11 (Getting & Keeping Cases) ------169-185 Chapter 12 (Epiphanies: Guideposts for Modern Jury Persuasion) ------186-208 Chapter 13 (Good Enough or Safe Enough) ------209-217 Chapter 14 (Backstage at the Courthouse) ------218-235 Chapter 15 (The Wrong Person Doing the Wrong Thing at the Wrong Time) ------236-256 Chapter 16 (She Trusted the Wrong People) ------257-277 Chapter 17 (Death at the Hands of Strangers) ------278-300 Epilogue ------301-305 Edited by Dale and Linda Felton INTRODUCTION

I have answered the demand with a cannon shot, and our flag still waves proudly from the walls. I shall never surrender or retreat!

Those are the words sent by William Barrett Travis from the Alamo 184 years ago. Travis and 184 Texians, as they were then called, were surrounded by over 1000 soldiers of the Mexican Army led by General Santa Ana.

The Generalisimo gives an ultimatum:

Unless Travis surrenders, the Alamo defenders will be put to the sword!

Like all real Texans, Travis didn’t consider surrender to be an option. He wrote that he was determined to “die like a solider,” and concluded his letter: “Victory or death!”

Reinforcements never arrived, but the homicidal slaughter of Travis and the cremation of his and his fellow Alamo defenders’ remains by Mexican troops lit a prairie fire that drove the Texans to win their independence 45 days later at the Battle of San Jacinto. In a brawl that took less time than a WWE chain match General Sam Houston and the Texian Army gave General Santa Ana a Texas sized whipping.

I believe it is this history that makes Texas trial lawyers different. Having tried cases in venues outside my state and meeting some of the best trial lawyers from around the country you can’t help but note that Texas trial lawyers can be as different as a Brahma bull on a ranch of Herefords. Like our revolutionary heroes, our courtroom advocates will charge hell with a bucket full of ice water or go bear hunting with a switch. They are fearless against powerful interests and confident that while we may lose a battle we will win the war.

Texas lawyers have gotten some of the largest verdicts in American jurisprudence history both in our state and others. But our history and

i tradition is not measured by those notable accomplishments. The code of the Texas trial lawyer lives all over our state and is reflected in smaller cases in what might be in comparison more modest results.

Our lawyers’ uniqueness derives from our unrivaled history. Texas takes its name from the Tejas Indians, an indigenous people whose name is translated as “friendly.” In the Lone Star state there is no such thing as a quick trip to the grocery store because someone is sure to strike up a conversation with you in the checkout line, whether they know you or not. They wave hello as you pass them in traffic whether you are in your neighborhood or the back roads.

With friendliness comes respect and you better show it when picking a jury. It goes back to the cowboy code “You never shoot first, hit a smaller man or a woman, or take unfair advantage.” Like Captain Woodrow Call in Lonesome Dove, we have a vehement intolerance of rude behavior in men. In 1990, wealthy oil man and rancher, Clayton Williams, ran for governor against Ann Richards. At a forum in Dallas, he met Richards who stuck out her hand and said, “Hello Claytie.” He violated the cowboy code that is deeply ingrained in every Texan and refused to shake her hand. In that instant he lost the election.

Texans are taught to be polite to everyone. We say “Yes Sir” and “No Mam” to children. It may be a term of respect reserved for elders in other parts of the country, but we extend it to everyone.

I believe one of the advantages I had as a trial lawyer was going into active duty as an enlisted man two days after I finished the bar exam. If serving as the lowest of the low in military service demands anything, it teaches humility and respect.

I didn’t go to work at the big firm thinking I was now special because I had a bar card. How could I? I had grown up so poor that if a ticket around the world cost a dollar I could not have made it to Oklahoma. My only path to becoming a lawyer was to live at home and go to the local law school.

The University of Houston Law School was founded in 1947 primarily for men returning from service after World War II and later Korea.

Most of the GI Bill students were married and working. I worked at night, went during days or worked days and went at night. This is not to say we were not graduating some top hands. Several of those early graduates went on to high profile legal careers like legendary criminal defense lawyer Richard “Racehorse” Haynes and Wendell Odom, who served as the chief justice of our highest level criminal appeals court for 13 years. But we were not considered a “top” law school at that time. We knew any success after we graduated would have to be earned. I was only the 3rd U of H Law graduate in our history to be hired by a large law firm.

Many of the new lawyers at the big firm came in with elitist ideas having graduated from prominent law schools on the East Coast or one of the big name schools in Texas. From our discussions, it was obvious that I knew as much, if not more, about Texas law and procedure than their big name law schools had given them. Still, I knew as much about handling real world legal issues as a city dude knew about breaking a bronc. I told the secretaries, “Mam, you know more than I do and I will be looking for you to keep me out of trouble.” Later, I would learn that because of this I was their favorite young lawyer. It is a lesson I try to teach my law students and young lawyers trying to find their way. Be humble, be respectful, and always be courteous. Quiet modesty will inspire loyalty, commitment, and zeal, not only with those who may work with you, around you, or under you, but also with court personnel and juries.

When I started trying cases, our Harris County Civil Courthouse elevators were run by older ladies. We did not have automatic elevators. You got in the cab and told the friendly wrinkled face what floor you wanted. You knew you had arrived as a trial lawyer when the operator knew your name. The judges and older lawyers showed the way. They knew the operator’s name so you just followed their lead. Greet these delightful ladies by name a couple of times and they would ask for yours or ask someone else for it. It’s just the Texas way. Nothing impresses jurors and judges more than the elevator operator calling you by name after your, “Good morning, Inez, I need to go to the 4th floor, to the 152nd (District Court)”.

I have tried cases against Texas lawyers as well as those from out of state. Some view their courtroom opposition with the disdain you

iii

would expect if you were someone who cut them off on the freeway that morning or had insulted their mother. This approach goes over with judges and juries about as well as a skunk at a church social. Texans not only expect respectful behavior; they demand it.

Texas is the only nation to join the union. The origins of our state find Hispanic, whites, Indians, and others sacrificing themselves to liberate the land north of the Rio Grande from the tyranny of dictatorial government. As author Mary Lasswell observed:

I am forced to conclude that God made Texas on his day off, for pure entertainment just to prove that diversity could be crammed into one section of earth by a really top hand.

God chose a big section on his south forty. We still consider Texas the biggest state in the union when you don’t count ice.

We have big ideas, big hearts, big cities, big counties, big rivers, big ranches, and big pickup trucks. We are bigger than most European countries. We measure distance not in miles but time. It’s about 12 hours to cross the state whether you are traveling north to south or east to west. You could drive through 10 states traveling south from Maine to North Carolina in the same time as it would take you to drive from our eastern to our western border.

We have seven topographical regions with distinct weather patterns. Some parts are windy and dusty and so dry in summer that the trees are begging the dogs. On the Gulf Coast we have rains so long and hard that you can feed the fish and alligators off your front porch. You may have to turn on the air conditioning in January two days after a low of 29 degrees. In summer, the best parking space is determined by shade instead of distance, and hot water comes out of both taps. On any given day, there’s something someone’s allergic to somewhere in the air.

But regardless of what part of the state you may be from, you know that as John Steinbeck said, “Texas is a state of mind…an obsession.” It is that state of mind that directs the trial lawyer in approaching juries.

Texans believe we are all in this together. That’s why I teach my law students to forget the words: “I” or “my” or “mine.” Don’t say “I want you to remember Dr Jones’ testimony.” It’s always about the jury. Rather it is “you may want to remember….”

Because Texans are informal and prefer to address those they know or like by name, forget the word “client.” Depending on the age and sex of the person you represent, refer to them by either their Christian or their first name or sur name, preceded of course by “Mr.” “Mrs” or “Miss”. The defendant is always “the defendant” whether they are a corporation or individual. They aren’t human. The person we represent is.

Texans don’t like BS, so don’t try to give them any. We can spot a bullshit artist faster than the carney barker can spot the rube.

We are raised to learn how to cut the crap and you better be prepared to move your case along or risk losing your jury. And never try to mislead or misinform a jury less you will be leaving the courthouse without your briefcase. The jury might let you keep your pants.

Self reliance and independence are arguably the most important things to a Texan. We don’t want to be controlled or babied. We don’t want anyone looking over our shoulders telling us what to do or how to do it. Never tell a jury they “must” do anything. Use words like, “You might want to consider…” or “You may have found this important....”

The common history created in the minds of many Texans is a mindset of liberty, independence, self sufficiency, can do individuality, and resistance to oppression. There is a drive to do the right thing, stand up for the little guy, to open the door regardless of gender, to look you in the eye when talking, to meet that look with a handshake, and to help your neighbor. Texans don’t rely on the federal government to take care of us. We take care of ourselves. Don’t believe me? Just look at the outpouring of public support in addition to first responders any time Texas has a natural disaster.

v An effective strategy for plaintiffs in many cases is to follow the Rules of The Road concepts articulated by Rick Friedman and Pat Malone in their groundbreaking books. These can work in our state if you keep in mind one of the essentials of the Texas character. We still adhere to the heritage of the original frontier, endless freedom, and rebellious ancestry. Less government and more freedom. This leads to a belief “that if a rule is stupid, it’s OK to break it.” This ideology helps explain why Texas is one state that does not require motorcycle riders to wear helmets. It has some of the most liberal gun laws in the nation. If you base your case on a rule you better spend some time proving the reason for the rule. And that reason better incorporate some Reptilian elements—breaking the rule threatens the jury or their family.

Even the language of Texas is different. If you are getting ready to do something, you’re “fixin” to do it. We don’t believe, calculate, or analyze; we “reckon.” We are as much a “Ya’ll” state as Mississippi or Georgia. And don’t ask a jury to “decide” or “make a judgment”; tell them they have to “figure it out.”

Code words that can work with Texas juries are:

Liberty Freedom Personal responsibility Patriotism Rule of law Earned Protection Security Enforcement

Texas is far from monolithic. We are constantly importing new citizens from California, New York, and the Rust Belt. When they come, they are looking for something we have they didn’t have where they were. That something can be called Texas values. You don’t move to Texas, it moves into you. In California, it’s “We’re Mexican.

vi We are Chicanos. We’re very different from you.” In Texas, it’s, “We’re Texan; We’re Tejanos.”

Houston is one of the most diverse cities in the country. Yet, we are still known for our conservative values. We prefer our taxes low, our church doors open, and we will never budge on the Second Amendment. We are proud of our reputation for cattle, oil, cotton, NASA’s Johnson Space Center, airconditioned sports venues, world class medical centers, and tall tales. Go to places like Ireland, China, or Nigeria and tell them you are from Vermont, Indiana, or Illinois and you will probably get a blank stare. Tell them you are from Texas and they will know exactly who you are.

Texas trial lawyers can be as different to others as the Comanche is to the Hopi Indians.

I believe to be a successful trial lawyer in Texas you have to understand and appreciate the differences between the Texas advocate and those who practice in other states. Having tried cases during the golden age of litigation when many lawyers took 15-20 verdicts a year, I wanted to share that experience which is very different for many lawyers today who can’t get enough jury verdicts to qualify for board specialization. I also wanted to preserve that history that in many ways is beginning to fade from recollection.

I have made a lot of personal mistakes, and professional ones too. No doubt you will make your own. We all do. But maybe you can avoid some of my falls from that bucking bronco called the life of a trial lawyer.

The first part of this book is from life and court cases before the mid- 1990’s. I am sure you will identify some style and substance that, while adequate for the result achieved, is different from the later chapters. It was about then I had four epiphanies about trials. These are explained and followed by examples. Sadly, I developed some medical issues that took me from the courtroom to the classroom about the time I was beginning to think I knew what I was doing.

Since I have taught law students for the last 12 years to be trial lawyers, I wanted to share some of my teaching techniques used to

vii take a novice law student and prepare them as being “war ready” for the courtroom. Hopefully some of my suggestions will be helpful to you in your practice.

Now into my eighth decade this is likely to be my last writing. I will have done my last job if you will find this entertaining, informative, and maybe even a little inspiring.

viii

CHAPTER ONE

A SUMMER LESSON

If you have ever known an accomplished and respected trial lawyer you probably wondered where they got their drive. The long hours, weeks without weekends, the struggles that drain the body of more insulin than normal sedentary work could ordinarily impose. The sleepless nights bear witness to an experience few might voluntarily choose. But they do. And behind all those memorable jury verdicts, professional recognitions, and awards is a young boy or girl who had a life experience that eventually molded that driven personality.

Robert Fulghum’s bestseller ALL I REALLY NEED TO KNOW I LEARNED IN KINDERGARTEN contends that most of life’s lessons that we need to succeed were found in the sandbox playing with other children. I learned some of mine, not in the sandbox, but rather sitting on the floor around a Monopoly game board in the summer of 1944.

I don’t remember my father leaving for service in the Navy in 1942. My first recollection is living with my grandmother.

My mother worked downtown as a secretary in a government office. This left my brother and I alone during the day with our only caretaker. My grandmother’s home is an old two story brick home a little over 2000 square feet. This is wartime - housing is tight. My grandmother runs a rooming house. A dozen women rent small rooms on the second floor. Most are two to a room. The downstairs is a living/dining area, a room where my grandmother sleeps and sews, and a small room for my mother, younger brother, and I. The house smells of old wood, upholstered furnishings, and lemon oil.

Although I would not learn until years later how poor we really are, “Moni” makes her modest living from the rooms she lets and her talent as a seamstress. She is a devout Southern Baptist of average height with jet-black hair maintained with regular dying.

In 1944, I “graduate” from kindergarten and I am looking forward to my first stint in public school. It is summer and every day is a play day and you can always use a new friend.

My grandmother tells me there is a new boy in the neighborhood about my age. She has met the boy’s mother and she would love for me to meet her son so we could play together.

Tommy’s home is on the other end of our block on Junius St. in Dallas. Moni gives me the address, and I skip down to the two-story brick home with the large front porch, and ring the doorbell. Waiting, I hear the click-click of a woman’s heels on the wood floor before the door opens. Tommy’s mother is a kind-looking blonde lady about my mother’s age. I introduce myself and tell her my grandmother sent me to meet her son and to play with him. Excitement and pleasure fills her face that breaks into a broad smile.

I follow her after her pleasant voice offers a welcome invitation, “Come on back and let me introduce you to Tommy.”

In the back room is a boy about my age with an open face, freckles, and reddish brown hair. He smiles extends his hand and says, “Glad to meet you, Jim. I’m Tommy.” I am dumbstruck, clueless, without any reaction. Tommy is in a wheelchair! He can’t run, he can’t play…he can’t even walk!

“Do you know how to play Monopoly?”, he asks. My face probably looks like an expression from the Alfred E. Neuman character in Mad Magazine—smiling, but trying not to look too out of touch or just plain stupid. I had come down to play with a boy, maybe throw a football around, climb some trees in his yard, or draw some hopscotch squares on the sidewalk. That’s what the boys I knew did and enjoyed. Tommy can’t do any of those things. He never would.

Slowly my synapses fire and his question registers.

“What is Monopoly?”, I reply.

My new friend’s eyes sparkle as he says, “Let me show you. It’s easy.”

His mother pulls the game box from a shelf in his room, puts it on the floor, and helps her young son out of his wheelchair and onto the floor. I can see this familiar exercise is painful to Tommy as well as his mom.

After my tutorial we begin our pursuit of buying properties, houses, and hotels. My fortune builds, as does Tommy’s, and we become lost in our private world of finance and property management.

The sun kissing the horizon calls me home. I don’t want to leave, but Tommy’s mother reminds me it’s suppertime. My grandmother has been concerned about me.

“You must have enjoyed your visit, you’ve been down there all afternoon.”, my grandmother comments after I settle in at the dinner table.

“I did, Moni. But Tommy can’t play. He is paralyzed and is in a wheelchair.”

“Jim, if he can’t play what have you been doing all afternoon.”

“Playing monopoly?”, I respond. I know I sound uncertain waiting for my grandmother’s response.

“Was it fun?”

I tell her I had a great time and was excited to learn how to play this new game.

My grandmother is not an educated woman. I doubt she graduated from high school. But she is wise beyond any formal education.

“Jim, Tommy has polio. It is a terrible disease. It is God’s blessing that you never had it and a tragedy that Tommy and so many other children did.”

3 She shifts to the war that is raging and filling the news everyday. Moni reminds me of the young men in our neighborhood that had returned from the war permanently scarred in so many ways. I had seen a couple of our neighbor’s veteran relatives. One was missing an arm to the shoulder. Another was in a wheelchair with only nubs for thighs.

Moni continues with her lesson, “Hopefully your father will come home without any serious wounds or injuries (he would more than a year later). But always remember what the Bible teaches, ‘There but for the grace of God go I.’”

It was only years later that I learned that my grandmother was only partly right. Those words do not appear in the Bible but rather come from a treatise on prayer by Edward Bickersteth, who attributed it to the Protestant Reformer, John Bradford, who the Catholic queen Mary Tutor had condemned to be executed by burning at the stake. Once when he saw a poor criminal being led to execution, he exclaimed, “There but for the grace of God, goes John Bradford”.

But that insistence on historical accuracy would have been lost on a six year old. The lesson Moni presented was not.

As I would discover that summer and in years to come there is a narrow line between shame and inspiration. Shame comes from realizing we should be a better person. Thankfully, inspiration can follow—we can become inspired to become a better person.

The next day I seek out some other friends that I know in the neighborhood and together we go to Tommy’s house. His mother invites us in and later favors us with fresh baked cookies. The afternoons that follow that summer are filled with gatherings at Tommy’s house with competitive 6 and 7 year olds all vying for the imaginary fortune that comes if you are lucky enough to land on Boardwalk, Park Place, or one of the other upscale properties that lined the game board.

I will always remember fondly that summer, not for the hours of fun with Tommy and the other boys and girls in the neighborhood, but

rather for my grandmother’s lesson. It is one I would try to live out for the rest of my life.

I am sure other accomplished trial lawyers have had similar experiences and wondered how we can bring that lesson to our jury without breaking the prohibition against arguing the “Golden Rule.” Almost all states condemn suggesting that the jury should put themselves in the place of the plaintiff. But in Texas and many other states, the prohibition is not nearly as broad as defense attorneys want to interpret it. It applies only to the question of damages. If the rule was as broad as the defense wants to suggest it would bar them from arguing that the defendant’s conduct must be viewed from the defendant’s perspective.

When I was a young defense lawyer at Fulbright and Jaworski, many of our lawyers were amazed at the results being achieved by another defense lawyer in town with a small defense firm. Henry Giessel won many cases involving rearend collisions on our streets and freeways. Henry would argue that the jury could not condemn the defendant’s action without “walking in his moccasins.” He would then stress how impractical it was to follow cars at the legally approved distances on our freeways. “If you allowed the distance between cars that the plaintiff would require on our freeways it wouldn’t be too long before you are going backwards.”, he would say. Of course, everyone had the experience of trying to leave a safe distance between the car in front of you only to have other drivers switch lanes. No matter how hard you tried, it was impossible to maintain that safe, assured clear distance.

No plaintiff ever succeeded in prohibiting Henry from making his “you can’t judge this defendant without “walking a mile in his moccasins”. That was because that argument was not a violation of the Golden Rule argument because the prohibition applied exclusively to the issue of damages. The law simply says that you can’t suggest that the jury must ask themselves what they would take in damages if they had suffered the same harms and losses as the plaintiff.

To avoid violating the Golden Rule argument, many lawyers point out to the jury, “In determining damages you can not ask yourself what

5 you would take to endure what Mrs. Jackson has. If you do that you lose your objectivity and become an advocate which is an improper role for you.”

But does the Golden Rule prohibition prevent a plaintiff from pleading for mercy?

People fear making the wrong decision. But a wise man once said, if you base your decision on mercy and generosity you will be right 90% of the time.

Generosity is your decision to act in opposition to hate, contempt, envy and even indifference.

Mercy is at the foundation of all faiths. The Beatitudes teach in the gospel of Matthew, “Blessed are the merciful, for they will receive mercy.”

Rabbinical scholars believe that the teachings of Leviticus, “love thy neighbor as thyself” can only mean justice must be tempered with mercy.

We deny mercy at our peril.

A story I never got to use in trial (but would have if I had known it) may be apocryphal, but it makes the point.

The Harbroughs lived in the affluent Houston suburb of Sugar Land. Their son, Paul, had done well academically and athletically in high school. He was admitted to Texas A & M. The family was close and Paul stayed in regular communication with his mom and dad, even when he was in College Station sharing an apartment with other students. He not only phoned; he also regularly wrote his parents letters.

When 9-11 occurred, Paul enlisted in the U.S. Marine Corps. He felt honor bound to fight for his family and country.

During his three months of basic training he continued to call and

write regularly. Then the time came when he shipped out to Afghanistan.

Communications became less frequent, but the parents appreciated and enjoyed the sporadic calls, understanding that conditions were different now. Then suddenly they stopped. For almost a month they worried until they got what they were hoping and praying for. One afternoon Paul called. “Mom, I am at Walter Reed Hospital in Washington. But don’t worry. I am alright.” Relieved, his parents asked when he might be coming home. He told them he thought he would be in about a month. But, there was a problem. “One of my buddies didn’t fare so well when our vehicle hit a roadside bomb. He lost an arm, part of a leg, and his face is horribly disfigured. One of his eyes had to be surgically removed.” Paul told his parents that his buddy would need a lot of care and support once he was discharged. “Do you think it would be alright if he came and lived with us?”

Paul’s mom and dad gave each other a knowing look. His father replied, “I guess it would be alright for him to come for a short visit, but he could not live here long term. Your mom and I have just gotten to the point in our lives where we can enjoy ourselves and realize the benefits of the years of hard work we have put into raising a family and building a comfortable home. I hope you understand that we could not disrupt that to care for a crippled soldier.”

Paul said he understood and would be talking with them again soon. Two days later the parents got a call from Walter Reed Hospital. Their son had died from an apparent suicide, and they needed to come and identify the body. When they arrived at Walter Reed they were taken to the morgue where they found their son—with an arm and part of a leg missing, a badly disfigured face, and extensive scars around the orbit of his left eye, which was now missing.”

This story makes me stop and think, “We must be careful about denying mercy to anyone.”

In Sunday school we learned the parable of the Unmerciful Servant. A servant was unable to pay the debt he owed to his master. The master ordered the servant’s wife and children and all that he had

sold to repay the debt. But the servant begged his master, saying that if he was given time, he would repay the debt. The master took pity on him, cancelled the debt, and let him go.

When the servant went out he soon encountered one of his fellow servants who owed him a hundred denarii. He grabbed the fellow servant and began to choke him. “Pay back what you owe me.”, he screamed. His fellow servant fell to his knees and begged, “Be patient with me. I will pay you back.” But the lender refused. Instead, he had the man thrown into prison until the debt was repaid. When the other servants saw what happened they were greatly distressed and went to the master telling him about what observed.

The master called the servant in. “You wicked man! I cancelled all of your debt because you begged me. Shouldn’t you have had mercy on your fellow servant, just as I had for you?” In anger he turned him over to the jailers to be tortured, until he should pay back all he owed.”

I believe that most trial lawyer’s dedication and drive comes from some early experience. Maybe he or she saw someone who needed help and stepped in when others wouldn’t. Maybe as a youngster he or she saw a parent denied just compensation by an overbearing insurance company. Because many plaintiffs’ lawyers come from poor and modest circumstances, their parents may have been disrespected and demeaned by those with greater means, position, or privilege. Or maybe they were often told they just didn’t belong there.

Whatever the instigating experience, we teach mercy, generosity, and love each time we take on the cause of someone injured or abused by others. As Charles Dickens said: “No one is useless in this world who lightens the burdens of another.”

So we plug on, championing our client’s cause, knowing all the while that even though we cannot do all the good the world needs, the world needs all the good that we can do.

8 CHAPTER TWO

THE COWBOY WAY

“What kinda horse was he riding?” Justice Price Daniel posed that question to me in the fall of 1974 while I was arguing my first case before the Texas Supreme Court.

Benny Farley was catastrophically injured when his horse collided with another cowboy’s horse while they were working cattle. Benny now lies in a basic hospital ward barely surviving on the most rudimentary of medical care. He deserves better and I am determined to get him all he deserves and needs.

This is a fight that will at times make me question my ability to make things right for a 15-year-old boy. It will even sometimes make me doubt the justice system that I have admired, fought for, and believed in all of my life.

Most Texas trial lawyers have represented at least one cowboy. He may have had a pickup instead of a horse or a motorcycle instead of a saddle; boots and a hat are optional, but they will be one of the “good ole boys” or “good ole girls” that we see all over the state. I have been around these remarkable people all my life.

No part of our state better represents the stereotype of our unique culture than the Texas Panhandle. In the spring of 1973, I get a call from a law school classmate now practicing in Amarillo. He represents a teenager who was brain damaged rounding up calves while working for MM Cattle Company.

I know nothing more about the case when I board a Southwest Airlines flight for the two-and-a-half-hour trip to the Panhandle.

It is said there are parts of Texas where a fly lives a thousand years and a man can’t die soon enough. Places where a woman accessorizes by caliber, not color. The Panhandle is what folks think about when they make those comments. When citizens from around

the nation think of Texas, the Panhandle is often what comes to mind. Scruffy, flat, so brutally hot in summer that you can fry eggs on the sidewalk. Winter is so cold they say that it seems like there is only a single strand of barbed-wire fence between the Panhandle and the North Pole.

Amarillo is on the Llano Estacado—plains country barren of natural landmarks. Spanish conquistador Francisco Coronado, the first European to see it, described it as a “sea of grass” so vast it could not be crossed without staking a path else you’d never find your way back.

MM Cattle Company is the holder of over 60,000 acres of both short and tall grass in the Llano. In addition to grazing acreage, much of it has producing oil wells and prodigious oil and gas reserves. The company is owned by the Whittenburgs, one of the richest and most politically influential Panhandle families.

In 1968, I had obtained the largest personal injury verdict in Harris County against one of the richest and most politically powerful Texas corporations. They were defended by one of the largest law firms in the state, Vinson and Elkins.

Taking on powerful interests held no fear for me. I had won some big cases and lost some small ones. That was before ponderous discovery became the norm, so it was possible to try as many as 15 to 20 cases in a year. By now I had over a hundred jury verdicts either while working with the big firm or now on the plaintiffs’ side.

I had built a reputation as someone who would try a case. Not all attorneys who claim to be trial lawyers have that repute. But reputations can mislead the image. When I arrived at the offices of the Amarillo lawyer, someone on the staff said, “We thought you were a lot bigger.” Strange how some people equate reputation with physical size.

I believe in our system of justice’s commitment to justice for all. I am committed to the belief that the least among us can count on a trial

10 before an impartial judge and a fair jury. Benny Farley’s case will shake my foundation in those beliefs.

During my first trip to the Panhandle I meet Bunk Farley, Benny’s father and the MM Cattle Company’s ranch foreman. He is a lean cowboy in faded jeans, a work shirt, and scuffed boots. His skin is wrinkled and tanned with the patina of hundreds of hours in the Texas sun. He speaks with a slow, hesitant drawl. In all things, he is a model for every Sam Elliot character you may have ever seen in a Western movie.

Joe Whittenburg, president of MM Cattle Company, put the horse Benny was riding when he got hurt on the ranch for general use. The colt was originally named Cimarron, but was given the nickname “Crowbar” by Benny’s dad because of its cantankerous disposition.

This horse had been castrated when he was two years old, but turning him into a gelding had done nothing to improve his personality.

At the time Benny got hurt, Bunk had been trying to break and train Crowbar for about a “season and a half.” According to Bunk, the horse’s response to training was “broncish”, slow and “harder than the usual colt to get along with.” In trial, he will describe the horse as not dependable, nervous, hardheaded, and “green broke”, meaning not yet fully trained.

Bunk Farley was the only person who had ridden Crowbar that morning before he told his son that was the horse he wanted him to use that day. The horse had tried to throw Bunk several times when he rode him that morning. Other ranch hands had even pulled Crowbar behind a trailer for some distance to “warm him up” and to “take the edge off.”

Despite Bunk Farley’s knowledge of Crowbar’s dangerous nature, and the fact that no one else had ever ridden him before, and the fact that Crowbar had not been ridden at all for the last sixty to ninety days, he directed Benny to use the horse to round up and move the calves.

Even though Benny was only 15 years old, Bunk felt his son could handle the horse because Benny had been riding since he was four and by the time he was six he was helping with chores on horseback around the ranch.

Other witnesses will say that while Benny was a good hand, they thought it was dangerous to have Benny riding Crowbar during a roundup. Four witnesses familiar with Crowbar’s disposition will testify they told Bunk he ought to “get rid of that horse before he gets someone hurt.”

One cowboy will state that on a prior occasion Crowbar ran toward a horse he was riding the same way that will later be alleged that Crowbar ran toward and collided with the horse that caused Benny to get hurt.

Bunk tells us the events that led to his son’s injuries. Benny and Danny Beebe, a boy of Benny’s same age, are “laning” a calf that broke from the herd. Laning involves two cowboys on separate horses running parallel on each side of the calf to guide it back to the herd.

Bunk believes it was Crowbar’s stubborn resistance to Benny’s commands that caused Crowbar to collide with Beebe’s horse and then to stumble and fall to the ground, seriously injuring Benny.

After our visit with Bunk, he takes us to his son. He is lying in a hospital bed in meager surroundings getting only basic medical care. His limbs are curled up in the fetal position. His pain is evident to all who look on his face a rictus; his body contorted to escape the radiation of the wrong visited upon him.

After visiting with other witnesses, we file suit and begin discovery.

Character plays an important role in any trial. And we have a cast out of the movie Lonesome Dove to tell our story.

Danny Beebe and Benny Farley, on horseback, are moving about fifty calves when one of the calves breaks away from the herd. Both boys

12 ride after the calf to bring it back. Suddenly, the horses are running all out on a collision course. Danny reins his horse to the left in the attempt to avoid contact; Crowbar does not respond to any attempt to make him turn. The horses collide. Crowbar falls to the ground. As he does so, Benny falls off Crowbar’s back, sustaining brain damage when he hits the ground.

We sue MM Cattle Company, alleging several acts of negligence:

in furnishing Benny with an unsafe horse for the work that was to be done;

in instructing Benny to use the horse for rounding up cattle under such circumstances as to pose an unreasonable risk of harm;

in failing to properly supervise the operation; and

in failing to furnish Benny a horse that was suitable for the purpose of rounding up cattle.

Lastly, we contend that all the negligent acts were a proximate cause of Benny’s injuries.

MM Cattle Company answers. It contends Benny voluntarily assumed the risk of riding a dangerous horse, contributory negligence, the fellow servant doctrine, and the parental immunity of the Benny’s father, which protects MM Cattle Company as Benny’s father’s employer.

Our contentions are well supported by our witnesses, all with considerable experience. They will testify that in working cattle a well- trained and responsive horse is absolutely necessary.

The qualities of a suitable cow horse are that it must have a good disposition, respond to commands, and be predictable, dependable, calm, and quiet. If a horse does not possess these qualities, it would be dangerous to use in doing cattle work.

All our witnesses will say that Crowbar possessed none of the qualities of a suitable cow horse. One of the dangers posed by an unsuitable working horse is the exact thing that caused Benny to get hurt—the horse might collide with another horse and injure the rider. The only weakness in our case is that Benny could not testify as to how the collision and fall actually happened.

This is a problem I have dealt with in other cases both before and after. Many lawyers representing catastrophically injured plaintiffs, including me, take comfort in the knowledge that the law does not require direct evidence on every issue. Often the case is made on the basis of circumstantial evidence. A jury is permitted to draw reasonable inferences from the facts proven. I took solace in knowing that our Texas law of circumstantial evidence would be in the court’s charge given to the jury after they heard all the evidence. As in all cases, I had pre-prepared the issues, definitions, and instructions I would request before the trial began.

Our case is filed in Hutchison County. The county seat and courthouse is in the little town of Stinnett. The largest town is Borger. You might think of this as rural Texas; the population of the county at that time is less then 25,000. But most of our jurors will come from Borger, the home of Phillip’s Petroleum, the world’s largest inland petrochemical plant, and several carbon black plants. Although considered conservative, it is more blue-collar, working-class than agricultural. We are convinced we can get a fair trial from its citizens.

Having local counsel when trying a case in a foreign venue is like a rope to a cowboy. You can’t do a decent job without one. Our local counsel and guardian ad litem, Charles Ballman, is a very respected local lawyer. Armed with what we believe is a solid case and a decent jury pool, I make a fifth trip to the Panhandle, traveling as the cowboys say, “light and well balanced.”

After the voir dire examination, both sides make preemptory strikes and our jury is seated. I have never seen a better-looking group of citizens. The defense knows it too. But unknown to me, the fix is in.

The judge sustains defense objections to the testimony of various

witnesses, all in support of our most basic contentions.

I preserve our appeal on the excluded testimony by Bills of Exception.

After concluding our evidence, the defense declares they have a motion for directed verdict. I’m thinking “this should go fast—there is no doubt we have proved our case…and then some…even without the excluded evidence.”

Once in chambers, however, the judge’s mood changes. He had been courteous, albeit wrong, in his rulings. But now he becomes stern and cold. “I think you have a problem with proximate cause.”, he said before the defense even speaks. I sense a smile being exchanged between him and defense counsel. I feel like the Lone Ranger riding into an arroyo with the black hats sitting behind boulders on the heights, with rifles trained on me.

In a blur we are back in the courtroom. The judge grants the defense’s motion for directed verdict on all grounds. “I find there is insufficient evidence of negligence and proximate cause.”, he declared.

The jury is discharged and before I know it we are back in our car making the 11-mile drive back to our motel in Borger. Little conversation passes between us as we make arrangements for our flight home.

Peering down at the vastness of the Northern Plains of Texas from a cramped seat on a Southwest Airlines flight frees the mind from the stress of trial. But questions flow in the rivers of my mind in a cascade of doubt.

“Am I too naïve, or just plain stupid to believe I could take on one of the most powerful families and the largest landowner in the Panhandle and get a fair shot from the locals?”, my mind repeatedly inquired in torment.

Maybe I have seen too many Perry Mason shows where the judge always gives that fictional lawyer a fair, even sometimes generous,

shot at finding the truth and achieving justice.

Maybe my sense of the nobility and incorruptible virtue of our justice system is but a fiction, a shadowy myth, perpetrated on the gullible and the immature minds of law students or incorrigible dreamers like me.

Why not accept the inevitable? Put away your greenhorn beliefs that anyone could help Benny against those odds.

And then I pondered the ultimate question many trial lawyers have asked when they have fallen short… “Is now a good time to quit?”

If I do, I will have no more trips to Amarillo, long drives to Borger, nights at the hardscrabble motel, dinners at one of the few diners or steakhouses with the friendly double-wide waitresses with smiles bright enough to light up Carlsbad Caverns and menus of two entrees—hamburgers or T-bones. Since I never go home when I am in trial out of town, I spend weekends working on the case and at the laundromat populated by four-foot tall Hispanic women.

It takes a full day of travel to get from Houston to Borger; a full day of travel to get back.

There are so many reasons to say this case is just a “bull that can’t be rode” and I am just another “cowboy that could be throwed.” I want so badly to stop the financial bleeding, the wasted time, the emotional agony. All this is going through my mind at 20,000 feet looking down at the barren Texas landscape heading south from Amarillo back to Houston for the entire 600 miles.

But then I think of Benny. Emblazoned in my mind is that decaying, twisted body so much in need of advanced medical attention and care, the grimaced face, and that lonely blank stare of those blue eyes peering out from that imprisoned brain that seemed to be saying, “Please. Can you help me? Please.”

By the time we land at Hobby Airport my mind is made up. To hell with hometown justice! We will appeal!

Once settled back in my office I begin working on the appeal. Today many trial lawyers have appellate specialists. But in those days lawyers handled a case from beginning to end. I am driven by the belief that at a minimum Benny is entitled to a have a jury decide his case; something the powers of Hutchison County seem determined to deny him.

We appeal on ten points of error, including the court’s ruling that we had not produced sufficient evidence of negligence and proximate cause.

It is no particular surprise when the Amarillo Court of Appeals affirms the trial court’s judgment. Just more “Panhandle justice!” We make our appeal to the Supreme Court of Texas—the court of last resort for civil cases in Texas. The court accepts our appeal and orders oral argument.

Now I am answering Justice Daniel’s question using Bunk Farley’s trial testimony:

Crowbar is a rough string (tends to buck when saddled), broom tail (a horse that is not worth much), gelding with a Roman nose and a big chest.

Before I go any further, another justice asks, “What color?”

I reply, “Something between a bay and chestnut”.

This is cowboy country and I suspect many of our judges know more than a little bit about horses and are trying to get a clear mental picture of this nag. But I am hoping they will focus on Crowbar’s sour disposition and not his color.

To further answer Justice Daniel’s question, I replied:

He is ill tempered, cantankerous, nervous, and hard headed. He is a bit pigeon toed and had stumbled several times before with other riders.

I am hoping one of the justices will ask me why I use the present tense to describe Crowbar, because I am sure the thought might pass that if it had been their son they would have killed that horse. I knew Bunk seriously wanted to, but didn’t. It wasn’t his horse to kill; the horse belonged to the Whittenburgs.

The rest of my argument deals with the legal issues in the case. Simply stated, we had sufficient evidence, so the judge should have submitted Benny’s case to the jury.

Appellate decisions, particularly at this level, do not come fast. So we wait several months before we learn whether we will have a chance to retry the case.

We are jubilant the day the Supreme Court’s decision finally arrives. We can retry Benny’s case! The trial court’s judgment is reversed and the case is remanded for a new trial!

Reading the opinion confirms several beliefs that I have about the practice of law. Preparation is essential, knowledge of the law is primary, and a tedious laying out of critical facts is crucial to insuring a fair determination. Long hours spent in the law library turning pages, along with tedious brief writing, will pay off in the end. My pride and satisfaction grows as I read the analysis of the facts. I had tried a good, tight case. The Supreme Court upholds the very reasoning I had argued before the trial court judge back in Stinnett.

There was sufficient evidence submitted to raise a fact issue of negligence considering the fact that the dangerous nature of the horse was so well known. Benny was instructed to use a known dangerous horse for rounding up cattle. This was particularly egregious considering the ongoing necessity for the supervision of teenage boys.

The court ruled that there was sufficient evidence presented from which reasonable minds could draw an inference that either the known dangerous propensities of the horse that Benny had been directed to use, or the failure of the ranch foreman to supervise the activities of the young cowboys, was the cause in fact of the collision

between the two horses on that fateful day. In its opinion, the court stressed that proximate cause could be established by circumstantial evidence.

The court held, “[T]he plaintiff need not exclude all possibility that the accident occurred other than as he alleges, but rather must show only that of a greater probability.”

But there is even more than hoped for and expected. The court did away with the defense of assumed risk in Texas in negligence cases. That means the defense can no longer argue that Benny’s negligence claim is barred if the jury finds he assumed the risk of riding a dangerous horse for laning cattle.

The court’s opinion also shot down another of M M’s defenses that greatly concerned me—parental immunity. Under this doctrine a child cannot sue his parent for negligence for the failure to supervise the child. But the court pointed out in its ruling that the parental immunity doctrine would not bar Benny’s claims:

[T]he accident occurred in the conduct of the business activities of the partnership and wholly outside the sphere of the father’s parental duties and responsibilities.

The Supreme Court’s opinion will later be cited more than 310 times in other appellate decisions and referenced more than 1220 times in other trial and appellate court documents. Benny’s case becomes a landmark case in Texas jurisprudence.

With the retrial being ordered, the next defense move is to request a change of venue. They have seen what kind of jury we can get in Hutchison County. On the other hand, we’ve seen what kind of judge awaits us there. So we don’t oppose the motion and the case is moved to Deaf Smith County, located farther west on the Pandhandle’s border with New Mexico. Named after the legendary hero of the Battle of San Jacinto where Texas won her independence, Deaf Smith County has been referred to as “the beef capital of the world.”

Just as I am leaving Houston for Amarillo for our second trial, my wife enters the hospital for the birth of our third son. He is diagnosed with a pre-cancerous growth on his testicle. This will require the removal of the testicle and several days of monitoring. My partner is already in Hereford and they are beginning the trial. I advise him and the referring lawyer that the case is in their hands—I cannot leave my wife and newborn child.

For nights I am getting calls saying, “You’ve got to get up here; they are killing us”. They give me few details. It is clear they are having a hard time dealing with opposing counsel. Three days later they call to say they have a verdict. Benny Farley is in the dirt again.

Two days later my firm’s lawyers drag into the office looking like two rabbit-running beagles that have been chewed up by a cougar. I then get a clearer picture of what happened in cattle country from the discussion with them and a review of the jury’s verdict.

The Whittenburgs had come up with a completely new defense—that we had colluded with our guardian ad litem in the preparation and trial of the case. They claim we conspired with Bunk to pursue this case against the Cattle Company. This defense is as fake as a Woolworth’s diamond ring, but it is a clever move. It allowed the defense to try Benny’s lawyers. And, although the jury found against the defense on this issue, the harm was done. I understand better the long distance pleas made by the beleaguered lawyers during trial.

The charge submitted at this second trial was complex, betraying immediately the defense’s influence. The jury found against the ranch owner in furnishing an unsafe horse, failing to supervise Benny Farley in his work, and finding that Crowbar possessed dangerous propensities abnormal to its class. The jury found that furnishing an unsafe horse was a producing cause of the incident. But the jury also found Benny was negligent in failing to keep a proper lookout for his own safety while laning the calf, and that such actions were a proximate cause of Benny’s injuries.

The jury found that Benny knew and appreciated the risk and danger of riding Crowbar and that he voluntarily exposed himself to that risk.

While the Texas Supreme Court had abolished that rule in negligence cases, it lived on in cases based on strict liability. Furnishing a worker with an unsafe instrumentality is a strict liability case.

The jury’s answer to the damage questions gave insight into their thinking. They awarded the amount of the past medical expenses from his 18th birthday until the date of trial. The trial court had accepted the defense’s argument and ruled that the guardian ad litem could not recover on Benny’s behalf the medical expenses from the date of his injury when he was 15 until Benny turned eighteen. The jury found damages of $250,000 in future medical expenses—the figure our medical expert had projected. But, they awarded “zero” for his loss of earnings, future earning capacity, past physical pain and mental anguish, and future physical pain and mental anguish. The jury’s verdict is devastating.

In reviewing the case, I see several issues for appeal. I might still be able to help Benny out of the dirt the defense wants to keep him lying in.

People’s lawyers do not prefer appeals when we are the petitioner (appellant). If we have to be at the appellate level, we would far rather be the respondent (appellee) defending a favorable verdict. But occasionally there are rewards. We get better law written when we have good facts. Such was the case with our first appeal. Could we conjure that up for Benny and the law of Texas a second time?

We file our second appeal in the Waco Court of Appeals.

There are no planes from Houston to Waco. The drive for oral argument, approximately 200 miles, takes about the same time as a flight to the Panhandle.

I feel the argument goes well and in March 1977 the court hands down its decision.

The plaintiff’s strict liability claim (furnishing a dangerous horse) does not require a finding of proximate cause in order to establish liability. A plaintiff need only prove that furnishing a worker with a dangerous

instrumentality is a producing cause of the injuries, which our jury had found.

Contributory negligence is not a defense to a strict liability cause of action. But, voluntary assumption of the risk or violenti non fit injuria (the fancy Latin way of putting it) is. To be a defense, the decision to incur the risk must be deliberate. And, the test is subjective. Should Benny Farley have known and appreciated the risk of riding Crowbar? As we had argued, the court finds that this must be judged by considering the age, intelligence, experience, and judgment of the user.

In considering this issue, the Waco Court notes that because of Benny’s brain damage he has not been able to speak and express himself and virtually his entire body is paralyzed. The consensus of the medical testimony is that this situation will not improve in the future no matter how long he lives. Thus, we have no evidence as to what he subjectively knew about Crowbar or the horse’s dangerous propensities.

The court mocks the defense’s argument, however, that because Bunk knew and was well familiar with the horse’s dangerous characteristics that Benny must have known as well and chose to ride Crowbar of his own free will.

The court reasoned:

He was instructed by his father, Bunk Farley, who was the foreman of the Defendant Cattle Company, to ride Crowbar that day. Would it be fair to say that Benny, a fifteen-year-old boy, had a “free and intelligent choice” to not ride Crowbar, by saying he could simply disobey his father and demand another horse, or stay at home and not work that day? We do not think so.

The court thus holds there is no evidence of assumption of the risk or if there is, it is inadequate as a matter of law.

Further, the three appellate jurists declare that the finding of “zero”

damages for loss of earnings, future loss of earning capacity, and past and future pain and suffering are factually insufficient. They also hold that trial court’s exclusion of plaintiff’s evidence of medical expenses from the time of Benny got hurt to his 18th birthday was error. In addition, the court declared that the Guardian ad Litem had both the right and the duty to sue for those medical expenses.

The Texas Supreme Court denies the cattle company’s petition to hear the case.

We are remanded a second time for a retrial, now six years after Benny first ate the dirt of MM Cattle Company.

A third trial offers advantages. We are able to get input from two juries that we debriefed by phone. They gave us their insight into the case. Sadly though, so much of what I have learned in the more than 40 years since that time had not been downloaded into my head back then when I was a just a young man. One of the most critical things I’ve learned came from reading “The Culture Code” and other writings of Clotaire Rapaille, and from being associated with the greatest group of trial lawyers in the country—The Inner Circle of Advocates, is this: “Don’t ask people why they do the things they do, because they simply don’t know.”

What a juror tells you the reason is for their decision is only the excuse their cognitive mind comes up with to explain the real decision that originates deep within their Reptilian brain—that primordial brain stem—the emotional fight or flight part of the brain. Or as Daniel Kahneman, the Nobel Prize winning psychologist would suggest, the “fast brain”—the emotional tail that wags the slow cognitive brain.

“System 1 (the fast brain) continuously generates suggestions for System 2 (the slow brain): impressions, intuitions, intentions, and feelings. If endorsed by System 2, impressions and intuitions turn into beliefs, and impulses turn into voluntary actions. When all goes smoothly, which is most of the time, System 2 adopts the suggestions of System 1 with little or no modification.” Thinking Fast and Slow, by Daniel Kahneman.

If I had known that simple concept I could have better understood and evaluated the comments we got from the jury in that county named after one of the heroes of the Battle of San Jacinto.

Those jurors told us:

Being a cowboy is risky. Everyone who wants to work on a ranch knows that.

Being a cowboy is just like any other job. You’ve got to take risks to do the job.

Maybe Benny was just a poor horseman.

Knowing these attitudes guided our preparation for the third trial. We planned voir dire inquiries designed to identify those who shared these attitudes. We designed responses and witness’s testimony. We were confident we had reframed our case. But, luckily, I didn’t have to experiment with what might well have failed.

During our pre-trial, the judge encouraged the parties to consider settlement. There had never been an offer of settlement from the defendant.

After a day of negotiation, the Whittenburgs agreed to pay all outstanding medical bills; put in escrow an amount that would cover all of Benny’s future medical expenses; pay the Guardian ad Litem’s fee; pay our out of pocket expenses, which were substantial; and pay us a modest fee, which we agreed upon. When all is said and done I found that I had worked during those seven years for an hourly rate not much greater than I earned as a grocery sacker 25 years earlier. But I had made a difference. Benny got better medical care for the first time in his life.

Benny lived for a few more years after we concluded the case. I can only hope that his final years were more peaceful for his grievously tormented soul.

It is said that the Cuban chess master, Jose Raul Capablanca, who

from 1921-27 was recognized as the world champion, claimed that he could “win” every game if he only had to play to a draw, not to win. Plaintiffs’ trial lawyers always play to win; we always want “full justice.” But a draw is better than a loss. My “win” for Benny was a draw.

Sometimes it all comes down to taking a stand—even if that stand happens to be on a down escalator. If you can’t get what you want, sometimes you just might get what you need. I hope I got Benny what he needed.

If I had it to do over I would do things differently, because I know that what the jurors told us after that second trial were not the actual reasons for their verdict. They didn’t know the actual reasons.

Now, looking back, things are much clearer. No jury would ever render a verdict that would reward Bunk Farley for what happened. He had told Benny to ride Crowbar and no amount of legal instruction could ever cover that up.

I just wish I could have talked to that young lawyer of 50 years ago knowing what I know now. I handled similar cases later in my career. Children that were brain damaged during labor and delivery where the mother’s actions were in question. I had to deal with the fact that parents of questionable character were parties to an action on behalf of a comatose child.

The lesson I took from the Farley case is when you have someone who qualifies as non compos mentis or otherwise unable to handle his or her own affairs, get with a qualified estates lawyer and take out an administration before you file suit. Have a bank named the administrator. At trial, have a representative of the bank testify as to the safeguards in place to assure the funds can only be used for the benefit of the ward. If you have a concern about the jury speculating about a parent or spouse overreaching for the funds should the ward die, have the estate provide for a reversionary trust giving some or all of the proceeds remaining after the ward’s death to a recognized charity.

I hope what stands out from this story though is my perseverance and commitment to Benny’s cause, even as the chances for my own personal gain dwindled.

History is full of stories of lawyers doing that for their clients. It comes with taking on the burdens of the underdog. And I know that comparing my experience to others is about the same as comparing the small yard in the back of my house to the King Ranch. There are so many lawyers who have sacrificed far beyond my ability to compare.

Examples of unbelievable sacrifice by dedicated trial lawyers are actually too numerous to list. But I would like to mention just one.

Lilly Ledbetter filed an equal-pay lawsuit alleging pay discrimination against Goodyear Tire. In the trial court, her claim was held barred by limitations because according to the statute the pay discrimination had occurred more than 180 days before she filed suit. The case went to the U.S. Supreme Court, where in a 5-4 decision the defense’s time-barred argument was upheld. The U.S. Chamber of Commerce applauded the decision, claiming it “eliminates a potential wind-fall against employers by trying to dredge up stale pay claims”.

Claiming lead from Justice Ruth Ginsburg’s dissent, however, the Democratic House of Representatives amended the law to allow pay discrimination suits to be filed with limitations starting on the date of the last paycheck. The “Ledbetter Act” was the first legislation signed into law by President Obama.

It is unknown how many women have benefited from that law. But some estimate it is in the hundreds of thousands. Still, the lawyer responsible for the change recovered nothing for himself at all.

There are many reasons plaintiffs’ lawyers pursue what are often challenging cases. Unlike defense lawyers, we are trying to make lives better either by giving those we represent hope and a more secure future, or by improving safety standards and the conduct of professionals, commercial enterprises, product manufacturers, or the even conduct of our fellow citizens. In most cases we are pursuing

both causes simultaneously. Whatever our goals, we all know that our sacred charge is to benefit those who we represent, not ourselves.

As I lay my head on my pillow at night during my Golden years and reflect on the things I have done over my career, my thoughts never turn to how much money I made on a case. Whether I made money or not always seemed to take care of itself. The only thing that matters to me is whether I fought like hell, whether I gave my client my very best, whether I never gave up until I had done all I could do to achieve justice. The only thing that matters is whether I can take satisfaction in knowing that I did it the “Cowboy Way.”

To the Cowboy, there is only one way:

Never quittin’ till the job is done,

Never stoppin’ till the race is run,

Never given’ up till the case is won!

That’s the Cowboy Way!

Reference:

Farley v. M M Cattle Co., 529 S.W.2d 751 (Tex. 1975).

CHAPTER THREE

WE ARE WHAT WE WERE

John Quincy Adams (played by Anthony Hopkins) arguing for freedom for a group of Africans before the U.S. Supreme Court in Stephen Spielberg’s epic movie, Amistad, gives this classic line:

“WE ARE WHAT WE WERE.”

This is particularly true in my life. What I was is the light that shines through any successful verdict, award, recognition, or legal writing.

My father, Otis Perdue, returned from four years of wartime service in the United States Navy in 1945. During the war he was an Electrician’s Mate aboard an LST that had been involved in several amphibious landings in the island battles of the Pacific. Like many of our Greatest Generation who served in combat during WW II, he never spoke of his wartime experience. Giving him the benefit of a probably over-tolerant judgment seventy years later, I can see that many of his problems may have been due to PTSD. In those days, that mental trauma was seldom diagnosed and never treated.

The fact that he was an abusive alcoholic, financially irresponsible, and emotionally insecure meant we moved around a lot. After he returned from the war, we left my grandmother and moved to Corpus Christi. Then we moved to Dallas and back. Then on to Fort Worth, Angleton, South Houston, and finally to Galena Park, a neighborhood on the north side of the Houston ship channel. We lived in beach motels in Corpus and shack rent houses in the other spots. Our father’s country club was the local icehouse. Occasionally, he would take my younger brother and me with him. We would play army with Pearl, Lone Star, and Falstaff bottle caps we found in the parking lot.

It never occurred to me when I was young that we were poor. I just knew we didn’t have any money because my parents were always arguing about paying bills. We never ate out; never took a vacation. And the only rich friends I ever had were imaginary.

I started working when I was 14 years old. I had a paper route, worked as a sacker in several grocery stores, delivered Montgomery Ward catalogues, handled baggage at Hobby Airport, painted fans at the Phil Rich Fan Company on Caroline Street, and installed central air conditioning. I learned how to be a jack-of-all-trades. Much of what I earned, my dad took. It seemed there was always some personal need of his that I would never understand. He always promised to pay me back. He never did.

Ours was a tough life by any measure. The biggest break I got was having the finest woman I ever knew as my mother. All she ever knew was hard work. Maybe there is a gene for that. If I have it, I got it from my mother.

A physical scuffle with my father in 1955 meant that she was the sole support for us in the years that followed. He left after the fight, taking with him our only car, a 1951 black two-door Pontiac. I don’t know how my mother put things back together, but she did. Within a few days she bought a very used 1950 Plymouth.

When I graduated from Galena Park High School, I was filled with self-doubt. I never dreamed I would ever amount to much. I thought I would spend my life climbing ladders at one of the ship channel refineries in Pasadena or Deer Park. After all, no one in my family had attended college, let alone graduated. Following my graduation from high school, I had no money, no job, no job prospects, and no car. And living 20 miles from downtown Houston presented a major obstacle to me seeking employment. I felt as isolated as a New Yorker at a Texas chili-eating contest.

The only thing I had was a mother as caring as Sister Teresa, and from somewhere, the drive, the ambition, and the desire to make something of myself and to make a difference in the lives of those who were, like me, less fortunate.

I had been a successful high school debater. A man I met in Democratic politics was the debate coach at the University of Houston. He knew my situation and found me a scholarship to UH for my first semester’s tuition. During my life I have had several guardian

angels. This one would later become a Texas Supreme Court Justice. Bill Kilgarlin and I continued our friendship until his death in 2012.

I had a scholarship, but no way to get to campus. So I rode with my mother’s car pool and got dropped off each day a couple of miles from school. I would then thumb my way to UH from there.

My second guardian angel was my best friend’s mother. She told me of a night-shift job at a smelter on Market Street. I had to hitchhike to the job until I could save enough money to buy a used car.

Those were some tough years. I never missed a semester, though. I even took summer classes. Why not? I had no social life and no money for one anyway.

Still, looking back, those were some good years. I drove my used convertible to campus every morning almost always arriving before nine, attended three classes, worked with the debate team, left for work on the night shift that started at 5:00 and ended at midnight, only to go home, get some sleep, and do the same thing the next day. Other than work, my undergraduate years were filled mostly with trips to debate tournaments and student affairs activities. Once I entered law school, though, my world became one filled with constant study and class participation involving the Socratic method.

To compare the law school I entered in the 1960’s to the University of Houston Law Center of today would be like comparing the Clampet’s hillbilly house in Arkansas with the Tara mansion in Gone with the Wind. Some surplus army Quonset huts just south of the Cougar Den was the law school’s home for its first few years. By the time I started, we were in the basement of the M.D. Anderson Library in the very center of the UH campus. To get to the law school, one descended by way of stairs into a dark subterranean world of musty case reports, treatises, and legal encyclopedias with names such as American Jurisprudence, Corpus Juris Secundum, and the American Law Digest. Once down inside, there was seclusion, isolation, and solitude like being inside Darth Vader’s Death Star. If a hurricane hit (and we had a some in those days) you would never even know about it.

Our library resources were actually more than adequate. And the faculty set our law school apart from others. The Dean of the law school when I first entered was A.A. White, a contracts expert, followed a few years later by Newell Blakely, a quiet, scholarly man who was considered a renowned authority on the law of evidence. Others in that cave dwelling existence were John Neibel, who taught a fascinating course in English Legal Procedure; Dwight Olds, a master of all levels of property law; and Wendell Odom, the criminal law professor who would go on to become the Chief Justice of the Texas Court of Criminal Appeals.

My work schedule began to vary so much that I attended both day and night classes. I made some enduring friendships in both sections. Most of our night students were married, holding down fulltime day jobs. Many were veterans attending on the G.I. Bill. Since we were a small school, our faculty and students were like a close-knit fraternity. Less than 25 names and photographs appeared in the 1963 graduates brochure. That was quite a difference when compared to the 223 students who graduated in 2019.

In 1963, we had no trial advocacy classes. Today we have a department of full-time faculty and a legion of adjunct professors teaching 8 to 12 advocacy courses each semester. Our trial advocacy program was ranked #15 in the last issue of U.S. News & World Report Law School Specialty Programs, which makes us the #1 ranked trial advocacy program among all public law schools in Texas.

When medical and physical issues drove me from the courtroom eleven years ago, I decided to cast my lot with my alma mater. I came up with a novel class designed to teach law students the principles of courtroom persuasion. Now, my storytelling class fills in less than a minute each semester and invariably we have a waiting list for those who did not make the initial cut of twelve.

During my law school years I lived at home. When I was not working I was on campus. I never had a social life. But, without question, they were some of the best years of my life.

My job at the smelter played out in 1962. I was broke and

unemployed, not a dime in the bank, and enrolled in my last semester in law school.

I had met Woodrow Seals through Democratic politics. He was the U.S. Attorney for the Southern District of Texas. He would later become one our most respected federal district judges. I made an appointment, went to his office, and told him, “Mr. Seals, I don’t know what to do. I am broke. I have no money and no job. But I will graduate first in my class at law school, if I can somehow just finish this last semester.”

Mr. Seals picked up the phone and called Jack Proctor, who at that time was the managing partner of Fulbright and Jaworski. Woodrow Seals could con just about anybody into anything. He had great political skills. He spoke with a booming voice into the phone, “Jack, do you guys ever hire summer clerks?” They exchanged only a few words. I heard my name mentioned a couple of times. Then Mr. Seals looked at me with a broad smile. Fulbright and Jaworski was not hiring summer clerks at that time, but Jack was willing to make an exception for me based on his say so. With the help of another guardian angel, I was hooked up to work that summer as a clerk for the largest law firm in Houston.

I must have impressed them, because at the end of the summer, I was offered a position with the firm. However, I shook my head “no”, and told them that I couldn’t accept it. I felt that I owed my country for the privilege it had given me by allowing me to get deferments so I could graduate from college and law school. I loved my country and felt I had an obligation to serve her. I intended to commit to a career as a lawyer in the Navy’s Judge Advocate General (JAG) Corps.

That decision brought me my fourth guardian angel. Dean Blakely talked me out of committing to a career as a Navy lawyer by telling me that the big law firms were not hiring UH law grads, and that I could prove they were wrong and were making a big mistake. Going with one of the big firms would help our law school because I would be only the second UH law graduate so far to ever get that chance. The first had been Royce Till, who was hired by Fulbright and Jaworski twelve years earlier. So instead of signing up for the JAG

Corps, I served on active duty as an enlisted man. I later got my JAG commission in the reserves.

When I returned from active duty, it didn’t take me long to discover there was an incredible group of trial lawyers and judges in Houston. I was fortunate to get to know most of the great plaintiffs’ lawyers back then. And I tried cases against some of them. The incredible group of young defense lawyers at Fulbright and Jaworski were constantly in trial those days. I went to trial several times each month after I got my own docket. I loved trying cases and the insurance companies whose insureds I represented loved a fighter.

On Friday mornings, we had docket call at the courthouse for the central rotating docket. Cases were assigned to whatever judge was available when your case number came up during the following week. Younger lawyers were assigned to go to the courthouse for the call of the docket to make the big firm’s announcements of either “ready for trial” or “not ready.” If both sides announced ready, your cases were given a number based on how long they had been on the docket. An announcement of “not ready” was usually followed by a hearing on a motion for continuance. Unlike the defense lawyers, however, the plaintiffs’ lawyers usually attended docket call personally on each of their cases. It was a great opportunity for a young lawyer with a defense firm to meet many of the top plaintiffs’ lawyers in the city.

Houston had a much smaller bar in those days. Our metropolitan area numbered less than one million, whereas today it is more than two-and-a-half times that size. Compared to today, the bar was small; the trial bar even smaller. Maybe that’s why the lawyers worked so hard at being collegial and courteous with one another.

I was on active duty in the Pacific when the results of the March bar exam were announced. A good friend telegrammed the ship congratulating me, letting me know that I had passed. But being thousands of miles from Texas in the middle of the Pacific Ocean, I was not available for the formal swearing in ceremony in Austin.

The first exposure I had to a Harris County courtroom was accompanying a senior partner for my swearing in before one of our

district judges. Before the morning docket call began, he went around the courtroom shaking hands with every lawyer and calling them all by name. A few days later he took me to a meeting with a plaintiffs’ lawyer that had sued an oil well drilling operator for serious injuries his client had suffered while working on an oil rig. The two of them had coffee, traded information from their investigative files, negotiated some numbers back and forth, and settled the case right there on the spot. The philosophy of most lawyers in those days was that the defense’s interests as well as the plaintiff’s were served by an early, fair resolution.

Unlike today, there were no interminable discovery battles. If you wanted written documents, you just had to ask. A few interrogatories were exchanged, essential depositions were taken, and you were set for trial. Lawyers cross-examined most witnesses back then without having taken the witness’s deposition. Lawyers often honed really good cross-examination skills from that experience.

There were always panhandlers around the courthouse. My third trip to the courthouse caused me to bring back a ghost that never left me. I was approached by one of the street bums. As we got closer, I realized it was my father. I had not seen him since my last visit to the Huntsville Prison.

Once he left us, he began swirling the drain. My mother had been the only life preserver that had kept him afloat. His criminal offenses weren’t violent. He was just into creative finance before it became popular. He wrote hot checks. Many times I took cash to the local drive-in or the corner store to pick up his bad paper because he just couldn’t face them.

I tried to help him, but when you are only making $400.00 a month, there is not much you can do. He somehow learned where I worked and moved his begging corner into the reception area at Fulbright and Jaworski. He shows up draped with the cloth of life’s unfortunate spiral looking for his gratuity. He smells of sour wine and there are holes in the soles of his shoes. I give him what I can, knowing this means he will be coming back. I take him to my bank and open an account for the deposit of his Veteran’s benefits, hoping this might

help him better manage his affairs. He thanks me by writing checks on my account.

When you are clearing just $80.00 a week, unexpected withdrawals of $50.00 throws off your accounting for sure. After a time, he no longer comes to the office. I doubt he was ashamed of what he did. He never was. Later I learn he had died at a Veteran’s Hospital.

Many of the young lawyers at the firm have prominent fathers. One is the son of a federal district court judge; another is an appellate judge; another the president of a bank. The manager of the claims department of a local intercity railroad is the father of one of my good friends at the firm.

Even though I was now an associate of the most prominent law firm in the city, I was never sure I belonged there. It started a few weeks after coming back home. One of the fellows I served with was the son of a prominent obstetrician. He calls one day and gives me the phone number of a young lady who has just graduated from an Ivy League college. She had been gone from Houston for four years and was looking for someone to escort her to a function. After pleasant phone prattle, she gives me the date and time for her social event, as well as her address. Because I have never taken out a River Oaks debutante before, I arrive promptly at the appointed hour, eager to flash my newly acquired status as an associate of Houston’s most prestigious law firm. She lives at home with her parents in River Oaks, Houston’s most exclusive neighborhood.

When I pull into the circular drive in front of the antebellum mansion, I know I am entering an unfamiliar world. Little did I know how forbidden it would turn out to be. I ring the doorbell and hear what could pass for the Westminster Abbey chimes. A well-dressed woman, with hair carefully coiffured and a pleasant smile, greets me. Think of a 55-year-old Angela Lansbury, and you will have the picture. My date’s father greets me as I am ushered into the living room filled with Queen Anne furniture and antiques that would be fitting in any fine arts museum.

Some brief casual conversation is followed by the killer question: “What does your father do?”

I think briefly about lying, but the trouble with a lie is that it will catch up to you like a Texas Ranger after a border bandit. Since I was now a lawyer with the most prominent law firm in the city, surely they will judge me, as I am, not on the basis of whom my father is. How naïve.

I did what I had always done and would try to do the rest of my life. I told the truth.

“The last I heard he was in prison in Huntsville.”, I meekly and softly replied. There is a wayward glance between them. From the expression on their faces I might as well be telling them I have the Ebola virus or even leprosy.

There is a long silence before my date gracefully saves the day by coming into the room. We leave for our function and have an enjoyable time. I call once to see if she might be interested in going out again. She isn’t. Whether it was what I told her parents or something else, I will never know. But I suspect it was my truth later relayed by her parents that kill any prospects. But it still bothers me that I was judged more on my pedigree than my character.

One of the things that does give me a source of pride is the fact that my university and law school stand for the principle that it’s not where you come from that counts; it’s where you are and where you are going. Almost all the students I went through law school with were like me—deep roots in a hard and tumble world. We didn’t judge each other on the basis of family, wealth, or connections. Hard working, blue-collar is the University of Houston’s provenance. I believe it will always be so, even though others may demean us for this character and tradition.

For my part, the line spoken by Congressional Medal of Honor winner, Union Colonel Joshua Lawrence Chamberlain, played by Jeff Daniels in the movie, Gettysburg, states what I wished more people believe:

America should be free ground, all of it, from here to the Pacific Ocean. No man has to bow; no man is born to royalty. Here we judge you by what you do; not by who your father was.

In June 2014, California Chrome ran at Belmont after winning the Kentucky Derby and the Preakness. Despite his impressive record, news sources were reporting that even if he won the Triple Crown his value would not be remarkable. He didn’t have the bloodline that horse buyers seek.

It may be appropriate to measure pedigree in valuing horses, but not humans. As a country, we have openly declared that is not how we value ourselves.

Abraham Lincoln had only a modest estate when he was elected president; he died a virtual pauper. The same can be said of Harry Truman, Woodrow Wilson, and Ulysses S. Grant.

In the field of art Stephen Foster, Franz Schubert, Matthew Brady, and Vincent van Gogh died in relative obscurity and poverty.

Nikola Tesla was a genius. He invented alternating current, radio, wireless technology, neon lamps, and X-rays. He died in a cheap, New York hotel; an impoverished tramp.

Over the course of my career, I hired many young men and women to work in my small law firm. Many went on to have outstanding careers. Some might praise my mentoring, but I chalk up their successes to their character, hard work, and their God-given talents and abilities. All were from modest backgrounds; all came to us hungry and determined to succeed.

All of them fit in with my law firm and me because we never tried to be more than who we were. I always was what I had always been. Except I know that for my part I had a little extra help from some guardian angels who, thankfully, carried my apple far from the metaphorical tree.

CHAPTER FOUR

TEN CENTS ON THE DOLLAR

I have been with Fulbright for about six months when one of the partners strolls into my office and asks, “Are you ready for your own docket.” A couple of associates had left and they are looking for someone to take on the cases they left behind. It isn’t long before I am as busy as a cat in a room full of rocking chairs familiarizing myself with over two hundred car wrecks, workers compensation claims, and slip and fall cases.

At big firms, you are measured by your annual billing. I believe mine is as good as any of my peers and I never kited a single hourly total. Even though I wasn’t as comfortable as the other associates in being a part of the most distinguished firm in Houston, I am happy, content in the belief that my progress will be judged by how hard I work and by my successes in the courtroom. My trial record inspires offers to go to work for some of the well-known plaintiffs’ lawyers in the city. I turn them down.

I did decide to leave the big defense firm, though. For years, I have been asked why I left what many thought was a really plum position. I have never answered that question. Maybe I should now.

One day some of the other Fulbright associates ask me to lunch. They are interviewing a young applicant who graduated from a prominent eastern law school.

We have two trial sections; corporate and insurance defense. I make the mistake of asking the aspiring lawyer which trial department interested him, “corporate law or the sore back department.” This is far from an original or a pejorative word of art. I have often heard young partners and other associates refer to the insurance trial work we did in that vernacular.

Later that afternoon I am told to report to the head of our corporate trial section. I hustle up in the belief I have been “discovered” and that

I am about to be asked to be involved in some big business litigation.

Looking back, I feel foolish at how green and naïve I was at thirty. The first thing this man in his fifties who as far as I know has never taken a verdict during the five years I had been there says: “Are you happy here?”

I am as stunned as a coon in a spotlight. I respond truthfully, not knowing what was coming next. “Very happy.”, I replied.

A stern expression follows my response. “Well, there are those that aren’t sure about that.”, he said with a frown.

I have no idea what he has in mind, so I ask. I get a reply I never expected.

Sardonically, he scowled, “Someone who refers to our insurance defense department as the ‘sore back section’ can’t be very proud of the firm.”

He goes on to lecture me about how lucky I am to be a member of the firm, how my attitude might suggest I didn’t belong, and how wrong it is to ever use inappropriate words when talking about the firm and its work.

I don’t recall what might have been said next. But my actions after I left his office reflect a weakness of character I have always had. I am too prideful. I knew I had to leave.

I have no reason to knock the lawyers I know at Fulbright. Later, I try cases against some of the partners I worked under. They were among the most honorable and professional lawyers I will ever face representing plaintiffs.

The head of the department in which I work is Newton Gresham, an eminent and avuncular professional and pipe smoker. He is the epitome of a Southern gentleman. I aspired to be like him to the point of smoking a pipe at the office, a habit I picked up while on active duty in the military. One of the most difficult things I ever did was

telling him I was leaving. He urges me to stay. I never tell him the reason I am leaving. I should have.

My prideful vanity has deep roots. When I was in high school, unknown to me, everyone knew of my difficult circumstances—the son of an alcoholic, abusive father, now being raised by a single mother working for modest secretary wages. As graduation approaches, our homeroom teacher circulates a list for ordering senior rings, invitations, and announcements. I turn mine in without ordering anything.

Some days later I am called to the assistant principal’s office. Bob Bartay is a respected administrator who looks a lot like Alex Baldwin. All the girls have a crush on him. The boys are called down to Mr. Bartay’s office only if you were in trouble. In his office sits a long board with big holes in it. This is before the ban on corporal punishment in schools and more than a few miscreants could testify to Mr. Bartay’s “swats”. I cannot imagine why I am summoned. I hadn’t broken any rules.

I sit across from our assistant principal and listen as he explains why he wants to see me.

“Jim, it has come to my attention that you didn’t order any senior mementos. No graduation invitations or a senior ring”.

I reply, “Aww, I just don’t need any of those things.” He says, “I know better. Your classmates have all chipped in a quarter each so you can get whatever you need.”

I feel so low I couldn’t see out the top of a gopher hole. I probably look like I had been spit out and stepped on. I don’t know how to respond, but know I would not take my classmates’ charity. I politely refuse the generosity and tell Mr. Bartay that if it were that important to everyone I would find a way to get some graduation stuff on my own.

My mother can’t help; she is strapped just trying to survive. So I call my grandmother in Dallas. She sends $20 so I can get a few things

that I don’t want but others think I need. Now I look back and I am ashamed. I was such a fool. What my classmates offered was not charity, but respect. Mr. Bartay’s action was inspired by a fact I did not know. Later I would be named Outstanding Senior by the faculty.

I should have accepted gracefully, but pride got in the way. Benjamin Franklin said, “Not one of our natural passions is so hard to subdue as pride.” There has been more than one occasion where I didn’t consider for a moment constraining it.

The last lawyer who had tried to hire me had graduated a few years earlier from UH law school. He had called the day before wanting to grab a beer at the local bar-b-cue joint and discuss an offer. Over the next few days I meet with the two men with whom I will become a partner. They tell me they are looking for someone to try their cases. They will make me a full partner and put my name on the firm door and letterhead.

About a year later, I learned that two of the best trial lawyers at Fulbright and Jaworski had also left to form their own firm. Those two lawyers, Wayne Fisher and Mike Gallagher, would become legendary Texas trial lawyers. Fulbright and Jaworski had a great section of young trial lawyers back in those days. The firm would soon lose others as well. I have no idea why they all left.

Some may think I left because of the prospects to make more money. But that never entered my mind. I simply left because of pride.

One thing I learned is that if you want to keep an employee, associate, and yes…even a wife or girlfriend, you must make them aware that they are appreciated. If they feel unappreciated, taken for granted, or worse, unduly criticized, they start to look for taller grass in greener pastures.

My new firm’s office is in the South Coast Life Building on Main Street, a short walk from the courthouse. In those days, all the prominent law firms were in downtown offices. Lawyers walked to the courthouse. Helm, Jones, and Pletcher; Joe Jamail; and Brown, Kronzer, Abraham, Watkins, and Steely all had their offices in the new

Houston First Savings Building, located at the corner of Fannin and Texas Avenue.

Success propelled us to move within a few years to the new Two Shell Building. Several of other firms soon followed us as well.

I am not with my new firm long enough to let the ink dry on my business cards before I am trying cases again. I lose the first two. I am beginning to think I am not cut out for plaintiffs’ work. Then I take over the case of Jimmy Frank Taylor v. Brown and Root.

The history of Brown & Root Industrial Services dates back to 1919, when the brothers George and Herman Brown partnered with Herman’s brother-in-law, Dan Root, to create a Texas-based construction company. The company was hugely successful and became one of the largest construction companies of its kind.

Brown & Root was a major contributor to the political campaigns of Lyndon Johnson. Johnson was responsible for guiding many government defense contracts to the company during WWII, the Korean War, and Vietnam. Over the past four decades, with various mergers and acquisitions resulting in its present configuration called KBR, the company has grown to have net assets of over $4 billion dollars.

When WWII broke out, our government needed ships; lots of them. The government built major ship building facilities along the Houston Ship Channel. Some of these facilities had large cantilevered gantry cranes that ran on tracks. These cranes were over 60 feet tall. The control cab sat on a platform supported by four massive steel “legs.” It looked like something out of a Star Wars movie. They could lift much heavier loads than ordinary cranes.

When the war ended, the government decided to sell off the shipyard equipment as surplus. Brown and Root bid on the cranes and got them for 10% of what they cost the government to build. It was one of the many sugar daddy deals some of the big corporations were able to cash in on at the end of the war.

The cranes of 1940’s vintage had not been equipped with many of the modern safety devices. It was just such a crane that Jimmy Frank Taylor was operating when he was catastrophically maimed and crippled for life.

Because the loads being lifted by the gantry are so heavy, the crane tilts forward while hefting the mass of the object the crane is lifting. Sometimes it tilts so far forward it reaches a critical point where a majority of the weight shifts past the center of mass. When that happens, the crane can no longer stay upright. If the load isn’t dropped, the gantry goes over.

Jimmy is trying to pick up a load one day when the crane tips and goes past its critical point. The weight is extended beyond center of gravity, the crane goes over, causing an explosion as it tumbles, and leaving a smoldering mass of twisted steel and a good man mangled and maimed for life.

Emergency calls are made. An ambulance rushes Jimmy to the hospital.

The trauma team doctors are not sure he will survive. He is in intensive care for months and in a regular hospital room for several more months after that. He recovers, but has massive brain damage. He slurs his speech and always has a strange look in his eyes.

It is difficult to communicate with him. It was really hard to communicate with him in preparation for trial. As a witness, he will be more of an exhibit than a teller of facts. This is the way we will approach it in trial.

Most of our testimony about Jimmy’s history will have to come from his wife. She is an adorable “double wide” woman; modest in appearance and dress. She is, however, one of the most loving and supportive women I have ever known.

Reviewing the file, I see little has been done to get the case ready to go to court. I gather the blueprints, drawings, photographs, medical records, and hundreds of other documents that would ultimately be

introduced into evidence. There is much to be done before this case will be anywhere close to ready for trial.

The difference between defense lawyers and plaintiffs’ lawyers can often be measured by the amount of wear on the soles of their shoes. When I was with the big firm, insurance investigators did the investigations, lined up the witnesses and took their statements, and brought the witnesses to depositions or to the courthouse for trial.

My warning to anyone aspiring to be a plaintiffs’ lawyer, however, is that if you want a career with regular office hours and a predictable schedule, be an estates lawyer, handle mostly bankruptcy cases, or restrict yourself to family law. Dedicated plaintiffs’ lawyers are not about to wear out the seats in the leather chairs sitting behind their desks. They get out of the office—often. In addition to going to the scene where someone got hurt or to the home of the injured victim, they visit the offices of treating doctors, or go to a police station to visit with law enforcement investigators. We aren’t just lawyers; we are also detectives for those who hire us to search for the truth. And you learn early on that truth usually lies outside fancy office buildings; we have to grab our briefcases and note pads and go “beat the bushes” to find it.

Houston trial lawyers are blessed with living in America’s most dynamic city. We have one of the world’s leading and most respected Medical Centers where esteemed medical specialists abound. Some of the most highly acclaimed doctors in the world have served my clients over the years as consultants or expert witnesses.

Houston has an abundance of other scientific expertise close at hand. It has two outstanding universities—Rice University and the University of Houston. And the Texas A & M campus is a mere ninety- minute drive away. These universities have huge departments with some of the top experts in economics, engineering, biomechanics, nursing, computer technology, pharmacy, and architecture. And it has the National Aeronautics and Space Administration (NASA) in Clear Lake City, just 34 miles southeast of downtown.

Research tells me that NASA uses gantry cranes similar to the one

Jimmy was operating to launch rockets from Cape Canaveral.

I call the NASA offices and learn the name of an engineer familiar with the gantry crane aspect of NASA operations. We visit by phone and make an appointment to meet at his office.

Harold Benson is a small, baby-faced, sandy-haired man in his 30’s. He is very articulate and will make a good witness. With his assistance, I get the NASA engineers who are experts on the operation of gantry cranes to review the information about the crane Jimmy was operating when he got hurt.

The NASA experts quickly point out that there is a safety device on their cranes that automatically releases the load whenever the crane tilts to the point where it might fall over.

Jimmy worked for one of Brown and Root’s subcontractors. I amend our complaint and allege both negligence and strict liability on the part of Brown and Root for not equipping their crane with the safety device described by the NASA experts.

Harold Benson gets with some of the other NASA engineers and builds a six-foot-tall scale model replica of the crane Jimmy was operating. We will be able to demonstrate how the crane will fall over every time when it attempts to lift a load that is too heavy and the gantry extends out too far and reaches the tipping point. With the safety device installed, it never tips over. When it approaches the tipping point, the gantry automatically drops the load, causing the crane to upright itself. This is the first time I have heard of using a working scale model in trial. But it certainly makes a lot of sense to me.

We have our liability expert lined up, but still have to deal with our opponents’ defenses. Texas has a contributory negligence statute at that time that provides that if the plaintiff is only 1% at fault, he recovers nothing. The defendants have also pled assumption of the risk. If Jimmy chose to operate a crane when he knew or should have known of the risk of using a crane without safety devices, that means he assumed the risk of not having safety devices installed on the

crane. In other words, the absence of safety devices was trumped by the doctrine of assumed risk.

The only way to respond to these legal defenses is to find a qualified gantry crane operator to testify. But those that worked with Jimmy would not testify for fear of retribution. Brown and Root would see that they lost their job. My best friend’s father is an official with the Oil Chemical and Atomic workers Union. He is knows where I might find a qualified gantry operator that might not be beholden to Brown and Root.

It is misting the day I go to the ship channel to find the offices of the local Teamsters Union. Their offices are in an old trailer with a small sign out front. You can smell the polluted waters of the ship channel and the shale on the parking area in front of the trailer. In the trailer is a small sparsely furnished room with a rough wood counter. Some union posters finish the décor of the offices.

A couple of crane operators are sitting around drinking coffee. I look at one of them and think, “He looks familiar.” I ask “Kenneth?” He replies, “Jim!” We are more than 11 years after graduating from high school and we have not seen each other all those years after our commencement.

Kenneth Huseman sticks out his big hammy hand that swallows up mine. He has muscular shoulders and arms from his days of working the controls on the big cranes at the docks. Kenneth had been the left tackle on the Galena Park High School football team. I was the maladroit halfback. Kenneth was a strong, ferocious blocker. I often got through the gapping hole Kenneth paved in the defensive line. Sadly, I seldom got far past it. Slow wheels, what can I say?

I tell him about our problem and that we need someone who has experience in operating gantry cranes like the one Jimmy Frank was operating. We have to rebut the defense of contributory negligence. Kenneth agrees to serve as our expert witness.

We go to trial. Brown & Root is represented by Vinson & Elkins.

We conduct our voir dire examinations, followed by the reading of our pleadings. In those days, Texas did not allow an opening statement. Rather, the Texas Rules of Civil Procedure at that time instructed that after the jury was seated, sworn, and instructed, the parties could read their pleadings. This led to most lawyers to attempt to give a mini-opening statement during their voir dire examination; a practice that continues to this day with many lawyers. Bad rules and habits seem to be perpetuated in legal land.

The liability portion of our case goes well. Using the crane blueprints and photographs, our engineer describes the serious risk of using a gantry crane without the tipping-point automatic-release safety feature.

Our large white crane model demonstrates how the safety feature works.

First, we show the jury how the crane Jimmy was operating failed. An associate would slowly tilt the crane. When the gantry extends too far out for the weight of the load, it would start to fall. When it starts to fall, the associated catches it to prevent its destruction.

Then the time comes during trial to demonstrate the safety feature.

Anyone who has ever performed a courtroom experiment or demonstration knows you feel like you are standing on a two-foot ledge overlooking the Grand Canyon. This time, when the crane starts to fall, our expert engages the emergency release feature and it results in the load being released before it falls. It worked! It worked just the way it was supposed to work, implanting in the jury’s mind how Jimmy’s horrible injuries could easily have been avoided.

We do not bring Jimmy to the courthouse until the end of our case. I do not want the jury spending long hours looking at this pitiful mortal, struggling with the ravages of body and mind visited upon him by a faceless corporation.

This fairly young man, just three years earlier, was a robust worker and a loving husband and father. He was a hard working family man,

who paid his taxes, obeyed our laws, and contributed to his community. Lay witnesses, including family members, coworkers, and members of Jimmy’s church, lay out for the jury what a good man Jimmy was. I believe if I had him at trial everyday, the jury would have become hardened to the pain and anguish displayed before their eyes. This is a tactic I will use many times in future cases.

Jimmy does well at trial. He answers my simple questions with that strange, far away look in his eyes, and with slow, mumbling speech. The defense lawyer tries to cross-examine him, but wisely abandons him as his target within just a couple of minutes.

After we rest, the defense calls a mechanical engineer in an effort to contest our liability contentions. I cross-examine him. It doesn’t go well. I feel like Justice Robert Jackson did when he finished his cross- examination of Hermann Goering in the Nuremberg trials. Jackson was so despondent at his ineptness in examining the legendary Nazi war criminal that he threatened to quit the case and return to Washington. But I couldn’t quit Jimmy, even though I feel I was completely destroyed by the witness. I feel like the proverbial rented mule. Here is my first chance for a significant plaintiff’s verdict and I blow it.

I go home that evening. My despondency destroys my appetite. My depression robs me of sleep. As you age and look back you learn that often the life of a trial lawyer is finding yourself in a heap of ashes, only to rise like the legendary Phoenix. Such would prove true in Jimmy Frank Taylor’s case.

A day later we give closing arguments. I feel better about our prospects. I would hate to read that argument today, but back then my concept of “good enough” was different than it would be 40 years later. I just had one poignant line I was really proud of:

Don’t let Brown & Root buy Jimmy Frank Taylor for 10 cents on the dollar like they did that crane.

In those days, Texas is a “special issue” state. The jury gets asked to provide the answers to “special issues” that will reveal to the judge

what the jury concludes after listening to all the facts. The jury does not get to decide who wins, like is done in some other jurisdictions.

The jury charge asks, “Was Brown and Root negligent in (with separate questions submitting every act of negligence pled and on which evidence is introduced, followed by separate inquiries for each act alleged on proximate cause. The same method is followed for all of the defenses alleged and on which some evidence was introduced). As Jimmy’s lawyer, I ask for ten liability issues to be submitted. Fifteen defense issues are submitted, including one on contributory negligence and one on assumption of the risk.

The jury answers all the liability issues in our favor. It also finds what was at that time very significant damages for lost earnings, loss of future earning capacity, past and future medical expenses, and past and future pain and suffering and mental anguish.

Later, I would learn that to support big ticket items you need a life care plan and an economist. I just had no idea back in 1968. I have always tried to learn from my mistakes. But you can’t do what you don’t know to do. I never had a plaintiffs’ attorney mentor. I just had to learn along the way.

Three years later I meet a Rice University economics professor at a political meeting. I had read in one of the trial lawyer magazines about using an economist to project future economic losses. We explore the idea of calculating future losses using sound economic principles. I become the first to use an economist in Houston, and probably the entire state. The case was an action involving injuries to a worker who inadvertently stuck a pole into a power line. The professor is a neophyte, but catches on fast. It isn’t long before Don Huddle becomes a popular expert for other plaintiffs’ lawyers in Houston.

We talk with jurors after they hand down the Jimmy Frank Taylor verdict. I am very concerned about the assumption of the risk.

The foreman of the jury is the proprietor of a gas station on Memorial Drive. This is a conversation I remember well, as it taught me a very valuable lesson.

The juror tells me, “We had trouble with that question about assumed risk. It asked us whether Jimmy Frank ‘knew or appreciated the danger of operating a gantry without the safety device to prevent tip overs’. We agreed he ‘knew’, but he also had to ‘appreciate’. We tossed that word around when someone said, ‘appreciate’ is what you do when someone does something nice for you. So we answered, ‘no’, because Jimmy might have known it was dangerous, but he sure didn’t ‘appreciate’ it.”

It never occurred to me to ask the judge to give a definition of “appreciate” as part of the courts charge. I’m sure glad I didn’t.

Texas State Bar Committees met regularly over the years to promulgate pattern jury special issues, instructions, and legal definitions in various and sundry types of tort cases. I was a member of one of the committees in the 1980’s. It was comprised of both plaintiffs’ and defense lawyers. Texas Bar Books staff publications attorneys and editors then review and fine-tune the material provided by the committees, after which books containing the documents the committees had come up with go into production. Our books containing Pattern Jury Charges were first published in 1969. While the special issues and legal definitions prepared by the committees have no force of law other than established by common law precedent, most trial judges slavishly adhere to them. “If it is not in the book, its not going to go to the jury.”, they would often say.

My law school may be the only one in the country that has two Inner Circle of Advocates as adjunct professors in their trial advocacy program. Zoe Littlefield is the other besides me. She has scorched many a drug manufacturer for selling dangerous medications. Many of her cases have been tried in other states.

Some of my students also take Zoe’s class. One day one of my students was commenting on how Zoe believes a lawyer should request definitions in the jury charge of ordinary words, in addition to

the definitions of legal terms. Maybe it is my experience with Jimmy Frank Taylor’s case that would make me caution against doing this. In English, we have many homonyms—words that are spelled the same but have multiple meanings. I am so glad I didn’t ask for a definition of “appreciate” when we tried Jimmy’s case.

Whether it was true or not, I am told after the verdict that it was the largest personal injury verdict in the state that year. The defense never offered a dime before trial. That would be a theme in cases that follow.

Even though I have obtained several multi-million dollar verdicts, all but one was in a case where the defense chose not to attempt any compromise. That one was an obstetrical malpractice case where during the trial the hospital offered three million dollars to settle the case. I left the decision up to the mother of a Cerebral Palsy child. She said she had faith in me and wanted to, “see what the jury said”. That jury awarded us five times the defense offer. We eventually recovered all of it (with interest) after the defense exhausted all their appeals.

At the conclusion of Jimmy’s trial, I flew on borrowed wings. I borrowed wings from Harold Benson, our NASA expert. I borrowed the wings of Kenneth Huseman, my high school classmate who knew so much more about gantry cranes than the defense lawyer. I borrowed the wings of the doctors who testified that Jimmy’s brain damage had reduced his intelligence to that of a moron. But mainly I flew on the wings loaned to me by Jimmy Frank Taylor himself, one of the finest men I will ever know.

A few weeks after trial, I got a call from the Dean of the University of Houston Law Center, John Neibel, who was my favorite professor in law school. He had heard of my verdict. He took great interest and pride in our graduates and wondered if I might come to the law school and give a presentation about the case. The former Dean, Newell Blakely, was the one who had urged me to go work with Fulbright and Jaworski to prove we had a top-notch law school. Now I was confirming it, working from the other side of the street.

We had a good crowd in the auditorium the morning I came, bringing the crane model with me. The students heard me talk about trial strategies and particularly the effectiveness of working models. I left the model with the school. It was kept on display for quite some time.

Even now, over fifty years later, I run into lawyers who attended that presentation as students and were inspired to become trial lawyers.

I know if I had chosen to stay with the big firm I would have progressed over time to become a partner. I would have had a secure financial and social future. But as it turned out, joining a small plaintiffs’ firm allowed me to enjoy honors that I could not have otherwise realized.

Beginning in the mid-seventies our law school hosted an annual luncheon downtown where the Dean announced the outstanding law alumnus. I always attended those and hoped one day to deserve the highly prized honor. In 1977, my dream was realized. But as happens so often when your drive for success and recognition conflicts with your moments of glory, I was in trial in Ft. Worth. My law partner accepted the award in my behalf. I still regret missing that event. There were so many people I wanted to publicly thank. Most of them are now gone.

The Order of the Coif is an honor society for United States law school graduates. A student at an American law school who earns a Juris Doctor degree and graduates in the top 10 percent of his or her class is eligible for membership if the student's law school has a chapter of the Order. The University of Houston Law Center launched its Order of the Coif chapter in 1983. In 1986, I was named Distinguished Alumnus at a ceremony in Krost Hall. I gave a short speech in a program attended by my wife and three sons. This was just another occasion when I was recognized for accomplishments that could not have been obtained had I not attended law school at the University of Houston.

I have now been named in every edition of The Best Lawyers in America, from its inception in1983 up to the present. There is irony in

that because I have been a lowly law professor at our law school for the last twelve years.

The Houston Trial Lawyers Association named me as the recipient of their first Clarence Darrow Award in 2005. There was a touch of satire in giving this award to someone who has never made headlines or tried a historic case.

Equally undeserved were my invitations to the National College of Trial Lawyers and the International Society of Barristers, two prestigious trial lawyer organizations.

My most prized recognition was received in 1999.

The Inner Circle of Advocates is an invitation-only group of the best plaintiffs’ lawyers in the United States. Membership is limited to the top 100 trial lawyers in the country. There are only six other active members in the State of Texas. To be eligible, a lawyer must have obtained several million-dollar verdicts and be well respected among their peers. The annual conventions are held at five star resorts, with elaborate dinners, celebrity entertainment, and lawyers sharing their latest techniques of trial strategy and methods of persuasion.

My education as a trial lawyer took on a whole new dimension starting with the first meeting I attended with these giants of the legal profession. I never attend one of these conferences when my mind doesn’t drift back to those tedious days and nights in the basement of the M.D. Anderson Library. I wonder how I could be so fortunate to now find myself part of this select group of courtroom titans whose efforts have literally made the world a better place to live. This awareness has left me in awe and with a sense of pride in my accomplishments that I could not have imagined 57 years ago. It is a dimension inspired and realized only because I was fortunate enough to attend and graduate from what I consider to be the finest law school in the country. A school that taught me that no good man should ever be bought for ten cents on the dollar.

CHAPTER 5

GOOD FACTS MADE BAD LAW

Everyone knows that bad facts make bad law. Early in my career I made some bad law, but it wasn’t because my facts were bad. It was because they were too good.

The case I am about to tell you about went before the Texas Supreme Court. I knew when the court ruled that its holding was bad. I just knew instinctively that the court’s ruling would not withstand the test of time. I was right.

Sometimes after achieving even a short string of victories, people create a reputation for someone that’s impossible to live up to. Such was true for me in the 1970’s. In reality, I could only stand in the shadows of the great Houston trial lawyers of that era such as Joe Jamail, Shirley Helm, and Will Watkins. But being young and hungry, I was willing to take on difficult cases those big names wouldn’t touch.

In many ways, I was like John Wesley Hardin of the Old West, aspiring to be as accepted a gunfighter as Wild Bill Hickock. The problem with aspirations like that is that there is always the potential for a misfire—an equipment failure so to speak. For the trial lawyer, our equipment is the law applicable to the facts at hand. In this particular case, I had an equipment failure. In my case, the law misfired.

Willie Dickerson and Ormand Leday were employees of a trucking outfit by the name of Big Mack Trucking Company. They were driving 18-wheelers with flatbed trailers loaded with sheet steel, traveling across Texas from Eagle Pass on the border with Mexico all the way up to the little town of Arp, near Tyler.

The drivers decided to make a rest stop in Waco. They parked their trucks on the downward slope of a hill. Leday parked his truck about a car length behind Dickerson’s, got out, and went inside. Dickerson climbed out of his cab and walked around the back of his trailer,

apparently to check his load. Suddenly, Leday’s unattended truck and trailer rolled forward, crushing Dickerson.

Dickerson’s wife and children first applied for and received workers’ compensation benefits. Then their workers’ compensation lawyer contacted me.

“Do you think there is anything else we could do for this widow and these children?”, he asked.

I told him that the recovery of workers’ compensation benefits is normally a bar to any common-law recovery, but that I would look it over try to find any angle of additional money. After really studying the case, my research led me to believe we might have a case after all.

We filed suit against the other driver and the company itself, Big Mack Trucking Company. We took the depositions of Big Mack’s Vice President, David Stiles, and the investigating state trooper, Henry Harwell.

I had about decided we were about at a dead end when a part of Stiles’ testimony tickled a repressed brain cell. I had asked Stiles what the company held out of Dickerson’s paycheck each week. He listed the usual things, such as taxes, health insurance, and federal withholding. But then he added, “and workman’s compensation premiums.” A little buzzer suddenly went off in my brain, “I don’t think they can do that.”

I went straight to the black books to find a statute I had tucked away in my memory. There I found a section of the Texas Workers’ Compensation Act that had seen little litigation. It provided a right to recover damages for wrongful death from an employer who withholds workers’ compensation premiums, notwithstanding the fact that the workers’ compensation beneficiaries have already been paid workers’ compensation benefits. We amended our petition to claim a cause of action for death benefits on the ground that the employer had withheld compensation premiums.

The trial judge was the Honorable George Cire, one of Harris

County’s most admired and respected jurists. Judge Cire was a no nonsense strict constructionist of the law.

The defense was represented by one of the “Big Three” defense firms (not my old firm, Fulbright and Jaworski).

Our case would be made at trial through the testimony of the widow, the deposition testimony of Trooper Harwell, and Stiles, who appeared as the corporate representative of Big Mack. We had not been able to obtain the deposition of LeDay because he had moved out of state beyond our subpoena range. But pre-trial research had indicated we could make our case without him.

The only evidence we had concerning the withholding of workers’ compensation premiums was the testimony Stiles gave during his deposition. I had gotten a “tell” from opposing counsel that they were aware of the problem. I had to box him in. I called Stiles to the stand adversely, and began by saying that I would be asking the same questions that we had covered during his deposition. I handed him a copy of the deposition and told him that he was free to use it to refresh his recollection if he desired.

The portion of Stiles’ testimony touching on the payment of premiums for workers’ compensation insurance reads:

Q. Now, then, insofar as his pay is concerned, he is getting $200. When Big Mac goes to pay him, would they hold anything out of that?

A. Yes, sir.

Q. What would they hold out of it?

A. Withholdings, FICA.

Q. What else?

A. That’s about it.

Q. They held out workmen’s compensation premiums too, didn’t they?

A. Sir?

Q. They held out workmen’s compensation premiums, too, didn’t they?

A. I can’t say for sure. I don’t know.

Q. Well, look at page 7 of your deposition.

The defense lawyer tried to throw a rope to pull his witness out of the quicksand:

Defense counsel: “They paid them. They didn’t hold them out.”

A. We paid the workmen’s compensation on him, yes, sir. It wasn’t held out of his salary.

Q. (By Mr. Perdue) It says here, “Nothing other than workmen’s compensation.” Would Big Mac hold out anything from the money that was to be paid Dickerson? Am I correct? Did I read that correctly?

A. What would be held from his check would be withholdings, FICA. Big Mac Trucking Company would pay the withholding tax, and so forth.

Q. Didn’t you testify here at page 7 of your deposition that the things they would hold out were withholding, social security and workers’ compensation premiums?

A. I did not understand the “workers’ compensation premiums.” No, sir, I did not understand it at that time.

Q. Are you changing that testimony?

A. I am saying that I misunderstood at the time, sir.

Q. Then I asked, the next question: “The only thing that you would hold out would be social security, of course, the income tax which you are required to withhold, and then something in connection with some workers’ compensation premiums?” And what did you answer, at the top of page 8?

A. “Right.”

Q. “Right.” And isn’t it true that later on in your deposition you testified again that you withheld workers’ compensation premiums? We will get to that in a bit, but isn’t it true you testified at another place in the deposition that you did?

A. I don’t know, sir.

Q. Well, this deposition was taken back in December of 1968, was it not?

A. Yes, sir.

Q. And it was taken at a time when these facts were fresh on your mind?

A. Yes, sir.

Q. Is there anything that has happened since then to make you—something unusual that has been brought to mind so that you want to change your testimony in that regard?

A. No, sir, not at all.

Q. Do you stand by the testimony you gave under oath to an official court reporter just as this is an official court reporter here?

A. Yes, sir.

Q. And that testimony is true and correct?

A. Yes, sir.

When it came time to request issues for the charge we asked the court to submit the following question to the jury:

Did Big Mack withhold from Dickerson’s wages the amounts necessary to pay the premiums for workers’ compensation insurance?

The jury found that Leday was acting in course and scope as an employee of Big Mack at the time of the accident, that Leday was guilty of two acts of negligence that also amounted to heedless and reckless disregard of the rights of others, and that those acts were proximate causes of the occurrence. The jury found actual damages in the aggregate amount of $220,000, which was fairly significant wrongful death damages for a truck driver in 1970. The jury also found that Big Mack had withheld the amounts necessary from Dickerson’s wages to pay the premiums for his workers’ compensation insurance.

We dismissed our claim against LeDay, moved for judgment, and waited for the inevitable notice of appeal.

The insurance company wasted no time in firing their lawyer and hiring a friend of mine who worked at Fulbright. Jim Sales and I would later co-author a treatise on products liability in 1977.

The defense brought several points of error in their appeal. First, they contended there was no evidence or insufficient evidence of negligence on the part of LeDay. He had reported, however, to the investigating police officer and to the Big Mack vice president that when he parked his truck he was having air pressure trouble.

Q. And did you take it by what he said that he was not maintaining 120 pounds of air pressure, as he

needed to maintain this braking system?

A. Well, right.

The defense argued that this was hearsay testimony, and whether objected to or not, it did not constitute evidence of probative force unless it was admissible under an exception to the hearsay rule. They contended that LeDay’s admission he was having brake problems was offered as proof of the truth of the facts stated and thus constituted hearsay testimony. They urged that because it was hearsay, this testimony could not be used to prove negligence.

Our response was that this testimony fell within the well-recognized exception to the hearsay rule that admissions of a party may be received as substantive evidence, even though they constitute hearsay. We explained to the court that LeDay was acting as an agent of Big Mack Trucking Company when he reported that he had brake problems to the police and later directly to company representatives.

When the time came for oral arguments before the court of appeals, I suggested having them in Krost Hall at the University of Houston Law Center. This had never been done before, but I thought if the court and opposing counsel would agree, it would be an interesting and beneficial exercise for the law students. We drew a big crowd. Judge Spurgeon Bell, the Chief Justice of the court, drew a big laugh when discussing a prior opinion of his that I argued, “The court obviously thought…” And he replied, “I don’t remember thinking that.”

The Houston First Court of Appeals held that an agent’s statement of fact made within the scope of his authority, express or implied, is usually received in evidence against his principal. In the instance of implied authority the rule is usually stated: The declarations or statements of an agent are admissible against his principal when they accompany an authorized act or are closely enough connected with it to be considered a part of the res gestae.

A more accurate statement of the rule would be: The assertions of an agent are admissible against his principal when made within the

scope of the agent’s express or implied authority to make the assertions. McCormick and Ray, TEXAS LAW OF EVIDENCE (2d Ed.), V. 2, s 1164, pp. 56—57.

Our position was that Leday was authorized to report the facts concerning an accident in which he was involved to the vice president of the company by whom he was employed. His statement constituted an admission and was properly admitted into evidence against his principal.

Big Mack further contended that the jury finding of withholding of workers’ compensation premiums was against the weight of the evidence. The court rejected that contention. Instead, the court found:

The testimony of Mr. Stiles, an officer of the defendant corporation, must be viewed as that of a party to the action. A statement made by a party to an action amounting to a prior acknowledgment by such party that one of the facts relevant to the issues is not as he now claims is an admission. Such an admission is admissible as an exception to the hearsay rule and constitutes affirmative substantive evidence.

Other defenses were summarily rejected and the Court of Appeals affirmed our judgment.

We feel we are strong on the law and facts and the Texas Supreme Court has limited jurisdiction.

But, we can’t walk away from Boot Hill just yet. The Supreme Court grants writ on five points raised by the defense. And their last point seems almost like a throw away. They contend that LeDay’s comments to Stiles’ and the investigating officer was hearsay and inadequate to support the jury’s findings of negligence on LeDay. While all the points of error must be squarely addressed, we give special attention to the issue of the adequacy of LeDay’s statements as proof of negligence. I feel we are sound, but have a more than qualified ally. Wesley Hardin can bring Wyatt Earp to this gunfight.

I had a good relationship with Dean Newell Blakely both in law school and after graduating. He is one of the leading Texas authorities on the Rules of Evidence. His work affected every practicing lawyer in Texas. He shared his ideas, his thoughts, and his opinions with anyone who asked. Newell Blakely was active in the drafting of the Texas Penal Code enacted by the legislature in 1973; in the Texas Rules of Civil Evidence, promulgated by the Supreme Court of Texas in 1983; and in the Texas Rules of Criminal Evidence, promulgated by the Texas Court of Criminal Appeals in 1986.

With regard to scholarship, Newell Blakely’s rules were simple: be thorough, be concise, and if you want people to understand a complex subject, plainly relay to them the topic at hand.

I telephoned Dean Blakely and ask if he could advise me on an evidence issue I have before the Texas Supreme Court. I will be more than willing to come to the campus for a visit. He insists on coming to my office. We discuss the issue. He agrees I am on sound ground and scribbles some notes for me to go over.

We argue the case in Austin. I am confident. But, in the summer of 1973 we get the court’s opinion. The rule the Supreme Court announces completely eviscerates my understanding of a long- standing, well-established rule, by first observing:

The question evolves, then, whether Leday’s express authority to operate the truck may be a basis for implied authority to explain how the accident came to pass. Most authorities take the position that a driver’s statements after an accident are not authorized by his employer.

The court reverses and remands for a new trial. I know this is the end for Mrs. Dickerson and her children. Jim Sales will come with a sawed off shotgun for any retrial.

At the re-trial, I show up and see a courtroom full of boxes. Those boxes contain documentation that the corporation didn’t withhold workers’ compensation premiums for Dickerson or any of their employees. I also know that Jim Sales will have Stiles groomed like a

racehorse for this court appearance. There is nothing to be done. I explain our situation to Mrs. Dickerson, congratulate Jim Sales on his pulling the corporations’ chestnuts out of the fire, and walk back to the office.

Still I can’t get over the bad evidence law our Supreme Court announced.

In the years that follow I run across many legal scholars and appellate judges that criticize the court’s opinion. I know several of my distinguished brothers thought it was “bad law designed to prevent what the court saw as an unjust result.”

In 1983, Texas adopted Rules of Civil Evidence. Section 801 provides:

Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay.

(e) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:

(D) was made by the party’s agent or employee on a matter within the scope of that relationship, and while it existed.

Thirteen years after the Supreme Court’s Big Mack opinion, one legal scholar noted:

Texas Rule of Evidence 801 (e)(2)(D) reversed the much- criticized holding of Big Mack Trucking Co. v. Dickerson. In Big Mack, the court limited the category of agent or servant admissions that are admissible against the principal. Under the new rule, admissions of agents or employees are admissible if they are made during the existence of an employment relationship and concern

matters within the scope of the employment relationship, even though the agent or servant has no authority to speak. Linda Leuchter Addison, Evidence, 40 Sw L.J. 459 (1986).

I had made some bad law. But my facts weren’t so bad as much our tactics offended the corporate spirit that if the facts are bad, argue the law. If the law is bad misinterpret it or change it. Future years will show just how far the insurance and corporate interests in the State of Texas will go to insure the result is one they favor.

References:

Big Mack Trucking Company Inc. v. Dickerson, 497 SW2d 283 (Tex. 1973).

Vernon’s Tex. Rev. Civ. Stat. Ann. art. 8306, § 12g.

It shall be unlawful for any subscriber or any employer who seeks to comply with the provisions of this law to either directly or indirectly collect of or from his employees by any means or pretense whatever any premium under this law or part thereof paid or to be paid upon any policy of such insurance designed to cover such employees. If any such subscriber or any employer of labor in this State violates this provision of this law, then any employee or the legal beneficiary of any employee of such employer or subscriber shall be entitled to all the benefits of this law and in addition thereto shall have a separate right of action to recover damages against such employer without regard to the compensation paid or to be paid to such employee or beneficiary under this law.

Art. 8306. Repealed by Acts 1989, 71st Leg., 2nd C.S., ch. 1, § 16.01(7) to (9), eff. Jan. 1, 1991.

CHAPTER SIX

SETTING A PRECEDENT IN REDNECK COUNTRY

Texas is a diverse state demographically, politically, and geographically. The Panhandle is different in so many ways from other parts of the state. The same is true of East Texas, part of which is commonly referred to as the “Piney Woods.”

The East Texas counties are sparsely populated compared to central Texas and most of the Gulf Coast. East Texas doesn’t have big cities like Houston, Austin, Dallas, Fort Worth, or San Antonio. Like the rest of America, Texas has huge political and cultural differences between its rural counties and its big, sprawling metropolitan areas.

Trying a malpractice case one of the rural communities poses some unique and difficult challenges. Those challenges were even more profound back in the 1970’s and 80’s. Country folks, it seems, don’t like lawyers who sue their local doctors. I learned that the hard way.

In the early 70’s, I was just starting to get a reputation as a medical malpractice lawyer, when I got a call from a lawyer in Beaumont, the county seat of Jefferson County, a Gulf Coast county near the Louisiana border. Beaumont had a population of about 117,000 at the time, and was a major hub for the petrochemical industry. The petrochemical worker’s union made Jefferson County favorable to plaintiffs in every type of personal injury litigation except—you guessed it—medical malpractice! But what does a young, ambitious, still-wet-behind-the-ears lawyer know?

I go to Beaumont to meet the lawyer and his client, a young man in his mid-twenties. I don’t remember the client’s name for reasons that will become apparent as this story unfolds.

He was water skiing, when he sustained a complete fracture of the femur, the big thighbone between the knee and hip. His bone completely broke and separated. A Beaumont orthopedic surgeon improperly set the broken leg, which resulted in a non-union. It had

not properly grown back together. Because the doctor who later tried to repair what had been done was only minimally helpful, I turn to an out-of-state expert to make our case. We sue the orthopedic surgeon who had committed medical negligence and caused the client to be crippled for life.

The largest defense firm in Beaumont answered the lawsuit. The lawyer is Cleve Bochman, one of the finest defense lawyers I would ever meet.

Cleve is in his early sixties and has a deep, gravelly voice. His wealth of courtroom experience is on display with his slow, measured speech, his smooth, controlled movement, and his projected confidence.

I think I put on a good case. But it is closing argument that I remember so clearly.

Addressing the jury, Cleve doesn’t talk about the case so much as he constructs a narrative about how much stress I had put upon his doctor by suing him.

He begins his story by telling how his doctor was resting at home one night when his doorbell rang. He answered the door, to be confronted with a uniformed constable.

Cleve says (in his deep stentorian voice, as only he could), “Doctor, you’ve been sued for malpractice.”

I had left myself wide open for Cleve’s argument. In those days you weren’t required to give written notice before filing a malpractice case. And I had not filed a motion in limine to try to cut off Cleve’s defense approach: testifying to facts in closing argument that were not part of the record and that might not even be true.

I lost the case. But even though I lost, I admired Cleve as a courteous and ethical advocate.

A year later, he invited me to speak to the Beaumont Medical

Association about Texas malpractice law. As is true of most of the speaking engagements of all trial lawyers I knew at the time, my public appearances had been before peers—speeches made to other trial lawyers. This time was different though. I might as well have been speaking to AIPAC (The American Israel Public Affairs Committee) about the benefits of Nazi Concentration Camps. The group was marginally polite at first. Then it became openly hostile. I got out before they could put me on trial for war crimes. Still, I encourage any aspiring lawyer to never turn down an opportunity for professional public exposure.

The Holmes case will prove the point.

About a year after speaking in Beaumont I get a call from a Jasper resident. Hugh Holmes’s wife, Rhoda, had died in St. Joseph’s Hospital in Houston after an operation in a Jasper hospital led first to a transfer to a hospital in Beaumont and then to St. Joseph’s where she died.

Hugh tells me Dr. Miller, who had treated Mrs. Holmes at the hospital in Beaumont, had heard me speak and suggested he call me, all the while insisting, “I can’t get involved and can’t support you.” That was a familiar line heard so often by malpractice lawyers.

I send Hugh a power of attorney and medical authorizations that are promptly returned. Armed with the authorizations, I order the hospital records from the Jasper, Beaumont, and Houston hospitals.

Robert Bucklin is a pathologist and lawyer in California. I had gotten to know him through various associations. Robert reviews the autopsy report that shows Hugh’s wife had extensive brain changes, inflammatory changes, bronchial pneumonia, pulmonary abscesses, multiple thrombi in mesenteric and retroperitoneal veins, and evidence of vascular disease. Dr. Bucklin believes the Jasper and Beaumont hospital records show evidence of malpractice in Jasper.

If you think trying a malpractice case in Beaumont is a bridge too far, think of Jasper, Texas, as a trip to Mars. Jasper, the county seat of Jasper County, is in deep East Texas with a population of 6,000 Jeff

Foxworthy rednecks. It would later take the world stage as the site of the James Byrd, Jr. hate crime when three white men murdered a local black resident by dragging him to death behind their pickup truck.

Joe Tonnahill is a legendary trial lawyer who practices in Jasper but is known statewide. I discuss the case with him. I knew if I have him as local counsel I would have a leg up. Joe sympathizes with me but can’t get involved because he knows the doctor. He tells me not to bother asking any other Jasper lawyer, because I will get the same answer. So, I do something I would never do again and would advise any lawyer not to try. I decide to pursue the case without local counsel.

We give formal notice to the Jasper hospital and surgeon, file suit, and begin discovery. We put together a story of neglect and inexcusable delay in properly treating or seeking help from a qualified specialist for a paralytic ileus.

Ileus is the temporary arrest of intestinal peristalsis, the automatic involuntary movement of muscles that moves food through the digestive tract. Ileus occurs most commonly after abdominal surgery, particularly when the intestines have been manipulated. Its symptoms are nausea, vomiting, and vague abdominal discomfort. A diagnosis of the condition is based on x-rays and clinical impression.

Rhoda Holmes was a nurse who worked at Jasper Memorial Hospital. She knew Dr. A. J. Richardson, a general practitioner, who admitted her to the hospital for elective surgery on July 19, 1971.

After being admitted, Dr. W. D. Bailey first performed an anterior and posterior repair on Rhonda. Anterior and posterior repair involves minimally invasive procedures used to correct pelvic organs that have dropped out of their normal positions. AP repair is used to tighten the support tissues that hold these organs in place, restoring their normal position and function. After the AP repair was performed, Dr. Richardson performed a hysterectomy.

Rhoda began showing signs of a blocked bowel early in her post-

operative stay. Over the next 8 days she was throwing up, intubated, and distended.

On the third post-op day, x-rays showed a paralytic ileus, the obstruction of the intestine due to paralysis of the intestinal muscles. This meant her intestinal muscles were so inactive that it prevented the passage of food and amounted to a functional blockage of the intestine. She was not eating. Lab work and temperature indicated peritonitis, an infection of the abdominal wall.

On the sixth day, the nurse noted that Rhoda said, “If something is not done I am going to die here.” This became one of our strongest bits of evidence. Treating physicians can say all they want about the diligence of their care but juries usually put some emphasis on the patient’s perspective.

After eight days of agony, Dr. Richardson transferred Rhoda to a Beaumont hospital and the care of Dr. Miller.

When I took Dr. Miller’s deposition, he was less than critical of the care the patient had received in Jasper. That means I have to find an independent expert.

I know Dr. Ken Mathis as a student of mine when I taught a course on Texas Medical Malpractice at the University of Houston Law Center. I approach him, and he introduces me to Dr. Ed Fitch, a general and thoracic surgeon, in Pasadena where Dr. Mathis practices. He reviews the records. When I ask him how he would treat a patient like Rhoda who was suffering from a paralytic ileus, he has a simple and direct answer: “With a knife.”

In the 70’s no doctors within 500 miles of a defendant will testify for the plaintiff in a malpractice case, but Dr. Fitch agrees because, I am sure, of his relationship with Ken Mathis. He will give me a deposition, but will under no circumstances will he come to Jasper.

I decide to go to trial with what I have: the depositions of Drs. Bucklin, Fitch, and Miller. Dr. Fitch believes Dr. Richardson should have operated to relieve the bowel obstruction. If he didn’t feel capable he

should have referred her and called in a qualified surgeon. Dr. Bucklin ties the knot on proximate cause:

Yes, it is quite obvious from the hospital records that the delay in instituting appropriate treatment, especially surgery, did result in serious complications, which eventually caused the death of Mrs. Holmes.

I will have to do a job on Dr. Richardson at trial. Fine with me. I believe when the truth is with you, the witness is vulnerable if the lawyer does his homework and knows how to do a little surgery of his own.

The defense is represented by Ralph Zeleskey, one of the good ole’ boy defense lawyers out of Lufkin, a small city also deep in the Piney Woods.

We pick a jury and I read our liability expert depositions. This is not what I would recommend, but it is what we had in the days before videotaped testimony. With our prima facie case on liability in evidence, I move to damages. I call Hugh Holmes, who testifies about his life with Rhoda, what happened to cause her to be admitted to the hospital, what he knows about her stays in the Jasper, Beaumont, and Houston hospitals, her death, and funeral.

Ralph is cross-examining Hugh and goes to the blackboard. Hugh had remarried after Rhoda’s death. He puts Rhoda’s name on the left side of the board, puts Hugh’s new wife’s name on the right, and then draws a line down the middle. I see where this is going and immediately object.

At one time I was a good chess player. Chess is a great discipline to teach that in trial you must always think several moves ahead of your opponent. In Texas terms: it’s too late to cap the well after it’s blown. A bench conference follows. I ask Ralph, “Are you intending to show that Hugh’s damages have been diminished by what his second wife is now contributing?” He says that is exactly what he intends to do. I respond, “In a death case the plaintiff’s losses are fixed at the time of death”.

I cite the Texas Wrongful Death Statute. Tex. Rev. Civ. Stat. Ann. art. 4675a provides:

In an action under this title, evidence of the actual ceremonial remarriage of the surviving spouse is admissible, if such is true, but the defense is prohibited from directly or indirectly mentioning or alluding to any common-law marriage, extra-marital relationship, or marital prospects of the surviving spouse.

No Texas appellate court had interpreted the statute, but other authorities supported my interpretation: in a wrongful death case the surviving beneficiaries’ rights are fixed at the time of death.

After a spirited debate, the trial judge agrees with me. The court rules that evidence of earnings or other contributions of Hugh’s second wife is inadmissible. The ruling is critical, as my next witness is Don Huddle, my economist.

Dr. Huddle projects the loss of earnings as a result of Rhoda’s death is $222,446. The projection is based on an inflation rate using government statistics.

To my knowledge I was the first Houston lawyer to use an economist in a personal injury case a few years earlier. Zeleskey has not done his homework, because his approach was tried before and failed.

On cross examination, the Lufkin lawyer challenges the projections by taking the wages of a Revolutionary soldier ($6.00 a month), compounding it, and coming up with some extraordinary figure.

Zeleskey asks, “You wouldn’t expect a soldier to be making that today, would you?” Dr. Huddle’s answer was, as it had been in Houston a few years earlier, “Yes, but where would you find a soldier with 200 years of experience.”

The jury awarded us Huddle’s figure, which was considered a significant win in a malpractice case tried in a small town in clodhopper country.

Zeleskey calls Dr. Richardson during his case in chief. Many plaintiffs’ cases are won or lost by the cross examination of the defendant. My cross follows the rules I have learned from study and experience.

Maintain control by speaking slowly, articulating clearly, and at a comfortable volume. A measured cadence works best, but there may be occasions when rapid-fire questions can get the witness off balance. The lawyer who appears measured and purposeful is the lawyer who projects control.

Pick out three points you want to emphasize with “looping”. Repeat the witness’s answer slowly, in dramatic fashion while making eye contact with the jury. Sometimes a tautology is appropriate. Putting the witness’s testimony in slightly different but more vivid or forceful terms can be an effective persuasive technique.

Position yourself (in courts that do not require counsel to remain seated during examination) in such a way the witness must look at you and away from the jury.

Of course, for a good cross-examination, preparation is essential.

Never ask a question to which you do not know the answer.

Structure your cross to begin with your second strongest point.

End with your strongest point.

Follow these basic rules:

Know your story. Use the witness to bolster your narrative by asking leading questions.

Ask short questions that involve one fact and one fact only.

Be brief. Prolonging a cross examination only heightens the opportunity for error, or worse, losing the dramatic impact or the jurors’ interest.

Be selective. Cross examine only on significant points. If you are only covering what was covered on direct examination you might as well just pass the witness. A successful cross examination introduces some new facts left out on direct or corrects the context of facts presented on direct.

Listen. Be flexible and look for openings you may not have anticipated. It is always easier to cross-examine a witness who must rely on or be bound by written documents. Tangible evidence can be the anchor for a successful cross-examination. Jurors often consider what a witness says as “hearsay”, whereas they considered things documented as “credible”.

We had several anchors for Dr. Richardson’s cross-examination: his notes in the Jasper hospital’s records; the nurses’ notes in the Jasper hospital’s records; and the doctor and nurses’ notes in the Beaumont hospital’s records.

Dr. Richardson’s efforts to disclaim or modify the written entries laid the foundation in closing argument for the mnemonic:

The spoken word flies away; The written word is here to stay.

Zeleskey bought into the idea that a plaintiff could not win a malpractice verdict in Jasper against a local doctor. There are never any settlement negotiations. I am too idealistic to accept the defense analysis. Surely this jury will recognize that this level of medical care threatens them and their loved ones. It is the Reptilian appeal I will emphasize in closing argument.

The jury finds Dr. Richardson negligent, that his negligence was a proximate cause of Rhoda’s death, and awards damages.

Beaumont’s Ninth Court of Appeals affirms our verdict after discussing the medical facts and history. The defense’s claim that the trial court blundered by prohibiting the defense from using the second

wife’s contribution in mitigation of damages is the critical and precedent making part of the decision.

The cause of action of wrongful death and the recoverable damages are established at the time of death. Dobbs, Remedies § 8.6 at 568 (1973); 87 A.L.R.2d 252 (1968). The effect of subsequent developments after death should not alter the rationale behind the principle and thereby reduce lawfully recoverable damages. Secondly, as in most jurisdictions, it is the rule in Texas that a tortfeasor’s obligation to make restitution for the injury he has caused is undiminished by any compensation received by the injured party from any collateral source.

The court further declared that to allow evidence on the effects of remarriage would clearly violate the rule. The court stated:

In light of the above holdings, we feel that if the legislature had intended to allow evidence other than the mere fact of remarriage, it certainly could have stated such. To us, any other interpretation of Tex. Rev. Civ. Stat. Ann. art. 4675a would necessarily involve judicial surmise into the realm of the legislators’ mental processes, a position we do not adopt. Such an interpretation would also involve a conflict with the principles as stated by our Supreme Court.

So, we not only won, we also set a precedent for future spouses who may lose their loved ones. Setting good legal precedent is to the trial lawyer like the first person who tasted ice cream. It’s so good you just can’t wait to try it again. And I will.

Reference:

Richardson v. Holmes, 525 S.W.2d 293 (Tex. App.—Beaumont 1975, writ ref’d n.r.e.).

74 CHAPTER SEVEN

TRIALS CAN BE FUN

A few years ago, I was returning from a speaking engagement and sitting next to me on the plane is a young man about 35 years old. A few pleasantries pass between us and I ask, “What is your profession?” He replies in an officious and condescending voice, “I am a trial lawyer.” I have not heard of him, which, of course, means nothing, because there is so many one cannot possibly know them all. When you are out of active practice you lose touch with lawyers and judges. While I am privileged as a member of the Inner Circle to regularly connect with members of that august body, I realize there are so many top-notch plaintiffs’ lawyers in Texas I have never had the chance to meet. His conceit grows as I ask him what kind of trial work he does.

“I am a plaintiffs’ trial lawyer that handles mass torts.”, he replies.

I comment that his practice must keep him busy.

He blusters, “I have had recoveries of $30 million or more and some not quite as large.”

Curiosity prompts my next question, “How many jury verdicts have you taken.”

Sheepishly he replies, “Well, I’ve never taken a jury verdict.”

I relax, lower my chair back in my first class seat on United Airlines, and reflect back how times have changed.

It’s not as though I have less admiration for lawyers who are able to achieve fair results for their clients by negotiation. There was a time when lawyers regularly settled their cases, but that usually occurred during trial. We did not have the mandatory “alternative dispute resolution” procedures we have today. Instead, we prepared for trial, and as the case progressed each side evaluated the evidence and

75 case’s potential value. We would sometimes have a “settlement conference,” usually over drinks at the Inns of Court, a lawyer’s club near the courthouse, or at the Capitol Club in the Rice Hotel, where I spent more “happy hours” than I care to admit with many of the giants of the Houston Bar. If we couldn’t reach an agreement we went on to verdict.

A good settlement in those days never approached the numbers that have become so common today. Young lawyers today may look back on what we did back then and think that we were just playing quarter poker where today they are playing no-limit hold ‘em. Regardless, we tried most of our cases back then, and a good portion of them went to verdict.

In 1973, I tried two product liability cases. Neither would compare with the horrendous injuries that later led to litigation over exploding Ford Pintos, uncrashworthy Corvairs, defective tires and seatbelts, defective pipes and gages, or defective medical devices and instruments. Nor would they compare with later litigation that exploded over the dangers of cigarettes, asbestos, pesticides, and cosmetic products.

Still, it was the trial lawyers of my era who, by obtaining jury verdicts as a result of defective products and holding those verdicts on appeal, laid the foundations for the jurisprudence that supports successful product liability litigation today.

In the first case, Jimmy Howell worked for Loomis Hydraulic Testing Service, a company that specializes in the pressure testing of joints in oil field tubing. Howell was a member of a crew using a Helicoid gage to test a new unit. When the gage failed, entrapped air caused a violent explosion, a stream of water burst through the front of the gage, shattering the lucite lens, and throwing a piece into Howell’s eye.

Although the evidence was conflicting, there was proof that the gage was new and exploded after only about thirty minutes of use. It was undisputed that the pressure at the time of the injury was substantially less than the maximum 20,000 pounds per square inch

76 of pressure that the gage was designed to measure. The evidence showed that for only $1.50 more the manufacturer could have equipped the gage with safety glass, which would have prevented Howell’s injury. That became my opening line, “To save $1.50, a man lost an eye.” The jury awarded $246,302.33 in damages. In those days, that was considered a notable verdict.

The defendant appealed on several points of error. The Court of Civil Appeals, Curtiss Brown, J., held, that it was foreseeable that the lucite lens on the gage would shatter in the event of a sudden explosion of the pressure medium, and that the addition of a shatterproof glass lens or a safety shield at a cost from $1.50 to $2.50 would not have unreasonably raised the cost of the product or diminished its utility.

The defense argued that buyers had the option to purchase safety glass when ordering gages from the Helicoid catalog. Helicoid had contended that the information in the sales catalogue was sufficient to warn purchasers of the danger of not purchasing safety glass for their gages. The court held that the catalogue information was not a sufficient warning. Further, the court held that jury instructions keying the definitions of “unreasonable risk of harm” and “defective or defectively designed” to the user rather than the purchaser of the product were not improper. The claim that the award of damages was excessive was also rejected.

In the second case, on November 6,1970, Dr. Kenneth Chambler was performing a hysterectomy on Jo Anne Parten when a surgical needle manufactured by Ethicon broke off in her vaginal cuff. Dr. Chambler was unable to retrieve the broken part of the needle because Mrs. Parten had underlying medical problems that meant removal presented a very significant risk. Therefore, the broken needle needed to remain in Mrs. Parten.

We brought suit against Ethicon for Mrs. Parten’s physical and emotional damages. Among other defenses, Ethicon contended Dr. Chambler misused the needle.

The evidence established that Ethicon manufactures several types of

77 surgical needles to which the suture material is attached in the manufacturing process. A hole is drilled in the blunt end. The suture material is fed into the hole, and the needle is then crimped on two sides to hold the suture. This crimping creates a swaged area in the needle. Under microscopic analysis it was apparent that the metal in the swaged area is often cracked in the crimping process. This weakens the needle at that point. The jury found the Ethicon needles to be defective and awarded damages in the amount of $81,000.

In both cases my primary liability expert was Robert Anderson, a metallurgical engineer. Developing relationships with qualified experts in specialized fields remains essential to lawyers pursuing product liability litigation.

After leaving Fulbright, several cases brought me to trial against former colleagues. The partner I had trained under, Jerry Walker, represented Ethicon in the Parten case. Royce Till, a Fulbright partner, represented a lawnmower manufacturer that we sued when a young girl lost an eye while her father was mowing his lawn. We recovered $250,000 for her after a successful jury verdict in that case.

Bill Payne and I had started with Fulbright about the same time. He later left the firm, moved to Corsicana, Texas, on some acreage on a quiet lake. He loved to fish. He became a rightwing radio commentator on a small radio station in Corsicana.

Bill was a character. He would buy boxes of the cheapest dress shirts he could buy, wear then once, and then throw them away. I guess he just didn’t like dealing with cleaners.

It took 3 weeks to try a case I had with Bill Payne. It was loaded with experts. Because of the nature of the case, a fair explanation of it is lengthy:

Dr. Sears had been Mrs. Cooper’s physician for approximately twenty years at the time of the treatment that became the basis for the suit. On October 12, 1972, Mrs. Cooper complained to Dr. Sears about not feeling well and of having a slight puffiness, or edema, in her face

78 and hands. Dr. Sears prescribed Enduron, a moderate diuretic for treatment of the edema. He instructed her to take one tablet a day. Mrs. Cooper called Dr. Sears’s office shortly after this visit and told the nurse that the Enduron had made her ill. The nurse instructed her to discontinue the medication until Dr. Sears returned to the city on October 20.

Mrs. Cooper saw Dr. Sears on October 20, at which time she had the same general complaint of not feeling well, in addition to nausea and the continued edema. Dr. Sears later noted in the hospital record that she acted strangely on that date. He instructed her to resume the Enduron.

On the evening of October 21, Mrs. Cooper called her husband at work and asked him to return home, as she was very ill. On Sunday morning, October 22, Mr. Cooper called Dr. Sears and advised him of his wife’s illness. Dr. Sears told him to discontinue solid foods, give her liquids, and bring her to his office on Monday.

Mr. Cooper gave Mrs. Cooper a glass of tea. Shortly thereafter he found her unconscious. He rushed her to the hospital, where she was admitted in a comatose state. It was later determined that she had sustained permanent brain damage.

Dr. Sears’s final diagnosis on discharge was anoxic encephalopathy, a lack of oxygen supply to the brain, due to coma probably caused by severe electrolyte imbalance. Mrs. Cooper, was eventually institutionalized, and would require custodial care for the rest of her life.

We pled two departures from accepted practice: the instructions to resume the drug after it had made Mrs. Cooper ill, and the prescription of Enduron in the absence of a diagnosis.

Dr. Sears, as well as the expert witnesses called by both sides, testified that a physician should know a patient’s condition before prescribing a drug. Expert witnesses on both sides indicated that if a drug makes a patient ill it should be discontinued, or at the very least an investigation should be made into the cause of the illness.

79 We retained Doctor George David Lundberg, a California physician specializing in pathology. He testified that the standards relating to the use of a diuretic are uniform throughout the areas in which he had practiced, Alabama, Texas, Hawaii, and California, and do not vary among the states. He classified this standard as a national standard, and not a local one. He further stated that the standard does not vary in the approaches taken by specialists and general practitioners.

Dr. Lundberg testified that Mrs. Cooper suffered from electrolyte imbalance, which was aggravated by the diuretic Enduron, and that this aggravation resulted in her brain damage.

Briefly, electrolytes are electrically charged substances, such as sodium and potassium, which are found in the blood. A particular balance or concentration of these substances in the blood stream is necessary for sustaining life. An imbalance produces detrimental results ranging from disorientation and weakness to coma and death. An imbalance may result from increased ingestion of fluids or rapid loss thereof, as by continued vomiting or diarrhea. The use of a diuretic, such as Enduron, which causes the body to lose fluids, may also cause an imbalance. Laboratory tests performed on a blood sample can determine whether there is a proper concentration of electrolytes in the system. These tests were not performed on Mrs. Cooper until after her admission to the hospital. Dr. Sears’s own records showed that Mrs. Cooper was admitted to the hospital with “severe electrolyte imbalance”. It was primarily on Dr. Sears’s records that Dr. Lundberg based his opinion.

Both negligence and proximate cause were at issue in the case. It is always rewarding when one of your old contributions to Texas jurisprudence comes to visit. Such was the case here, when the appellate court in affirming our judgment cited the Farley opinion, stating, “We feel that there is sufficient circumstantial evidence to support the jury’s verdict.” “Proximate cause, like any other ultimate fact, may be established by circumstantial evidence.” Farley v. M M Catte Co., 529 S.W.2d 751, 755 (Tex. 1975).

One of the defense positions taken in the case was the lack of evidence that Mrs. Cooper had in fact taken the medication as

80 claimed. The medical history recorded at the time of Mrs. Cooper’s admission to the hospital stated that she had been taking Enduron and may have taken too much. The evidence indicated that Dr. Sears could have known of this by way of a telephone conversation with Mrs. Cooper the night before her admission to the hospital. The defendant had objected to the testimony that Mr. Cooper testified that Dr. Sears told him that he had talked to Mrs. Cooper that night. In sustaining the court’s admission of this evidence, the appellate court relied on a well established rule: “Evidence of a patient’s statements which have been made to a physician for purposes of medical diagnosis or treatment and which describe the medical history of an ailment is not excluded by the hearsay rule.”

There was also testimony by Mr. Cooper that on the evening of October 21 his wife told him on the telephone that she had taken two pills and wondered if she should take a third. The defendant had objected to this statement as hearsay. We replied that the statement was admissible as res gestae. The appellate court confirmed backing our position.

The lesson for any lawyer young or old is study and put to heart your Rules of Evidence. I admire those who read their Bible every night. As a young lawyer I read parts of our Rules of Evidence every night and that was before Texas codified them.

At one point during the trial I was attempting to introduce some evidence. Bill Payne objected. I replied by citing a case. Bill Payne replied, “Your honor, that’s not the law. It was overruled by Young v. James.” The court called us up for a bench conference. I had never heard of the case Bill cited. When we got to the bench, I said, “Young v. James”? “Where did you get that?” Sheepishly, Bill speaking in an exceptionally low voice so as not to be heard by any juror, said, “Judge, I just made it up so Perdue couldn’t make me look bad.” I had to admire the guy for his chutzpah.

The jury awarded $500,000 for Mrs. Cooper’s future institutional care, which of course the defendant contended was excessive. The verdict and award were affirmed.

81 Today, recovering $250,000.00 for the loss of an eye, $81,000.00 for remains of a needle left in a woman’s vagina, or $500,000 for a brain damaged woman seems rather paltry. Yet all three defendants in those cases claimed on appeal that the damages were excessive.

Our new generation of trial lawyers might find that verdicts in the early 70’s are too far in the rearview mirror to appreciate in today’s terms. A comparison of the common costs and other metrics of that day, however, are revealing.

Year End Close of the Dow Jones Industrial Average: 850

Average cost of a new house: $32,500

Average income per year: $12,900

Average monthly rent: $175

Cost of a gallon of gasoline: 40 cents

A brand new AMC Javelin automobile: $2,900

A dozen eggs: 45 cents

Compare those to today’s costs forty-five years later.

And the significant events of that year occurred before many of the young Turks of today’s trial bar were even born:

 Roe v. Wade made abortion a US constitutional right.

 US Troops were withdrawn from Vietnam and U.S. involvement in the Vietnam War ended with the signing of a peace treaty.

 The Watergate Hearings began in the United States Senate and President Richard Nixon told the nation, “I am not a crook”.

 Secretariat was the Triple Crown winner for the first time in 25 years.

82  The Exorcist was released and became a box office hit.

 The barcode was first used in stores.

In trials today we use economists and other experts to project future damages, realizing the cost of everything will unquestionably increase. I often used charts and full-page grocery store advertisements from 40 years ago to impress on jurors how costs have risen in the last 40 years. In a personal example, the home my wife and I bought in West University in 1968 for $18,500 forty years later sold for $500,000. These kinds of facts help folks understand how future projections may seem difficult to accept. But if we use the past as a gage, maybe they aren’t.

Most of the trial lawyers of a half-century ago didn’t play for the eye- popping stakes of today. Still the talent of that day is impressive to anyone who lived it.

One such case comes to mind. The trial judge was Reagan Cartwright who I have mentioned earlier.

The case involved a horrendous two-car crash on a narrow highway west of Houston. A family of four was in one car; a single man, his female companion, and a friend in the other. The man left no children. An estate had been taken out for formal purposes in order that the driver’s estate could be named as a defendant. But obviously they were only after the insurance coverage. I represented the surviving female companion and the other passenger.

The head-on collision left serious doubt as to which driver was at fault. It was gossamer on all corners. Curtiss Brown represented the other car’s occupants.

Curtiss was a victim of childhood polio and got around on crutches. He was one of the most renowned, respected, and feared plaintiffs’ attorneys in Houston. He would later become a court of appeals judge who would write the Howell and Parten opinions affirming our judgments. He was humble, amiable, and congenial as a lawyer and later as a judge. I would often drop in on his office in the 14th Court of Appeals for a visit while I was awaiting a jury verdict in a trial court.

83 Being an appellate judge he seldom got social visits from lawyers. He always welcomed me with, “Jim, good to see you. Tell me what’s going on here in the courthouse.”

The lawyer who represented my client’s insurance carrier was Henry Giessel. I have mentioned him as well in earlier chapters. Even though Henry was with a small firm, he was considered one of the top defense lawyers in the entire city.

Insurance counsel for the driver of the other car was Quinan Hodges, who was a partner in the city’s fourth largest firm. Quinan was a character to be around. He was jovial, gregarious, active in the publication of our local Houston Bar Journal, and also considered one of the top defense lawyers in Houston.

The audience of other lawyers, court personnel, and the usual hangers on betrayed the interest in the case. Putting my presence aside, it was an all-star cast.

We picked and seated our jury. I presented our case.

The injuries were distressful and devastating. Doctors verified the permanent disability of the survivors in our car. Photographs from the hospital and afterwards demonstrated the agony, torture, and suffering endured by the family. We had great optics. The picture of this family’s tragedy was vivid and memorable.

But this was also the case for Curtiss Brown’s clients. As we neared the conclusion of my case I huddled with Henry and proposed what I knew would be an unconventional, unorthodox, and yes, controversial trial strategy.

My client’s coverage was relatively low, $200,000. I knew Henry’s insurance coverage was probably shot if the jury imposed liability on my deceased driver.

The other driver was in a corporate car, acting in the course and scope of his employment with the company for whom he was driving. They had a million dollars in coverage. My client had the big stakes in

84 this game but liability was still key. Somebody was going to win big and somebody would exit in a body bag.

I knew Curtiss would put on as big a show on damages as mine. Given his skill he would probably do a better job of it. Faced with equally vivid pictures of grotesque injuries and permanent disability our chances of imposing liability diminished with each photograph of injury, doctor’s opinion, and medical record they presented.

Henry agreed with my analysis of our dilemma.

Having secured his agreement, I submitted, in writing, a judicial admission of damages together with a motion in limine prohibiting Curtiss from producing any evidence of damages or arguing damages to the jury. You would have thought I had dropped a firebomb in the judge’s chambers.

I loved trying cases. Second only to getting that big verdict is seeing your opposition becoming discombobulated and muddled as they see their trial strategy compromised.

A cacophony of voices filled the judge’s chambers. Brown and Hodges were sometimes talking over each other. I could tell Judge Cartwright was enjoying the show as he patiently listened. Brown’s first response was “we refuse the stipulation.” I responded, “This is not a stipulation, it is a judicial admission. We are confessing judgment for the entirety of the damages pled.”

The opposition can refuse a stipulation. But a judicial admission requires no approval by the other side. Some lawyers do not understand the difference. Curtiss Brown, being the consummate fact and book lawyer, did.

Curtiss then asked whether our driver had probated a will. I told them he had died intestate. Curtiss knew that; he had helped open the estate for purposes of the lawsuit.

Their next move was to insist that someone who represented the man’s estate had to make this confession of damages. We replied we

85 would tend to that. The judge determined to discharge the jury and call a recess until the matter could be resolved.

Henry and I got on the phone in the judge’s office and were trying to get more information from Fayette County, when Brown and Hodges came in. Curtiss wanted to know if Henry would pay his policy limits, what might my side accept. Henry would okay the deal if our case settled. We got close to the coverage limits. That case concluded with everybody coming out clean because we worked together to get just results and we were not ego driven.

Another case illustrates what may be hard to believe today, but sometimes we went to trial on a case just to have fun and see what a jury would do.

A referring lawyer called about a case already set for trial. He said it wasn’t a big case and I might not want to take it on for that reason.

The defense lawyer was Paul Stallings, a young partner at Vinson & Elkins, one of Houston’s “Big Three” law firms. Paul was a delightful man to be around, easy going, and never took himself too seriously.

The facts of the case were easy. It wouldn’t take much time to get the case in shape for trial and it could be tried in two days. So we agreed to try the case in behalf of Mrs. Davis just for the fun of it.

She is a very stout black woman in her sixties recuperating at home following abdominal surgery.

Her post-op abdominal stitches have not completely healed. She sits down in her living room one morning to eat some “cream” and watch her “stories” on TV. As she is spooning out the ice cream from the quart container she feels something hard in her mouth. She pulls the crunched part out and looks into the container. It is a dead mouse. She spits out the part in her mouth and begins retching. Later her daughter calls the City of Houston Health Department.

The city health inspector takes the ice cream and mouse, tests it, and renders a report. The lady splits her stitches and is readmitted to the

86 hospital where the incision is repaired. An avoidable stay in the hospital follows. She has a couple of additional follow-up visits to her surgeon. The experience causes sleepless nights and a cascade of nausea and episodes of upset stomach. But obviously our damages are limited.

The corporate defendant does not believe her story and insists on a trial. That prompts the referring lawyer to call me.

We go to trial on the case I call the “Houdini Mouse”. Carnation brings in their quality control people who testify that their hygienic procedures and policies make such an event impossible. Of course, this is no defense if the jury believes the food was contaminated, since that is all that the law requires. Adulterated or contaminated food falls under the law of strict tort liability. Still, the testimony of Carnation’s experts that their production controls would prevent any mouse from getting into their processes lead me to argue that only a Houdini mouse could have gotten into Mrs. Davis’s “cream”.

During the trial I learn they have a board in the coffee room at Vinson & Elkins tracking the over and under—the estimated verdict. Some 40-50 lawyers and secretaries picked a number. Thank goodness, we make the over (the high number).

I mention the case for two reasons. First, if you are a trial lawyer you love being in court, even if you are not likely to earn a substantial fee. The second reason is to compare how a witness can win your case just as they can lose one for you. Mrs. Davis is everyone’s grandmother regardless of color. The deep wrinkles in her black face and hands mark her years of hard menial work. She exudes tolerance, patience, and amiability. Early in her testimony her voice trembles a bit but never suggests any deception. When I take her to more familiar territory she relaxes and her eyes twinkle as she tells about making Sunday dinners for her family of cornbread, collard greens, mashed potatoes, gravy, and fried chicken. By the time I finish my direct examination, there is little doubt about her sincerity, candor, and veracity.

Paul Stallings questions Mrs. Davis about why she didn’t scoop the

87 ice cream out of the container and put it some in a bowl before she began eating it, the inference being that if she had she would have seen the mouse and not bitten into it. Her reply was, “Ain’t no need to scoop it out cuz I was going to eat all of it.” The defense lawyer follows, “Isn’t that a lot of ice cream to eat at one sitting?” Her reply, “Sir, if you like cream a quart ain’t no cream at all.”

Then the defense lawyer, in attempting to minimize her damages, suggests, “You didn’t swallow that part of the mouse you bit into though?” The health report established that. Her reply is golden, “No, sir, but I swallowed some of its juice. That’s why it made me so sick.”

I don’t remember the exact figure the jury awarded, but believe it was about $70,000. And that was a figure one of the Vinson & Elkins secretaries had guessed.

Carnation paid the verdict, happy to end the story of the Houdini mouse.

Hamilton Berger (played by William Tallman) lost almost every case he tried against Perry Mason. As an old-time fan of the show, it pleasures me to see how he would often work with Perry to insure justice was done. When he was asked how it felt to always lose, his reply was that he didn’t lose; an innocent man was set free. In an article he wrote, “A well-tried criminal case is a credit to all involved. There is no winning and no losing in the administration of justice.” The lawyers of my era, and hopefully the young ones coming up, would say the same thing about our civil justice system.

References:

Helicoid Gage Division of American Chain & Cable Co. v. Howell, 511 S.W.2d 573 (Tex. App.—Houston [14th Dist.] 1974, writ ref’d n.r.e.).

Ethicon, Inc. v. Parten, 520 S.W.2d 527 (Tex. App.—Houston [14th Dist.] 1975, no writ).

Sears v. Cooper, 574 S.W.2d 612 (Tex. App.—Houston [14th Dist.] 1978, writ ref’d n.r.e.).

CHAPTER 8

LOSE THE BATTLE – WIN THE WAR THE PETARD OBJECTION

Can the outcome of a case that takes years to develop; involves voluminous medical, technical, and scientific materials; and takes over a month to try turn on a single evidentiary objection? It can if the defense makes a Petard objection.

In the late 1950s, a tragic medical syndrome involving low birth weight premature infants was identified. A significant number of these children suffered complete, permanent blindness. Early studies incriminated redundant (excessive) oxygen administration during neonatal care as the cause of the blindness. Researchers termed the condition retrolental fibroplasia (RLF).

Retinopathy of prematurity (ROP), also called retrolental fibroplasia (RLF) and Terry Syndrome, is a disease of the eye affecting prematurely born babies having received intensive neonatal care. Oxygen therapy is used on them due to the premature development of their lungs. The incidence of retrolental fibroplasia had been greatly reduced following the incrimination of oxygen as its principal cause. Various medical authorities recommended that oxygen be restricted in the care of premature infants to that amount indicated by clinical symptoms, and then that it be given only in concentrations below 40%. Later medical articles questioned the earlier conclusion. This is what challenged our cause, which was based on the earlier studies.

The malpractice case against the treating doctors was settled for $100,000 by the attorneys who had originally handled the case. The release specifically reserved all rights against others that may have been responsible for Rusty Spears’ blindness. The lawyers had tried to refer the causes of action remaining to other lawyers, but they had turned it down believing nothing could be done for Rusty. After fees and expenses, this cherub’s mother was left with little to face the challenges of raising a blind son.

“Other lawyers have told me that I have a difficult case. But if anyone can win it, you can.”, Sherry said to me in a half-pleading voice. Ringing in my ears was my favorite quotation from Clarence Darrow: “Lost causes are the only ones worth fighting for.”

I decided to look into it.

Rusty Spears was born prematurely, weighing two pounds, three ounces. He was administered between 32 and 40 percent oxygen on a continuous basis for 10 days.

We did extensive medical research and talked to some esteemed pediatric opthomologists and determined that giving supplemental oxygen in those quantities for the length of time involved could cause RLF. Further investigation suggested that the manufacture-defendant knew this but failed to establish policies and procedures to prevent the practice. In fact, the design of the Air Shields incubator tended to reinforce the medical misconception. It was equipped with a red flag that was raised when oxygen concentrations greater than 40% was administered. Our contention was that this design reinforced users’ belief it was safe to administer oxygen to new born premature infants as long as the concentrations were lower than 40%.

This towheaded fair-skinned bundle of energy was as engaging and vibrant as any healthy, normal five-year-old when I first met him. He chattered away in magpie fashion about things that are the center of the world for little boys—television shows, cartoons, toys, and games.

But, in the window of the soul—the eyes—there was a desolate darkness and painful emptiness. Expressionless portals with a fixed gaze through which neither light nor shape could pass to create images of sky, earth, or loved ones were set in the middle of this cherubic face. Rusty’s mother is divorced from his father. While a child can sometimes be the glue that holds a marriage together, Rusty’s blindness and the responsibility for caring for him proved to be the final wedge.

I decided to handle the case. Innocence has a strong appeal. I could imagine no one more innocent and more wronged than Rusty. The product liability case’s primary allegation was the manufacturer’s

failure to warn incubator users of the risk of administering redundant oxygen to premature infants. The concept of direct corporate liability formed the basis of the case against the hospital. We alleged that the hospital was negligent in its failure to adopt and enforce policies regarding redundant or excessive oxygen to low-birth-weight premature infants.

Negligence and product liability were strongly contested, but high the hurdle for Rusty was medical causation. The defense assembled a cadre of medical experts to erect a formidable barrier to any right for Rusty and his mother to recover. The experts claimed blindness in premature infants is not caused by the excessive administration of oxygen.

A modern day Charles Dickens might describe this case as a tale of two schools of medical thought, both well supported by the medical literature. The earlier medical studies, published before Rusty’s birth in April 1970, supported the proposition that RLF could be avoided by careful regulation of oxygen. Eight years later, when we tried the case, a significant new body of scientific literature suggested that oxygen therapy played no role in the development of RLF.

We enlisted qualified medical experts in pediatric ophthalmology and a bio-medical engineer familiar with medical devices and appliances. I prepared an extensive notebook of relevant medical articles. The trial lawyer needs his holster belt stuffed full of ammunition before he steps into the gunfight with the black hats. Such is the preparation that goes into complex medical and product cases.

We go to trial in early December. In those days, we had hard working judges who weren’t about to drop the reins over their docket because a trial might continue over the Christmas holidays. They look forward to trying interesting cases, particularly when there are good lawyers on both sides.

Lawyers representing the incubator company and the hospital are qualified and competent. But, like so many of their defense brethren, they are single-minded in the use of trial tactics: They object to anything and everything the plaintiff offers. Their credo was, “If the plaintiff is trying to get it into evidence, we have to keep it out.” As a

result, the trial is long and protracted. Many objections are made on many bases. The judge patiently listens, considers, rules, and finally moves on.

About a week into the trial, I call as an adverse witness a technician from the incubator manufacturer. Testimony leads to a discussion of medical research and literature and the manufacturer’s knowledge of the dangers of excessive oxygen administration to newborns in their incubators. My questions lead to a medical article, published after 1970, that was favorable to our cause. I begin to inquire of the corporate representative about the article, when my examination is interrupted by defense counsel. “Your Honor, we have an objection to this line of questioning. May we approach the bench?”

In the bench conference, outside the hearing of the jury, the manufacturer’s attorney objects to any questioning of the employee regarding medical literature printed after the incident that was the basis of the suit. In other words, medical literature not published before 1970 should not be admitted.

Conceit and vanity might suggest that what happened was artfully planned and carefully executed. It was not. It was the reflex of the moment prompted by that instantaneous insight psychologists call inspiration—that right-brain phenomenon that is said to be responsible for creative thought and instinctive reaction. That fast brain pulls from my subconscious a principle followed by great strategists in athletics, business, and politics. One I now teach my students. Never lose sight of the big picture. You can lose a battle and still win the war.

In chess, the great players don’t think three moves ahead; they think ahead 12 or more. In fact, losing this skirmish which the defendants are determined to win would turn out to be a crucial factor in the final outcome.

This is the denouement at the bench out of the hearing of the jury:

“Your Honor, is the objection to this line of questioning being made solely by the manufacturer, or is it also urged by the hospital?”, I asked.

I am studying the hospital lawyer. The thought that has jumped into my mind wouldn’t work with an objection made by only one of the defendants involved. I might keep out of evidence the latter studies as to one defendant, but but not as to the non-objecting party.

“The hospital joins in that objection.”, was the immediate (and predictable) response.

I countered, “If we offer the testimony on the sole issue of the standard of care for the administration of oxygen to newborns, will there be an objection?”

“The manufacturer objects to this line of questioning and the introduction of any evidence regarding medical studies after the incident in question on any issues that will be submitted to the jury in this case.”, was the terse reply.

There can be no question about the scope of the manufacturer’s objection. It is all-encompassing. And, so as not to be left out, the other defendant jumps into the net:

“The hospital also joins in that objection, Your Honor.”

I have them now, all the fish were ready for the frying pan.

“Your Honor, in view of the defense’s position, the plaintiff will join in the objection. The only medical literature that will be admissible during this trial is that which was published and in circulation in the medical and scientific community before April 1970.”

The court’s response was immediate:

“Gentlemen, in view of the objections made by all sides, that will be the court’s ruling. Please proceed with your examination of the witness.”

We completed our case without any reference to any post-1970 medical literature. Surprisingly, it does not seem to occur to the

defense that their broadbrush objection had painted them into a corner. They had made a Petard Objection—the bombmakers had been blown up by their own bomb! They realize their position only after they begin calling their experts to testify.

When the experts attempt to rely on medical literature, suggesting that the close monitoring of oxygen levels had made no difference in the incidence of RLF, we remind the court of the prior objections of all parties that the court had sustained. The defense experts are forced to acknowledge the results of the earlier studies that RLF could be avoided by careful regulation of oxygen. They are unable to use the post-1970 literature to bolster their opinions that RLF can occur in newborns “despite meticulous monitoring of oxygen therapy.”

We have assembled a small platoon of experts, including a bio- medical engineer from Texas A&M University. Dr. William Hyman has extensive experience working with manufacturers of medical equipment and working with hospitals to aid them in purchasing and using medical equipment. He meticulously reviewed the medical literature and prepared a concise, yet precise, warning that our experts contended should be put on the defendant’s incubators. It cautioned users that there was no “safe” level of oxygen for a premature child, and that the lowest concentration consistent with the infant’s physical condition and vital signs should be used. This warning was reduced to a 5x7 sticker with adhesive backing. It becomes our silver bullet. We stick them up during various times in the case always at different places in the courtroom. They cost 14 cents to produce.

We enlisted two pediatric opthomologists on causation. Doctors Silverman and Doncaster testify that Rusty’s blindness was caused by the oxygen administered during the first days of his life.

With our liability case constructed, we turn to damages. I have been privileged to represent many people wronged by the callous indifference of others. Their harms came in many forms—paralysis, brain damage, burns, fractured and shattered limbs. In all those cases our charge as their lawyer is to ask those questions that arm and equip us to present the full magnitude of their tragedy. As Atticus Finch said in TO KILL A MOCKINGBIRD: “To understand another

person you have to climb into his skin and walk around in it.” But crawling into the skin of someone made needlessly blind may be the toughest scrabble a trial lawyer ever undertakes. And if that someone is a child, or worse, a baby, you find the questions you ask the mother or the child so perplexingly inadequate that you feel you are trying to create a Rembrandt with Crayola and a Big Chief tablet.

This is my outline for Sherry’s direct examination:

What does it mean to be blind?

How did she explain that to her son, Rusty?

How does she explain sight to a son who has never seen?

Does she have Rusty feel her eyes, then his eyes, and explain how they are different? That his eyes don’t work like other people’s?

Does the she tell her son that others can see what he can only feel?

Does she explain to him that others can see him but he can’t see them?

How should Rusty respond when someone asks, “Are you blind?”

Did she have to learn not to ask, “Did you see that?”, knowing she can only ask, “Did you hear that?” or “Did you feel that?”.

Does a blind person dream? (Actually they do, but don’t see images)

The rest of us learn about our world by reading. Reading to a blind child is not seeing and learning words; it will be feeling and learning Braille.

His memory will be challenged for the rest of his life:

“Where did I leave that in my apartment?”

“What do I touch for landmarks on my way to class?”

“How do I get to the store?”

As he grows older, will he be able to use the white cane or will he need a seeing-eye dog?

These are all things I explored with Sherry preparing her for trial testimony.

We asked Sherry for photographs or videos of Rusty. It was no surprise when she brought in several. We chose to use some from when he was two and the last ones she had recently made of him as a six-year-old.

We cut our video presentation down to just under 15 minutes.

My sense is this is the kind of thing that can be “overplayed.” This was before “day-in-the-life” videos became so prominent. I still believe some lawyers today tend to use too much of a good thing. We play these in trial without narration or comment. They will be the alchemist that turns any hearts of stone that might have made our jury into hearts of gold.

I believe I see more than a few tears as the jury sees a blind child struggle to familiarize himself with his own home and yard. After our presentation they are never mentioned again—in testimony or closing argument. You must be careful with this kind of evidence. Some lawyers might play the videos during closing argument. If I had not shown them putting on our evidence I would have done that, but not both times. This is the plaintiff’s nuclear option that should only be used once and you don’t need to mention it in argument. Don’t worry; the jury will remember it.

For Rusty’s part I have never had or heard of a better witness. Preparing him to testify even though he was only six years old was

like sliding into a comfortable rocking chair to watch your favorite movie. Just lean back and let the story play out.

The highlight of his testimony comes when I ask him to describe things. My law partner has a thick brown beard. When I ask Rusty to describe him, he says, “He looks like Santa Claus.” When I ask him to describe Darth Vader he says, “He is a big black man with big Afro hair.”

He describes me simply as “the man who is trying to help my mom and me.”

But we get another break during trial. The defense calls one of the doctors from the hospital to testify about hospital policies and procedures. I know him. He was one of my students in a medical malpractice class I taught at the University of Houston Law Center several years earlier. I know he has been raised by a blind mother. Through him I am able to further develop the picture of the struggles of an adult sightless person.

We rest and the defense calls the doctors that cared for Rusty during his neonatal period. The corporate lawyers have prepared Rusty’s pediatrician and neonatalogist to fall on their sword with a mea culpa. The defendants had offered only $25,000, believing they could convince the jury that the sole cause of the RLF was the negligence of the treating physicians who had ordered the oxygen. The only sword the doctors fell on was mine. On cross examination they admit that if there had been the warning on the machine our expert had prepared, “Well, I certainly would not have ignored a message like that. I would have at least looked into the matter further.”

The Allies stormed and secured the Normandy beaches in less time than it took Rusty to overcome the obstacles, landmines, and fortifications the defense had put up. It took over a month of witnesses, documents, visual aids, and medical literature before we were ready to argue Rusty’s case to our jury.

NOTES REGARDING OPENING FINAL ARGUMENT

A plaintiff’s opening should be a cognitive argument—an appeal based on the facts proven—set out in words and visual aids how you want the jury to answer the issues in the court’s charge.

Having your client absent for closing argument can be appropriate in some cases.

Thanking jurors for their service can be seen as patronizing and pandering, since most jurors take their service as a necessary part of citizenship. Showing appreciation for a unique sacrifice, however, may be justified.

Explain the responsibility of lawyers, judges, and jurors.

Never tell the jury this is an easy case. Instead, explain how difficult everyone has to work to ensure that justice is done.

Stress the importance of the jurors’ finding of facts—there is no appeal from their findings.

Explain that there are only two results that can come from their verdict.

Explain that the answer to every issue is important.

Explain the jury questions submitted and incorporate the evidence into the legal definitions and questions.

Jurors determine credibility.

Explain the burden of proof.

Emphasize there are different legal standards for corporations.

Explain:

 the legal concept of defective design,

 the concept of “unreasonable risk of harm”,

 the concept of “producing cause”, and

 the concept of failure to warn.

Cover defendant’s excuses—always refer to them as EXCUSES— never as defenses.

Explain:

 the concept of proximate cause,

 substantial risk of harm,

 producing cause—“but for”,

 the corporate defendant knew the risk, and

 warning was feasible.

The corporation gave false medical information regarding the use of their incubators.

Failure to warn was a proximate cause.

The hospital failed to adopt safe policies and procedures.

The doctors were not negligent and their acts were not a proximate cause.

Admit the prior settlement with the doctors and justify it.

Damages:

Arguing general damages can be a challenge. Some lawyers like to just throw out a figure. It is more effective to tie it to some value that relates to the case. In this case, we used the cost of the sticker as a basis for damages.

What is reasonable for the plaintiff?

Compare the value of other things, a racehorse, a professional sports player, a painting.

Loss of earning capacity. What jobs can a blind person do?

Use government publications and your jurors’ jobs to make your point about the plaintiff’s limited future employment opportunities. In Texas, you can not address jurors by name, but you can refer to their jobs or careers as a way of personalizing plaintiff’s damages.

Emphasize that the loss of independence represents a significant harm.

Stress the mental component: the blind person’s silent suffering and agony. Blindness leads to loneliness.

Don’t penalize plaintiff for his determination to be able to handle the challenges he faces.

100

OPENING FINAL ARGUMENT

May it please this honorable court. Ladies and gentlemen. Needless to say it is my privilege and, indeed, my honor to be able to address you on behalf of Rusty Spears. Lawsuits have a way of getting pretty mean, particularly when there are significant issues and substantial money involved. And for that reason I’ve asked Rusty to stay outside the courtroom. Because the comments I make are going to be about Rusty and they’re going to affect Rusty. And what you are going to do will be something that Rusty will have to live with for the rest of his life. But it is not appropriate that he hear what the lawyers say. It’s appropriate only that he hear your verdict, because that’s the important thing.

But I would be ungrateful if I did not, at the very beginning, take this opportunity on behalf of Rusty and his mother to thank you for your patience and attention during a very long and difficult trial. I know we have imposed on you at a very personal time of the year for all of us around Christmas. And I know that your service has been difficult. It’s taken you from your families and from your work. But the one thing I’ve noticed the few times I have looked over at you is that each and everyone of you, to the man, to the lady, has been paying the strictest attention to the evidence, in order for you to do what you have sworn to do. And that is to decide this case based on the evidence, that the right thing would be done by Rusty. I want to thank you for that patience, and I want to apologize to the extent that we have had to bring you into this tragedy.

Fortunately though, ours is a system where we have the opportunity to try to remedy a tragedy when it occurs. And our system is one in which I believe. I know that statement comes as no surprise—my being a lawyer—but I also know that you believe in it very strongly as well. Because it’s the one chance you really have to make your voice heard. It seems to me that you can vote for representatives, and they may be elected to office, but if they speak for us at all, it is only indirectly. A jury is a very direct form of decision-making—a direct way of deciding the way that you want certain things to be run, of deciding how you want certain people to behave. In a case like this, you decide with your verdict what is proper and who is responsible and who is not.

101

Our system works because everyone does his job. My job, as Rusty’s lawyer, has been to bring evidence for your consideration. This has been a difficult case. It has taken us some time to gather the evidence and bring it to you. I’ve tried the best I know how to be professional and ethical in the presentation of the case on behalf of Rusty, and I hope I have done that. If I’ve offended anyone by anything I’ve done, I apologize. But I think we’ve been straightforward with you, and I think we’ve presented our case in an honest and up- front manner. I believe we have proved those things that we said we would in the very beginning of this case.

You have also noticed the difficult job His Honor has had in this case. From time to time, it has been a very busy one that required tough legal rulings on objections. The judge has also written the charge you will take with you to the jury room. That has been his job—to handle the legal matters.

By virtue of that charge you will receive shortly, you will now have the most important job of all. The judge’s job, my job, is nothing at all compared to your job. And that’s because your job is to decide the case. Your decision is final; there is no appeal from your decision. We have all heard of civil cases being appealed. And we have a fine court of appeals down the hall on this floor. We have a Supreme Court in Austin, and they take civil appeals. But civil appeals are not had on the wisdom of a jury. They’re on legal matters. Did the judge correctly exclude evidence? Did he correctly include evidence? Appeals are decided on things of that nature—legal matters. But no one can set aside your verdict. This judge cannot rewrite your verdict for you. If you make a mistake, Rusty can’t go down the hall to the court of appeals and say, “Hey, those folks made a mistake! I need you to rewrite my verdict.” Because they can’t do that. They don’t have that power. The only people who have the power to decide the facts are you; you are the supreme court of the facts of this case.

I know that some of you are already wondering what facts will be decided. You will see that there are a lot of questions the judge asks. What are we deciding? You will recall on the voir dire examination when we told you what we would prove and the defendants told you that we would not. But we backed up our contentions with proof for you and for the court. The judge is the one who renders judgment. He

102

renders a judgment based on your decision—your verdict. And we said that after the jury’s verdict Rusty would be entitled to the damages found by you for what he has suffered.

The defendants, on the other hand, have contended from the very start of this trial that Rusty is not entitled, that he is not deserving of your verdict, for he lacks the proof to receive it. And so they say that they don’t owe Rusty anything—that they are entitled to the judgment, regardless of what you find by way of damages.

So there are only two judgments that are sought—two judgments that are as different as night and day. Only one of these two judgments can be rendered by the judge. The one that is rendered depends entirely on your verdict—your decision on the facts. But don’t think for a minute that he can change your answers to make it come out the way you would like or render the judgment the way you want. He can’t—unless you give him the right answers. It is because you can change your answer to any single one of these issues, and thereby change the verdict completely, that His Honor’s judgment may change from night to day. That’s how important your verdict is. That’s how important your answers to these questions are. That’s how automatic it is.

When you come in and your answers are read out loud, every lawyer in the courtroom, every reporter who will be here, will hear each answer and know what judgment the court must render. It is that automatic. I hope that none of you will say when you get back to the jury room, “Well, we’re just giving an advisory verdict. We’re just advising the judge of what we think ought to occur.” Nothing could be farther from the truth. You’re not advising anyone of anything—you are deciding this case.

You will notice that the questions in this important charge are broken down, and the first ten deal with responsibility. Who is responsible for Rusty’s blindness? The last three deal with the damages he has sustained and will continue to suffer. They’re broken down in that order for a reason. And your answers to those first ten are crucial, because you answer them before you even get to the damages questions. Your answers must be based on the evidence, and they have to be answered properly. Because if you make a mistake, an

103

error, you change the entire result of this case. That’s why in the court’s charge, Instruction 3, the court tells us right off the bat, “since every answer that is required by the charge is important, no juror should state or consider that any required answer is not important.”

Every single answer has got to be answered right. You have got to score a hundred on Rusty’s test for him. A seventy-five won’t do it. It won’t pass this test. I wish it could, but seventy-five or even eighty won’t do for Rusty. He has to have a hundred—a perfect score.

There are also a couple of other instructions that are particularly appropriate for you to remember. They are all important, but on the first page you’ll find that the judge tells you foremost and in particular that “you are the sole judges of the credibility of the witnesses and the weight to be given their testimony.” Now what does that mean? Well, you’ve heard a lot of witnesses, and your job as the jury is to remember the motives of the witnesses. What interest do they have in the verdict? Were they consistent? Did they change their story? Does it make sense? What did they have to say? YOU judge the credibility of the witnesses. YOU decide how much of a witness’s testimony you want to believe. YOU can believe all of it or none of it or only a part of it. That job is left to your wisdom as the jury—to decide the credibility of the witnesses.

Only after those instructions, which are so very important, come the questions you must answer. And even then, they are based on one final instruction. They are to be decided on a “preponderance of the evidence.” Preponderance of the evidence is defined for you as “the greater weight and degree of credible evidence.” You take only the evidence that you decide is credible. Who said something that made sense to US? Who said something important without a special motive? Who said something, not because of an interest in your verdict, but because it was true? You take only that evidence and place it on the imaginary scales of justice, and, if it tilts ever so slightly, it has become a preponderance of the evidence. There is no question of doubt. Nothing depends on being proved beyond a shadow of a doubt like a criminal case. Preponderance of the evidence is the measure for Rusty in his case.

104

You will see that the questions on responsibility inquire essentially about three entities. The charge asks about the responsibility of the manufacturer, it asks about the responsibility of the hospital, and it asks about the responsibility of these two doctors. As you will see, contrary to what the defense told you on voir dire over a month ago, these folks are not considered alike in the eyes of the law. The charge lets you know that they are not alike—that they are judged differently, that their responsibility is measured differently. And that again, for example, is one reason that every issue, every word, is there for a reason. That is why it is so important. Why it takes days for a judge to put a charge together. Because the words are so significant, and they have to be just right. Nothing can cause an error any quicker in a case than a wrong word being in that charge. Every word in this charge has been gone over and over, and that’s how important the words actually are.

There is in this charge, for instance, a concept or word that is used throughout: negligence. Even though it’s the same concept each time it is typed in the charge, even though it is spelled the same way, it’s measured very differently among individuals as opposed to corporations and hospitals such as Air Shields. When we talk about the specific issues you will see why that is so and why it has to be so.

A corporation, in law, is responsible for everything it knows. A corporation, in law, can’t say, “Well, we knew that over in the medical department, but marketing was sending out that information and they didn’t know it.” The corporation cannot deny that knowledge. It cannot do that. The corporation that operates a hospital cannot say, “Well, the medical staff didn’t know it, but we had these statistics.” No corporation can do that. The knowledge of the corporation is judged by the knowledge of all its departments; all its members. And that is why negligence as to a corporation is measured on a different scale than the negligence of an individual—because they are charged with the knowledge of all their departments and all their individuals. One department cannot escape the corporate responsibility, the corporate duty, because something was done by another department. One department cannot say, “Well, we knew that, but we didn’t tell the other departments; so it’s not our fault.” That doesn’t work. That is not the law. That is something you now know to help answer these difficult questions.

105

The first question asks whether or not this incubator, as it was designed by the manufacturer—by Air Shields—and sold to the hospital in 1968 was defectively designed. You will notice that the court tells us what defective design means. A defective design is a design that poses an unreasonable risk of harm. An unreasonable risk of harm—Judge Cartwright has written there for you to use— means that some feature of the machine threatened harm to the infants who needed the incubator to the extent that the incubator, as designed, should not have been placed in the channels of commerce by prudent manufacturers aware of the risks involved.

You should know that there are some products that are as safe as you can make them. And even though there is some risk in them, they can be released into commerce, into our hands, because they are the safest that can be made. But if there is knowledge of the risk involved so that a prudent manufacturer would have changed the design or put some information on the product, done something differently—then they should not release that incubator, being aware of the risks involved. And looking at it today, if a manufacturer aware of the risk would not have released that incubator, then it was defectively designed.

We know from the evidence that this machine was designed in the early sixties. It was designed at a time when it was believed that 40 percent oxygen concentration was safe. This machine incorporated the 40 percent feature all over it. This machine had a red flag that went up or down when it exceeded or fell below 40 percent oxygen. Red flag went down if you were under 40 percent. It went up if you’re over 40 percent. It had 40 percent references in the literature. Forty percent is “high oxygen”; low oxygen is less than 40 percent. The idea of a 40 percent cutoff was intertwined completely in the design of this incubator, and yet, when the information came to the manufacturer that 40 percent was not safe, they did nothing to change the design. When they found out that 40 percent was not safe, what practical use was there—what necessity—to have the flag on the machine? How does it help the doctor? How does it help the nurse? Why not have it at 30 percent. At 35 percent? How does it help in the treatment of children? What does it do except mislead the doctors and nurses who are going to be using the machine? They were made to believe that as long as the red flag is down, we’re safe.

106

A child can’t get retrolental fibroplasia in low oxygen. But the manufacturer knew that was not so, that it was not true. And they continued to manufacture the same machine, with the same type of design and the same 40 percent misconception, even though they knew.

It seems to me that a risk of harm involves danger and the chances of running into that danger, and I can’t imagine any danger greater than blindness. The risk of harm here was great—it was appreciable and substantial. If we were to consider only one child out of twelve thousand getting RLF, we would be talking about a substantial risk. We aren’t talking about a weird type of risky situation, but even if it were that, it would be substantial enough to change the design of an incubator. The risk of children’s getting RLF was substantial. Because the design reinforced a medical misconception, a medical untruth. It did nothing but reinforce ignorance. So, based on that awareness, we submit that Question 1 should be answered, “Yes.”

Question 2 asks whether or not this was a “producing cause.” In other words, did the design of the incubator contribute in some manner to Rusty Spear’s blindness? From the evidence, you now know that there can only be one correct answer to that question. If Rusty had not received the oxygen in the concentrations given, he would not, obviously, be blind today from RLF. There is no question that his blindness was caused by the oxygen, despite the implications to the contrary. Dr. Joseph, Dr. Rosenberg, and Dr. Duncan testified that it was, and yes, it was a contributing cause. Question 2 should be answered, “Yes.”

Question 3 asks about the negligence and the failure of Air Shields to give any kind of warning. The kind of warning we’re talking about was marked as Plaintiff’s Exhibit 26, and you will notice the concept of negligence stresses “under the same or similar circumstances.” What should a manufacturer have done, for example? You look at the circumstances to determine whether or not something was negligent. These circumstances, you know from the evidence, were that they had a machine that they designed that was based on and incorporated a medical misconception—a medical untruth and misconception that 40 percent oxygen concentration to a premature infant was safe, that it was okay, that it was acceptable. You now

107

know that they were aware even before 1968 and certainly knew by 1970 that infants being placed in their incubators were getting RLF. It was being reported to them, but they did nothing to determine why. They’re selling incubators all over the country, big hospitals, little hospitals; general practitioners are using them; obstetricians are using them; pediatricians are using them; people of varying education and abilities are using them. Most importantly, Air Shields knew of the risk of giving routine supplemental oxygen to a premature infant without the clinical need for it. Because if you do that and you do it long enough—certainly eight or nine days is too long—there is an appreciable risk of retrolental fibroplasia.

You will recall that we talked specifically with Mr. Andres, the company’s representative, about having a warning and the reasons for having a warning. He admitted it would be cheap to give such a warning. It would bring information to the user. It would probably be adhered to and followed by the user. It would not interfere with the operation of the machine. And then he said, “Well, we had reasons for not giving it.” I couldn’t help but be reminded of Shakespeare’s quotation, that “oftentimes excusing of a fault doth make the fault the worse by the excuse.” And that’s what this seems like—the excusing of a fault that made the fault worse by the excuse. It wasn’t feasible. Well, I guess it became feasible when we drew one up for them— when we printed one out for them like Exhibit 26. We even showed them how to put it on the machine. I don’t think feasibility is a very good reason.

Then they said, “Well. we give technical information only.” But take a look at the material they furnished. They gave much more than technical information. They had medical recommendations in their letters and in their sales brochures. They wanted to recommend the use of their machine, but now they say it’s beyond the province of the manufacturer. That, of course, is another question for you to decide regarding this issue. If that is what you believe and what you want, what you decide to say—that “it is beyond the province of the manufacturer”—then you have the power, by your verdict, to approve this type of thinking.

But what reasoning would lead to that answer? A manufacturer of a medical appliance being used on those frail babies cannot just sit

108

there when it learns of a dangerous medical condition, when it knows the facts; to bury its head in the sand like an ostrich and say we’re going to count on doctors’ somehow learning it themselves. That is the ultimate form of hypocrisy. That’s the reasoning the defense would have you adopt: think the corporate way. Which is, “We’re going to sit here with our hands over our eyes and our ears and our mouths like the three monkeys who ‘see no evil, hear no evil, speak no evil.” But by the way, in the meantime, we’re going to do everything we can to sell these incubators, even though we won’t advise anyone of the danger.” You have to decide whether that excuse makes sense. It’s the kind of responsibility that we’re talking about. It is simply the responsibility of telling what you know or learn about the danger associated with your product.

Question 4 asks whether the failure to give these warnings is a proximate cause. Certainly. That it causes blindness? Certainly. Was it reasonably foreseeable? Certainly. They knew infants were sustaining retrolental fibroplasia. They knew. Even some of their medical literature tells you that they knew. You now know that even the company’s own doctor admitted, “Sure, we knew some people had not gotten the word.” Was it reasonably foreseeable that, if the doctors didn’t have the word, somebody might use the incubator, give routine oxygen to an infant who didn’t need it, and bring out that 40 percent was not safe, what practical use was there—what necessity—to have the flag on the machine? How does it help the doctor? How does it help the nurse? Why not have it at 30 percent? At 35 percent? How does it help in the treatment of children? What does it do except mislead the doctors and nurses who are going to be using the machine? They were made to believe that as long as the red flag is down, we’re safe. A child can’t get retrolental fibroplasia in low oxygen. But the manufacturer knew that was not so, that it was not true. And they continued to manufacture the same machine, with the same type of design and the same 40 percent misconception, even though they knew.

That, of course, is another question for you to decide regarding this matter. If that is what you believe and what you want, what you decide to say—that “it is beyond the province of the manufacturer”— then you have the power, by your verdict, to approve this type of thinking.

109

Now we come to the hospital’s responsibility. Question 5 asks about the conduct of the hospital. The hospital, like the manufacturer, is measured differently, because it is not an individual, it is many individuals—it is a corporation. The corporate ability to gather and disseminate information is much greater than that of any individual. What are the policies and procedures of the hospital relating to oxygen administration for? What purpose should they serve? Question 5 asks, “Were they negligent in their policies and procedures?” You now know that we have had a heck of a fight in this case trying to find out what those policies were. But you’ve heard the evidence as to at least what they knew. You have seen that what was in effect was the wrong thing. It was the WRONG thing.

The purpose of policies and procedures at a hospital is to ensure certain minimum practices. The purpose of policies and procedures is to give guidance and education, to ensure that proper care will be given. The defense will say, “Well, that is left up to the doctor.” But not completely. The hospital’s role is just as important as the physician’s. Their hospital policies did nothing but foster, promote, and lead to the medical misconception. They only nurtured the thought that oxygen in these concentrations is a safe, routine matter for a premature infant who has no need for it. They were drafted and calculated only to bring about retrolental fibroplasia in these infants. What a record for a hospital to brag about. What an achievement. “We had fifty-three children born who died, but only two had retrolental fibroplasia.” What a record. Do you think that these policies were promoting anything? They were calculated to produce one thing: retrolental fibroplasia.

“Oxygen concentration”—and I’m quoting the reference that we could find—“oxygen concentration is kept at 40 percent or below unless otherwise specified by the physician.” Now isn’t that calculated to result in the routine administration of 40 percent or less oxygen to a premature infant whether he needs it or not? Isn’t such a procedure reasonably calculated to produce RLF?

In this case, the facts will “speak for themselves.” What should the procedure have been? Let me remind you of the testimony of their own witness, Dr. Rebecca Swenson. I asked the court reporter to type this short excerpt up because it pretty well summarizes, it seems

110

to me, the necessity of having a proper policy, a safe policy. You will recall that she was at another hospital at the time—

Q. “Dr. Swenson, let’s assume that at the hospital you worked at in 1970 you had an infant who had no clinical signs that indicated he needed supplemental oxygen. Assume that his respiration, his color was all right; didn’t your hospital have, for example, as a part of its policies that you did not give supplemental oxygen as a routine measure?”

A. “That is correct.”

Q. “And is there not a good reason for having that kind of policy?”

A. “Yes.”

Q. “And what is the reason?”

A. “That the less oxygen the baby is getting, hopefully, the less chance of the baby’s getting retrolental fibroplasia.”

That is the type of policy that was needed in this case at Southmore Hospital. We say Question 5 can only be answered, “Yes.”

Question 6 asks about proximate cause. Again, if this hospital would have had a policy like the one in effect at the other hospital, this would never have occurred. Rusty would not have been given this oxygen. And so it was a proximate cause and reasonably foreseeable that this would occur.

Now let’s talk about the doctors’ responsibility . There are two things to keep in mind, it seems to me. The first is that ignorance is not the same thing as negligence. It’s hard for a man to admit when he is ignorant of something. These doctors, there is no question about it, were ignorant. They were following the medical misconception. The difference between these physicians, the hospital, and particularly Air Shield’s is that the corporations were immensely more

111

knowledgeable. They knew what was right. The doctors didn’t. If they had known the proper scientific levels of oxygen, I don’t think this would have ever happened.

Undoubtedly, the defense will make a big argument about the doctors’ being negligent, and they will want you to find that the doctors were negligent. You know why? Because some years ago, when this thing first started out, Rusty settled his claim against the doctors for $100,000. And I can tell you something about that which the defense won’t—something you will know is only common sense. If there had been a strong indication that the doctors were negligent, if there had been any statements to indicate that what they did was more than mere ignorance, that claim against the doctors would never have been settled for $100,000. But the defense will want to take advantage of that. They will want to tell you it means the doctors were negligent. I think you’re too intelligent to fall for that line, and so I think you know the answer is, “No,” they were not negligent. They were ignorant, but not negligent.

And, “No,” it was not a proximate cause, if you get that far. The reasons are obvious. Dr. Duncan was not even involved in Rusty’s care until six or seven days into the case. I don’t see how his conduct could have even caused the RLF. Because Rusty had been receiving the oxygen for six or seven days by the time he became involved, how could he have caused it?

So it is crucial, it is critical, not to be misled by any argument about the doctors’ being negligent or causing the RLF. You have to tie the knot in your verdict with these answers. It is that important. All the time Rusty was getting the oxygen, the red flag was down. All the time he was getting the oxygen, he was getting percentages that were consistent and expected by the hospital procedures. If we had thought otherwise, if we had suspected negligence, they would still be here. But when they said what they said years ago, we had to let them out for their ignorance and then go against those that were responsible for that ignorance.

You will see that those questions then lead you to the issues on damages. Question 11 asks about the cost of special care that Rusty needs, and it tells you to include in it not only the special care he may

112

get from a tutor but also the special care he will have to receive from his mother. In other words, the fact that she has to be more of a mother, spend more time, do more caring—those are things that should not be used to reduce the damages you find. We have brought you evidence of what the cost of tutors and special educators would be. And that is just for their services; it does not include anything for his mother. But we submit that a figure of $150,000 based on the evidence would be an appropriate answer to Question 11.

Question 12 is broken down into two parts, a and b. The first part asks you about the mental anguish and physical disfigurement Rusty has sustained in the past, and part b asks about the future—those sixty-two or sixty-three years of life expectancy that are left. We believe based on the evidence a figure of $700,000 would be appropriate for Rusty’s mental suffering and disfigurement in the past, and $4 million would be based on the evidence as to his future anguish and disfigurement. You are probably asking yourselves how we arrived at those figures. It’s a normal question—one that deserves an answer. I will tell you that I took the minutes that Rusty has left in his lifetime by the calculation done by Dr. Huddle, the economist, and multiplied it by fourteen cents a minute. I used fourteen cents because that’s what a sticker with a warning like the one on Exhibit 26 would have cost. Fourteen cents. The sticker that the manufacturer should have put on the incubator to warn the users of the risk of high oxygen. A fourteen-cent sticker could have saved this child’s sight. He has that many minutes of blindness awaiting him.

When you are challenged by these issues, you are going to find, for example, on Question 12 that the question talks about damages that will “fairly and reasonably compensate.” And you’re going to find that the only person that this question mentions is Rusty Spears. You determine the value of blindness. How do you go about it? Well, I’ll tell you one thing not to do. Please don’t anyone go back in the jury room and say, “Well, there is just no amount of money that could ever compensate anyone for being blind.” The moment anyone says or thinks that, then he or she has disavowed their oath, their job as a juror. I certainly hope that if anyone thinks that way, they were the people who stood up out here some four weeks ago, when we had the voir dire, and said that they could not decide these issues.

113

Because if anyone here now adopts that type of belief, then they have given up on their function, their job, their responsibility.

I really don’t think that anyone within the sound of my voice would say that a lifetime of blindness does not deserve substantial damages. But how substantial? How do you evaluate it? I don’t know. We live in a time when racehorses sell for seven and a half million dollars. Men can make millions of dollars in championship fights and ball games. Investors pay millions of dollars for a painting or a statue. Four, five, six million dollars for a painting. But Rusty—Rusty will never see Secretariat or any horse win a race. He’ll never see Muhammad Ali win a boxing match. He’ll never see a Super Bowl. He’ll never see a painting or statue that is worth millions of dollars. And if those things are worth so much, the eyes to enjoy them are certainly that valuable.

Question 13 asks about his damages for loss of earning capacity. As we pointed out on voir dire, each element is to be considered separately. You are instructed to consider each element apart from the others. First the loss of earning capacity. We brought you expert testimony to help you determine this issue. The defendant brought no testimony whatsoever on this significant question. What is Rusty to do? We’re talking about loss of the capacity to work and earn a living, and in making our calculations we assume that he will do something. There is an incredible difference between what kind of career he could have had, what type of living he could have earned with his eyes, and what he can earn without them. We brought you, for instance, the information that can be found in a book that has a listing of all the occupations in this country. Fifty thousand jobs.

You can open the book before you, but you will only see two or three hundred that a blind person can do. What can Rusty do? Can he do what you do? Or what about your husband’s or wife’s job? Could he be a butcher? Could he be a welder? Or terminal foreman, purchaser, truck driver? Sell oilfield equipment? Go down the list. What could he do? We hope that Rusty can meet most of these challenges that are ahead of him that are social, academic, and financial. But we must be realistic when we consider the jobs he even has a chance of occupying.

114

Then you will reach the issues that inquire about physical incapacity- physical incapacity and inability to care for himself in the future. You know, independence is a funny thing. You can see children begin to—I know I’ve seen it in mine—begin to be assertive when they are only two or three years old. We try to become independent at a very early age. We want to be able to walk down the street to our friend’s house. We want to be able to be with other people. We want to be alone if we want to, by ourselves if we want to be. Come and go when we want to. Shop when we want to. That’s a part of being independent. That is what you lose when you are physically incapacitated. Rusty today depends on his mother. But what is he to do when she is gone? The reason we have jurors decide cases like this is because you folks know what life is about, you see. And life is a hard struggle, at best. All of us know that.

You grow up, you marry, you have children, you have people depending on you and, even if you’re by yourself and single, still just making and getting through life all by yourself is a hard proposition. That’s true for just about any person with two good eyes and a good sound body and the ability to work. How could you do it if you didn’t have your eyes? That capacity, that gift that is normally ours, is a very valuable one. The defense will point, I’m sure, with some pride to achievements that blind people have made. We had a very impressive lady in here, Mrs. Miller. I don’t know if Rusty can be a Mrs. Miller or not. Because as you have heard from the witness stand, blind people, despite the help, go different ways. Some of them end up at home, as recluses.

Some of them fight it. But we do know this: if Rusty does fight and can somehow cope with this lonely handicap, it will be difficult. But if he does cope with his blindness, that achievement will be his—not Air Shield’s and not the hospital’s. It will be his and his alone.

115

NOTES REGARDING REBUTTAL FINAL ARGUMENT

Rebuttal is a reply to the defense arguments. But it must be more!

The rebuttal should include an empowering theme—thoughts and ideas that motivate the jury to find for the plaintiff.

This is plaintiff’s opportunity to appeal to what might loosely be called the juror’s emotions.

It is the time to stress how the verdict will affect the jurors.

Demonstrate that the verdict you seek is deserved and will improve plaintiff’s life.

Empower the jury with appeals to their “better” selves.

Inspire anger at the defense.

Remind the jury of the answers you desire.

It is plaintiff’s opportunity to appeal to the jurors conscience and values.

“The heart has its reasons that reason cannot know”.

Stress plaintiff’s vulnerability.

Refer to the challenges plaintiff faced in pursuing the case against the defendants.

Attack the defense.

Hit your strongest points again with evidence you might not have fully developed in your opening.

Compare plaintiff’s and defendant’s evidence.

No substantial plaintiff’s verdict has ever been motivated by sympathy for the plaintiff. Stress we are not asking for sympathy.

116

Break down the loss.

Discuss the value of sight.

Discuss the pleasure of sight.

Discuss the punishment of blindness.

Discuss what Christmas means to a blind child.

Look at your own life through the eyes of the blind.

Reiterate the verdict you desire.

Half-justice is not justice.

Make an effective argument on damages that does not violate the prohibition on the “golden rule.”

Every personal injury case is about safety and insuring that dangerous conduct will be condemned.

Send a message to defendant to change its ways.

117

REBUTTAL FINAL ARGUMENT

Your Honor. Ladies and gentlemen of the jury. I doubt that I can do in the thirty-eight minutes I have left what it took George Patton about a week to do. But Rusty and I feel like General Patton must have felt. In the heat of battle during World War Two, they phoned out to him. He was standing on the battlefield in the midst of the snow, and they asked him to report his position. General Patton replied over the phone, “Well, we’ve got them right where we want them. They have us absolutely surrounded.” And that’s about the way Rusty is in this case. He’s absolutely surrounded. I have never tried a case in my life where I’ve seen so much distortion. I guess it’s because I’m old- fashioned and was brought up a certain way, but I still think there is something such as honor.

What can be the motive for what has happened in this case? Because Mr. Hall, the defense lawyer, is correct. The doctors come in, and one of them, at least, changes his testimony. What can be the motive?

Mrs. Miller, bless her heart, says there are few people who would take advantage of a blind person. Rusty, I’ve got a surprise for you: there are a bunch of them out there. And they will hand you a five and tell you it’s a ten they’ve given you in change. You won’t know until later that someone has done that to you. And they’ll do it to you in a lawsuit. When your entire future is on the line. In a minute. In a minute.

Now after we determined what the doctors’ position was, that they were ignorant, we filed a lawsuit against Air Shields and the hospital, and we found out that Air Shields knew of these risks and problems. We found out that the hospital was giving oxygen as a routine measure. It wasn’t a proper procedure and we brought Rusty’s lawsuit. When the lawsuit gets into court and issues are submitted against the doctors who have their judgment—they’ve settled, they have their legal protection, there’s nothing Rusty can do about the doctors. Then the doctors come in and start trying to change their testimony. They meet with the hospital and Air Shields. I wonder why. Is that a fair question to ask? I wonder why. The defendants confer freely. They talk to the doctors. The doctors talk to them. They furnish

118

information. Any information Air Shields wants, the hospital will get, even if it means going back ten years to get records. And everything we’ve done in this lawsuit—it shows from the records—we had to do it the hard way, by court order. By subpoena. It just seems appropriate to me; and I’m not the poet that the guardian ad litem is but: “Honor is without a beach, and once we have left it, it remains beyond our reach.” I believe we stand on that island. And I believe the defendants left it a long time ago. They left in three ships: indifference, insincerity, and insensitivity.

They were indifferent to the ignorance of the people who were using their incubators to care for these frail babies. We have proved that they withheld critical medical knowledge from the doctors and nurses using their equipment.

They were insincere in presenting their defense to these serious charges. Their representatives said different things, at different times, in order to escape their responsibility.

Having caused this tragedy, they have been insensitive. They have refused to recognize the magnitude of the tragedy caused by their negligence. Let me talk with you a little bit about some of the statements that have been made during argument, because Mr. Hall has gone through a bunch of this evidence and I’m not going to go through it in that detail. But I want to recall some of it with you, because it’s significant. Let me talk with you if I may about a couple of things, keeping in mind that we are talking about your decision. Your decision is not to determine anything in this case to a certainty. We talk about “reasonable probability.” These defendants keep talking about “well, it could have been this, it could have been that.” That’s not an issue. The question is, What reasonably, probably caused Rusty Smith’s blindness? And all the evidence is that it is called redundant oxygen. Giving oxygen when he didn’t need it. He had no clinical sign for it. It was given to him because the doctors didn’t know better. They thought they were safe.

But what about the manufacturer of the incubator? The one that can’t give a warning, the one that couldn’t put just a sticker on the front of its incubator. A fourteen-cent sticker. Put it there for someone to see, for someone to know. “Would it have made any difference, doctor?”

119

These are questions to the doctors even though they were trying to do what they could to help these defendants. When you put them to the wall, sometimes they couldn’t go all the way.

Q. “Doctor, do you consider yourself to be a reasonable man and a reasonable practitioner?”

A. “Yes.”

Q. “Are you telling us that if you had seen on the incubator in question the following statement,” which was essentially this warning—and I will get to it—that we’ve used with other witnesses before, “that you would have ignored that, that it wouldn’t have brought something to your attention?”

A. “I certainly wouldn’t have ignored a message like that.”

Q. “Certainly not, and you would have either adhered to it or at least looked further into the matter, as a reasonable person?”

A. “I think I would.”

All they needed was the message, and Air Shields had it. Air Shields had the information. Mr. Andres and Dr. Cullen both testified that they knew when they designed this incubator that RLF was caused by oxygen. They knew that infants who were in their incubators from the time they started building them, as of 1960, were getting RLF. They didn’t investigate. Why?

They knew as of 1968 that 40 percent was not safe. There’s been some suggestion that they never made that statement, and Mr. Hall made it to you, when he said, “We have never told anybody it was safe.”

I quote from the deposition from Mr. Grosshodes, which we read to you—Mr. Grosshodes being an employee of Air Shields.

120

Q. “Isn’t it true that the reason for the giving of the warning, a red flag being raised at concentrations higher than 40 percent, is to warn of the potential of RLF?”

A. “I think this has to be inferred, yes.”

That’s from their own man who helped design the machine—from sworn testimony we read you three weeks ago. It’s been so long, perhaps a couple of you may have forgotten that. He wouldn’t come down here. He wasn’t down here to testify, but we have his deposition. We had to go to Pennsylvania to get it, but we have it. That is what their own man said.

We presented interrogatories, as you recall, questions in writing to them that their own man swears to. He was asked, “What was the purpose? Did you investigate RLF?” Their answer is, “We did not investigate the disease, but we designed a system to help in its prevention.” And then there comes a time when they knew it wasn’t safe. Forty percent wasn’t safe, and there was no level that could be considered safe. You only gave it to an infant when he needed it; otherwise you’d give him RLF. And you couldn’t give him oxygen for ten or fifteen days, eight days even, without a clinical need, because you would blind him.

Remember Dr. Cullen, their medical technologist, as it were; we asked:

Q. “Would it be a fair statement to say that this information that we’re talking about, the fact that concentrations of oxygen below 40 percent are not necessarily safe, the fact that it is the duration of exposure that is critical, was a significant and important piece of information insofar as it would relate to the care of the premature infant and particularly the avoidance of RLF?”

A. “Yes.”

121

Did Air Shields know that there were some doctors who believed 40 percent was safe? They say no. They again have forgotten the testimony of their own people that we went to Philadelphia to get on Rusty’s behalf. Dr. Cullen in his deposition said, “From 1963 through 1970, Air Shields was aware of the fact that, despite the advances in medical knowledge, in some areas of this country people still believed that as long as you kept oxygen at 40 percent or below, the chances of a child’s getting RLF were minimal or nil.” And then we asked Dr. Cullen this: “If the hospital had this kind of standing order that we’re talking about, wouldn’t that indicate that they had that belief?” And he answered, “That’s right.”

We also asked Dr. Cullen whether or not the warning drawn up by Dr. Hyman, our expert, would be an accurate one insofar as the medical information is concerned. And Dr. Cullen answered, “That is true.”

But they didn’t warn anyone, and they didn’t tell us. Why? Well, you remember—again, this has been a while—but we asked Mr. Grosshodes, one of their design people, “Why didn’t you warn them?” You know what he said? He didn’t have three reasons like Mr. Andres did. He said, “We have done it.”

Question: “Is it your opinion, then, that the dispensing of information”—this is a direct quotation from his deposition— “regarding RLF with material that would accompany the incubator would not be reasonably calculated to reach people who, by their actions, can affect or bring about RLF?” In other words, dispensing information regarding RLF risks and hazards.

Answer: “Of course, it would help.” And he goes on, “No harm in telling them.” No harm in telling them! And he says, “I think we have done this, too. You ask me if I know of any information we’re given these people, but just because I don’t know of it does not mean we didn’t do it.” Their own expert, up in Philadelphia, tried to say they’d done it.

But Mr. Andres, when he takes the stand down here, has to admit they didn’t do it. And he even gave three reasons why they didn’t do it. There’s not one single witness, not one single medical expert who has looked at this (displaying blowup of suggested warning prepared

122

by plaintiff’s expert) and said that that isn’t an accurate statement of the risks of RLF as they exist. And they say, “Well, it’s not complete; there are other risks.” Sure there are! But we’re talking about the risk of RLF—mainly we’re talking about the risk of doctors’ believing that 40 percent oxygen is safe, and the risk of keeping them ignorant, and the risk of not realizing that you don’t give premature infants oxygen just for the sake of giving it. You’ve got to cut the oxygen down and see how the child gets along. That is the way you prevent RLF. That is why they had that policy at other hospitals in 1970. That is the policy that should have been adopted by Southmore Hospital.

You now know, you understand the problems that are faced by one who is outnumbered, as we are in this case, when it comes to developing evidence with appropriate experts. But I think I’d rather have—instead of somebody that has been conferring and working to protect corporate interests—I think I would rather go by what’s in the medical journals that are written for the benefit of the doctors. Not for the benefit of a lawsuit; not for the benefit of trying to protect Air Shields or the hospital. But the knowledge that is disseminated throughout the country for the benefit of doctors to look at, that a doctor would stand by, that he would write and put out to help other doctors understand how to protect these babies.

Before you in the evidence—in the American JournaI of Ophthalmology in 1967—he made this statement: “Pediatricians need to have the constant reminder of the dangers of excessive oxygenation beyond clinical needs now, as they did in the 1950s.” In other words, he was saying that they still don’t realize that you don’t give it unless the child needs it, and that just giving him oxygen up to 40 percent is going to cause RLF. Even as recently as 1970, authorities like Dr. Alpine thought that “at the present time the general belief is that oxygen concentrations of 40 percent are innocuous.” A fancy way to say harmless. The doctors were told that it was harmless.

Air Shields knew people believed this. Their own medical people knew that doctors believed those words. But they did nothing! Nothing to tell people that it was an erroneous belief. They could have sent a letter for the price of a postage stamp. They could have at least spent fourteen cents on a sticker.

123

All the articles that have been written—Paul, Kinsey, Alpind, Baum, Tizzard, the British Medical Journal—they all said, “We studied it.” They all said that there is no difference in rates between groups given oxygen routinely and restricting it to clinical needs. And that is what we’re talking about, restricting it to when the child needs it.

I will tell you another erroneous belief, an untruth. The defense says that if I talk about Rusty at all I am asking for sympathy. How on earth do you decide a case if you don’t try to understand what is involved? Yet that is what they suggest you are supposed to do. Close your eyes to Rusty’s plight and all that you know, and go back and just do something. Don’t even think about Rusty.

This is the type of philosophy that brought us here in the first place. Because the manufacturer and hospital would not consider children like Rusty. They won’t face them. And they tell you if you do you are being sympathetic. But there is a big difference between being sympathetic and empathy. Sympathy means you hurt and I hurt with you. Empathy means you hurt and I understand. That is all we’ve asked for. For people to understand what we are talking about— blindness forever.

I’ve heard that God’s most precious gift is sight. And I believe that has been brought to our attention in this case. Sight is important for two reasons that come to my mind. One is for survival. One is for enjoyment. We need sight to survive, and it is the reason God gave all his creatures sight. Because it is essential to survive. Survival in this modern world means survival from danger. You know, there aren’t many dangers that you might hear. You might hear a car, but it’s hard to tell where it is, just listening to it. And as a child, or as an adult, all the things we might run into today, if you think about them, are things we avoid by sight. We need our sight to survive, in order to purchase things for ourselves, to work and earn money, and do the things we have to do to survive in this world.

And then we use our sight for enjoyment. I don’t know about you, but I don’t hear many noises that are pleasurable to me anymore. I go out on a street or even in the country, and only a few sounds are really pleasurable. But really most of the things we do for pleasure are things we see. They are things we use our eyes to see.

124

What do we know about blindness? I know, for example, in the olden days, in the Bible it talks about if someone had committed a serious sin that they would blind him. That was the most hideous punishment they could think of—blinding. And it’s been hundreds of years since any society did that. We don’t allow it. If I committed the most heinous crime you could think of, there is no court in our country that would allow that as my punishment—to be blind for life.

We’ve just passed Christmas time, and I’m blessed with three children, and I know what they got for Christmas. I know that what they got was not what Rusty got. My boys got a telescope. A lot of good a telescope would do for Rusty. They got footballs and helmets. A lot of good that would do for Rusty. Even an electric train, how would he use it? What could he do with it? Particularly, you know, if you’ve ever tried to put one of them together, what would he do? I don’t know.

The only way it seems to me that you can reasonably evaluate Rusty’s blindness is to take a good look at your own lives—for example, your chIldhood. All of us have memories of a childhood. For most of us, they’re pleasant memories. There are good things we remember, and there are things that when we want to feel good we remember doing. I bet everyone of them was something you did with your eyes, something you saw, something that if you didn’t have your eyes you could not have done. As an adolescent growing up, the things you have to see to enjoy doing as a boy: meeting girls, playing sports, and learning to drive a car. I think in my mind of all the things I enjoyed doing growing up as a teenager, and I can run them through my mind.

And everyone of them I had to see to do. If I couldn’t have seen, I couldn’t have done them. And if I couldn’t have seen, I would not have had the enjoyment.

I think of myself, for example, as a relatively young man. Rusty, whether he goes to college or doesn’t go to college as a young man, his time will come. Sometime in the future he will go out and try to earn a livelihood, and even today getting and keeping a job is not the easiest thing to do. You’ve got to be a solid individual. But how would you like to try to support yourself if you were blind? I’m asking, in a

125

general sense, how would anybody support themselves if they were blind? But you know, the most important thing about life, it seems to me, is not just the work. The work is part of it. But it’s the pleasure, too. Because we work to be able to do the things we want to do.

What does it mean to be able to watch a Super Bowl? We’re at that time of year. Or the Cotton Bowl? Or go fishing or hunting? It’s that time of year. All the things that all of us live for, something special that we want to do. You can think—anyone in the audience can think—what do I like to do when I have the time? I’ve got my work set aside, so what do I want to do for pleasure? Think about it. In almost every instance you have to be able to see.

We ask for nothing but what Rusty is entitled to under the evidence. And under that evidence we ask that you please consider and answer the first six questions, “Yes.” We ask that you answer these questions, (referring to blowup of questions and answers on doctors’ responsibility) “No.” And we ask you to award Rusty full damages.

I don’t know what full damages are. I know you can get up as the defense did and you can say, “Well, that’s too much; it ought to be less.” But, you know, anything less than full justice is not justice, it’s half justice. And half justice is no justice at all—it’s injustice. No one should ever have to settle for less than what is rightfully theirs. You make that decision. You make it as people, though; you make it as people who can use their wisdom to determine what blindness means. That is why we have to have people to decide cases.

I wish that there was some kind of—I can’t even wish this, it’s so bad—but just for illustrative purposes, I wish there was some way to take a machine that, instead of having you folks sit here, we could take some people and make them blind for a few days. Or just for a day. Let them try to get around and try to do the things they want to do. So that they could then sit here after we turn the machine off and decide: What is a day of blindness worth?

And they would come up with some figure, whatever, for a day of blindness. Can you imagine what the difference would be—what the figure would be—if we took those same people, we brought them in, and we said, “Now, what is a day of blindness worth?” And they say,

126

“Well, we’re going to tell you. Turn the machine off so that we can see.” And we turn the machine off, but they still can’t see. We say, “Oh, my God, we didn’t know. We thought the procedure was acceptable. No one told us. There was no warning on the machine to tell us it was permanent—we thought it was safe.” Now what?

What is a day of blindness worth? This is a verdict that will speak to a number of issues. It must speak to the responsibility of a manufacturer. It must speak to the responsibility of a hospital. In order to speak where it will be heard, it must reflect the damages that have been proven. If your verdict does not speak to that, the message will never reach those whom it must reach in order for things to change. This is, I think, a very momentous case. It is a verdict that will have significance for a number of reasons. And I know that when you return your verdict it will be one that you will be proud of as a jury. You’ll be proud to be able to say, when people ask you about it, “Well, that was the jury I was on. I gave four weeks of my life to decide these critical issues, but I can tell you all about the case.”

We appreciate it very much. We will await your deliberations. When you’re through, Rusty won’t be able to see you, but I know he will want to touch each one of your hands.

Thank you.

127

The day the jury returned its verdict was a good day for Rusty.

Air Shields appealed on 67 Points of Error. They complained on substantive law issues, evidentiary rulings (among which was the trial court’s admission of our 15 minute home video), and insufficiency of evidence to support the jury’s findings.

They identified 15 instances in my closing argument they claimed were improper and claimed my argument “as a whole was so inflammatory and prejudicial that its effect could not be cured by an objection and instruction.”

The hospital appealed on 38 Points of Error.

Their Points of Error were all rejected.

The day the judgment was affirmed by the court of appeals was another good day.

The best day was the last time I saw Rusty. Sherry and Rusty were moving out of their modest home in Pasadena, Texas, to a home in the Texas Hill Country.

“Rusty will never be able to see the trees or the birds or the squirrels in the big yard we now have,” Sherry commented. “But at least he’ll be growing up out in the country, away from all the problems of the city.”, Sherry said with a face that shared her happiness of that day.

Rusty, who was then 10 years old, still liked to feel his way around my office, picking up things and trying to figure out what they were. He was excited about moving, too. This was a happy family. That day, I was content, too. It’s days like that are what being a plaintiff’s lawyer is all about.

My evidence maneuver would not have worked in many courts. The case was tried before the late Honorable Reagan Cartwright, one of the most revered Texas district court judges ever. He was a man of conservative political philosophy, who firmly and fairly applied the rules of procedure and evidence in the cases that came before him. He had a keen sense of what was right and what was wrong. And,

128

while many great legal minds, such as Clarence Darrow’s, have claimed that justice cannot be defined, I suspect that Judge Cartwright had a good definition of it. I am certain that his rulings in the Rusty Spears case reflected his definition.

As a final postscript, I still hear occasionally from Rusty, now a grown man, doing quite well, thanks to the defendants’ petard objection.

Reference:

Air Shields, Inc. v. Spears, 590 S.W.2d 574 (Tex. App.—Waco 1979, writ ref’d n.r.e.).

This chapter was adapted from Jim M. Perdue, The Petard Objection, Trial Magazine 50 (July 1995), and Jim M. Perdue, WHO WILL SPEAK FOR THE VICTIM-A Practical Treatise on Plaintiff’s Jury Argument, 1989 State Bar of Texas, Chapter 28, pps 349-366.

129

CHAPTER 9

BAD CLIENTS – GOOD LAW

Only a fool of a trial lawyer would claim he or she has never lost a case. Either that or that person is a most exceptional trial lawyer indeed. Or, maybe that person hasn’t tried many cases. Most talented and accomplished trial lawyers would confess judgment and admit they have lost their share of cases. When I lost, which was more often then I care to admit, if I had gotten what I thought was a fair shot I would apologize to my client, tell them we had done our best, and congratulate opposing counsel. When I got back to the office I would send a letter to opposing counsel commending them for a job well done.

When I to the plaintiffs’ side in 1968, there was one plaintiffs’ lawyer in Houston handling malpractice cases. Actually, he was the only one. He picked bad cases to try, would inevitably lose, and then would always appeal.

He accomplished two things. First, he made some defense lawyers a good living. Second, he sponsored some bad law in the field of medical malpractice. His actions underline what should be a solid trial lawyer rule—don’t appeal when you lose a fight unless you have solid, unshakeable grounds for reversal that may enhance the jurisprudence of your state.

I’ve got three “L’s” in my career that I might blame partly on my client, but I must confess my part as well.

The first two cases I tried on the plaintiffs’ side were car wrecks. I lost both. The first was a rearend collision. I know…who can lose a rearend collision case?

I represented a big woman who was a passenger in a car driven by a male friend. I was given the case within days of beginning practice in my new firm. It looked like an easy case, so I reviewed the file, interviewed the client, and a few short days later we were in trial. During her testimony it came out she was married and pursuing her

130

career as a nightclub singer. She had not told me about that in our pretrial interview. That was my fault. She had two young children, which meant she was never home at nights. Her husband cared for the children after he got in from a hard day’s work in construction. This background was problem enough. A woman who spends her nights in bars entertaining mostly male customers is far from the ideal plaintiff in Brazoria County. To make matters worse, she was Kate Smith size. I would never be one to bear prejudice against obese people, but when you couple it with her testimony it was a killer.

When I asked what happened to her in this rather minor rearend collision she said, “I was knocked completely out of my seat and rolled up like a little ball in the floorboard.”

One principle of persuasion is to create a vivid picture for your audience. But, that vivid picture must be believable.

Her claimed injuries were not that serious, but anytime a client tries to exaggerate, there is a predictable result. They found no negligence on the defendant.

A few weeks later I am in trial again. This was the advantage of joining up with some lawyers who really didn’t want to try cases. Everything that had sat around the office waiting for trial was an opportunity for me.

The case involved a car-train collision at a railroad crossing equipped with a cross-buck and flashing lights. The crossing was close to our folks’ residence. The father was driving, with his wife and two children riding as passengers. They had crossed these tracks many times. The cross-buck was flashing red as he approached the crossing and continued to flash as he started across the rails. This crossing did not have crossing arms that lowered like many of our busier railroad crossings.

The client’s excuse for proceeding across the tracks was that the cross-buck’s lights often malfunctioned. It would signal an oncoming train when there was none. So I came up with a case theme based on Aesop’s “the boy who cried wolf too often.” We sued the railroad

131

for negligence for having inadequate warnings and the failure to properly maintain the warnings at this crossing.

All the occupants were seriously injured when their car was hit by an oncoming freight train. We had medical records, a couple of treating physicians, witnesses who confirmed the malfunctioning lights, and some railroad safety standards. The case was going well. Or, at least as well as anyone could hope for with these facts. Then I called our last witness, the father who was the driver of the car. This was a hard case that turned completely sour when the driver-father testified.

He told the jury his version of the accident, and all about his injuries, and his wife’s an children’s injuries. He gave his testimony in a cold, factual, unpassionate way. I had almost finished my direct examination when I remembered I needed to prove up the property damage. I had the photos of his car taken at the salvage yard. I asked if he could identify them. He teared up, began to tremble, and with voice shaking he said, “Yes…that’s my car.” Then he cried.

The jury refused to find negligence on the railroad and found negligence on our driver.

That was a hard case that probably could not have been won on the facts, but our plaintiff showing more feeling and grief over the damage to his car than he showed over the injuries to his family didn’t help our image with the jury.

In late spring 1989, I was plaintiff’s counsel in a medical malpractice case being tried in Victoria, Texas. Two fine lawyers, Steve McConnico of Austin and Dick Cullen of Victoria, represented the defense. The plaintiff—let’s call him Bob—dealt, frankly, from a deck that had been shuffled several times too many.

Bob seemed to be reasonable, albeit, a little eccentric, during our early consultations of the case. However, as we approached the trial date, it became obvious that he was several floors short of the reality lobby. He referred to himself as “Rowdy Yates” the television character on Rawhide played by Clint Eastwood. He wore a thick western leather belt that had the name “Rowdy” engraved on it.

132

I knew that Bob would occasionally justify some of the things he did with the explanation that he had prayed for guidance. This didn’t particularly bother me. Good people often receive guidance from our Heavenly Father in making important decisions. Our best efforts in preparing Bob to testify did not alert me to the intimacy of the relationship with the Almighty that he would ultimately claim.

Bob was testifying on direct examination. He had developed a severe infection and complications following back surgery by a local neurosurgeon. His testimony was that he was in constant, intense pain as a result of the surgery.

Subsequent medical evaluations had suggested reoperation as a cure for his problems. I asked Bob why he had not submitted to this surgery. His response was, “My God told me not to do it.”

Attorney Steve McConnico immediately jumped up and objected: “Your honor, we object to any conversations that the plaintiff has had with a third party as being hearsay.” Dick Cullen looked over at Steve and whispered “He said it was God that told him not to have the operation.” Steve thought for a moment and then said, “Your Honor, I withdraw the objection. If the plaintiff was talking to God, this obviously would not be hearsay.”

Frankly, I hoped the court would sustain the objection. What followed on cross examination were detailed narratives of conversations that Bob had had with God. These were given in explicit, detailed colloquies in the first and third person—“He said …”, “Then I said …”, he repeated over and over and over.

I must admit that my recollection of the cross-examination is blurred. A lot of plaintiffs’ lawyers find our minds become numbed upon seeing our cases disintegrate before our eyes. A fuzzy recollection is that Dick Cullen’s last question inquired of Bob what God looked like. The detailed description that he offered was not George Burns in a golf cap and khaki jacket.

As I recall that was about the only thing I had to be grateful for at the end of the proceedings that day. I don’t need to tell you the result. The jury was not impressed.

133

From those experiences I learned that if you want your case to blow up in your face like a Wiley Coyote trap, just have your client exaggerate the circumstances of their injury or inflate their injuries or overplay emotion, particularly at the wrong time. As far as clients like Bob are concerned, if you ever learn to pronounce what he has I hope you will let me know.

I did not appeal those unfavorable jury verdicts. We lost them fair and square. My clients and I. It is my belief that plaintiffs usually gain little by an appeal. If we are in an appellate court we should be defending a substantial jury verdict and we are not there by our choosing. The only successful jury verdict I ever defended that resulted in an appellate loss was the Big Mack Trucking case mentioned earlier where the Supreme Court wrote a new rule of evidence in order to reverse. The rule I argued for in the Texas Supreme Court in that case was later codified into our Texas Rules of Evidence. While I lost, I can’t help but feel vindicated.

I did appeal another case from a loss in the trial court. I won it on appeal, and the case was remanded for a new trial, which resulted in a significant settlement for our client. Not only did we endure until the right thing was done for our client, but we also made some good law along the way.

On November 16, 1976, fifteen year old Cheryl Lynn Johnson was taken to the operating room at Hermann Hospital to have oral and facial surgery. The surgery was to correct “buck teeth”. The operation was a success but, the patient almost died.

Cheryl was taken to a recovery room and later transferred to Hermann Hospital’s SICU II where she was breathing through an endotracheal tube. Our review of the records, discovery depositions, and an analysis by our experts suggested that the nurse charged with caring for Cheryl in the SICU was inexperienced in critical care nursing and was responsible for more patients than she could care for properly and adequately. Cheryl’s airway was not adequately suctioned, which allowed secretions to gradually accumulate and thicken. This cut off the air flow in the endotracheal tube, which led to Cheryl’s cardiac and respiratory arrest, which resulted in brain damage. The defense contended that Cheryl’s damages were the

134

result of a sudden and acute episode caused by the endotracheal tube suddenly kinking, causing accumulation of secretions within the tube.

Every good plaintiffs’ lawyer “game plans” by laying out in our minds how we think the defense will counter our case, and then planning accordingly. We had deposed the hospital nurses involved in caring for our young lady. We decided to let the defense fire their best shot during their case in chief. Then, like a game of horseshoes, we would cover any ringers with our rebuttal witnesses.

I had met Wanda Karcher through a professional organization of doctors, lawyers, and nurses interested in the interface between law and medicine. Wanda began working as an LVN at Hermann Hospital in 1971. She later pursued her BS degree in nursing at the University of St. Thomas. In 1972 she began working part time at St. Luke’s Hospital, and remained there until 1976. While at St. Lukes she spent her first two years in post operative care and the last two years in neurological ICU and SICU. She earned her BS in nursing in 1977 and began working in the SICU at Hermann Hospital that same year. She continued to work at Hermann Hospital’s SICU until 1979. In the spring of 1980 she began working in the SICU at the Veterans Administration Hospital and remained there for six months. She was later a consultant in the development of the SICU at Medical Arts Hospital. She had had extensive experience in the care of patients using endotracheal tubes and in the proper method of suctioning those tubes.

She was an attractive red headed lady who had never testified before, but was interested in our legal process. She believed that calling out bad nursing practices could only help improve hospital care. Wanda had a nice voice and was extremely articulate. We decided to make our case with our medical experts and one nurse, then sit back and see what the defense came with, and then follow in rebuttal with Nurse Karcher. As happens so often in trial, when the time came she was not available. But we had her deposition.

The hospital objected on the grounds that Nurse Karcher was not qualified as an expert because she was familiar only with the standard of care in the SICU at St. Luke’s Hospital at the time of the

135

incident, had not yet obtained her RN degree, and her testimony would only be cumulative of our case in chief nursing expert.

Our trial judge had not to my knowledge ever tried a case. He was a multi-millionaire who made his money chiefly in oil and gas and was once closely associated with Judge Roy Hofheinz’s efforts to bring major league sports to Houston. I did suspect that being a trial judge was to him a way to attain some further degree of recognition. He sustained the defense’s objection to Nurse Karcher’s testimony.

A plaintiffs’ lawyer faced with an adverse ruling on a critical evidentiary issue must be careful in perfecting the record. We read portions of the deposition into the record outside of the presence of the jury. Then I asked the judge to admit the testimony. He refused. Then to perfect our record we asked that the deposition be considered a Bill of Exceptions with each question and answer considered a separate bill. Good thing we did, because on appeal the court held:

The testimony which appellants sought to introduce consisted of portions of nurse Karcher’s deposition which were to be read to the jury in question and answer form. The testimony was not to be offered as a whole. Had the testimony been offered in the form of a document or had appellants sought to introduce the entire deposition, the inadmissible portions should have been excluded before the document or deposition could be admitted into evidence. However, this is not the case here. The testimony was to be read as if the witness had taken the stand. When evidence is offered in the form of testimony and much of the testimony is relevant and material to the case, the entire testimony cannot be excluded merely because portions are inadmissible. The testimony should have been read with objections being made to those specific portions which were inadmissible and they alone being excluded.

After the rejection on Nurse Karcher’s testimony, all parties rested and we went to jury verdict. The jury found no negligence, but awarded $3,000,000 in damages.

136

We appealed. The Houston Fourteenth Court of Appeals reversed and remanded for new trial.

In reaching its decision, the court held that the failure to allow us to read Nurse Karcher’s deposition was error. The court wrote:

While Karcher was not licensed as an RN at the time of her testimony, she had extensive experience in the care of patients using endotracheal tubes.

The assistant head nurse on the three to eleven shift testified that there was no specialization or certification requirement for nurses to work in critical care in the SICU (something we had brought out in anticipation of Nurse Karcher’s appearance).

The “locality rule” could not be used to justify prohibiting a nurse familiar with the standard of care in one hospital from testifying about the standard of care in another hospital.

The absence of certain entries in the nurses notes did not support the defense contention of a kinking of the tube or that it had occurred in any way other then as we contended a mucus build up that went unaddressed.

Nurse Karcher’s testimony was not cumulative and in any event her testimony was offered to rebut testimony the defendant had offered in their case. A party has an absolute right to offer rebuttal testimony.

After the remand we were able to negotiate a settlement approaching the jury’s award.

In another case, Judith Ann Irick had developed an ulcer after radiation treatment for plantar warts. You don’t normally develop a serous ulcer following radiation treatment given in proper dosage over a safe period of time. We therefore alleged that the person, instruments, equipment, and facilities causing harm to Miss Irick were

137

under the exclusive control of her treating doctor and invoked the doctrine of res ipsa loquitur.

The trial counsel was a young lawyer from my firm. He attempted to submit the case to the jury under the res ipsa loquiter doctrine, and requested an instruction on that theory, but the trial court refused.

Instead, the trial court gave an improper jury instruction that read:

You are instructed that an unexpected result, bad result, failure to cure, or any other circumstance showing merely a lack of success, is not evidence of negligence on the part of the defendant physician; negligence cannot be inferred solely from a failure to cure or unexpected result.

We appealed. The court of appeals held that the jury instruction was improper and inconsistent with the facts. The court said:

While there was no medical testimony that the damage in this case would not ordinarily occur unless the treating physician was negligent and the case was therefore not to be submitted under res ipsa loquitur. But there was some evidence that Dr. Andrew administered an improper dosage of radiation, and the jury was entitled to consider the radiation burn along with the other evidence in determining the question of the doctor’s negligence. The instruction was thus an improper statement of the law as applied to this case.

My associates were able to settle the case after it was remanded for a new trial.

If you are a lawyer who strives not only for success in the courtroom but also to contribute in a positive way to the jurisprudence of your state, you may be called upon to defend those who become involved in your efforts. Such was the case for Artaruth Babcock.

The 1980’s and 90’s saw an explosion of the tort reform movement in our state. Empanaling a fair jury became a challenge. I published an article on voir dire and jury selection that contained a short list of

138

proposed questions to the panel designed to ferret out prospective jurors who had been contaminated by the widespread insurance propaganda. A Houston lawyer was picking a jury in a malpractice case. Before jury selection the defense moved in limine to prevent any questions about the “lawsuit crisis” that was prominent in the print and electronic media. The judge sustained the motion. During the plaintiff’s examination of the panel, one of the panelists injected his concern about malpractice jury awards and how it affects insurance premiums. During jury selection and at the end of his voir dire examination plaintiff’s counsel indicated he wanted to ask the panel questions about the “alleged lawsuit crisis.” The judge denied his request, even the though one venireman had injected the idea that because of what he had read and seen he was concerned about a jury’s verdict on insurance rates. After the jury was impaneled counsel again requested for a third time that he be permitted to ask about the sensitive issue. He also requested the judge to allow him to include in his bill a list of proposed questions off my published list.

The judge denied the request.

This was a serious case. Artaruth Babcock broke her pelvis and was hospitalized. During her hospitalization, Mrs. Babcock developed blisters on her heels which ultimately resulted in the amputation of both her legs. Mrs. Babcock and her husband sued the hospital and her doctors alleging negligence in Mrs. Babcock’s care.

The jury failed to find any of the defendants negligent.

After the verdict, plaintiff’s counsel came to me asking for help.

I appealed the defense verdict, claiming error in the judge’s ruling on the request to inquire of the panel their knowdge of and opinions about the “alleged lawsuit crisis”, and refusing to allow my proposed questions be considered as part of the trial record.

The Houston Fourteenth Court of Appeals affirmed the trial court’s judgment. We appealed that ruling to the Texas Supreme Court.

139

The Supreme Court reversed. The Supreme Court’s opinion in Babcock has become a significant part of Texas jurisprudence on voir dire examination and jury selection. The Babcock court ruled:

There is no requirement to place specific questions in the record if the nature of the questions is apparent from the context.

The refusal of the trial court to allow counsel to make his proposed questions a part of the record was error.

Litigants have a right to question jurors about media coverage on sensitive issues like the “alleged lawsuit crisis.”

Questioning jurors about such issues as the “alleged malpractice crisis” do not violate the Texas rule which prohibits the mentioning of insurance.

Counsel has broad latitude in questioning prospective jurors during the voir dire examination.

I do not know how the case turned out after the remand. I hope my efforts helped them. But most important, the case made some good law for Texas trial lawyers.

As counsel for our clients our job is not only to prosecute their cases, but also to protect their interests. When a plaintiff sues for malpractice, some privilege is waived. But this is not a blanket waiver.

In a malpractice case I was handling in 1987, the defense asked for a medical authorization. We had agreed to this in other cases but limited it only to matters involved in the litigation and required that in any conference with treating physicians we be notified so we could be present. The defense refused and demanded a broad, global, authorization. We took the matter to the trial judge. She agreed with the defense and ordered us to have our clients grant the defense the carte blanche they requested. We filled a writ of mandamus. The case went all the way to the Texas Supreme Court. The Supreme court supported our position and granted mandamus.

140

In Mutter v. Wood, the Court ruled that plaintiffs are not required to give defendants a blanket authorization allowing them to have ex parte conversations with the plaintiff’s treating physicians.

Trial lawyers are at home before a jury. But often, to protect our clients we must turn to the appellate courts. Often, in so doing, we not only protect our clients, but make good law for other worthy litigants as well.

References:

“Thank God It Wasn’t George Burns”, Trial Magazine, July 1997 p.85

Johnson v. Herman Hospital, 659 S.W.2d 124 (Tex. App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.).

Irick v. Andrew, 545 S.W.2d 557 (Tex. App.—Houston [14th Dist.] 1976, writ ref’d n.r.e.).

Babcock v. Northwest Memorial Hospital, 767 S.W.2d 705 (Tex. 1989).

Mutter v. Wood, 744 S.W.2d 600 (Tex. 1988).

141

CHAPTER 10

MAYBE SMALL THINGS AREN’T SO SMALL

According to a report by the Institute of Medicine (IOM) entitled, “To Err Is Human: Building a Safer Health System”, between 44,000 and 98,000 people die in hospitals each year as a result of medical errors, which, according to major studies, could have been prevented. Roughly one in 20 hospital patients has experienced an adverse drug event (ADE). With statistics like that it is reasonable to expect that a trial lawyer may be consulted when a patient sustains what appears to be an inexplicable complication while hospitalized. Prosecuting these cases can present a unique challenge. I recall such a case that happened in a Victoria hospital 35 years ago.

When Roque Estrada first came to us we had no clear idea of what caused him to sustain a major heart attack while undergoing routine surgery for sinusitis. We got the records, had them reviewed by a consultant, and talked with his surgeon. The surgeon had no explanation other than to say he had heard the anesthesiologist thought there had been a mix up in the drugs given during surgery.

We filed suit and asked the hospital for any incident reports created during or after Roque’s surgery. They opposed our motion and after hearings before the trial judge we got the report. We learned that Roque was administered the wrong medication during his nasal surgery. Further discovery established that the medications nurse in the operating room was instructed by the anesthesiologist to obtain a tranquilizing agent, Inapsine. Instead, the nurse filled the syringe she gave the anesthesiologist with Levophed, a vasoconstrictor, labeled it “Inapsine,” and handed it to the anesthesiologist. He administered it to the patient, with the result that Roque sustained a heart attack on the operating room table.

At trial, the hospital’s lawyer tried various excuses as a defense.

The drugs’ labeling appeared similar.

The drugs were stored next to each other, leading to confusion.

142

The shelf on which the drugs were stored was above the nurse’s eye level, so as she reached for one it was easy to make a mistake.

We countered that this demonstrated a systemic problem. The hospital needed to store these in the supply room in a way that would prevent any confusion.

As a last resort, the hospital dropped any denial of negligence and agreed the issue need not be submitted to the jury.

They decided to defend on two bases:

The nurse was the “borrowed servant” of the anesthesiologist. Thus, the anesthesiologist would be vicariously responsible for any nurse negligence.

The plaintiff had not sustained any significant or permanent heart damage.

The doctor was represented by Victoria lawyer, Dick Cullen, one of the most honorable and talented defense lawyers I was to ever meet. He was tall, always immaculately dressed, and wore a patch on one eye as a result of a childhood injury. To me he was the Hathaway shirt man.

Dick pulled off one of the most creative and imaginative closing arguments that led to his client walking out with no responsibility for what turned out to be the largest medical malpractice verdict in Victoria history.

The Victoria courtroom’s jury box was just to the left of the door that opened into the jury room. Dick spoke in a casual and informative way and moved his six foot two inches easily around the courtroom. As he was addressing the jury on the issue of “borrowed servant”, he casually walked the length of the jury box. Then, without warning, as he was speaking, he leisurely strolled to the jury room door, opened it, walked in, and closed the door behind him. There was silence in the courtroom. The jury looked about. First at the judge; then at the

143

lawyers. I had the expression of a four-year-old witnessing his first magic trick. No one spoke or moved for a couple of minutes. Dick came out sipping water from a paper cup from the jury room.

He walked back in front of the jury and said, “None of you knew what I was doing in the jury room. You couldn’t know and you didn’t have any control over what I was doing in there. The same is true of Dr. Jones when he asked the nurse to get him some Inapsine from the supply room. He didn’t tell her how to do it. He didn’t tell her where it was. He wasn’t controlling her in the details of her work. The nurse was not Dr.Jones ‘borrowed servant’”.

I really didn’t care about getting an affirmative answer on the “borrowed servant” issue. The hospital’s pockets were deep enough. Still, you had to admire Dick Cullen’s persuasive advocacy.

The principal problem presented in this case was determining damages. A cardiologist on the hospital’s staff evaluated the plaintiff which included an EKG, and concluded the plaintiff had no evidence of permanent heart damage.

We arranged for an independent evaluation by a Houston cardiologist. Often arranging for an expert evaluation by an independent expert is essential for case preparation.

Randy Kinnard, a renown Tennessee trial lawyer, was consulted by a woman who was being treated for thyroid cancer. Her thyroid was surgically removed for biopsy analysis to help determine her best course of treatment. The hospital lost the organ and tissue and as a result, the lady suffered severe emotional distress. Randy referred her to a psychiatrist, who ultimately came to court and testified that the plaintiff had PTSD from learning her thyroid gland had been lost. Not knowing if it had cancer, in it put her on the horns of a dilemma. The dilemma was whether to have radiation treatment or not. Radiating that area of her neck had a severe risk of voice damage and other problems. So, she opted not to have treatment, but still lived with fear of having cancer. Proving the nature and extent of the plaintiff’s psychological injuries would have been impossible without support from a qualified expert. Supported by his medical testimony,

144

Randy went to trial and recovered a multi-million dollar judgment in his client’s behalf.

Some cases demand that adequate representation include seeking out and arranging for a medical evaluation. Injuries and damage to the human body or mind that can’t be readily seen by a jury or on routine diagnostic testing can present a challenge. Closed head injuries, nerve and organ damage, brain and neurological injuries can often leave discrete problems that require expert evaluation and testimony to support a fair and adequate award. These cases require the lawyer representing the plaintiff to seek out and arrange for scientific support.

In our Victoria case, the Houston cardiologist rendered an opinion that supported the argument there was likely permanent heart damage and that the full effects of the medication error might never be known. We also called the hospital pharmacologist to testify as to the effects of Levophed on the human body.

Rocque returned to work following a short hospitalization. He worked constantly at the same job after his return. The hospital put its chips on two betting lines and decided to roll the dice. The hospital bet the jury would find that the nurse was the borrowed servant of the anesthesiologist and that Rocque’s damages were modest or small.

The challenge presented by the case was to motivate the jury to find significant damages for Rocque in the face of relatively negative diagnostic testing on him following his injury, as well as a good work record after going back to work until the time of trial.

We had the Houston cardiologist by deposition, family, and coworkers, wage records, medical records of the doctors, and Rocque’s testimony as factual support on damages.

An offer of $25,000 was rejected. A verdict of $2 million was returned.

145

NOTES REGARDING OPENING FINAL ARGUMENT

Turn the defense suggestion that the plaintiff could not get a local attorney and “had to go all the way to Houston to find a lawyer” against them.

To avoid confusion in deliberations, explain up front that the jury can reach a verdict with only 10 jurors.

We explain why the anesthesiologist was named as a defendant.

Explain that the issue to be determined is the pain and anquish Rocque suffered, not that someone else might have suffered less.

Insist the defense take a position on damages (which you can attack on rebuttal).

Explain why the proof of the Rocque’s injuries must by their nature be uncertain, but are significant.

Address the defense argument that Rocque’s employment records did not document a lot of problems on the job after the plaintiff returned to work.

Interject the per diem concept of calculating damages.

Remind the jury of positions the defense took earlier in trial. Show the defense’s inconsistency.

Stress the importance of mental anquish as an element of damages.

Explain the concept of loss of earning capacity and inflation’s effect on future earnings.

146

OPENING FINAL ARGUMENT

May it please this honorable court, counsel for DeTar Hospital, counsel for Dr. Jones, Mr. and Mrs. Estrada, and members of their family, and the other folks who are interested in this case: I would be remiss, I think, if I did not at the very beginning acknowledge and thank each of you for the time and sacrifice you have made to sit as a juror in this case. I know that in one juror’s situation, a particular sacrifice was made, and sacrifices have been made by all of you. You have taken time from your family and from your work to decide this case for us. We believe we have brought you an important case, an important issue, and I can assure you, as the lawyer for Mr. Estrada, that if I didn’t believe it was important or if I didn’t believe this was vital and crucial to this family and he wasn’t concerned about the importance of this, we wouldn’t have imposed on you to this extent. You are now, as a jury, according to our procedures and according to your oath, about to assume, an awesome responsibility. You are asked to decide issues that will affect one of your neighbors for the rest of his life. The evidence has indicated that is what you are considering.

It is a formidable challenge. As I told each of you during voir dire, I have never had the opportunity to sit in those chairs. But I can imagine the responsibility that everyone who has ever taken those chairs in a case like this must feel.

I will note that the court has given you certain instructions that you are obligated to follow, and then the court tells you that you must answer certain questions for the court. Based on your answers to these questions, the court will render what is called a legal judgment in this case, which sets out the rights and responsibilities of the various parties.

You decide the questions that the court has presented. And the court really has presented to you only five questions. Actually, there are three. One of them happens to be broken down into three parts.

To help you follow—and I am not going to get into this in great detail—but you will see there is a Question 1 that asks whether or not Nurse Green was Dr. Jones’s borrowed servant, as has been

147

contended by the hospital. If you answer Question 1, “No,” you don’t even have to answer Question 2.

Then you go to Question 3, which are the damages that you find have been and will be sustained by Mr. Estrada for the rest of his life. His physical pain and mental anguish in the past, his physical pain and mental anguish in the future, his loss of income in the past, and his loss of earning capacity in the future.

And, as the court indicated, you can arrive at your verdict with fewer than twelve people, which means to say that if any ten of you decide on all the answers, you agree on the answers, you cannot be kept from reaching a verdict by one or two persons in a case like this. We won’t have to try the case over again simply because one person, for whatever reason, cannot understand what has been presented and cannot follow the evidence and cannot follow the court’s charge.

During the voir dire examination, Mr. McConnico, the defense attorney, referred to me as well traveled. I took no personal offense at that comment, because it is to some extent accurate. I have tried cases in just about every part of this state—a lot of places that are a lot smaller than Victoria, I will tell you, and not as nice as Victoria.

I have represented injured patients throughout this state. I have represented them in the Panhandle, I have represented them in East Texas, I have represented them in the Valley, and I have been in the courts of most of Texas’s major cities. And there is a reason for that. It is very difficult to get an attorney in that town to sue the hospital or a doctor in that community.

There is obviously a reason. You know the reason. If you don’t know the reason, ask someone to explain it to you.

I feel a responsibility to try to do something about things like what happened to Roque while he was undergoing routine, minor surgery at DeTar Hospital.

In my twenty years of practice I can tell you I have seen a lot of things. I have seen doctors who didn’t care about their patients. I have seen doctors who were more interested in money than

148

rendering good care. I have seen doctors who tried to shift their responsibility to nurses. I guess I have seen about all of it.

When I have seen it, I have pointed it out. I have criticized it; I have challenged it. I think it is my responsibility to do so.

In this case, there is some conduct on the part of this hospital that I will comment on here in the beginning and have further comment depending on what Mr. McConnico (the hospital’s attorney) says later on.

There have been things done by the hospital that I think are reprehensible by both the hospital and their counsel. But in good conscience I have to, as a lawyer and officer of the court who is dedicated and has taken an oath to bring to you what we believe to be true and accurate, be honest with everybody at all times—whether it be jurors or opposing counsel or witnesses.

I have to tell you that all the evidence I have seen that has been presented by any of the parties in this case indicates that Dr. Martin Jones was conscientious toward Mr. Estrada. Dr. Jones was concerned about Mr. Estrada, was truthful with Mr.Estrada and his family, and has been completely candid and honest with you and them about what happened.

I will also tell you that a review of the records has led me to believe that if Dr. Jones had not been honest with Mr. Estrada, Mr. Estrada probably would never have known what happened.

We initially named Dr. Jones as a defendant, because while our investigation indicated clearly that this was an incident that shouldn’t have happened, that it was tragic and needless, it certainly was not clear in the beginning whose responsibility it was. From the very beginning, you heard that the hospital filed pleadings claiming that Dr. Jones was negligent. And I had to, in representing Mr. Estrada, name Dr. Jones in this lawsuit. But I have to tell you in all candor that I don’t think he should be in this lawsuit.

This attempting to cast responsibility on Dr. Jones by the hospital, is not only unfortunate, but also irresponsible. So I must tell you on

149

behalf of Mr. and Mrs. Estrada—and I speak for them as though they were standing here talking to you, having heard the evidence and seeing what we have seen—that Dr. Jones should not share any responsibility for this needless tragedy. And he shouldn’t share the responsibility under any theory, under any concept, or any what has been called, a technical defense.

Now, an interesting thing that you will note, and you can see why— there are no questions presented to you on the negligence of the hospital, because the court has taken that issue from you. You don’t have to decide that.

The defense does not contend that Mr. Estrada has exaggerated his complaints. The evidence is that Mr. Estrada was given a dangerous drug, a drug given in a way and in a dose that has never, to our knowledge, been given to a human being before. This drug has produced heart damage, and it has probably produced brain damage, and it has probably produced some other damage we may not even know about.

Now the issue to be decided by you, then, when you get to parts a and b of Question 3 is—what damages should be found for the mental anguish that Mr. Estrada has experienced in the past and will experience in the future as a result of this incident.

Now, when you read that question you will see the issue is not—and I underline not—that some other person might have worried more or that some other person might have been less frightened, might have less anguished, or whatever. That is not the issue.

The issue is what mental anguish has this man experienced. That is what you decide, and that is why we brought you evidence and the court rightfully admitted evidence from his coworkers, his wife, and the people who know him about the kind of problems he has had.

The issue isn’t that somebody else might have worried less—or, as suggested by the defendant—that maybe he ought not to worry as much. The issue is what worry he has experienced and will experience. And I submit to you that the anguish experienced by anyone—the fear, the concern—who experiences a heart attack and

150

recovers from a heart attack is tremendous. It is one of those things that when I was twenty-five I don’t think I could understand. When I was thirty, I don’t think I could understand. I am now forty-five, and I have been practicing at the pace I am practicing for about twenty years. As far as I know, I am all right, I am healthy. But I will assure you that when you get up to my age it is a thing that if it were to occur to you, it would worry you greatly.

It would be of tremendous concern. Because when you have a heart attack, and if you have been around loved ones who have and if you have seen that kind of thing, you know that you look death right square in the face. And not just when it happens. But in the days that follow when you don’t know whether you are going to have to look at it again.

It has affected Mr Estrada’s ability to sleep. He has developed a stomach ulcer. It has affected his enjoyment of life.

You know, when you start thinking about the mental anguish that Mr.Estrada will experience in the future, you must first concern yourself with what period of time we are talking about. He is forty-four years of age. According to the statistics, if he does not die early because of this condition, he has thirty years of life left—10,050 days—262,000 hours.

Now, the defense is going to say, “Well, after all, just a year of worry”. But, when you are experiencing this mental torture over the kind of heart damage he has, and when you have children that are depending on you, you don’t experience desolation and despair in one year just like that. Those things bother you every hour of every day. And when you consider the damages for the physical pain and mental anguish in the past as well as those, more importantly, in the future, you have to look at it the way this man has to look at it—by the hour.

I am going to suggest to you that we have proved—realizing that the experience of a heart attack, just encountering a heart attack under that reckless type of circumstances, for the mental anguish and physical pain—that he should be awarded $300,000 for the physical pain. And for mental anguish in the future, you should repay those

151

damages in the amount of $700,000, when you consider that you are talking about 262,000 hours, assuming that he does not find himself, because of the brain hemorrhage and because of the heart problems, not living for that time.

Now, when you consider the issue particularly on future physical pain and mental anguish, you must consider first the period of time we are talking about. I have discussed that, and you must consider what kind of anguish Mr. Estrada has endured.

We have brought you testimony about the anguish he has suffered from Mrs. Estrada, Emily Estrada, and coworkers—including Mr. Clark, whom you heard this morning. They have told you about Mr. Estrada’s worry, his pain, his difficulties. And I think it is a fair inquiry, since we are opening our argument and since we have suggested and taken a clear, straightforward position with you, to ask these defendants to stand up and for once and for all address you and say whether they are suggesting that you should not believe Mrs. Estrada, Emily Estrada, and these coworkers when they have told you what he has gone through? If that is their position, let them say it, so that everyone can understand that is their position. I think in fairness we are entitled to know that, and I think you are entitled to know that.

You know, a lot of things go into mental anguish, it seems to me. I know in talking to Roque—and there is only one way to represent a client, and that is to really live with him, to get to know him. A lot of things, when you watch somebody on the stand or you hear about it, may not really sink in. But just being around him and seeing what he is going through, you start getting a feel for things that maybe you wouldn’t otherwise have.

I can tell you something that would affect me and has affected Roque from the evidence. It is not only that he has this damage done to his body—that is agonizing enough, that is frightful enough, that is frustrating enough. But to listen and hear how needless this was, how reckless this was, has got to make you even—I can’t use the word “angry,” but I can sure use the word “anguish.” And it has got to make you think, my goodness, how can people condone this kind of thing: of turning a nurse loose in an operating room with the responsibility

152

for medication and not one person ever telling her what she was supposed to do in order to see that those medications were handled safely.

The evidence is so clear, it is so convincing, it is so overwhelming that no jury needs to pass on that.

This incident happened because the hospital not only was negligent, it was reckless. This was, in the words of Dr. Jones, an unthinkable kind of occurrence. So we go from Questions I and 2 to Question 3, which are the damages issues.

Now, our procedure is such that Mr. and Mrs. Estrada and I and the Estrada family are required to take a position with you about what we believe we have proven by way of damages. That is appropriately so. After we take a position, the defense has an opportunity to respond to that. Then we have an opportunity to answer their response.

It is particularly appropriate in a case like this, where the defense of this case has vacillated, shifted throughout the trial of the case, that we be entitled to take a position, and for one time have the defense take a position clearly where they are and then let us respond to it.

You will note that the question is simply what damages should be found to have been sustained by Roque Estrada for his mental anguish and his physical pain in the past?, part a, for his mental anguish and physical pain in the future?, part b, and for his loss of earning capacity?

On voir dire the hospital said, “Well, we believe somebody owes Mr. Estrada something. But the issue is who owes it.” I submit to you there isn’t any question about who owes the money. We began this case, and the hospital’s lawyer indicated to you on the voir dire examination—if you will recall, he said, when you were sitting out where all the folks are now, and I made a careful note of this—that there was absolutely no evidence that Mr. Estrada suffered any chest pain or made any complaints of any chest pain until after he had hired a lawyer. Now, that has been over a week ago, and maybe some of you have forgotten that. There are a lot of things that have happened in between. But that was the initial position taken by the hospital.

153

You recall one of the first things we did with Mr.Estrada is point out that the record clearly indicates he was having chest pains in the hospital. He made complaints when he went back to work, and he has continued to have problems, as documented by his coworkers. You will note that when he went to see the cardiologist in Houston his complaints were shortness of breath, chest pain, and other things that were indicated. The employer’s records have also indicated those kinds of problems.

The position of the hospital, as near as I can make it out, seems to be that Mr. Estrada has not complained enough and he hasn’t gone to the plant dispensary and said, “I want you to write in the record that I am having chest pain .” As you have heard from coworkers, he will have problems on the job and sit down, and he had difficulty doing his work. But since he hasn’t gone down and made sure somebody made an entry of it every time, he hasn’t complained enough.

There is obviously a reason for that. I would gather from all this, putting it all together that it certainly is fair to say that the defense evidently does not contend that Mr. Estrada has exaggerated his complaints. The evidence is that Mr. Estrada was given a dangerous drug, a drug in a way and a drug in a dose that has never, to our knowledge, been given to a human being in this manner before. This drug has produced heart damage, and it has probably produced brain damage, and it has probably produced some other damage we may not even know about.

Now the issue to be decided by you, then, when you get to parts a and b of Question 3 is—and you will see clearly what damages should be found for the mental anguish that Mr. Estrada has experienced in the past and will experience in the future as a result of this incident.

When you are considering damages for the physical pain and mental anguish in the past, as well as those, more importantly, in the future, you have to look at it the way this man has to look at it—by the hour.

I am going to suggest to you that we have proved—realizing that the experience of a heart attack, just having a heart attack under these reckless circumstances, for the mental anguish and physical pain—

154

that he should be repaid $300,000 for the physical pain. And for mental anguish in the future, you should find damages in the amount of $700,000, when you consider that you are talking about 262,000 hours, assuming that he does not find himself, because of the brain hemorrhage and because of the heart problems, not living for that time.

Now there is another thing that plays a role in mental anguish in this case. That is the unknown. It is said that the thing we all fear the most is the unknown. We are concerned and we fear the dark because we don’t know what is there.

The defense has pointed out that some of Roque’s damage to his body in unknown. It is the unknown that frightens Roque and would frighten any reasonable person.

The next issue, the last element of damage deals with earning capacity. You have just heard Mr. Clark testify about the increase in wages at plaintiff’s employer over the last ten years, about eight percent a year. Earning capacity is the capacity to earn money, your ability, your capacity to earn and make a living. We all have it; all of us who work and those of us who don’t work have a capacity to earn money.

When one is charged with determining the loss of earning capacity, it would seem to me reasonable that you would have to first determine, before you can address yourself to the loss of earning capacity, what was the man’s capacity to earn money before this happened. What capacity did he have before he went into DeTar Hospital?

If you take the wages he is making now and you raise them eight percent every year (referring to large chart projecting earnings at 8% a year), you will get an idea of what he will be making. I know some of the figures look pretty big, and you say, “My goodness, I can’t believe they will be making that much at the DuPont plant, twenty years from now.” But Mr. Clark just testified, and I know, it is hard to remember when those people were working for ninety-five cents an hour, twenty years ago. It is hard for us to believe back then that you could be making fifteen dollars an hour now. It is hard for us to remember that twenty years ago wages were as low as they were.

155

And it is hard for that reason to imagine that Roque will be making $63,000 a year if he keeps his job, if he just gets the standard raises, no promotions and nothing else.

What I am saying to you is that, if you take Roque’s wages and assume he never got another promotion, you assume that you are not even counting what we call the fringe benefits—which are significant—and you are to determine, assuming that Roque works to sixty-five years of age, what his earning capacity was before he went into the DeTar Hospital. His capacity, his future earning capacity from today was $2 million—in excess of $2 million. That was his capacity before it was damaged.

Now your job is to take that, it seems to me, and say, “All right, now to what extent has that capacity been damaged?” I will tell you from the court’s charge that you will see the mere fact that the man continues to work does not mean that his capacity to earn money has not been affected. We have brought you evidence about what would happen if he had to try to get another job. We have brought you evidence about how this is going to affect his ability at the company itself.

We know that we bring you a difficult task. We know that we bring you an awesome responsibility. But we are satisfied that it is in very good hands.

156

NOTES REGARDING REBUTTAL FINAL ARGUMENT

Do not fail to reserve sufficient time for a full rebuttal.

Following the defense argument is an opportunity not to be wasted.

As the opening is best approached as a cognitive (logical) appeal, the rebuttal should be an affective argument.

Before Don Keenan and David Ball wrote REPTILE, we were making arguments that appealed to jurors survival instincts. Keenan and Ball’s research confirmed the persuasive power of this approach.

What happened to the plaintiff could happen to the jury. If this jury does not condemn what happened it will happen again.

Remind the jury of the difficulties the plaintiff faced in determining the truth of what happened. Demonstrate the defendant’s lack of contrition. Better yet show their efforts at deception.

Contrast your ethical and principled pursuit of the truth and contrast with the defendant’s deplorable conduct.

A favorite tactic of the defense is to blame plaintiff’s counsel. In rebuttal, counter the defense argument that the plaintiff’s lawyers and not the hospital are to blame for Roque’s problems.

Only full damages will get the defendant’s attention.

Remind the jury their decision is final and absolute.

Allude to the hospital’s actions as indicating their indifference to the jury’s verdict.

Drive home the importance of full damages, as well as why this plaintiff is deserving of them.

Finish strong: SMALL THINGS ARE NOT SMALL TO THE PERSON DEALING WITH THEM.

157

REBUTTAL FINAL ARGUMENT

May it please this court. I do not have the good fortune to live here in Victoria, as has been pointed out. From what I have seen of your city, I wish that I did. It is a fine place.

But it really doesn’t matter whether you live in Victoria, or Houston, or wherever. What happened to Roque could happen to anyone of us. Life being what it is, some day—it may be next week, it may be next year—I will be in the hospital. I have got three fine sons; one of them will be in the hospital. My wife will be in the hospital. Your brother, your mother, your children could be in the hospital.

I would be scared to death, having heard what I have heard in this case, to be in DeTar Hospital. Did anyone think it was significant at all, or did it mean anything to anyone to realize when something like this happens, unless you have an honest doctor like this man sitting here, you will never know about it?

The medical chart you get when a medication error is made may not contain evidence of the nursing error. You won’t know unless you have an honest doctor like this man sitting over here, who makes a record, goes to Houston with it to try and verify exactly how that error was made.

So, if you lose a son, you lose a daughter, you lose a mother or father or wife or husband or whatever, and you go and you say, “Lawyer, would you get my records for me; something just doesn’t seem right.” The lawyer gets the records, and he looks through them and says, “Well, it doesn’t seem right to me either, but I can’t find any explanation for it in here.”

Because, you see, folks, we don’t know that when something like this happens and a report is prepared that tells us all the details about what happened, that report is not part of the hospital records. That report goes to the administrative office. That report is put in a file that you cannot get and that it took us four days of proof before this judge, fighting for it, to get it in so you could see it.

If it does happen to you, something as tragic and needless as this,

158

and you go down to the administrator, and you sit down, as this man and his wife did, and the administrator’s first comment to you is not, as Mr. McConnico indicates, “Gee, we are sorry this happened. We want you to know about this mistake. We want to explain this to you.”

Instead, the first comment from the administrator is, “Well, what do you think happened?” What do you think happened? This man was lying there on the table. He didn’t know what happened. He had no way of knowing what happened.

That statement by the administrator is yet to be denied. Why do you think the administrator asked this man, “What do you think happened?” He wanted to find out; he didn’t know that this honest doctor had told this honest man about what had happened, because if he hadn’t, do you think this man would have ever known to even ask a lawyer to get the records and take a look at them and to pursue it?

Now, you heard that actually the culprit in the lawsuit—the reason that you are here, is me. It is not this hospital or anything they have done.

Now, I will tell you that I am subject to some criticism. I am not going to suggest otherwise. I do some things in trying lawsuits, and after I do them I think, “Boy, I wish I had asked this question of that witness. I wish I had been smarter. I wish I had been stronger and done something a little different.”

I’ll tell you what I haven’t done. I have never sat in a case that I have ever represented anybody on with a report like this and knowing what happened, as this hospital and their lawyers did in April of this year. Having this report to look at and having the report of the doctor as to what happened and getting requests for admissions that I am required to answer under oath and answering them under oath in what we lawyers call verified pleading, the highest kind of pleading that a lawyer can be required to file, and saying, “I don’t know anything about it. I don’t know how the drugs were stored. I don’t know how they got mixed up, if they got mixed up at all.”

Yet, that is what these lawyers for that hospital did. But I am the one

159

who is subjected to criticism. It is a typical tactic; I see it all over the place. These kinds of tragedies happen at the hospital. And who is at fault? Who is responsible for the jury having to face these difficult issues? Is it the lawyer who will stand up and represent the patient? Really?

Then they bring Nurse Green in and she admits that she has told five versions of what happened. And she has met with this lawyer three or four times. She admits from the witness stand that the purpose of those conferences was to try and see if they couldn’t get up some kind of version of facts to present to you. And you know what version they were trying to get up? It wasn’t that they didn’t make an error; it was what they could get to pin it on this doctor. It was how they could make her a borrowed servant.

Now, you know that we lawyers have ethics. So we say. A lot of folks would doubt that. And rightly so. But I will just ask you this question: Is that kind of conduct when answering questions under oath when you have got information—that kind of conduct of trying to tell a nurse what she ought to say, whether it is true or not—is that the kind of thing that is designed to try to help you folks arrive at a reasonable, fair verdict for this man in this case?

Now, it may be that those kinds of things don’t bother people anymore. I don’t know. I guess I am old-fashioned enough that they still bother me. When a lawyer files a verified pleading and swears to it, it ought to be true.

When a lawyer talks to a witness, he ought to be trying to get the truth out of that witness and not trying to help her with whatever version she can come up with to put it on a man who has been honest.

It did not surprise me, because of that conduct, that that Mr. McConnico is able to go and sit down with Dr. Oaks (the cardiologist that treated Roque following the heart attack in the hospital), a physician on the staff of DeTar Hospital, and talk to him in detail about Mr. Estrada’s medical condition without having an authorization from Mr. Estrada or a court order to do so. It does not surprise me.

160

It would frighten me to know that just because a lawyer represents the hospital he can go talk to that doctor and that doctor will tell him anything that lawyer wants to know.

Now, I have no objection to their going out and talking to Dr. Oaks. But we would have asked to have been present. We don’t have anything to hide. But I will tell you that I do not have respect for people who don’t adhere to the ethics of their profession, whether they are lawyers, or doctors, or whatever.

If you want to put, Mr. McConnico, a plaque at your hospital at least have it read your mission correctly. Don’t put lofty principles up like a “mission to obtain international leadership in the health care field” like it reads now. Those are a bunch of words, because the way you are running that hospital out there, you and some of the members of the staff, it ought to read that the mission of the hospital is to protect the hospital and the investors, as it says later on, “at all costs.” That is number one. Number two, “all others pay cash.” And you don’t need any other rules.

I don’t think this hospital really cares what this jury does. This good doctor has not missed a single minute of testimony. He cares. Have you seen a representative of the hospital sit here during the trial of this case? Have you seen any representatives that you can identify out there in the gallery?

I am going to tell you, ladies and gentlemen, that the only way you are going to get that hospital’s attention is to award full damages. And if you don’t do it, it is going to happen again. You can bet on it.

Now, in order for you to perform your job as jurors in answering these damages issues, you have to try to understand how Mr. Estrada feels. It is very easy for a lawyer like Mr. McConnico to stand back and say, “Well, why worry, Roque? Just get rid of your lawyer, and you will be all right.” That is very easy for the people who crippled Rocque to say.

You folks who are charged with the responsibility know that your job is to try to understand how he feels and what his problems are and what it would be like to have this kind of thing happen to you with

161

these kinds of problems. But the easiest thing to say is, “Well, don’t worry about it.”

I can’t help but remember this story about Abraham Lincoln. I am an Abraham Lincoln fan, I admit it. I think he was not only a great president but one of the best lawyers who ever lived. Abraham Lincoln tells about going to New Orleans when they were still flogging people. Back in those days, public flogging was still being done. They asked him what he thought of the flogging. Abraham Lincoln said, “You know, I can’t understand how one human being can take a whip and flog another one. I can’t understand that.” And as for the crowds that were gathered around there that would stand and watch, he said, “I can’t understand those people either that will stand and watch one human being flog another one. But you know, the thing that I really can’t understand is the people out in the street that would walk along, see the flogging, turn and continue on their way as though nothing was happening.”

Mr. Smith was given a drug that to our knowledge has never been given in that amount in that way to an experimental animal—to a hamster—to a rabbit.

Dr. Jones was honest enough to say it. And Dr. Buckley, the pharmacologist, will tell this man, “You are lucky to be here.” But that doesn’t mean his damages are any less.

The fact that he has sustained this damage has been confirmed by the medical records and the doctors who have seen him. And there is no—and this is beyond dispute—drug he can take.

You know, Mr. Estrada, contrary to Dr. Oaks’s testimony, has abnormal EKG findings. It was demonstrated in Houston, but, as you heard, the damage that this drug does is to a part of the heart that doesn’t normally show up on an EKG. Yet, he has those findings. The extent of that damage, unfortunately, we will never know until the autopsy.

We do know this about the drug. We do know from the pharmacologist that the effects of that drug are progressive, even though we do not know how they progress. Because as you heard

162

the pharmacologist tell you, the effects depend so greatly on when we, in his words, sacrifice the animal and cut the animal open and see what is going on inside.

Mr. Estrada has difficulty sleeping, which is verified in the records and by people who have seen him. He has developed a stomach ulcer. I suppose, according to Mr. McConnico’s theory, I have given him that stomach ulcer.

I asked Mr. McConnico if he would tell us what he believed, and he did. And, if you accept it, then I guess you ought to do what Mr. McConnico suggests, which is not very clear to me at this point. He wouldn’t address you on damages and suggest what he thinks is a figure. I wish he had. But he won’t get up and say, “No, I only think $200,000 ought to be awarded for future pain and suffering and mental anguish.” That is less than a dollar an hour. He won’t do that.

You know, when we get to the age of some of us, we begin to wonder what we have accomplished in life. I know I am at that stage. But the longer I am around, the more I realize that life has meaning only as long as you can clearly draw some lines between right and wrong. If you stand up for what is right, you are living. If you pursue what is wrong, you are as dead as a coonskin cap, in the words of Davy Crockett.

Now you have an opportunity, it seems to me, to do something very right and very meaningful by your verdict, or something very wrong. But there is one thing I want you to understand. Regardless of what you do, don’t think for one minute, because it is not true, that if you make a mistake this judge will straighten it out or one of the appellate courts will straighten it out. It can’t be done. Your verdict is final for all time. I can’t come back and say, “Your Honor, for God’s sake, give us another trial. Let us have another jury decide the case; they made a mistake.” He doesn’t have that power, and there isn’t a judge in this state who has that power.

We have got to, by your verdict, send a message to this hospital that when we come into your hospital, be careful with us. When you mistreat us, don’t answer our quest with a felonious assault on the truth. And if you give less than adequate damages I will tell you that

163

message will never reach them. And you not only encourage what happened by way of this case, you also encourage what has happened by the manner in which this case has been defended, because it will work. And if it works, they will try it again.

There is one thing that the defense has not mentioned and did not even discuss during the trial of the case, did not discuss at all with you during argument, particularly on the damage issue. But I think it bears mentioning. I think it is a very significant issue. There is not one shred of evidence that this man did a single thing to contribute to his injury; that he failed to do anything; that he did anything that in any way contributed to whatever injury he has. And now your verdict takes a lot of strong people to do what is right in a case like this. And when somebody gets back in the jury room with you and starts saying, “Well, let’s do some trading, let’s compromise with Mr.Estrada,” I hope our friends on the jury will ask one simple question: “What can you show me that the man did that means he ought to get less than full damages?” You are absolutely right; it is appropriate for a jury to award less than full damages when the man himself has contributed to his injury. But I hope that when that happens somebody will say, “Tell me one thing that Mr. Estrada did wrong other than put his complete confidence in the people who were supposed to be trained to take care of him.”

I will tell you that I know this service has been a sacrifice to you, as all the lawyers have indicated. I think that sacrifice will be in vain if your verdict is anything less than the full damages we have proved.

Roque Estrada is a good citizen. Mr. McConnico implied otherwise when he made the statements he did. But Roque is a good citizen, and he is a responsible family man. He is a good employee, and he supports his church and his community.

He comes to this courthouse for justice. And he has never before in his life asked twelve people for a thing. And he doesn’t ask for anything now except what he is entitled to under the law.

I can’t help but ask you—in this day and time it seems we are all concerned about the rights of the criminal; the criminal does this and does that and he has so many rights—and when are we going to start

164

worrying about the victims? When are we going to start looking at the Roque Estrada’s of the world and say, “It is time we started doing something right by you, sir.”

I have heard through this trial, and I have heard from Mr. McConnico again, that, after all, we need not be concerned about Roque because his heart damage is small. His brain hemorrhage is small. His other damages are small. They are all small.

I suppose it is like that story of the doctor who was talking to a patient and said, “Well, we can remove that benign tumor in your neck with a small incision.” And the fellow said, “Just where does that incision go, Doctor?” And the doctor said, “Well, it goes from here to here” (indicating from ear to ear). And the patient said, “Well, Doctor, I guess it depends on which side of the scalpel you are as to what the word small means.” I can tell you that it depends on which side of the body you are on when you are talking about this kind of thing being small.

They tell the story about the boy who wanted a toy for Christmas and how the family was very poor. But somehow his mother bought the toy. It was the only toy he would get that Christmas. The boy played with it Christmas Day, and toward the evening the toy broke and he got upset and carried on and carried on. Finally his mother said, “Son, don’t get so upset about small things.” And the boy said to his mother, “Mother, what are small things?”

There are things that to some people look small. But those things may be huge and very important to someone else.

I can tell you that this is the most important day of Roque’s life. You have here in Victoria a very fine courthouse. It is a beautiful courtroom, and it has been my pleasure to try a case before Judge White. I have never been before him until now, but he is a very competent judge, a judge who sits elevated in a robe. We call him “your honor” to remind us of ours. We have all these surroundings dedicated to this system that we call the legal system.

But ladies and gentlemen of the jury, none of that ensures justice for anybody. The only thing that ensures justice is twelve people like you.

165

This is a difficult task for you, but I ask, if you err in this case, I hope you err on the side of mercy.

Thank you.

Some days later after the jury returned its verdict ,I learned that three or four members of our jury came back to the courthouse and visited with the court clerk and bailiff the day after they delivered their verdict. The clerk called my office and I asked her if she knew why. She said they just wanted to see “what was going on.” I had never had that experience before. But, it is just another example that proves that while many people express reluctance at serving on a jury, once they experience it, their attitude changes.

The hospital appealed the verdict. Their primary Points of Error contended the damages awarded were excessive. While the appellate court found that we and the jury had overshot the green on damages for loss of earning capacity by $500,000 and ordered a remittitur, the court’s discussion on that issue is instructive for future cases.

“Initially, defendant argues that, since the record clearly shows that plaintiff was earning a higher salary at the time of trial than at the time of his injury, there is no evidence of any loss of earning capacity. This argument lacks merit because a recovery for loss of earning capacity is not based on the actual earnings lost but rather on the loss of the capacity to earn money.”

The court stressed these facts as bearing on a determination of past and future loss of earning capacity:

Plaintiff testified that he felt that, because he had been injured, he could not perform his job as well as he had performed it prior to his injury and that he worried about keeping his job.

166 Plaintiff testified that he went to work on many days when he did not feel like working due to his injuries.

He felt that, if he started missing work, it would affect his ability to hold his job.

Plaintiff said there were occasions when he had his fellow workers “cover for him” when he sat down or rested.

Plaintiff stated that since returning to work he had received no merit raises, but only cost of living increases, which were given to all employees.

Plaintiff’s immediate supervisor testified that he had noticed that plaintiff was unable to exert himself physically and had problems making decisions.

Plaintiff’s supervisor responded affirmatively when asked whether plaintiff’s problems could affect his ability to progress with the plaintiff’s employer, DuPont.

Dr. Mayer, a medical doctor specializing in occupational medicine, testified that plaintiff’s medical condition would place him in “a classification that would limit him in some activities.”

Dr. Mayer testified that a man, who once suffered a heart attack, was more susceptible to suffer a heart attack in the future than a man who hadn’t suffered a heart attack.

The fact that a man had suffered a heart attack could play a role in the man’s employability.

We filed three cross point of error that the Corpus Christi Court of Appeals sustained. The Court ruled that the Legislature’s attempt to place artificial limits on damages (Tex. Rev. Civ. Stat. Ann. art. 4590i) was an unreasonable infringement on a plaintiff’s right to obtaining full redress for injuries caused by another’s wrongful conduct, and that those limits were unconstitutional.

167

Even with the remittitur, Roque was very pleased with the result we attained. I continued to hear from him for years. Even after I retired to the classroom, my firm got the opportunity to represent his son in a very substantial case. To Roque Estrada, what we had done for him never seemed small.

References:

DeTar Hospital, Inc. v. Estrada, 694 S.W. 2d 359 (Tex. App.—Corpus Christi 1985, no writ).

Perdue, The Law of Texas Medical Malpractice, 22 Hous. L. Rev. 500-18 (2nd ed. 1985).

Perdue, WHO WILL SPEAK FOR THE VICTIM?, State Bar of Texas, pps 367- 379 (1989).

168 CHAPTER 11

GETTING AND KEEPING CASES

The practice of law as a solo practitioner or with a small firm is challenging and competitive. You can’t succeed if you don’t get the business. So, how do you get those clients with worthy causes?

I face that challenge in 1968. The lawyers I tie up with have no real draw, although they represented otherwise. I soon learn if my new firm is to succeed it is up to me. So how does a young lawyer, virtually a beginner plaintiffs’ lawyer, bring in business? In my case, I have some local plaintiff lawyers who I had cases with when I was on the defense side decide to send me their cases. Lawyer referral is a leading source for new clients. The second is satisfied clients. Do a good job, keep your clients informed, always return phone calls, and you will have a satisfied client who will think of you when one of their friends or relatives has need of legal representation.

Being active in professional organizations can also be a productive avenue to promote your professional standing. This is the third avenue to promoting business. ABOTA (American Board of Trial Advocates) is a national association of experienced trial lawyers and judges formed in 1958. ABOTA and its members are dedicated to the preservation and promotion of the civil jury trial right provided by the Seventh Amendment to the U.S. Constitution. ABOTA membership consists of more than 7,600 lawyers—equally balanced between plaintiff and defense—and judges spread among 96 chapters in all 50 states and the District of Columbia.

The Houston Chapter was formed on April 23, 1977, and was followed by an elaborate dinner at the Houston Petroleum Club. I was honored as one of the founding members. A few years later I was elected as president of our chapter.

The Inner Circle of Advocates is an organization of plaintiffs’ trial lawyers in the United States. To qualify for an invitation, members must have won a physical injury or death case with a million-dollar

169 verdict. Membership is always limited to the top 100 lawyers in the country and is by invitation only. In 1999 I became a member.

The Texas Trial Lawyers Association was founded in 1949, with a simple mission to bring trial lawyers together in a joint effort to promote justice for Texas families. Membership is limited to lawyers whose primary practice is representing civil litigation plaintiffs. I have been a member since 1968 and have been active in legislative efforts and continuing legal education (CLE) activities. TTLA is an essential networking organization for any plaintiffs’ attorney in this state. My son, Jim Jr., will be privileged to serve as the president of this organization in this coming year.

The American College of Trial Lawyers is an invitation only fellowship of exceptional trial lawyers of diverse legal backgrounds from the United States and Canada. The College thoroughly investigates each nominee for admission and selects only those who have demonstrated the very highest standards of trial advocacy, ethical conduct, integrity, professionalism, and collegiality. In the 1980’s, I was inducted into the college.

Then, of course, you have various State Bar of Texas organizations and committees, as well as our local Houston Bar Association. Over the years, I have spoken at several of their CLEs.

Finally, there are your alumni organizations. I am a life member of the University of Houston Alumni Organization and the University of Houston Law Alumni. These organizations have annual banquets and occasional mixers. Over the years, graduates of our law school have referred to me what turned out to be meaningful and substantial cases.

All of these organizations provide a plaintiffs’ lawyer the opportunity to meet other lawyers for potential referrals. I would encourage any young lawyer to join those for which he qualifies or is invited.

A fourth way to promote business is to make a reputation as a trial lawyer in a given field. That becomes a wellspring of business. But how do you do that?

170 In 1968, medical malpractice litigation in Texas was a Death Valley that most plaintiffs’ lawyers feared to enter and none dared to cross. I saw the potential.

My law school did not have a Law Journal when I attended. But it began one shortly after I graduated. I hooked up with their staff and we published under my name the first extensive treatise on Texas Medical Malpractice Law in 1975. Later, I would co-author with Jim Sales, an outstanding defense lawyer, The Law of Strict Tort Liability (1977), and eight years later, The Law of Texas Medical Malpractice, 2nd Edition. In 1989, I wrote The Texas Malpractice Handbook, which many lawyers for years used as a short ready-reference for legal issues that arose in trial. These efforts led to innumerable invitations and appearances speaking at CLE programs in Texas and across the country.

All these efforts are legitimate and professional means to raise your reputation in the legal community and motivate lawyers to refer cases to you.

About this time I was appearing on an out-of-state CLE program. One of the speakers sounded an alarm about the future of the legal profession. He discussed a recent Supreme Court case that for the first time allowed lawyers to advertise. In Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the Court upheld the right of lawyers to advertise their services. Relying on the First Amendment, the Court held that lawyers were allowed to advertise in a manner that is not misleading to members of the general public. Since then we have seen a cascade of lawyer advertising, particularly on television. I know I am not the only member of my profession that finds such practice demeaning. For that reason I never promoted myself on television. Having a public website is a different issue and I suggest every law firm should take advantage of this fairly recent development. However, keep in mind that if you are trying cases, your jurors are likely to access it. For that reason engage in charitable and various eleemosynary organizations and activities and stress those as part of your website presentations.

Not only does extensive legal writing promote you as an authority in a specialized field, it equips you as few pursuits can to handle cases in

171 that field. Such is true when I take on the case referred me by my client, Lee Davidson.

Evan Smith’s case would challenge all my intellectual analysis and legal resolve to break down the barriers shielding a hospital from liability for one of the doctors on its staff. When faced with a critical legal issue, do your research early. Check the authorities and precedents before beginning discovery. Identify the facts that support a favorable finding on your essential legal issue. We did this early in the Smith case.

Pleas Smith is a soft spoken, balding man from a large family. He has three brothers and two sisters. He consults me about what happened to one of his brothers. Evan Smith is in a nursing home in San Antonio. He requires around the clock care. He is cortically blind, unable to communicate, and wheelchair bound. Pleas relates that his brother sustained serious brain damage while seeking medical attention for a sore throat in the Northeast Baptist Hospital, one of several health care facilities comprising the Baptist Memorial Hospital System in Bexar County. At the time of his ER visit, Evan was a single 55-year-old lineman for the county right out of the Glen Campbell song.

While having breakfast on June 22, 1980, at Bill Willliams Bar-B-cue, his friend, Mel Hay, noticed Evan had a hoarse voice and complained of trouble swallowing. Evan told his friend that he was suffering the worse sore throat he had ever had. Mel Hay took Evan to the emergency room. An emergency room physician, Dr. Henderson, saw and treated him. Mel and the family know little about what happened to cause Evan’s severe brain damage. We get the medical records and our review tells this story.

Evan experienced severe spasms and cardio-respiratory arrest after the administration of penicillin and bicillin for the treatment of acute inflammation or infection of the throat. As a result of the treatment he received in the hospital emergency room, Smith was without oxygen for approximately five minutes, causing permanent and irreversible brain damage.

172 We have the case reviewed by Dr. Willis Parmley, a board certified emergency room physician. I have developed a good relationship with Dr.Parmley working with him on other cases. He was fun to be around and was extremely articulate with jurorsm spending much of his time in the ER in Conroe, Texas, a then small town of working class folks 40 miles north of Houston. As Willis would say, “I deal a lot with inbred hillbillys whose IQ about matches the speed limits on I-45 (the Interstate Highway from Houston to Dallas). You have to know how to talk to them.” He will make an excellent witness in San Antonio.

We locate another ER expert in California. While Dr. Parmley is our “down home” guy, Dr. Bartlett is our academic. His impressive credentials include prestigeous positions on the faculty at several California medical schools.

The defense deposes our experts and we are good to go on issues of negligence and proximate cause against the ER physician who saw and treated Evan. But how will this help the family? He and his medical group have minimal insurance. To make a difference for this family we have to get to the hospital. Dr. Henderson doesn’t work for the hospital. They do not pay him. He is not on any payroll. They do not control him in the details of his work. The hospital will contend they could not. Is there any legal theory that might come to the rescue of this family?

Two come to mind. Further research confirms that ostensible agency and agency by estoppel should work. But, as anticipated, the hospital files a motion for summary judgment.

In some instances, a defense summary judgment motion can be a boon to the plaintiff. For example, when a case turns on a single legal issue, having the trial court grant the motion for summary judgment permits the plaintiff to appeal a legal issue at an early stage of the case. If you are wrong about the legal issue, an early disposition saves time and money of developing a case that you ultimately lose. If you win on appeal, the appellate court’s opinion becomes the “law of the case.” The higher court’s pronouncements are binding on the trial court. And, you get a preview of the arguments you will face should your appeal be successful. The hospital moves for summary

173 judgment on the ground that there is no evidence that could impose vicarious liability on the hospital for Dr. Henderson’s negligence. The trial court grants the motion. We appeal.

The San Antonio Court of Appeals reverses. The issues pled against the hospital may be tried to a jury. And the law of the case will be determinative in the second appeal. There will be a trial, then an another appeal. By the time we capture justice for Evan Smith, he will have languished in the San Antonio nursing home for ten years. Real justice seldom comes easy and it is never cheap.

At trial we call over twenty witnesses on various issues. We have a story to tell.

Evan Smith arrives at the emergency room of Northeast Baptist Hospital around noon on June 22, 1980. He complains of a sore throat, difficulty swallowing, chills, and a fever of 102 degrees. His voice is muffled. He appears pale and sick. In Dr. Henderson’s own words, he “was probably septic.” The doctor also notes, “he has a very tender anterior neck.” Dr. Henderson, as the emergency room physician assigned to Evan Smith, looks at the back of Smith’s throat, using a tongue blade and a light, and observes exudate, red inflammation, and swelling.

Dr. Henderson diagnoses Mr. Smith as having acute pharyngitis, a general term for acute inflammation of the throat, and orders a throat culture and two injections of antibiotics which are administered at 2:25 p.m., approximately two-and-one-half hours after arriving in the emergency room. A blood sample for a white blood cell count is also taken.

During this time, Dr. Henderson does not attempt to secure an airway or to visualize the epiglottis with a laryngoscope, which would give him information about the upper airway. He does not obtain a consultation from an ear, nose, and throat (ENT) specialist, although ENT specialists, who more typically perform laryngoscopies, are available for consultation that day. Had Dr. Henderson looked at Evan Smith’s epiglottis, he would have observed that it was swollen and red and that the patient had epiglottitis or supraglottitis. Dr. Henderson does not obtain an x-ray of the neck, despite the fact it is

174

possible to take neck x-rays in the emergency room and that such an x-ray might have given him important information regarding the upper airway. He does not take these precautionary measures, although he is familiar with epiglottitis and knows it can affect the upper airway. He does not take these precautionary measures, although he is familiar with epiglottitis and knows that epiglottitis is a dangerous condition that presents a medical emergency. He considers epiglottitis in his differential diagnosis and is concerned about it.

Evan Smith goes into respiratory arrest five minutes after he is given antibiotic injections. Dr. Henderson is summoned and orders adrenaline epinephrine to be administered directly into the patient’s heart. He orders an oropharyngeal airway to be placed and attaches a mask to that airway to attempt to push air into the lungs.

Thereafter, he removes the oropharyngeal airway and attempts to insert a laryngoscope. He is then able to visualize (with the laryngoscope) that Evan Smith has suffered a complete obstruction of the airway. His effort to place an endotracheal tube in the patient, while using the laryngoscope, fails, and Dr. Henderson then decides to perform a tracheostomy, which involves making a surgical opening in the trachea, inserting a tube in the opening, and attaching that tube to a machine which pumps air into the patient’s lungs.

The tracheostomy incision made by Dr. Henderson is larger than the tracheostomy tube and has to be held in the incision by a nurse. The incision is characterized as irregular. The tissue is separated, the jugular vein is lacerated and there is active free bleeding, requiring that Mr. Smith eventually has to undergo a surgical revision of the tracheostomy. Approximately five minutes elapse from the time of Mr. Smith’s obstruction until the time an airway is established. This acute hypoxic episode, or oxygen deprivation, causes irreversible brain damage.

Our experts testifiy regarding Dr. Henderson’s negligence. Dr. Parmley contends that a patient presenting symptoms such as Mr. Smith presented should cause an emergency room physician to be concerned about the possibility of an acute infectious process in the back of the throat. The physician’s concern should be to ensure that the patient does not have swelling in the upper airway that will

175

endanger the air flow to the lungs. Dr. Parmley states that good and accepted medical practice requires a doctor presented with those symptoms consider a diagnosis of epiglottitis, and that, if epiglottitis is a possible diagnosis, the patient should be considered a medical emergency because of the danger of obstruction of the airway. He further testifies that because of that possibility, Dr. Henderson should have taken steps to evaluate the supraglottic airway, including an evaluation of the epiglottis, the posterior pharynx, and larynx. He also notes that a physician can investigate with an indirect laryngoscope to determine whether there is an infection or swelling in those structures. In further support of Dr. Henderson’s negligence Dr Parmley opines that the patient should be seen by an ENT specialist, because such physicians normally treat epiglottitis.

Before our second expert testifies, I talk with the family and arrange to have Evan brought to the courthouse. Dr. Bartlett finishes his direct examination and the cross examination gets under way when I advise the court that we have arranged for Evan Smith to appear before the jury, “Not as a witness but rather as a visual exhibit.” Our trial judge is sympathetic and allows the interruption. The defense can hardly object.

Evan is wheeled into the courtroom before the jury. His body is distorted and twisted, his head lays off to one side. He lets out several cries and grunts. He is before the jury for about 3 minutes. He is then wheeled out to return to the nursing home. I doubt the jury considers the defense cross examination.

Dr. Bartlett, a physician and professor of medicine from California with extensive experience in surgical and emergency room settings, had criticized Dr. Henderson for failing to timely establish an airway for a patient in respiratory arrest. His opinion was based on the understanding that it took seven minutes between the time of the patient’s complete airway obstruction and the delivery of oxygen into the trachea. This was based on the fact there was a two-minute delay on the decision to do a tracheostomy, and five more minutes passed before the tracheostomy was complete and oxygen was delivered to the trachea. Dr. Bartlett’s estimate of the two-minute delay was derived from testimony in Dr. Henderson’s deposition and is consistent with the record that shows that a respiratory therapist

176

arrived in the emergency room in response to a “Code Blue”, prior to Dr. Henderson’s arrival to start the tracheostomy.

Dr. Henderson’s technique of taking time to ligate, or tie off, blood vessels during surgery, rather than establishing an airway first, as indicated in the nursing notes, was also criticized by Dr. Bartlett. Because Mr. Smith was improperly restrained, Dr. Bartlett criticized Dr. Henderson’s performance of the tracheostomy on “a moving target”, which resulted in an irregular incision, a lacerated jugular vein, and profuse bleeding which prevented the doctor from seeing what he was doing. All this direct testimony comes in before the defense began their cross examination and before Evan Smith made his appearance before the jury.

BMHS presents no witnesses and rests at the conclusion of the plaintiffs’ case. Their lawyers are still convinced they wear Kevlar jackets as to any liability to Evan.

The only expert called by Dr. Henderson to render an opinion on the negligence allegations was Dr. William Hills, a social friend of Dr. Henderson’s.

He believes that Dr. Henderson treated Evan Smith correctly and that his respiratory arrest was an anaphlyactic reaction to the penicillin he received five minutes before the arrest. On cross examination, he admits he formed his opinions before he read the medical records. He admits that if Evan did not have an allergic reaction to penicillin he would be wrong in his opinions. He also admits he was unfamiliar with Mr. Smith’s personal history. In closing argument I point out that Evan had served in the Navy and anyone who has served know you are likely to have been given penicillin during your active duty. If he had been allergic to penicillin he would have experienced an allegic reaction then and known of his allergy.

As Dr. Hills walks by the defense counsel table having concluded his testimony, he reaches out and gives Dr. Henderson a “high five.” I study the jury. I am loving their reaction.

The case goes to the jury. These were the jury’s liability findings:

177

QUESTION NO. 1

Was the negligence, if any, of DR. HARRY HENDERSON, a proximate cause, if any, of the injuries to EVAN W. SMITH, JR.?

Answer, “Yes” or “No.”

WE, THE JURY, ANSWER: “Yes.”

If you have answered Question No. 1, “Yes,” and only in that event, then answer Question No. 2. Otherwise, do not answer Question No. 2.

QUESTION NO. 2

On the occasion in question, was there an agency relationship between DR. HARRY HENDERSON and NORTHEAST BAPTIST HOSPITAL?

You are instructed that an agency relationship existed if either of the following circumstances occurred:

A. If NORTHEAST BAPTIST HOSPITAL, acting through its employees or agents, represented by act, conduct or statement that DR. HARRY HENDERSON was its employee or agent, and caused EVAN W. SMITH, JR., to justifiably rely on the care or skill of DR. HARRY HENDERSON, or

B. If EVAN W. SMITH, JR., consented to the emergency room care in question on the reasonable belief that DR. HARRY HENDERSON was the employee of NORTHEAST BAPTIST HOSPITAL, and NORTHEAST BAPTIST HOSPITAL intentionally or carelessly caused such belief, or NORTHEAST BAPTIST HOSPITAL knew of such belief but failed to notify EVAN W. SMITH, JR., that his belief was mistaken.

178

Answer “Yes” or “No.”

WE, THE JURY, ANSWER: “Yes.”

The hospital obviously felt they were bullet proof on this theory. The never offered a penny in settlement.

The best source to explain how we did it is the San Antonio Court of Appeals:

We find, in response to the first point of error, that there was abundant evidence that BMHS represented “by act, conduct or statement” that Dr. Henderson was its employee or agent.

The evidence showed that upon a patient’s arriving at the hospital emergency room, he would be greeted by a hospital office clerk responsible for meeting the patient. In this case, that clerk was Vicki Walters, whose function was also to obtain assistance from a nurse or physician for a patient in need of immediate medical attention.

We had taken the deposition of Vicki Walters and read it to the jury. Reading an oral deposition is often the dullest part of a trial, but it may be the most efficacious vehicle when you are establishing legal elements.

The Court continued:

The receptionist in the emergency room collected physician’s fees, as well as hospital fees for the use of the emergency room. Upon departing, patients paid this clerk or receptionists the bills for the physician’s and the hospital’s charges were prepared “in the back”. These bills were not given to the patients but were in the patient’s chart; the billings in the chart were not separated in the chart until after the services were rendered. Arriving patients were told they were expected to pay in cash, which payments were collected by the receptionist who maintained a cash box. At the end of the receptionist’s

179

work shift the physician collected the cash payments due him which had been collected from patients.

Behind the scene events may be critical on legal issues.

There was testimony that Ms. Walters attempted to talk with Evan Smith, but wound up talking with his friend Mel Hay.

Obviously, Evan Smith could not give his version of what happened upon his arriving in the ER.

On a medical diagnosis such as sore throat or flu, the hospital policy was to collect cash, and this was explained to Mr. Smith or Mr. Hay.

And if the hospital staff did not know the relationship between the ER doctors and the hospital, it is implausible to think a patient would.

Moreover, the evidence demonstrated that the emergency room physicians were present in the emergency room of the hospital when a patient arrived. Ms. Walters further testified that she did not personally know the relationship between EPA and the doctors who worked in the emergency room, and that a patient at the hospital would not likely have any greater knowledge about this relationship than she did. She also testified that Mr. Smith, who stated that he had no personal physician (in response to her question), indicated that he wanted to be seen by the emergency room physician”.

Ms. Walters stated, regarding emergency room patients with no personal physician:

“If they tell me they don’t have their own doctor, that’s when we are supposed to ask them if they want to see our Emergency Room doctor. Unless they ask you if they have a doctor there that can treat them, in which case we say the Emergency Room doctor who is on duty.”

180 There was testimony that after the completion of initial paper work, Mr. Smith would have remained in the waiting area until he could be seen by the emergency room physician on duty.

Again behind the scene facts can be significant on legal issues. Dr. Henderson’s name was typed on Mr. Smith’s admitting form “because he was on duty.”

The doctor’s testimony was also helpful on the agency issue.

Dr. Henderson admitted he was aware of no notices in the emergency room of the hospital advising patients who came in that there was an agreement or contract between the hospital and EPA, and Ms. Walters stated that a patient would not necessarily be informed of the relationships between the hospital, the physicians, and EPA, unless the patient had a question regarding his billing for services as he departed the emergency room, in which event he would be given a card with information regarding EPA. Obviously, Mr. Smith did not depart the emergency room in such a manner as to have received any such notice, and the record does not reflect that he ever received such information.

The court swiped away the hospital’s argument that Dr. Henderson did not have the necessary authority to act as the hospital’s agent:

Dr. Henderson testified that the hospital expected that he would render proper care to patients who presented in the hospital emergency room. In Rourke v. Garza, 530 S.W.2d 794, 803–804 (Tex.1975), the Supreme Court of Texas held that “[i]n certain situations, appointing a person to a position may be sufficient in itself to create an apparent authority.” Apparent authority in such cases exists only as to those things ordinarily entrusted to one occupying such a position. Clearly, under the evidence presented, BMHS placed Dr. Henderson in a position of authority, with the implied representation that he was an employee of the hospital.

181 Finally, in the permission to treat form signed by Evan Smith before Ms. Walters, there was no reference to either EPA or to Dr. Henderson; the form only identified “Baptist Memorial Hospital” and “chosen physician” in the following manner: The undersigned does hereby give to the authorities of the Baptist Memorial Hospital, San Antonio, and chosen physician, permission to administer such medication and perform such procedures, including surgical operation with suitable anesthetic as may be deemed necessary by the medical staff for the best interest and care of [patient’s name]. The form also requires that the patient “promise to pay Baptist Memorial Hospital, Bexar County, San Antonio, Texas and/or Systems Hospitals, all charges for this patient in accordance with the regular tariffs of the hospital.” On the basis of all these circumstances, we find there was ample representation “by act, conduct or statement” of Northeast Baptist Hospital to warrant the jury’s affirmative finding that Dr. Henderson was its agent or employee and caused Mr. Smith to justifiably rely on the care and skill of Dr. Henderson.

The court makes short shrift of the hospital’s contention that there can be no agency by estoppel because the hospital could not “practice medicine”.

Establishing these agency relationships can be critical to a plaintiffs’ lawyer facing a case with a culpable party carrying minimum coverage. Investigate, investigate, investigate. We searched the local publications and found the following advertisements by the hospital in the local San Antonio Magazine in 1979 and 1980:

Our emergency rooms are staffed 24 hours a day by licensed physicians.

The court used these advertisements to affirm the finding of an agency by estoppel.

An agency by estoppel is established by creating the effect that the appearance that hospital’s agents, not

182 independent contractors, will provide medical care to those who enter the hospital.... The appearance is what the patient observes and relies upon when entering a full- service hospital.

Of course, our mastery of the maze that led to the vicarious liability of the hospital meant nothing if we did not do an adequate job on damages. In Texas, we submit each element separately. On appeal the hospital contended every amount awarded was excessive. Of course, in the world of the insurance industry, The Defense Research Institute (better known as the DRI) and our massive health care industry, any substantial recovery by a patient is “excessive.”

We voluntarily submitted a remittitur for the amount of damages awarded for past medical care that exceeded our documentary proof. Nothing helps your standing before an appellate court than agreeing to remit an amount you did not prove.

Several pieces of evidence were offered in support of Evan’s damages:

We proved Evan’s life expectancy of 14.6 years as of the date of trial. Easy to do with the official government life expectancy tables.

We introduced Evan’s past earnings before 1980 and the earnings he would have made between that date and the time of trial.

We had an economist project Evan’s future earning capacity discounted back to present value.

We proved past medical expenses. The jury awarded more than that figure, and we remitted the excess.

We had economic projection of future medical expenses.

We had the administrator of the nursing home facility in Lufkin, Texas, where Evan resided at the time of trial testify to the care Evan received and the necessity for that care. She testified to Evan’s problems with bed sores, rashes, and toe nail infections. She and other witnesses affirmed Evan’s conscious understanding of where

183 he was, his condition, and conscious pain and suffering. The brothers and sisters also confirmed that Evan would complain and say “hurt” when he tightened up, stretches, or leans back. Witnesses attested to seeing Evan cry and appear to be in pain from his facial expression. One of the treating doctors opined he suffered from depression.

We had Evan’s treating physician testify to Evan’s problems with flexion contractures in both arms and legs.

Another doctor associated with the nursing home testified to the physical therapy Evan regularly received to rehabilitate and improve his limb contractures, improve his ability to sit by himself, and ability to stand in a standing box. While the doctor admitted Evan had shown little improvement, the need for continuing efforts can be a key to inspiring the jury to award adequate damages for future care.

We offered photographs of Evan taken before June 1980 and up to the time of trial.

And, we had Evan’s three minute appearance during the defendant’s cross examination.

The jury awarded:

Past and pain and anguish: $1,000,000

Future pain and anguish: $1,000,000

Lost wages in the past: $150,000

Loss of future earning capacity: $200,000

Disfigurement in the past: $500,000

Future disfigurement: $1,000,000

Physical impairment in the past: $2,000,000

Future physical impairment: $2,000,000

184 Past medical and related expenses: $300,000 (this amount was reduced by our voluntary remittitur to $165,406.27)

Future medical and related expenses: $3,000,000

All our damages withstood the appeal to the Court of Appeals, the defense motion for rehearing in the Court of Appeals, and an appeal to the Texas Supreme Court was denied.

Evan Smith died some years after our recovery. The family used these resources to better his care during those later years. The remainder went to the brothers and sisters after probate of his limited estate. Every year following our trial, Pleas Smith calls me at Christmas time to wish my family the good tidings of the season. Pleas is now in his 90’s. My last call was last year.

Multi-million dollar verdicts were not common in this state 30 years ago. I am fortunate this was not my last.

Reference:

Baptist Memorial Hospital System v. Smith, 822 S.W.2d 67 (Tex. App.—San Antonio 1991, writ denied).

185 CHAPTER 12

EPIPHANIES: GUIDEPOSTS FOR MODERN JURY PERSUASION

I am a slow learner. Maybe that’s why I love bulldogs. If I ever came back as a dog, that’s the one I would want to be. They are known for their tenaciousness and the courage that was originally bred into them for bull baiting. A bulldog can be one of the least trainable breeds. It’s not because they’re dumb, it’s just because they’re thinkers and don’t automatically respond to commands. Or as many dog trainers will tell you, “You can train a bulldog but it takes time. They are slow learners.”

That’s the way I felt in the late 1990’s when I began having epiphanies. The wisdom I borrowed from other more accomplished trial advocates included these principles: IT’S ALWAYS ABOUT THE JURY—A TRIAL IS NOT A DEBATE; IT IS A COMPETITION OF STORIES—INCORPORATE THE ESTABLISHED RULES THE DEFENDANT VIOLATED INTO YOUR STORY.

USE NARRATIVE TECHNIQUES TO BRING YOUR STORY TO LIFE, INCLUDING:  POINT OF VIEW  PRESENT TENSE  PSYCHODRAMA  FIGURATIVE LANGUAGE  FOCUS YOUR CASE—TELL THE JURY A STORY THEY ALREADY KNOW

Jurors know they will be making a decision on the matter before them. That decision will be shaped by the evidence they see and hear—and as we have considered in previous chapters—what they think of the parties and lawyers. The young lawyer armed with the sophistry of his arguments, the naivete of his judgment, and the idealism of youth believes he can prevail based on what he sees is

186

the better and greater weight of the evidence. Little does he consider that in his jurors’ minds lies what to him is a callous tug: “What’s in it for me?”—the juror—his family—his community.

The more cases I tried as a young lawyer, the more I realized that to appeal to jurors I had to shape the verdict requested into some personal goal—safer working conditions, consumer products, or medical care. And, as the arguments and opening statements made at that stage of my trial career contained in the earlier chapters demonstrate, I had attempted to do just that.

Don Keenan is responsible for my invitation to the Inner Circle of Advocates in 1999. While I never considered myself one of the top 100 trial lawyers in America, I was initiated and gave a presentation filled with historical stories and a discussion of one of my recent trials.

A few years later when I attended the annual Inner Circle Convention, Don Keenan was a featured speaker. I was always impressed with this Georgia lawyer whose commitment to exploring new boundaries of trial techniques seemed to have no bounds. While he offices is Atlanta, he tries cases all over the country, planting seeds of new persuasive concepts like Johnny Appleseed. Before his presentation he confessed to me that he was nervous. There was reason for his angst. This would be his first public pronouncement on what would later become the basis for his best selling book, REPTILE, which he co-authored with noted jury consultant David Ball.

Don’s thesis came from a book by Dr. G. Clotaire Rapaille known for his research and work in the marketing area based upon the drives of the reptilan brain. This simple thesis led me to an insightful understanding: Don’t ask people why they make their important decisions, because they don’t know. They don’t know because emotional decisions are made at the reptilian level—what we in Texas would call our “gut”. Where will we have lunch, what outfit will I wear to an evening event, what TV show will I watch? Those decisions are made at the cognitive (conscious intellectual activity) level. Emotional decisions—should I marry this person, should I buy this car, what verdict should I return in this case—are made at a deeper level. Call it subconscious, survival, or “gut”, but it is not at the cognitive level.

187 Later, Seattle’s Paul Luvera, known for his incredible plaintiffs’ verdicts and continued interest in mentoring young trial lawyers, would synthesize the concept this way:

The cognitive brain serves to justify decisions we have made at that part of our brain that is concerned with two things: reproduction and survival. Rapaille’s research suggested that these drives are so strong they overwhelm any other considerations. The drive for survival is the most basic reptilian motivator. When survival is not at stake, the reptile is in auto pilot, but as soon as survival is at stake, the brain shifts into survival mode and nothing else matters.

A corollary to this concept is the role that rules play in a plaintiff’s case. Rules are the primary thing that allow us to survive in a dangerous world. Making people accountable enforces those rules and protects us from harm. Verdicts enforce rules. That is what a jury trial is all about.

The other factor to bear in mind is that at an unconscious level the primary question in the mind of every juror is simply one of self- interest. Does the outcome of this case have any impact on me and my family? Unless you are successful in relating the case not to just the parties involved, you are not likely to have a favorable result at trial. Every case you try must incorporate the idea that it has importance, not merely to the parties, but to the jurors, their families, and the community at large.

So, your case presents an opportunity for the jury by their verdict to make things safer. In fact, the justice system is a public safety system. REPTILE, published a few years after Don Keenan’s first presentation, and Paul Luvera’s internet blogs and articles, suggests that the important points to be made at trial are these: The defendant’s conduct threatens everyone’s safety. A proper verdict for the plaintiff will reduce the danger. If a proper verdict for the plaintiff is not rendered, the danger will be increased.

188 I had been a successful high school and college debater. I was on my law school’s moot court team. Some years before becoming a member of the Inner Circle I had learned that those experiences were the worst I could have had to prepare me to be a trial lawyer.

At an out-of-state CLE, one of the speakers introduced the role storytelling plays in trial advocacy. Whether he described the role this way or not, as I flew home I thought, “A trial is not a debate, it is a contest of stories. A jury will go with the best story. And many things go into what story that should be.” You would have thought with all the cases I had tried, with the great lawyers I had watched in trial, and after all of the CLE programs I had attended, I would have picked up on this persuasive technique that was finally coming to me now. But, bulldogs are slow learners.

The first thing I did when I got home was to look into the psychology of storytelling. What I learned was listening to a story activates the auditory cortex of your brain. You will begin to feel some kind of emotional engagement with a story because the frontal and parietal cortices have been stimulated. That’s the scientific explanation of what we should know from our experience. Juries naturally turn to stories to form their deliberations. Humans automatically make stories out of virtually all life events to gain a sense of control, even if it’s a false sense. It’s the difference between collecting bare facts and interpreting them in a coherent manner. Most people can’t resist making assumptions, drawing inferences, and imposing upon the facts what they “mean”, rather than merely accepting information as is.

There are three concepts that play a role in how jurors interpret facts:

COGNITIVE DISSONANCE: This is a condition in which evidence conflicts with a person’s worldview to such a degree that the person spontaneously generates an hallucination to rationlize the incongruity.

CONFIRMATION BIAS: This is the human tendency to irrationally believe new information supports your existing world view, even when it

189 doesn’t.

RETICULAR ACTIVATION: This is the brain’s natural ability to filter out things you need. That’s why you can hear someone call your name in a noisy room when you can’t make out other words because of the chatter.

When we make important decisions, we play movies in our minds that we censor using the three concepts of dissonance, bias, and activation.

Many lawyers back in my early days and sometimes even today give opening statements listing facts and explaining legal standards, all with the aid of extensive textual power points. They repeat the process during closing arguments. So, once I had one of my epiphanies, I decided to do it differently the next case I tried, keeping in mind the lessons I had learned.

There are many aspects to storytelling. But, for the trial lawyer, the first three decisions to be made in constructing a trial story are where to begin, the point of view, and the tense to be used in telling the story.

Where to begin the story is a critical. It is a psychological fact that juries tend to ascribe blame to the first actor described in the trial story. For this reason the plaintiff’s opening should begin by introducing the defendant and their actions that led to the plaintiff’s harm. This lighthouse—the principle that guides the plaintiff’s approach to all trial decisions is: IT IS THE DEFENDANT THAT IS ON TRIAL.

With this tenet in mind we create an organizational outline for the opening statement:  Introduction—a short paragraph presented in such a way as to require the jury’s assent. It should capture the jury’s attention and arouse their curiosity  The plaintiff’s narrative—the story

190

 Why we sued the defendant  Defenses (the defendant’s excuses)  Damages  The verdict we desire—what we hope to achieve in terms of safety for jurors and the community

In law school we learn that a tort requires a breach of some duty. In the courtroom we simplify this—the defendant broke the rules. The rule may be a legal one (by statute or common law), a professional one (by professional standards and codes), or a violation of rules promulgated by the defendant institution (by corporate policies and procedures).

Rick Friedman, past president of the Inner Circle, together with the great Pat Malone, wrote RULES OF THE ROAD: A Plaintiff’s Lawyers Guide to Proving Liability. Through my personal association with them, along with the teachings of their book, opened a new door for me and allowed me to understand and use what they call the “rules of the road” as a foundational tool to establish a defendant’s liability.

The “rules of the road” concept establishes liability using the following steps in logical progression:

1. State an undisputable scientific, engineering, or other appropriate principle (This may not be required in some cases, such as vehicular accidents). 2. State a universal safety rule (a broad safety rule that applies generically to the behavior in issue). 3. State the specific rule of the road that the defendant violated (the specific safety standard violated by defendant). 4. The reason for the rule. 5. How the defendant broke the rule. 6. How the defendant’s violation of the rule caused plaintiff’s damages. Rick Friedman and other accomplished advocates recommend starting their opening with the “Rules of the Road” concepts. Others

191

believe the plaintiff’s opening works best when the rules concepts are covered when we discuss the reasons we sued the defendant. Still others like to reserve the use of the rules of the road for the evidence stage. Regardless of the organizational approach, the first few paragraphs of the opening statement should present principles and ideas with which the jury agrees. In other words, begin the battle with a charge from our brigade of confirmation bias.

Dale Carnegie, in his bestseller, HOW TO WIN FRIENDS AND INFLUENCE PEOPLE, put it in poetic terms: “A man convinced against his will is of the same opinion still”.

A plaintiff’s opening includes a narrative that begins with the defendant—who they are—the decisions they made—their actions (omissions and commissions) that led to the plaintiff’s harms and losses.

Determining the point of view for the narrative is the next step. The narrative’s point of view can be one of the following:  Third-person omniscient  Third-person limited  First person  Second Person The vast majority of fiction is written in third-person omniscient. Trial stories should use this point of view as it allows change in scene, time, and point of view which can animate the narrative.

I have seen one lawyer unsuccessfully attempt the first person point of view. He channeled a fetus struggling in the birth canal during a difficult labor. It was not well received by the jury. It can come off as contrived advocacy and overly “theatrical.” But, it can be done.

Earl Rogers is considered one of America’s greatest trial lawyers. He practiced in Los Angeles from the 1890’s until his death in 1922. He tried primarily criminal law cases. Of the 77 capital cases he tried, he lost only one. Rogers was an innovator and trail blazer in demonstrative evidence, ballistics, medical forensics, and trial demonstrations.

192

He was also noted for narrating in the first person in closing argument. In his defense of Clarence Darrow charged with jury tampering, he moved into the first person and presented the events of Darrow approaching a private investigator with instructions to bribe jurors. Presented this way it was obvious Darrow would never attempt a contrivance that would put his reputation and everything he had worked for in jeopardy.

Another case involved a will contest. Rogers represented heirs contesting a will on the grounds that the testator was not of sound mind when he executed the questionable will. In closing argument he adopted the first person to the point of speaking in the dialect and physical movements of the decedent.

“Suppose Patrick Talent were to enter this courtroom now. Suppose he came within this rail. He would ask, what’s this all about? And he would be told that it was about his will. He would be astonished. He would say: ‘Why, I never made a will’. (Then addressing the lawyer who claimed he had witnessed Talent’s will). ‘Dixon Phillips, you know I never made a will. You know you made that will. I never did!’ And, gentlemen of the jury, Dixon Phillips would then jump out that window.”

Members of the Inner Circle of Advocates have taken narrating in the first person to a new forensic level combining it with elements of psychodrama.

Jim Fitzgerald gave many opening statements in the first person point of view of his plaintiff. Tom Kline gave a first person narrative of a young child drowning. He began by pointing out since the boy was dead, he (Kline) had to speak for him. Every sentence referenced testimony in the case about the boy’s life. He detailed the boy’s thoughts as he was drowning, even though there was obviously no testimony on this issue. This would obviously be permissible since everyone must have these thoughts as he is dying.

Past President of the Inner Circle, Randy McGinn, represented the parents of a 15 year old cowboy who had been beaten to death in the hallway of his school in the middle of the day with classes in session. She introduced into evidence a series of essays the young man had

193

written about what he wanted to do and be when he grew up and who his rodeo heroes were. She did not publish these to the jury during the evidence phase. In closing argument she pointed out that the one person the jury had not heard from was Jason (the decedent). She put a chair in front of the jury box and read Jason’s thoughts in the first person about how much he loved horses and roping and how he wanted to be a rodeo champion someday, just like his hero who taught him how to rope. The case and Randi’s trial techniques were so notable they were covered by the local TV news. There was not a dry eye in that courtroom, including Randi’s.

Using a first person narrative is particularly effective when that person is dead or otherwise incapable of testifying. But take care that your trial record supports your first person narrative, or else you will be met with the objection you are arguing facts not in evidence.

Advocates often use the second person point of view when they want to appeal on a personal basis to the jury: “You will remember Dr. Richardson’s testimony when he said….” “It’s up to you to change this corporate behavior…” “Would you be concerned if you knew this about a doctor who was about to diagnose your illness…”

Always keep in mind that the jury can base a verdict on the same inferences you can argue: “You know why this corporation chose to market such a dangerous product. They were in a rush to better the bottom line.”

The closing arguments found in later chapters demonstrate how coupling a present tense story with psychodrama presented in the second person point of view can yield a dramatic and persuasive message.

A second person point of view as part of closing argument narrative can be effective, but keep in mind the limitations imposed by the “Golden Rule Argument”.

194 The next essential decision for the trial lawyer constructing a trial narrative is the choice of tense.

Narrative tenses are verb tenses that are used to talk about the past. You can often find them in stories, textbooks, spoken accounts and in descriptions of past events.

The following are examples of narrative tenses:

Past simple: “He left for the office on a cloudy day.”

Past continuous: “The light was flashing red as he went through the intersection.”

Past perfect: “It had been raining on and off for the last two days.”

Past perfect continuous: “She had been waiting to see a doctor for what seemed like an eternity.”

Most writers of fiction, non-fiction, and yes, trial lawyers, either by convention or choice, tell their trial stories in past perfect tense. It is by far the most common.

But, using present tense in opening statement and closing argument has significant advantages. Present tense has more “immediacy” than a past tense narration. Past tense is of course “immediate” in a way, since the events of the characters’ past are happening in the juror’s present. But, present tense puts the audience in both the actions and emotions that the character of the story is experiencing.

An axiom of jury persuasion is: Good lawyers tells what happened; Better lawyers tells why it happened; The best lawyers tell how it felt.

Effective trial storytelling requires that a narrative be told in the present tense.

195 Present tense storytelling coupled with psychodrama works in the courtroom for a number of reasons. First it enforces immediacy on both the speaker and the audience. A trial lawyer who is seeing, living, and acting out his opening statement or closing argument will be more involved in his narrative than one talking about it as “history”. This is different than someone hearing someone tell about it.

Second, the shift to present tense indicates heightened emotion on the part of the narrator.

Stories that are personal and emotionally compelling engage more of the brain and thus are better remembered than simply stating a set of facts.

There are two key aspects to an effective story. First, it must capture and hold our attention. The second thing it must do is “transport” us into the characters’ world. From a story-telling perspective, the way to keep an audience’s attention is to continually increase the tension in the story. The immediacy of the present tense also allows us to convey a character’s change as it happens, not after the fact. The jurors are in essence experiencing the events at the same time as the speaker, and it’s this feeling of going through the plot together (immediacy) that tends to create a closer relationship.

When you add emotion to a present tense story you have created a powerful persuasive tool.

A corollary to the previous axiom is: Good lawyers present their case by telling a good story. Great lawyers present their case by living it.

Pamela Rutledge, Ph.D., M.B.A., is Director of the Media Psychology Research Center and teaches courses on brand storytelling, audience engagement, and positive psychology. Her extensive research has led her to believe:

When you listen to stories and understand them, you experience the exact same brain pattern as the person telling the story.

196

Other research shows that audiences are more likely to engage with and adopt messages that make them feel personally involved by triggering an emotional response. This is key for trial persuasion— people remember emotional stories best. You might call this “affective” storytelling.

Or, to put it another way—man is not just a thinking machine—he is a thinking machine that feels.

Corporations spend hundreds of millions each year vying for the best Super Bowl ads. Which ones do we best remember and associate with the advertiser’s brand?

We all remember the lost puppy commercial for Budweiser from a past year’s Super Bowl because it pained us to see that lost puppy. And then we rejoiced when he made it back to the safety of home. That story helped us to remember Budweiser simply by pulling on our heart strings.

Another revelation came from Jim Fitzgerald an outstanding Wyoming trial lawyer and another Past President of the Inner Circle. Jim believes trial lawyers should use the principles of psychodrama, which ties directly into storytelling.

Psychodrama is an action method, often used in psychotherapy, in which clients use spontaneous dramatization, role playing, and dramatic self-presentation to investigate and gain insight into their lives. As a therapeutic tool, psychodrama offers a creative way for an individual or group to explore and solve personal problems. Though it has waned in popularity among psychiatrists, Gerry Spence, well known for winning cases on behalf of Karen Silkwood and Imelda Marcos, became convinced that psychodrama had great benefits to lawyers. Psychodrama in the courtroom involves having a witness, usually the plaintiff, project themselves into a past event and relive it in the present. I have found it helpful with critical witnesses and have not limited it just to the testimony of those we represent.

The essential steps involve getting the witness into the past event usually with preliminary questions that ultimately lead to asking, “Can you take us there?” Questions that follow are posed in the present

197 tense. The witness is asked to describe the setting in detail referring to all the senses. This is followed by asking who is present and where they are in relation to the actor. Finally, the critical issue or action is told in the present tense. Psychodrama principles are used by lawyers eliciting testimony such as how the plaintiff is handling grief (by putting them in a setting the plaintiff shared with the deceased) or how the plaintiff was first advised of a tragic injury to themselves or a loved one.

I have used psychodrama not only during the evidence stage, but also in closing argument as is demonstrated in the following chapters.

To all these principles of jury persuasion, I would add the idea that metaphors, similes, and analogies can transform a dull closing argument into a colorful and memorable presentation and give your audience new insights. This is what is known as figurative speech. Figurative language involves using figures of speech to be more effective, persuasive, and impactful.

Analogy is a comparison between two things. Analogies function to describe or explain one thing by examining its similarities with another thing. The two things may be very dissimilar and the analogy forces the reader or listener to understand the connection between them.

Analogies work for a simple reason—they cause the audience to make pictures in their minds.

Analogies work because jurors (like all humans) start learning unfamiliar facts by connecting them to facts, concepts, or emotions they already know. The single most important question that you must help your audience answer is, “Compared to what?” Once your learner knows what the new stuff is like, he can move on through the unfamiliar information with greater comfort and comprehension.

Even the best analogies have an inherent flaw: No analogy is so perfect that it exactly mirrors the situation or argument you are attempting to make. Although jurors appreciate their own analogies (because they came up with them), they are quick to tear apart analogies used by an attorney with whom they disagree. When a

198

lawyer uses an analogy to argue his or her case, we almost always hear the dissenting jurors “poke holes” in it and explain how it’s “nothing like” the situation to which it is being compared. Moreover, a creative opposing counsel who is paying attention can easily do the same.

Counsel should always consider whether the analogy is comparing a serious event to an everyday occurrence, and if so, it’s probably better to leave that one alone.

Although not an analogy in the literal sense, during my career as a trial lawyer I found demonstrative evidence to be the best and safest use of comparisons:

Using an orange with a hole cut in the bottom and squeezing the orange to demonstrate how that if brain swelling is not relieved, the cerebellar tonsils move downward through the foramen magnum, a natural opening at the base of the skull, where the spinal cord connects to the brain.

Using a metronome to illustrate how bradycardia would sound on an anesthesia monitor compared to a normal heart rate.

Using a beaker sitting in a pan to illustrate fluid overloading.

These would properly be described as demonstrative evidence but they might also be labeled as a demonstrative analogy.

A metaphor is a figure of speech that directly compares one thing to another for rhetorical effect.

Metaphors are so powerful that Aristotle said: “The greatest thing by far is to have mastered the metaphor.” And the Spanish philosopher and writer Jose Ortega y Gasset added, “The metaphor is probably the most fertile power possessed by man.”

The power of a metaphor is in its ability to create an image that is linked to emotion in the mind of the audience. It is one thing to talk about racial injustice, it is quite another for the Reverend Dr. Martin Luther King, Jr. to note that people have been “…battered by storms

199

of persecution and staggered by the winds of police brutality.” Throughout his “I Have a Dream” speech the Reverend Dr. King uses the metaphor of a checking account to make his point.

When Kodak invented the camera, the technology was so new and different the camera could only be valued by linking the new technology of a camera to something more familiar. Kodak called its camera “a mirror with a memory.” They connected two dissimilar things that actually have something in common. A camera’s film is the memory and the lens is the mirror. Link the two knowns to the unknown—a camera—and a metaphor is born.

Charles Revson, the founder of Revlon, used his metaphorical thinking to expand the reach of his business. “In the factory we make cosmetics. In the store we sell hope.” Likewise, Porsche pays homage to the metaphor in its advertising: “A Porsche is not a car; it is the best engineered executive toy in the world.”

An effective metaphor is not a cliché. Avoid the cliche. Cliches deaden speech; colorful original metaphors give ideas life.

In the closing arguments in the following chapters, I use various metaphors to enliven the facts of the case.

You will find these metaphors in a case involving a fetus injured during delivery by obstetrical negligence:

“The family’s store of hopes and dreams is shoplifted by this defendant’s negligence. When the defendants are stopped in the parking lot, their response is that not only do they not feel any obligation to return anything they took, they have the right to take from some other family’s store sometime down the line”.

“We have the power to stop those people who would splatter the innocent and leave justice as insignificant road kill in the rush to a better bottom line”.

“They’ve got a little speed bump they’ve got to get over. A little something to slow them down. A jury”.

200 “The defendants’ negligence moved into Alexander’s brain during those forty-five minutes after Lisa was given Pitocin without a doctor’s order. The effect of the defendants’ negligence has been living there rent-free ever since. They took out a lifetime lease. Our job is to decide what the rent ought to be”.

In a case involving an unnecessary mastectomy I came up with these:

“(this is)…a case about a drive-by diagnosis followed by a rush to surgery followed by a plunge off the cliff into medical oblivion”.

“There are no skid marks in the road here. Look for them in the evidence because you will not find them”.

“I suggest what we ought to do is pull the curtain back. Just pull it back. There is no wizard. There is no wizard back there. There’s just some people pulling a bunch of levers to put out a bunch of smoke and colorful images so that you can’t see the road”.

Improper anesthesia care resulting in brain damage and death led to using nautical metaphors as a theme in closing:

“Nurse Cernosek was asleep at the helm while the ship was sailing into a storm. Dr. Crowder was the first officer who was down in the coffee bar relaxing when she should have been on the bridge. Dr. Battaglia and Dr. Polk were the captains and the owners of this ship. They hired Dr. Crowder and Nurse Cernosek and were supposed to train and supervise them”.

“They sail him into a Bermuda Triangle—a Bermuda Triangle. Think about it. All those hopes, all those dreams disappear into a black hole”.

“How did this ship get lost out there in the fog? What can we get to help us tell how and where the ship was lost, because the defendants are going to say…unless you can show us the

201

exact longitude and the exact latitude where that ship is lost, we have no responsibility”.

“This is when he started sending out an SOS. This is what the SOS signals sounded like that are on the tape (metronome used to illustrate heart rate). Those are the SOS signals”.

“But if we entrust a precious cargo to somebody and they sail off into a fog, do we blame the lowly helmsman at the wheel? Is that the person we really blame?” Or do we blame the owners of the company who said they’d take good care of our cargo? Or do we blame the captain who’s supposed to train the helmsman? Do we blame the first officer who was on the bridge who said, Well, I’ll just go down and have a cup of coffee for an hour or so while we sail into the fog”.

Unlike metaphors, similes create a comparison using like and as. Perhaps you’ll recognize this famous example of simile from Forrest Gump: “Life is like a box of chocolates.”

I now teach all the foregoing concepts, but with the caveat—all of them deal with the first audience. A trial lawyer must always consider our second audience—the appellate courts that may be called upon to review our story and evidence on grounds of legal insufficiency.

Often the trial lawyer must spend time on factual matters, not from the standpoint of persuading twelve lay people, but also the jurists who keep a keen eye open to be sure legal proof requirements are met. There are often phases of trials when a lay person looking on would say, “Enough of that, move on to something interesting.” A good trial lawyer looking on at the same seemingly tedious part of evidence is thinking, “Good. He knows what he is doing. He is protecting and perfecting his record.”

The final key for a lawyer presenting his case as a narrative is this:

Tell the jury a story they already know.

The stories people have stacked into the libraries of their minds are truly infinite. Our personal experiences catalogue narratives

202

immediately retrievable by association. Stories from novels, history, the Bible, movies, TV shows, songs, works of art, and poetry are all sources for the stories a person is exposed to on a daily basis. Most stories we retain have a memorable moral; some lesson that guides our decisions. A good plaintiff’s case presents a morality play. If we are successful, our plaintiff prevails over profound obstacles. The secret lies in framing. How the facts (content) are organized and presented (context) leads to the central idea that determines what story the jury knows that they associate with the case before them.

The most effective way to determine this central idea is through focus groups.

Using focus groups as a preliminary step in preparing for trial came from my association with Don Keenan in the Inner Circle. I began doing focus groups with the aid of some jury consultants. A local string writer for the Wall Street Journal picked it up and featured me and my law partner in an article in the Wall Street Journal (May 6 1998). After this epiphany, I never tried another major case without hosting at least one focus group.

Focus groups can be used to focus a single issue, determine your most effective visual aids, or formulate your central idea or theme. A typical focus group presents both sides in abbreviated form and proceeds to group deliberation. The cluster of voices should produce some indication of the essence of the narrative that drove the focus group verdict. The core idea of any case should be capable of being expressed in fifty words or less.

Once you have compressed your case to your core idea you should have something that in a generic sense resembles a story the jury already knows. The “framing” of a plaintiff’s case always focuses on the defendant’s conduct. Among the common tort plots are:

The betrayal of a trust which led to harm to a hard working citizen. (Medical and hospital cases)

Concealing danger that ripened into significant losses and harm by a trusting user. (Products and premises cases)

203

The lust for wealth or power that resulted in collateral (unintended) but foreseeable casualty. (Products and trucking cases).

All these plots lead to the reptilian moral:

CONDONING THIS CONDUCT THREATENS US ALL.

But, we still have the challenge of presenting a persuasive story.

From television to the Internet, Americans now learn through visual explanations. “Talking heads” and the spoken word are relegated to PBS–people now expect pictures, diagrams, and animations in every aspect of their news. This requires vivid thinking, reformed into a more visual sensory experience. And this does not mean Power Point. Rather, think in the multiple different forms the courtroom allows visual communication in picture forms. A single picture not only unlocks 1,000 words—it actually unlocks a story, fully formed as a holistic concept. Imagery provide connotations and thematic inferences well beyond the simple word. Juries expect visuals.

Inner Circle member Paul Luvera has received accolades not only for his accomplishments in the courtroom, but also for his contributions to legal education. It was through his presentations at the Inner Circle that I began to fully appreciate the power of visual images. Likewise, the creative use of visual exhibits by Inner Circle members Brian Pannish and Pat Malone showed the folly of using extensive power point textual slides as a persuasive tool. Rather photographs, charts, and diagrams are what brings color, vividness, and explanation to the plaintiff’s case.

Years ago the understanding of this core issue led to advocates developing the concept of case theme—the central, concise idea— that holds the facts and the law together to motivate a favorable verdict.

Determining the image that conveys the core of your story requires tedious research and analysis.

204

My son has achieved several eight figure verdicts using this technique among his arsenal of visual dynamics. He has set out the process. See Jim M. Perdue, Jr., “Presenting Evidence with an Eye Toward Your Jury,” The Advocate, Spring 2020, p. 44-49 (State Bar of Texas Litigation Section).

Ask people for an image when you give them a concept. Develop a list. Search the Internet or, better, sites that may charge for better quality images within a better search catalog. Then, take a collection of images and ask people the significance they take from them. Narrow the images down to three, and then take them to anyone you can and ask what they ascribe to them. Narrow it down to the image that seems to most uniformly get the concept across. This work can create a visual them—something even more powerful for a modern jury than the traditional verbal “case theme” because the jury provides the connotation, meaning, and significance themselves. The fact that they do not know all of the work you did to finally get the best image is irrelevant.

Some examples from cases are:

An image of a roulette wheel—the doctor chose a risky procedure without advising the patient of less dangerous alternatives. (The doctor took the gamble but it was the patient who put up all the stakes).

An image of an hourglass—the doctor unduly delayed a caesarian section to relieve a fetus being stressed by labor. (A suffocating fetus has no time to spare waiting for his rescue).

An image of keys in a case about whether an owner has control over an independent contractor’s work so as to impose liability. (No one goes anywhere without the owner opening the door).

Put this image up at the conclusion of your opening statement and closing argument. Sometimes the defendant will be so engrossed with their opening statement they forget to take down your image. I

205 can assure you that whether they do or not the image and the message is tattooed on deep on the jury’s brain cells.

In summary, this is the formula for success I learned after 50 years of active advocacy, twenty years as a member of the Inner Circle of Advocates, and twelve years of teaching a class on storytelling:  Never forget it is the defendant that is on trial.  Present the plaintiff’s case as a story rather than as a “stack of facts and legal principles”.  Focus first on the defendant’s conduct.  Incorporate the “Rules of the Road” in the trial narrative.  Tell the story in the present tense.  Vary the point of view of the narrative.  Integrate concepts of psychodrama.  Employ the rhetorical techniques of metaphors and analogies.  Focus your case so you can tell the jury a story they already know.  Find the best visual image for your core idea (theme).

Over the years I have seen many trial lawyers that are still trying cases the way they did 30 or 40 years ago. The only difference is that they now overuse textual power points. Putting words on a monitor does not represent improvement in trial advocacy. Instead, incorporate these new techniques into your trial advocacy.

We are taught that the law must be stable, perdurable, and predictable. But, the lawyer who would insist on using the traditional trial techniques just because “that is the way it has always been done” is losing all opportunity to improve courtroom skills. Trying something new can prompt the fears that Ralphie’s mother and teacher had in the Christmas Story, “You’ll shoot your eye out…”

I use this allegory when teaching these techniques to law students or experienced lawyers attending CLE programs:

206 A pirate walks into a bar. He has a wooden leg, a hook in place of one arm, and an eye patch. The Bartender looks at him and says, “My god man, what happened to you?”

The pirate replies, “One day in a sea battle a canon ball hit my leg and took it off. But the ship’s carpenter made me this wooden leg and I am doing fine now.

The bartender asks, “What about your hand?”

The pirate says, “In another sea battle, a pirate cut my hand off. A blacksmith made this metal hook for my arm and I am okay now”.

The bartender asks, “And your eye?”

“A seagull crapped in it.”

The bartender gasps, “You lost your eye because a seagull crapped in it?”

The pirate explains, “It was my first day with the hook!”

This is an old joke that you may have already heard. But it illustrates two points:

The first is we always fear when we try something new that we are going to take our eye out. We just have to gather up the guts to overcome that fear and give our best shot. We usually do better than expected.

The second point is, after the pirate got comfortable with his new appendage he became more formidable warrior equipped with a weapon his opponents would never have.

In conclusion, my humble advice for all trial lawyers, young or old, comes from Hall of Fame basketball coach Pat Riley: “If you’re not

207 getting better, you’re getting worse.” So, our directive is simple: Give it your best every day, in every way, to get better and better.

208 CHAPTER 13

GOOD ENOUGH OR SAFE ENOUGH

Opening statement should be the first time the jury hears your trial story. Many lawyers, however, still persist in giving a mini-opening during voir dire. In Texas, this persistence comes from days long past when our the rules did not permit an opening statement. The rule only allowed the parties to read their pleadings after the jury was seated. That rule was changed over 40 years ago, yet the practice of giving a mini-opening still persists.

This case was tried in November and December of 1993, in the District Court of Harris County. The presiding judge was Greg Abbot, who later became Governor of Texas. It settled for a confidential figure just before the case was to go to the jury.

There are those who contend you can’t change tense during a narrative. Obviously, I disagree, as we go from present tense for the introduction, to past tense for the background of the hospital’s actions that led to their premises being dangerous, and then the discussion of the tragic incident is told in the present tense.

This case is filled with action. Describing a scene involving movement, maneuvers, and motion can be brought alive when told in the present tense in a way that brings the audience into the story more effectively than if it were narrated in the past tense. A speaker’s movement that is consistent with their words can engage an audience.

One of the difficult challenges for the trial lawyer/storyteller is where to begin the story. There are several choices and I have used them all. Which one depends on many factors. In this example, I use the foreshadowing of tragic events. This is the way Mitch Albon begins his book, FIVE PEOPLE YOU MEET IN HEAVEN.

Every trial story needs a theme. And a good theme is repeated during the opening several times.

209 The opening should give jurors a clear picture of what the case is about. A big part of the “about” is damages. I am often asked “How should I discuss damages in opening? Should I suggest a specific figure? How do I prepare my jury to consider large damages?” Hopefully this example will give some helpful insight.

Opening statement is not the time to argue the case. That is improper in most jurisdictions. This does not mean your opening can’t contain an emotional appeal. But just remember, it is the facts of the story that will do the heavy lifting.

OPENING STATEMENT

At 6:15 on the morning of April 23,1991, Rich Larson pulls into the parking garage at the University of Texas Medical School here in Houston. He is a third-year medical student. He goes by the medical school and puts some belongings in his locker. Herman Hospital is the hospital affiliated with the medical school. The hospital has a written agreement with the school to use medical students to provide patient care.

Rich leaves the school and goes to the Allen Pavilion at Herman Hospital. (Showing photo of exterior of building). He cannot know that in less than one hour he will be lying at the bottom of a concealed shaft with his skull crushed and his brain bleeding—injuries that will claim his life one week later, his death caused by decisions the hospital made.

The decisions it made, the hospital says, were “good enough.” You will ask, “Were they safe enough?”

A patient, Johnny Williams, had become unpredictably violent that morning. (Showing black and white photo of Williams).

Rich and some other hospital workers were trying to bring him under control, when they fell against an aluminum louver that gave way, causing them to fall into the shaft.

210 “There is no way we could have predicted that this patient would become uncontrollably violent,” the hospital says to Rich’s parents. The hospital also says, “Our premises are safe. After all, our hospital passed all the building and safety codes.”

In 1972, when the Allen Pavilion was built, the hospital constructed what is called the Allen-Johnson interconnect. The hospital was constructing a new building between two older ones. Where the Johnson Pavilion connected at the southwest corner of the Allen Pavilion, there was a corridor that ended next to a fire exit. The hospital, acting through its architects and builders, constructed a blind shaft to provide for smoke exhaust from the vestibule that was at the end of the corridor. There were louvers on both sides of the shaft. The louvers on the north side were in the vestibule in the Allen Pavilion.

(Large diagrams were shown).

The louvers on the south side opened onto corridors into the Johnson Pavilion. The louvers were seven feet tall by four feet wide. No signs warned of a shaft behind them.

(Showing photos of louvers).

Before the work on this construction was done, written plans, blueprints, and specifications were prepared. They called for the louvers to be of a certain thickness of aluminum, the frame in which the louvers fit to be a certain depth, and the whole assembly to be mounted into the wall with toggle bolts. None of these written plans or specifications were met.

The shaft was concealed—a hidden peril. But that’s the way the hospital built it. They built it that way and said, “It’s good enough.”

In 1988, significant renovations were completed on the Allen Pavilion. Some problems that had been identified were addressed, but not that blind shaft. And so, the inadequate louvers, installed in violation of the hospital’s own written plans and specifications, over a dangerous concealed shaft, remained in place from 1972 until the morning of April 23, 1991.

211 In March 1991, Herman Hospital closed its psychiatric facility. In April of 1991, there was no psychiatric facility at the hospital.

Some years before, the hospital had put together a team of orderlies and other hospital employees to deal with patients who might become unruly or dangerous.

“Team alert personnel” were to respond when needed to bring patients under control and restrain them and prevent them from doing violence to themselves or others.

The team functioned under the direction and control of the psychiatric department. This department would formulate written policies and rules that governed how the hospital would deal with patients who became violent, unruly, and needed to be restrained. When the hospital closed down its psychiatric department, nothing was done to change the way the team worked. Again, the hospital said this was “good enough.”

Uniformed security officers were also responsible for dealing with patients who became unruly or dangerous. But written rules and policies were far from clear as to how a caII would be made to summon security personnel. Again, the hospital said that there was no problem. This would be “good enough.”

Johnny Williams has a long history of medical problems. He had been hospitalized a number of times because of seizures. His doctors gave him medication to control them.

It is important to point out what the hospital told Rich Larson’s parents right after they got to Houston that afternoon. The hospital told Rich’s parents, the medical school, the media, everybody, “When Johnny Williams became violent, there was no way we could predict that.”

When Mr. Williams comes into the Herman Hospital emergency room on the evening of April 20, he is hitting people. He is biting and kicking members of the staff. Nurses and doctors put him in leather restraints. (Showing photo of restraints). He tries to get out of them. He is taken to the Neurological Critical Care Unit, a special unit with

212 nurses to monitor him, nurses trained to deal with patients who have this type of problem.

Around 3:00 p.m. on April 22, he is transferred to a general medical floor of the Allen Pavilion. He is put in the room furthest from the nurses’ station. The hospital assigns licensed vocational nurses to take care of him, not registered nurses. These nurses have other patients to care for besides Mr. Williams.

On this night, about 12 hours before Mr. Williams will become uncontrollably violent for the second time, the LVN caring for him sees he is in his room, not in any restraints. He is agitated. He insists on going home.

Johnny Williams’ wife comes in that evening and sees her husband, but she does not stay long. She goes to the nurses’ station and says, “I think my husband needs to be back in NCCU.” A nurse summons the doctor. The doctor talks with Mr. Williams, but decides to wait until the morning to see how he is getting along.

Again, everyone charged with the responsibility for protecting the patient from himself and others feels that what is being done is “good enough.”

On the morning of April 23 at about 7:00 a.m., Johnny Williams gets out of bed and swings at the nurses. They run from him, heading down the hall. As they are going around a corner, he grabs one from behind, throws her down, and starts punching and kicking her. One of the doctors and a patient care technician, Ron Charles, pull Johnny Williams off the nurse.

Calls are made for security. But the calls do not go to the security office; they go to the Centrex operator. There is confusion about how to obtain security assistance. But again, we need not worry, because the hospital has determined that its procedures are “good enough.”

Johnny Williams is escorted back to his room. He demands to leave the hospital. He puts on street pants. He comes back out of the room and heads down the hall. The nurses think that security is on the way. After all, they called and reported an emergency. A page went out

213 over the intercom for the team alert people. People are supposed to come from all around.

But there are still no uniformed security people on the scene. Johnny Williams comes down past the nurses’ station, beats on the elevator doors, and starts up the stairway. He is told that he cannot get out that way. He comes back into the vestibule, which is about an size of an elevator. He hits a medical student in the face. The other men in the vestibule—team alert people, Roy Russell, Edward Lee Jones, young Rich Larson, and Ron Charles, the patient care technician— grab Williams and try to hold him.

The written call log tells us that six or seven minutes have passed since the call for security. No security personnel have arrived. Rich and the other men are doing what they can to protect the hospital, its patients, and its visitors. They grab Mr. Williams, four of them, and they push him back against the louvers.

Roy Russell says, “I heard a pop. It sounded like a pop.” Edward Lee Jones says, “It seemed like the louvers did not hold even a little bit.” The louvers, the frame, everything comes out of the wall and falls into the basement three floors below. Roy Russell grabs the wall and saves himself. The other men fall into the concealed shaft. Ron Charles is killed instantly. Rich Larson suffers a fractured skull with massive bleeding into his brain. Edward Lee Jones and Johnny Williams escape with minor injuries.

A uniformed security officer gets off the elevator just as the men are falling into the shaft. But we are told that the hospital did everything right, that what they did in regard to their premises, the security, and the care of the patient, Johnny Williams, was “good enough.”

This case is about the difference between “good enough” and “safe enough.” Mr. and Mrs. Larson say that while the hospital thought it was “good enough,” it was not “safe enough” to protect their son.

If you go out to the Larsons’ house, you will see that pictures have been moved. Things are not the way they used to be. Albums have been put away. That’s what happens when you lose a son.

214 Rich Larson was an exceptional young man. (Showing photo of Rick blown up and mounted on 3’ by 4’ board). He would go over to the hospitals in Dallas and Fort Worth when he was in college and stand in for people so they could have time off at Thanksgiving and Christmas.

He worked with abused children.

He worked in childhood immunization programs.

I tell you these things because it is always a difficult task to value a human life.

There are no human appraisers. If the hospital had destroyed a valuable painting or a stamp collection that Don and Ann Larson owned, we could obtain expert opinion as to what their market value was. But valuing the loss of a son is different. Damages—fair compensation—repayment for loss—must take into account many things.

It is particularly difficult to place a value on the loss of a son. We determine damages in cases like this not only to compensate the loved ones left behind but also to ensure that responsible parties are held accountable. We do this because companies, individuals, and hospitals must know that if they take a life they will be held responsible for the full value of that life.

I have to tell you a little about Rich so you will have some idea of the nature of your undertaking in this case.

There are many ways that we could value the loss of someone like Rich Larson. I wonder whether your reaction might be to say something like, “Well, the community has lost a great deal. Here was a young man who wanted to be a doctor, not because he wanted to make a lot of money, but because he cared for people.”

Rich Larson wanted to become an obstetrician, someone who would deliver babies, after he returned to the Plano area. He was very close to his family and loved his community.

215 After Rich’s death, he was conferred a medal for special bravery and heroism. It has been given only a couple of times by the American Medical Association to doctors or medical students in nonwartime. The AMA recognized Rich for what he did. Yes, the community has experienced a great loss.

I wonder if some of you might be thinking to yourselves, “Well, the measure of damages ought to compensate these parents for all they invested in raising such a fine son.”

Neither of these is the measure here. After the evidence is presented, you will determine damages that would reasonably compensate these parents for the mental anguish that they have experienced, the loss of pecuniary contributions that Rich, their son, would have provided as they got older and more dependent, but, most important, the loss of what the law calls aid, comfort, society, and companionship.

To help you understand Don and Ann’s loss, we must bring you facts and evidence. Some of the facts are unpleasant. They will hurt you to hear them, and they will tear at the heart and soul of Don and Ann to tell them. We do not do this to evoke compassion or sympathy. Sympathy should play no role in your verdict. But if you were to decide this case, without an understanding of the kind of son they lost and the hurt they have known, justice would not be done.

Someone may suggest that no amount of money can bring Rich back. By the same token, the failure to find full and adequate damages, which in this case is in the millions of dollars, would subsidize carelessness, reward indifference, and pay homage to those who would attempt to be less than truthful with us.

Your verdict will be a product of truth, driven by honesty, and inspired by courage. It is said that we are all heroes simply waiting for the opportunity to demonstrate our courage. Rich Larson died a hero because of his courage. He was doing what he thought needed to be done to protect the hospital, patients, and other people.

The story that you have heard is yet to be “finished.” You will write the final chapter in about three or four weeks after you have heard all the evidence. Your verdict will be a just one if you bring to your

216

deliberations the same type of courage that Rich showed on the morning of April 23.

Thank you.

217 CHAPTER 14

BACKSTAGE AT THE COURTHOUSE

A principle of theatre is “What you don’t see backstage is what really controls the show.” The same often holds true for trials. That principle was certainly playing out in the case of Walker v. Conkle; Cause No. 83-346,896; in the 133rd District Court of Harris County, Texas.

Following the opening statements, it settled for a confidential amount in the low to mid-seven figures.

That is the trial play the audience saw. But it was backstage that the real story played out.

My years of practice led me to the belief held by many other lawyers: virtually all cases can be resolved if you have lawyers on both sides capable and fair minded who evaluate the risks and benefits to both sides, determine the fair settlement value of the case, report their analysis to their clients and have clients that have confidence in their lawyers and follow their recommendations. Many plaintiffs’ lawyers have had the good fortune of finding all these elements come together in a serendipitous coalition of facts, lawyers, and compliant clients.

Any lawyer can take a three million dollar case and settle it for a million dollars. Great lawyers take a million dollar case and recover three million. Those lawyers have the reputation, ability, determination, and commitment to not only try the case but hold their verdict on appeal. They are the few, the able, the skilled advocates who never stopped studying and improving. I have seen insurance counsel and their principals often underestimate these tireless warriors to their embarrassment and detriment. I would never suggest my name ranks among currently active Texas trial lawyers such as Charla Aldous, Mark Lanier, and Zoe Littlepage, but I take some pride in the fact I never had a jury verdict overturned except in one case where the Texas Supreme Court temporarily rewrote the Rules of Evidence as discussed in Chapter 5. But it is the lawyer’s consistent

218

reputation for success before juries and appellate courts that give a case its value with defense counsel and insurance companies.

Trucking companies normally carry what is termed “layers of coverage.” Various insurance companies cover the companies at various levels. Often this can involve up to three different insurance carriers. There is a primary carrier whose liability limit may be relatively small or up to several million dollars. Above that the secondary carrier’s coverage comes into play. It is only after the primary carrier’s coverage has been exhausted that the secondary carrier enters the picture for the purpose of paying a judgment or negotiating a settlement. Often, when pre-trial settlement negotiations occur, the secondary carriers do not have the in-depth understanding of the case and the potential liability presented by a trial on the merits.

That was the situation with this tragedy involving the loss of a young son. Mediation was unsuccessful and we were ordered to trial. I have settled more cases for 8 figures in mediation than I obtained by jury verdict in trial. Those were all situations involving competent and experienced defense counsel with carriers inclined to follow their lawyer’s advice.

One case involved the Japanese manufacturer of a sleep medication. Their manufacturing process had been compromised so that the drug was contaminated. This led to Charlotte Hees developing a life threatening totally-debilitating blood disorder. We mediated the case three times with an outstanding lawyer with Vinson & Elkins. At the third mediation, the president of the Japanese corporation flew from Tokyo to attend. It was the only time I have experienced a corporate CEO personally apologize to someone I represented for the harm they did. We settled the case for sixteen million dollars.

In the Walker case, the defense attorney understood the exposure and the risk, but the secondary carriers were so blind they could not see the big picture. They refused to make any settlement offer during mediation.

After mediation efforts failed the defense attorney made a novel proposal—he would have the claims manager for the excess carrier

219 from out of state attend the opening statements. So, I found myself addressing a fourth audience. We always have three—our jury, our trial judge, and whatever appellate judges may hear the appeal. But, in order to do justice for this family, my charge was to convince a fourth audience—the claims manager for an international insurance carrier.

My defense-attorney friend told me the carrier’s hang up was that they didn’t see value in the case because of the son’s personal and medical history, and what they perceived were weak liability facts.

At the time of his death, Eric was twenty years old. He had lived apart from his parents for a time. He developed some major medical problems that resulted in his being hospitalized for several weeks. Some of his treating physicians were of the opinion that the symptoms were consistent with the early onset of multiple sclerosis. Upon his discharge from the hospital, Eric returned to his parents home. He graduated from high school, but was never gainfully employed before his fatal accident.

Eric Walker was driving one of the cars involved in a major multivehicle accident that happened on the east side of Houston three years earlier. The five-vehicle collision occurred in the westbound lanes of Interstate 10. The Texas Department of Highways had initiated a program for major improvements along the I-10 East Freeway. Those of us who live in this fastest growing city in the nation know our freeways will never be completed. Construction on them is never ending.

The state hired a construction company to widen I-10 and improve the exit ramps. Eric Walker’s fatal accident occurred in an area where a construction company had undertaken this work.

The city of Baytown is approximately thirty-five miles east of downtown Houston. Between Baytown and Beaumont, Interstate 10 is relatively flat with few elevated overpasses. The area between Baytown and Houston, being more populated, has more exits and more elevated overpasses.

The accident occurred west of the Sheldon Road overpass when a

220

truck owned and operated by Poole Truck Lines rearended a Datsun pickup and then crashed into the side of Eric Walker’s car. Another car received minor damage.

The defense contended that their driver could not see the traffic just over the crest of the Sheldon Road exit that had backed up due to the construction activity along the freeway. For reasons that were never completely clear, the investigating officer issued no traffic citations following the accident.

After Eric’s car was struck it caught on fire, trapping him inside. Passers-by rescued him, but only after he had been severely burned. The Life Flight helicopter transported Eric to the John Sealy Burn Institute in Galveston. Despite the doctors’ heroic efforts, he died eight days later.

The plaintiff faced more than the usual problems in a wrongful death action involving the loss of an adult child. We had only one true eyewitness to the collision, and her version conflicted with some of the findings made by the investigating officer. In other ways, however, her testimony was completely consistent with physical facts and photographs taken of the scene. The defense contended their driver had acted prudently and that if anybody was at fault it was the construction company. We institutionalized the corporate negligence by emphasizing the corporate conduct over that of the driver.

We told the story in the present tense after setting the scene and noting that others faced the same traffic conditions without incident that the defense wanted to claim were responsible for the wreck. We used optics (photographs) and vivid words that appeal to all the senses to describe the wreck, along with the reptile appeal to stress the importance of holding those guilty of corporate policy and vehicular malfeasance accountable.

The primary challenge was to convince the defendant’s secondary carrier of its significant exposure for damages in excess of the primary coverage even though the plaintiff’s deceased son had a serious underlying medical condition. The corporate defendant could also fairly contend that the son and the parents were not close since he had left home and had lived apart from his parents while he was in

221 high school. The opening statement would have to inoculate against these defense arguments.

We believed a major component of our recovery would be the conscious pain and suffering Eric suffered before his death. While he survived for only eight days, the evidence of his injuries was graphic. We held back from the jury the gruesome photographs showing the nature and extent of Eric’s burns taken at the burn institute. We chose to stress in opening statement the hours of torment that Eric knew before his death. Juries understand the unique agony burn victims experience. Some of the largest personal injury verdicts in Texas have been burn cases.

OPENING STATEMENT

THE BIGGER THE LOAD; THE FASTER THE ROAD; THE BETTER THE BOTTOM LINE!

That was the Poole Trucking Company’s motto. They never said it. They will deny it. But we know that was their corporate policy. Their drivers lived by it. That’s the way they got paid. A bigger load delivered faster meant a fatter paycheck for the driver. The quicker the turnaround, the better the wage. That company policy is why the defendant’s driver smashed into four cars on I-10. Eric Walker was in one of those cars. His car caught fire. By the time they got Eric out he was burned over 50 percent of his body.

A little over fifteen minutes earlier, Eric was at home at his folks’ house in Baytown. His dad had asked him to run a family errand. To this day this father blames himself for his son’s death.

May it please the Court, ladies and gentlemen:

At the end of the evidence in this case you will have an opportunity— a rare opportunity—to put a father’s and mother’s minds at ease. You can tell them that it was irresponsible corporate policy that claimed their son’s life and yes, we do understand your loss.

222

It is about 11:05 a.m. on June 28. It is Tuesday. It’s a sunny, clear day. It’s Houston hot, but not unbearable. The men working the highway construction near the Del Dale exit are in their shirt sleeves. Their work has closed down one lane of traffic, but there is no problem. Traffic is congested, but the drivers are handling it well.

The defendant’s driver, William Conkle, leaves Beaumont in his Poole company truck. It is a big rig, 74,000 pounds, over thirty-seven tons (displaying visual comparing the size of the defendant’s truck with a passenger vehicle). This eighteen-wheeler is the maximum length allowed by law. He’s carrying a big load. The quicker he gets it to Houston, the sooner he can load up and be on the road again. I-10 is a four-lane interstate highway between Beaumont and Houston. It is an open road with few curves (displaying satellite image of this section of I-10). The kind of highway the Poole drivers love. Not a lot of traffic and not a lot of law enforcement.

As the Poole truck approaches the Sheldon Road overpass, it passes other cars. On the other side of the Sheldon Road overpass, the freeway makes a curve to the right. The highway engineers have put a lot of study into designing these freeways. The design assures a minimum safe viewing distance. These highway engineers tell us that the layout of I-10 in this area allows and ensures that drivers can see traffic and congestion in plenty of time to deal with it, particularly a driver high in the cab of a diesel tractor.

We can only guess how many cars came over the Sheldon Road overpass, slowed down, merged, and safely went by the construction going on near the Del Dale exit. Probably thousands that morning did just that. Eric Walker and the drivers of the cars around him didn’t have any problem.

They were all going westbound toward Houston.

As he approached the congestion, Eric slowed his automobile and brought it to a safe, prudent stop.

The defendant’s driver knows what kind of rig he is running. He knows it doesn’t have the handling characteristics of an automobile. He knows he’s getting close to Houston and can expect that traffic

223 will be more dense and congested than it has been out on the open highway between Beaumont and Harris County. But the driver just keeps on coming.

The witnesses to this monstrous crash estimate the Poole driver was going seventy miles an hour as he approached the Sheldon Road overpass. He just keeps on coming. The driver can see the congestion if he just looks. But he just keeps on coming. It is not until he is right on top of the cars that he makes any application of his brakes. The Poole truck crashes into four stopped cars.

The first car hit is a red Datsun operated by Mr. Cowan. The Poole truck knocks the red Datsun up underneath another eighteen-wheeler that was stopped in the right-hand lane.

The Poole truck then hits a pickup before it crashes into the side of Eric Walker’s car, shoving it down the ramp for the Del Dale exit.

We get some idea of how fast the Poole truck is going when it hits Eric’s car from the damage done to it (displaying photographs taken shortly after the collision by HPD and freelance photographers). Eric’s car is demolished. Worse, it catches on fire with Eric trapped in it.

The Poole Trucking Company lawyers will stand before you and say that this collision was not their fault. They will say that their driver wasn’t speeding. They will point to the posted speed limit on Interstate 10. They will say that seventy miles an hour in a seventy- mile-per-hour posted zone can’t be excessive. But our Rules of the Road in Texas mandate that a safe speed is not always what is posted. (Displaying section from Texas Driver’s Handbook). Road conditions determine what constitutes a safe speed. That is the rule that applies to all of us when we travel our freeways. And it applied to the Poole driver as well.

They will say their driver applied his brakes in a timely and proper manner. They will say their driver was keeping a proper lookout for the traffic and traffic conditions just like any reasonable driver would do.

224 Again, our Rules of the Road require that drivers in our state keep a proper lookout for road conditions and other traffic at all times (Displaying section from Texas Driver’s Handbook).

There aren’t a lot of witnesses to this crash. There are a lot of people who were there who can’t tell us anything. Mr. Cowan, the driver of the Datsun that is hit first, has no recollection of the accident. Eric can’t give his version. He is never well enough for the investigating officer to interview. He dies before he can give his version. Since the Poole truck was approaching from the rear, some of the people stopped on the freeway do not know how the accident happened. Mrs. Carol Sue Brewer is driving a pickup that is struck a glancing blow by the Poole truck just before it crashes into the side of Eric’s car. She is completely impartial. She has no interest in this case one way or the other. She saw what she saw and remembers it well.

I need to apologize in advance for the quality of the videotape of Mrs. Brewer’s testimony. We had to take her deposition in Indiana where she now lives. When we put this all together—the photographs taken at the scene shortly after it happened, the location of the vehicles, the marks on the road—Mrs. Brewer’s version is consistent with all the known physical facts. Her testimony is consistent with the other witnesses who saw the Poole truck going seventy miles an hour as it came up on the Sheldon Road overpass. Mrs. Brewer sees how the Poole truck continues to race toward this disastrous collision. She sees how the driver never applies his brakes until it was too late. She sees the impact between the Poole truck and the other cars and the resulting devastation.

We are here today to consider a needless, senseless, endless tragedy. The defendant’s driver says he doesn’t see the congestion ahead as he is coming up the overpass, even though the highway engineers tell us he could have if he had just looked. The Poole driver is now on top of the overpass going seventy miles an hour. There is no question he can see all of the traffic ahead for a mile or more down the freeway. From the top of the overpass to where the cars have slowed and stopped to get by the construction is 250 yards. Seven hundred and fifty feet. But the defendant’s driver just keeps on coming. The skid marks the eighteen-wheeler lays down before it hits the red Datsun measure 102 feet. It takes time for the air brakes to

225

catch and lock the wheels. We must also consider the driver’s reaction time. But even taking all that into account, five or six seconds pass from the time the defendant’s driver crests the Sheldon Road overpass until he becomes aware of the danger and begins to act on it. Five or six seconds doesn’t seem long. But the Poole driver is at the top of an overpass and sees traffic backed up ahead of him. For one, two, three, four, five, six seconds he does nothing. Is he daydreaming? Is his mind someplace else? We know he cannot be paying attention and driving carefully, because if he was, he would have begun to apply the truck brakes within a second or two after he crested the overpass.

We hear the puff of air going to the air brakes, the screeching of rubber on concrete. We can smell the burning rubber being peeled off on concrete. In an instant we hear the thud of metal on metal when the eighteen-wheeler hits the red Datsun and knocks it up under a stopped eighteen-wheeler. The Poole truck keeps on coming. Our ears fill with the second sound of crashing and twisting metal. We hear the thump, thump as the Poole truck hits the pickup before it crashes into the side of Eric’s Toyota (displaying diagram depicting the impact between the vehicles and their final resting places).

After all the cars come to rest, after the sounds of this catastrophic collision are gone except for the theft alarm on one car going off, we see Eric’s car burst into flames. The man driving the eighteen- wheeler that Mr. Walker’s Datsun is knocked under grabs a fire extinguisher from his truck. He rushes with other people to Eric’s car (displaying photos of the accident taken shortly after it occurred). He begins putting out the fire. A lady brings a blanket and starts swatting at the lingering flames. Eric is unconscious. Using the blanket, someone is able to open the door on the passenger side. A couple of courageous men crawl in and pull Eric out while flames still fill the air around Eric’s car. Black smoke rises from this scene as Eric is wrapped in a blanket and laid on the ground. We can see how badly burned he is. His face and arms are black because the skin is dead. Police officers are arriving and calling for the Life Flight helicopter. As we stand here waiting with Eric for help, can we say anything else but, “How needless—how needless!”

226 Everything that happened that morning could have been avoided if the Poole driver had operated his truck in keeping with what we all understand to be ordinarily safe, careful, and prudent principles. The Rules of the Road (displaying key words from the Texas Drivers Handbook about keeping speed consistent with conditions and maintaining safe distance behind vehicles ahead) that we require of ourselves and expect of others who use our freeways.

Now, years after Eric’s death, these parents find themselves in a courtroom asking that this corporate defendant be held accountable for the death of their son. With what we know about what happened, does it make any sense that this defendant would try to lay the fault for what happened at the feet of others? The papers on file in this cause [putting hand on top of court’s pleading board on the counsel table] claim that the crash was Eric’s fault. The defendant’s pleadings contend that other drivers in this pileup were negligent and they caused Eric’s death. They claim it was the construction company’s fault. They cross-act against the construction company, alleging they should have had additional warnings or signs in place. While Glen and Lynn Walker believe that the only people responsible for their son’s death are these defendants, we adopt in our pleadings Poole’s contentions only to fully protect the interest of these parents.

None of this makes any sense to these parents. Rather than being accountable for their actions, the defendant corporation and its driver point the finger at everyone else.

If you were to ask Glen and Lynn what their definition of justice is, they would reply, “decency.” Just do the honorable, decent thing. But these defendants reply with well-paid experts committed to convincing us that speed is irrelevant, distance is illusory, and irresponsibility can be justified by complex calculations. This makes no sense to these parents. This is a senseless tragedy. But even sadder is the fact that Glen and Lynn’s ordeal will never be played out. The catastrophe of June 28th is endless for them.

Eric Walker was born on September 16, 1962. He was a healthy, normal child. (Displaying photos of Eric as a child). His parents, a Baptist minister and a homemaker, live in Baytown. Within a few days of his birth, Eric was living in a modest home, but one filled with love.

227 God blessed Eric with a good family. He had two wonderful sisters, one older and one younger. While his parents were people of modest means, they provided him with the love, attention, and care that, unfortunately, not all of us get. This was a close family who did everything together. They went to the beach, theme parks, and ball games. They went on vacations together. (Displaying vacation photograph). Eric loved sports and became active in Little League baseball.

(Displaying photograph). At an early age Eric discovered he shared his father’s interest in music. He learned how to play the piano. Eric was in the school band. He enjoyed the youth activities of his father’s church. This common interest was shared between him and his father up until that fatal day when Glen sent Eric on a family errand.

All this is not to say that Eric did not have some periods of adjustment in his life. When he was a junior in high school, he lived apart from his mother and father for a while. Like many youngsters that age, Eric became rebellious for a short period of time. His parents didn’t press the issue. They realized this was only a passing phase, one their son would outgrow. As fate would have it, Eric did indeed find that his sought-after sense of autonomy was not all that it was cut out to be. Because of the pressures that he placed on himself to be completely financially independent from his parents, he experienced an episode that required medical attention. He was hospitalized and treated for a medical problem that at one time some of the doctors thought might be multiple sclerosis. It turned out not to be. Eric got better. He continued to improve. He had been thinking about joining the Marines. But after he got well, he decided that he wanted to be an EMT-an Emergency Medical Technician. He wanted to drive and work in ambulances. He was a young man intent on helping and benefiting others. He came back home and began to pursue his career. He took up again his interest in music. Eric is finally at peace with himself and the world when he leaves to run his father’s errand.

The defense says they are not responsible for what happened. They will point to how the written report of the investigating officer conflicts with some of the eyewitness testimony. The state trooper didn’t talk to all the witnesses. With the pandemonium at the scene, he didn’t get a lot of information that we have now. You will be the first to see all the

228 facts of this senseless tragedy. A lot of these facts wouldn’t have seen the light of day had not these parents insisted and persisted in knowing the true facts of their son’s death. We will hear the testimony of witnesses who were there but moved out of the Houston area. Every available witness who can shed any light on what happened has testified under oath. It is crystal clear that this multi-vehicle crash was the result of the recklessness and carelessness of the Poole driver who was goaded by corporate greed. His irresponsibility was sponsored by a corporate policy that encouraged speed even in places where it couldn’t be safe.

When we hear the defense talk about the inconsistencies with the witnesses and the findings of this dedicated state trooper, we need to remember that the most frustrating part of the work of these officers is the fact that when they do their job, when they attempt to charge the lawbreaker, whether he be the felon who steals into your house, or the reckless truck driver, it is juries who let these people go. If we do not enforce our responsibility stringently, find legal responsibility where it exists, find full damages that have been proven, are we not documenting what some of these officers suspect—that since nobody else cares—why should they?

The front of the Poole eighteen-wheeler crashed into the side of Eric’s car. The impact knocked Eric unconscious. No one knows how or why, but the gasoline spilled onto the ground under Eric’s car and caught fire. Eric was trapped for several minutes while flames engulfed his car. He was burned severely over 50 percent of his body.

The Life Flight helicopter took him to the John Sealy Burn Institute in Galveston. The burn specialists treated him for 196 hours before he died on July 5, 1983. Dr. David Hearndon is the chief of staff of the John Sealy Burn Center. He is imminently qualified as a burn specialist. Dr. Hearndon knows all about the problems presented by burn patients and the type of complication that claimed Eric’s life. There will be no doubt—there will be no reasonable scientific or medical debate—that Eric Walker died as a result of the injuries he received in that collision. Had the collision not occurred, Eric would have lived a full and complete life. Eric was suffering from no medical disease or infirmities known to medical science that would have in

229 any way shortened his life expectancy or interfered with his enjoyment of life. He had no physical problems that would have prevented him from contributing and progressing and remaining a loving son and a source of love and affection for his parents for the rest of their lives.

We don’t want to think about the agony, the suffering, the torment, the torture that Eric experienced during those 196 hours before he died. Dr. Hearndon has seen a lot of burn victims. You might think he, above all others, would be hardened to it. But when you hear him describe what Eric went through you will know that no matter how often you see it, the torture that burn victims go through tears at your heart.

It is easy to consider time as an absolute. It is not. A minute, sixty seconds, can be the blinking of any eye or an eternity. I have been given an hour for this opening statement. Because I am so dedicated to this search for truth and justice, and concerned that we all understand what happened, I know my allotted time will fly. Before I know it, the judge will be saying, “Time is up, counsel.”

People who enjoy golf say that time just seems to fly by on the golf course. Whether it is tennis or fishing, if it is something that gives us pleasure, hours seem to become minutes. How many times have you, after visiting over a cup of coffee with a friend, found yourself glancing at your watch, realizing you had something else to do, and remarked “Look at the time—I didn’t realize I had been here that long.” After a couple of days off over the weekend, we return to our offices on Monday and remark to our coworkers, “Gee, the weekend just flew. It seems like I just left the office a short time ago.”

But when we face pain, agony, and tragedy—time stands still. When the dentist tells you that you are going to be an hour in the chair, you think, “Gee, that’s a long time.” Yet that hour, that treatment, is given with the benefit of modern drugs—Novocaine—and is in most instances painless.

The kind of pain that Eric Walker knew does not pass like a minute on the golf course or a minute visiting with good friends. Minutes of pain

230 become hours, hours of pain become centuries, and days of pain become eternities.

In this case, it is not the hell of the flesh we must understand. It is the hell of the mind. The burning and scarring of the body pales when we consider the burning and scarring of the soul.

The blind poet, John Milton, said:

The mind is its own place, and in itself, can make a Heaven of Hell, a Hell of Heaven.

You will understand Eric’s torment when you see the photographs doctors took at John Sealy. The photographs show Eric’s physical hell, but they can’t show the hell that these parents were cast into. You will not see photographs of the hearts and minds of Eric and Glen and Lynn.

The people who know this family best, who shared pleasures with them, who consider themselves friends, tell us that this was a close family. They also say that Glen and Lynn have never gotten over Eric’s death, and they don’t think they ever will.

During the voir dire examination we talked about the elements of damages parents can recover when they lose a son. Glen and Lynn Walker have life expectancies in excess of thirty years. Even though they are in their “middle ages,” they know it won’t be too long before they are in their twilight years. The time will come when they will be less able to care for themselves and would rely on their children to help around the house, provide maintenance, support, and counsel, and just help with things that get hard to do when you are older.

When we say the loss of Eric was endless, the defendants say, “Let’s not forget, these parents had two other children.” The Walkers’ girls are now grown. Eric was their only son. Parents of children know there is a special bond formed between mother and son and father and son. No one would suggest that the loss of a daughter is any less than the loss of a son. But we need to remember than Glen and Lynn lost their only son. This is a special loss recognized in the law. To

231 arrive at reasonable compensation—to repay these parents for their loss—we have to consider the nature of the loss and the time over which that loss will be experienced. When we think of it in those terms, we bring ourselves to some appreciation of what is right for these parents.

It will come as no surprise to any of us that, at the conclusion of this evidence, the defense will say that the dollar amounts ought to be lower. Parents who lose a son or daughter are always in a dilemma as far as the defense is concerned. If the child is young, four, five, or six, the defense is that you and the parents could never know whether this would have been a good son or daughter or not. He or she hadn’t lived long enough, hadn’t matured, hadn’t done enough to form a basis for that opinion. If the son or daughter is thirty years old, established and doing well, then the argument is that the loss is not great. After all, the child had grown, matured, and was no longer living at home with the parents.

When a teenager is killed, we hear that he was rebellious, irresponsible, or had the vices of adolescence. You will hear some of that in this case. As the defense suggests that Eric Walker was not a good, responsible boy, imagine the effect on these parents. This good father and mother have suffered a tragic loss. Now they must deal with this corporate defendant who would trivialize their tragedy. A tragedy that was needless, senseless, and endless.

A couple of evenings ago, I went out to dinner with my family to a nice restaurant. They had the television on at the bar. The Houston Rockets were playing. No one was really watching the television except a couple of ladies sitting at the bar. Everyone else was enjoying their supper. The next time I looked up, the television screen was filled with flame and fire. One scene after another of automobiles crashing into each other and fire spewing out was flashed across the screen. I don’t know whether they changed the channel or if this was a commercial. We can only imagine how Glen and Lynn feel when they see something like that come on television.

There are many constant reminders when you lose a son. His room, his pictures, his things. These parents have a peculiar reminder. Every time an eighteen-wheeler speeds by them on the freeway—

232 they are reminded. Every time they see on television conflagration, fire, explosions, cars crashing into each other—they are reminded.

Every time they pass the Sheldon Road overpass—they are reminded.

We see these eighteen-wheelers on our freeways. Some are driven by good, cautious drivers. Others seem committed to corporate policies like Poole’s—the bigger the load, the faster the road, the better the bottom line. Sometimes the drivers act like they want the whole freeway. Glen and Lynn Walker would say, “Give them the whole freeway—just let us have our son back.”

I can’t help but remember the lyrics of one of my favorite Joan Baez’s songs:

Take what you want, but leave the rest, but you should never have taken the very best.

No one can give these folks what they want, what they need, what they deserve. Since we can’t do that, shouldn’t we, at the least, give them the full measure of justice. You know, it is only if we do that, that all of us, all of us, can say that corporate irresponsibility has a price. And that price is based not on what would be cruel to these parents, but on what would be decent. What would be just.

Thank you.

While we were giving opening statements, there was a lot going on backstage. The story backstage was as complex, machinated, and full of intrigue as what was on stage in the courtroom.

After the opening statements I met with the defense lawyers (the excess carriers had retained a well known local defense lawyer to represent their interests) and representatives of the primary and excess carriers. While the primary carrier had not tendered their limits, the fact that they had notified the excess carrier indicated that before the closing bell rang those dollars would be in the ring.

233 The defense’s first move was to offer a high/low proposal. These have become fairly common in recent years.

A high-low agreement can be made at any stage during the litigation. In theory, it can be entered into prior to jury selection, during the trial, or even during jury deliberations. As the agreement is in effect a settlement, it must either be in writing and signed by the parties, or it must be made in open court and placed on the record. They work this way: if the plaintiff loses the case and would recover nothing the defendant is still obligated to pay the “low.” On the other side if the jury returns a favorable verdict and awards damages greater than the high the plaintiff is obligated to settle for the “high” regardless of the amount of damages the jury found. If the jury finds damages higher than the low but less than the high, plaintiffs recover that amount.

Defendants try to sell these proposals on the ground the plaintiff can’t lose. But when the prospects for a favorable, substantial verdict are good, the plaintiff loses the opportunity to recover the full amount awarded by the jury.

While others have tested the waters with high/low agreements, I never did one. The reason is that there can be a conflict of interest between the lawyer and his client. A low agreement guarantees that the plaintiff lawyer recovers his out of pocket expenses. If the jury returns a defense verdict plaintiff’s counsel can suffer a serious case of post verdict indigestion when they realize they have to personally absorb the expenses of preparing the case. And these can be substantial. My firm never exceeded four lawyers in the last decade of my trial practice. I never had more than one partner to absorb a big loss with me. Since our cases were inevitably complex, their preparation for trial involved experts from various disciplines, unique visuals, travel expenses, and other litigation costs.

On several cases we had preparation costs of $600,0000. If we had lost the case a substantial write off like that could severly restrict our resources needed for other cases. That is what might motivate some lawyers toward a high/low agreement. Even if we lose, we won’t take a total bath on the case. We will recover our expenses. That is why I see high/low agreements as a possible conflict of interest with your client.

234 In Walker, the low would have covered our expenses and the client recovered little. The proposed high capped a case at a figure that was about thirty percent of what I believed the ultimate damage award would be.

We turned down that proposal.

Further negotiations that evening resulted in a settlement in the mid to low range seven figures.

The other backstage development involved the Walkers. In a not uncommon development in cases involving catastrophic injuries or death, the Walkers divorced after twenty five years of marriage. The loss of their son became the insurmountable wall of torment that separated one of the finest couples I ever knew.

235 CHAPTER 15

The Wrong Person, Doing the Wrong Thing at the Wrong Time

It shouldn’t take you 32 years at a craft or profession to get it right. It did for me. I finally tried a case right and on September 26, 1995, the jury returned its verdict in the case of Lisa Lee, Individually, and Next Friend of Alexander Lee, a Minor v. Healthcare Management, Parkway Hospital and Chin H. Lee, M.D., Cause No. 93-31897 in the 151st District Court of Harris County, Texas.

Lisa Lee was a Korean war bride. After she married an American soldier they moved back to the States. Three children and a divorce followed. Lisa then became involved with a Korean American and became pregnant. She was followed by an Asian OB during her pregnancy and when she went into labor she presented to the hospital chosen by her OB, Parkway Hospital on Houston’s North side. Shortly after her son was born he was transferred to the Herman Hospital neo-natal ICU under the care of a neonatologist who advised Lisa that her son was permanently brain damaged. She consulted a lawyer in her area. He referred the case to us. We got the records of Parkway and Herman Hospital, had the case reviewed by qualified experts and sued the defendant, Parkway Hospital, and others alleging negligence on the part of the hospital's nursing staff in administering Pitocin (a uterine stimulant) to the mother during labor.

The basic case was that as a result of the nurse's negligence the mother developed tetanic (strong and unrelenting) contractions, her uterus ruptured, and the minor plaintiff sustained severe and permanent brain damage.

236 Complex cases of malpractice, products liability, premises defects and even serious vehicular collisions are expert intensive. In most of these cases the law requires competent and qualified expert testimony to make a prima facie case. A plaintiff needs experts to avoid a directed verdict at the conclusion of the case and also to prevail with the jury.

We eventually employed experts in the following fields: Pharmacology Obstetrics MD (2) Obstetrical Nursing Pediatric neurology Pathology Life care planning Economics Computer animation Graphic design

By the time we are called to trial we have invested over $600,000 in the case which is not unusual in cases of this complexity.

The development of the case goes well with numerous depositions. The lawyer hired by the hospital’s insurance company is experienced and of the old school who believes that a defense lawyer best serves his client by assessing the strengths of the plaintiff’s case, the quality of the plaintiff’s representation and quantifying as accurately as possible the risks posed by a jury trial. We mediate the case and it soon becomes apparent that the insurance carrier will not accept their attorney’s evaluation. They fire him and hire another lawyer. I know this new lawyer and his trail tactics well. There are some lawyers you hate to try cases against. Good decent men and women who, all things being equal, you’d rather just find an agreement and walk away. On the other hand, there are those who you just love to beat. We will try the case.

237 It is not unusual for a victim to develop an aversion toward defense counsel. The way the lawyer treats the plaintiff, their arrogance in trial, their lack of respect for others are just some of the factors that can lead to our clients developing a sour taste about the lawyer on the other side. That bitterness can play a role in settlement discussions. Some defense lawyers do not appreciate the role their demeanor can play.

About a week into trial the defense finally offered 3 million dollars in settlement. I passed on the offer to Lisa Lee. In her quiet, humble way she said, “Mr. Perdue I believe in you and I believe in this jury. I want to see what they say.” It wasn’t so much Lisa was refusing the offer as giving me permission to do what she believed I could do.

August and September are Houston’s hottest months. By the time you get to the courtroom your undershirt is damp and you are feeling the wear of a long trial. I have a simple step to keep me dedicated to our cause. Before I leave for court I play Eye of the Tiger by Survivor. I am keyed to champion for Lisa and Alexander.

I know this defense lawyer will not come with a single, concise, cogent and coherent story. Instead he will play the hydra defense. Like Hercules we will prevail by severing each head and cauterizing the stump. You do this by keeping a careful list of each defense as they are trotted out and remind the jury in closing argument of their duplicity. This is best done with an “excuse chart.” Never refer to a defendant’s contentions as “defenses.” They are “excuses.”

Our story was simple and straightforward: The obstetrical nurse caring for Lisa had minimal qualifications (having trained in the Philippines and previously failed her nursing boards in New York) administered Pitocin (a uterine stimulant) to the mother during labor without a doctor's order. As a result of the nurse's negligence the mother developed tetanic (strong and unrelenting)

238 contractions, causing her uterus to rupture which resulted in Alexander sustaining severe and permanent brain damage.

We present our case and the defense arguments to two focus groups before trial.

Based on the defense approach during discovery depositions we speculate that their first defense will be that Pitocin is not a powerful or dangerous drug. From our focus groups we learn that any woman who had ever been given Pitocin knows it is a powerful uterine stimulate. As soon as you get it you are feeling its effect-uterine contractions. Men who had only been observers of women getting the drug knew its robust effect.

Before picking our jury the judge had granted our request to use a written juror questionnaire that included an inquiry of whether the venireman or woman had been given Pitocin or been in the presence of anyone who had. Of those ultimately seated six had said they had. We knew those jurors would never buy the defense proposition that Pitocin produced only moderate uterine stimulation.

The second way we snuffed out this defense contention was with our pharmacology expert from Baylor College of Medicine. To prove how powerful Pitocin is he relied on established medical journals and studies. After a day of evidence we no longer hear the contention that Pitocin is not a powerful medication.

The nurse uses a piggyback approach to give Lisa the Pitocin. She hangs a bag of Pitocin by the patient’s bedside and attaches it to a port on the saline drip being given. About four minutes later fetal tachycardia is seen on the fetal heart monitor. She discontinues the drug. The defense claims that since the nurse had discontinued the Pitocin within 5 minutes there is no way the drug by piggyback could have gotten into the patient’s blood stream. 239 We answer this with a courtroom demonstration. Live demonstration is a powerful persuasive tool. It worked well in Jimmy Frank Taylor’s case thirty three years earlier. With the aid of one of our obstetricians we hang a saline drip on a post like those used in hospitals. We then set up the piggyback. We use a clear fluid for the saline drip and a red fluid for the Pitocin. The tube that would be in an IV in the patient drips into a clear glass receptacle. The doctor starts the drip and runs it for the time documented by the records. As we conduct our demonstration we notice many of our jurors are checking the time with their watches. The witness turns off the drip and the solution in the glass receptacle is tinged red. And so does the defense that there was not time for the Pitocin to get into Lisa’s blood stream.

The next idea floated is that Alexander’s limitations were the result of mental retardation. Our experts admitted that a child with mental retardation only did not suffer a hypoxic (lack of oxygen) injury. We countered with another type of courtroom demonstration.

With the judge’s permission we have Lisa bring Alexander to the courthouse and bring him into the judge’s chambers. Up to this time neither the jury nor opposing counsel have seen the minor plaintiff. We set up a closed circuit video camera in the judge’s chambers hooked up to the courtroom monitor. Our witness that morning is the medical doctor who treated Alexander while he was a patient at Herman Hospital.

Dr. Robert Yetman is a professor in the Department of Pediatrics at McGovern Medical School at The University of Texas Health Science Center at Houston. His practice is pediatric patients from birth to 18 years of age. He is a dynamic witness. After covering his examination, diagnosis and treatment of Alexander we ask him whether he could conduct a basic neurological examination of Alexander that would demonstrate his impairment and limitations. He agrees. The examination will not be in the presence of the jury rather in the judge’s chambers. 240 Immediately after laying the predicate the defense objects. I love it when a defendant objects in front of a jury. It lays the foundation for what may be a compelling closing argument.

The judge rules we must do the examination outside the presence of the jury. An in limine offer. We do and the defense states several objections which are for the most part overruled. Dr. Yetman does a second examination with Alexander which the jury views on a monitor from the video feed in the judge’s chambers. Alexander is wearing a helmet prescribed by his doctors. His movements are uncoordinated, awkward and a little spastic. He has all the markers for cerebral palsy as a result of an anoxic injury.

The hospital continues to run up their smorgasbord of defenses. By the time all parties rest I have ample ammunition for my excuse board.

I will try to bring to closing argument all the new persuasive techniques I have learned since my epiphany. My associate will give our opening of closing argument. I will do the rebuttal.

I will not give an argument. I will tell a story in the present tense. I will use psychodrama to bring the jury into the narrative. I have a theme-the wrong person doing the wrong thing at the wrong time. I use vivid words. I incorporate metaphors. I remind jurors of their power and responsibility. I make a reptilian appeal- negligent nursing threatens all of us. I use the need to change argument as my empowerment theme. I argue for full damages and challenge the jury to determine what parts of the lifecare plan the plaintiffs can do without. I make the two futures argument comparing Alexander’s life that could have been with the life he has now.

241 THE CLOSING SUMMATION

Mr. Jim M. Perdue

When Lisa Lee goes into Parkway Hospital in labor on June 24, 1992, she is filled with the hopes and dreams of a storehouse plentifully supplied by her Creator. She is, like any mother in labor, trusting, responsible, and vulnerable. If the right people do the right thing at the right time, this family's store of treasures remain safe and inviolate. But as you have heard, the wrong people do the wrong thing at the wrong time. A nurse gives Lisa a powerful drug, Pitocin, during her later stages of labor. It is a drug she does not need. It is a drug her doctor has not ordered. It causes her uterus to violently and continually contract-to go into spasms. It rams Alexander's head against an undilated cervix. It hemorrhages his brain and suffocates him. And so the family's store of hopes and dreams is shoplifted by this defendant's negligence. When the defendants are stopped in the parking lot, their response is not only do they not feel any obligation to return anything, they have the right to take from some other family's store sometime down the line.

May it please this honorable Court:

What happened to Lisa and Alexander is nothing less than a nightmare. It is a story filled with the demons and monsters belched forth by medical misadventure. There is no question of continuing and overwhelming medical needs and expenses- they are certain. This is truly a nightmare without end.

But a courtroom is a magical place. I can prove it to you. Ask yourself to think back about a little over five weeks ago when you first showed up in the jury assembly room. You were brought over to the big courtroom we have down on the second floor, and you remember sitting out there in that huge group we started with-the lawyers and the Judge talking to you. If you're like most jurors when your name was called to be on this jury, you were probably surprised, then you had these kind of thoughts: Am I 242 strong enough to serve? Am I smart enough to be able to decide these kinds of issues? Am I patient enough to be fair? Am I courageous, do I have the moral fiber to be just? Have I the ability to live up to the oath that I'm going to take? Up to that point in time you had been told where to go and how to get there and had been marched around in big groups of people and probably- probably felt a little powerless. But a funny thing happens after people are on a jury for a while, after you sit here for a week or two, it starts to dawn on you. As a group of people we have a lot of power. We have a lot of power. It probably started to dawn on you after you started hearing some of the evidence in this case- we have power. We have the power to stop those people who would splatter the innocent and leave justice as insignificant road kill in the rush to a better bottom line. As you saw that attitude in action, as you witnessed the arrogance of power, maybe you said to yourself, 'They've got a little speed bump they've got to get over. A little something to slow them down." A jury.

It began to dawn on you that we have the power to change things. We have the power with our verdict to tell people this is not the way things should be done. We also have some other power. We have the power to protect the innocent. We have the power to do justice. We have the power to change things. I wonder if when we had been into this case two or three weeks, if you had come in one morning or one afternoon and Judge Garcia had said, 'Ladies and gentlemen, you can go home, the parties have settled their case." I wonder if there were any of you that instead of saying, 'Well, thank goodness. I can just go back to my life," I wonder if there were any of you who would have said and maybe even come up to me and said, 'Jim, why did you do that? Why did you do that? Now we can't answer this. Now we can't by our verdict tell hospitals we don't want our critical healthcare decisions being turned over to poorly trained nurses when we're paying doctors to make these judgments-to make these decisions. We don't want that, and we won't permit it and we don’t want corporate executives making decisions in far-away places to better their bottom line, to increase their profitability by holding down their costs." I wonder if there's anyone who would 243 have said, 'Jim, you shouldn't have done that. We wanted to answer these questions. We wanted to pass on this. We wanted to send a message."

This is a case about change. It is about change. Parkway needs to change its policies. They say they will not. They come into this courtroom and they say if a lady comes into the hospital tomorrow, they're going to do the same thing to her that they did to Lisa Lee. We say they need to change and the other hospitals in their chain of hospitals that are doing it, they need to change. And change means changing the way they are delivering health care. It doesn't mean we need to change our story. It doesn't mean scripting your defense and coaching your nurses so you can change the facts. It means change what you're doing, not change your story in court when the first and second fall apart. We know what happened on June 24, 1992. We don't need experts to tell us. The defendant may not like the facts, but they are there for anyone to see. Lisa Lee is forty years old, carrying her fourth pregnancy. At 4:00 AM she begins experiencing labor and is driven to the defendant hospital by the father of her child. They get there about 4:30. Lisa is evaluated and put on electronic fetal monitoring. Her labor is followed. The first nurse talks to her obstetrician at 5:30 AM. He doesn't authorize or order Pitocin. She doesn't need it.

At seven o'clock there is a shift change and Nurse Tarriman comes on board. Nurse Tarriman was educated in the Philippines and is working here under a work visa. She was recruited by one of these nursing agencies. She worked in New York for a while until she failed her New York boards. So Coney Island Hospital terminated her.

She took her boards a second time and passed them. Then Parkway in Houston hired her. When Parkway hired her, they didn't verify or check her credentials or references. They brought her right into the hospital, put her on probation for ninety days, and then cut her loose taking care of patients. It was right after the end of her probationary period that Lisa Lee comes into the 244 hospital. It is this minimally trained, unsupervised, foreign- educated nurse that the defense says should have the discretion when to use powerful obstetrical drugs.

She is the wrong person at the wrong time. Then this wrong person does the wrong thing.

We are standing off to the side at Parkway Hospital at 8:30 AM on June 24, 1992. Lisa Lee is in the second stage of labor. Her labor is progressing well. Things are going the way God intended them. Alexander and Lisa's storehouse is full. It is abundant. Alexander is doing well [referring to video animation].

A lot of things tell us that.

The fetal heart monitor tracing shows a healthy baby. Alexander has a long cord. The cord is long because a healthy baby pulls on the cord, lengthening it. The cord is planted deep in the uterine wall. It has good vasculature. We know that is the situation because that's what is seen by the pathologist after this delivery.

We're standing off to the side as Nurse Tarriman goes to the obstetrical supplies and draws out a dose of Pitocin to give Lisa by IV piggyback drip. Don't we want to say as we watch her pull out the Pitocin, 'Don't do that. You don't have a doctor's order." Don't we want to yell at her and say, 'Giving Pitocin to a mother who is in active labor, the second stage of labor, is dangerous!"

Stand off to the side and watch as Nurse Tarriman hangs the Pitocin and begins giving it to Lisa through the IV. Don't we want to shout at her, 'Don't do that. It's going to overstimulate this mother's uterus. It can cause it to go into tetanic contractions. It can cause it to rupture and damage the baby." Don't we want to say those things to her? Don't we want her to hear us?

245 Within a few minutes following administration of the Pitocin Lisa begins experiencing tetanic contractions. These are continuous and unrelenting contractions. Lisa's obstetrician, Dr. Lee, still has not gotten to the hospital. The pain becomes so severe that Lisa screams out. About this time Dr. Lee walks into the labor room. He can see that the electronic monitoring demonstrates Lisa's tetanic contractions. He can see the marked deceleration of Alexander's heart rate.

These tetanic contractions weren't the result of the nurse putting her hand on the TOCO, as the hospital claims. This spasm of the mother's womb was caused by the Pitocin. Standing off to the side, we knew it was going to happen when Nurse Tarriman decided to give the Pitocin without a doctor's order to a woman who was in active labor and progressing well. They take the fetal heart monitor off. They take Lisa to delivery thirty minutes later. Alexander is born limp and flaccid. His APGAR scores are 2, 2, and 2. Out of a possible 10 points for a healthy baby, he gets just 2 points in the first minute of life, the fifth minute of life, and the tenth minute of life.

The obstetrician then sees that Lisa is bleeding a lot. He checks her and finds that her uterus is ruptured. Dr. Lee removes the ruptured, torn, and shredded uterus [referring to blowup]. God didn't do this. Lisa didn't do this. Alexander didn't do this. Lisa's uterus didn't rupture as a result of the delivery of Alexander. The Pitocin caused the tetanic contractions resulting in unrelenting spasms of the mother's womb. And so Lisa has to be castrated. The obstetrician must cut out her female organs to save her life. She almost dies from loss of blood.

But the defense says they didn't do anything wrong. They say that Nurse Tarriman had the discretion to give Pitocin. They say the Pitocin didn't cause Alexander's brain damage or the tearing and hemorrhaging of Lisa's uterus.

246 You are chosen in this case, and if you think back five weeks ago when this case started, the defense has been one of collapsing excuses [referring to excuse chart]. As they would throw up one and we'd beat it down, another one would be thrown in its place. I thought I'd just put this up to remind us all what we have seen in this case. These are escape hatches. The defense tried a new one every day. Mr. [the defense attorney] got up on opening statement and said, 'Pitocin is not a powerful drug and could not cause the damages sustained by Lisa and Alexander." Remember that, five weeks ago? That's what he told you before you heard any evidence. Then he said, 'Pitocin didn't have time to get into her bloodstream." Do you remember that? And we brought the experiment with Dr. DesRosier and set it up so you could see it and you could time it. If we hadn't done that demonstration, they would be arguing right now, 'Wait a minute. It didn't get there. It didn't get there." Well, you saw it get there and how it gets into the patient's bloodstream. Then they said, 'Well, if it did get into her bloodstream there wasn't enough to cause tetanic contractions." If you don't like that one, 'If there were tetanic contractions, they weren't caused by Pitocin." If you don't like that one, 'There were no tetanic contractions." [Referring to listed excuses on chart].

Remember we had charted what Alexander's heart rate was during Lisa's labor. Everyone said this is a reassuring or good heart rate showing the baby's doing fine, until they give the Pitocin. But do you remember back early in this case they were saying, 'Oh, no, Pitocin didn't cause that." And then they say, well-remember Mr. [the defense attorney] earlier in the case asking the doctors, 'Well, maybe it was the Stadol that did it." Do you remember that? The Stadol caused him to be depressed. Well, that didn't last long so, well, maybe there wasn't any fetal distress to begin with. They tried to throw in another excuse during this trial. If Lisa's uterus was- well, maybe it was inherently defective and predisposed to rupture by virtue of her previous D&Cs, it would have ruptured anyway. We heard that. And then we heard, well, maybe she had a placenta abruptio. You don't like that one, maybe she had a placenta previa, which is very 247 different. Then we had, Alexander was suffering from some intrauterine virus. Do you remember that? Some questions to witnesses, maybe it was a virus. They don't know what virus, but it could have been a virus. Then we had the suggestion that maybe Alexander has a genetic defect. Then we had, well, he suffered from some chronic anoxia weeks, months before, and that's why he's brain damaged. Of course, Alexander weighed nine pounds and had no signs of poor development, so that doesn't fit. They've tried every escape hatch they could find to pound on. They are closed by simple, honest truth.

Alexander is brain damaged because the wrong person did the wrong thing at the wrong time.

We get down to the last one, the one that they kind of toss up every now and then. Lisa had an abortion when she was in Korea, and maybe if we toss that in a couple of times, we can prejudice somebody on the jury. And he wants to talk about us appealing to sympathy. I'll tell you, Lisa Lee doesn't need any of this jury's sympathy, and we've never asked for it. She's not here for sympathy. Lisa gets that from her God and her friends. She is here for justice. Justice under this evidence. Lisa needs that from you.

I'll tell you another thing that may change as a result of your verdict. Maybe we'll change-maybe we can change the way hospitals go about selecting their lawyers and who they pick. Do you remember when Helen Beth Newell was on the witness stand, I said, 'When Mr. [previous defense attorney], your previous lawyer, was representing you, did you ever sign any papers, did you ever say anything, was anything ever filed on behalf of the hospital that wasn't truer?" She said, 'Absolutely not."

I said, 'Since Mr. [the defense attorney]'s been representing, have you ever signed anything that wasn't truer" She said, 'Yeah, he had me sign a false affidavit." Did they think we would forget that testimony? 248 When you first came to this courtroom almost two months ago and heard about this case during the jury selection, we asked you, 'What kind of care do you expect the hospital to give when a woman in labor comes in to deliver her baby?" We all agreed that we didn't expect perfect care, we know some things are beyond the control of doctors and nurses. But many of you told us at that time that you thought it was fair to expect that the hospital would give the best care they could. You thought hospitals ought to be personally responsible just like everyone else. You told us you didn't think it would be right for corporate owners of a chain of hospitals to take unnecessary risks and gamble with the lives of the patients who trusted them.

I knew then what the evidence was going to be in this case. You know now what I knew then. This whole case is about how far this corporate owner can go with their casino operation. The patients put up the stakes and take the gamble. They make decisions at the corporate level to better their bottom line by cutting back on nursing staff. They stack the deck against the patients when they decide to staff the obstetrical department with minimally trained nurses. Then they give the minimally trained nurses the discretion to administer dangerous drugs. Then they tell us that that's the way they're running their hospital and the way they're going to continue to run their hospital.

If they don't intend to change the way they treat patients, then maybe they ought to change the name of the hospital from Parkway to Hospital Casino. Let patients know that these corporate owners view patients like customers at the roulette wheel and dice table. But the hospital doesn't even want to run a fair game. They want to load the dice in their favor. Let me give you an example.

When our experts testified-Dr. Lucci, Dr. DesRosier, the others-the hospital lawyer kept trying to get them to agree that Alexander Lee's brain damage was in essence mental retardation. They brought out books and articles to support their contention that if a child is mentally retarded then he wasn't brain 249 damaged during his delivery. Our experts all pointed out that mental retardation without motor deficits is not normally the result of a hypoxic injury. They told us that if a child has a hypoxic injury the damage will hit not only the cognitive center or thinking center, it's also going to hit motor function. So mental retardation without motor deficits is not due to an acute anoxic event. That is what they were selling you until we brought Alexander Lee to the courthouse the day that Dr. Yetman testified. Dr. Yetman treated Alexander at Hermann Hospital. He participated in those three months of care when Alexander was clinging to life. Dr. Yetman told you the nature and extent of the brain damage he felt that Alexander had at that time.

We didn't bring Alexander into the courtroom. There are reasons for that decision and I hope you will respect us for it. We brought Alexander into Judge Garcia's chambers and had a closed-circuit television hooked up so that you could see what was going on in that room as it took place. We wanted Dr. Yetman to do a simple examination and evaluation of Alexander that you could see. But when we got to that point: Objection! They didn't want you to see Dr. Yetman examine the child in your presence. They didn't want you to see Alexander and learn for yourself what they had done to him.

We brought Dr. Yetman into this courtroom so that you could watch the examination. Why did we want to do that? Why do you think we would do that? Because we wanted you to see. We wanted you to see it, because that way these defendants couldn't say, 'Well, Dr. Yetman, you really didn't see that. The child didn't do that. Dr. Yetman, you say he has this problem. He doesn't. You just thought you saw that." [Playing videotape of examination of Alexander Lee by Dr. Yetman, which was performed during trial in judge's chambers.]

250 We wanted you to see the facts-the truth. The hospital didn't want you to see Alexander because it would be apparent that what they had been trying to sell during their examinations of the plaintiff's experts would be seen for the lie it is. Alexander doesn't just have mental retardation, he has spasticity and he has motor damage.

The hospital not only gambled with the lives of Lisa and Alexander while they were under their care, they gambled in this courtroom. They put all their chips on the table in what we know now was an arrogant bluff in the belief that they could convince you that Alexander's brain damage was due to something other than Nurse Tarriman giving Pitocin during the latter stages of labor without a doctor's order when Lisa didn't need it. But when it came time for Alexander to turn his cards over and call their bluff, they want to declare themselves the winner without letting you see Alexander's hand. So when you approach caring for your patients that way, when you approach the question of who is responsible for Alexander's brain damage that way, it's not surprising that when we get down to the end they want you to now gamble with Alexander's future. There's no other way to put it. That's what they expect of you now.

Let's go back to that labor room on June 24th just before the nurse decides to give Lisa Lee the Pitocin. But this time she doesn't do the wrong thing. She does what any responsible nurse would do. She lets the labor progress. There are no problems with it. Why do we have to do anything? Why choose to give a dangerous drug that will hyper-stimulate the uterus? [Using chart of milestones for normal person. For this part of the argument we also used some blowups done by a forensic artist showing how Alexander would look in the future at various ages).

251 Lisa's labor continues to progress, the obstetrician arrives, and a healthy, normal boy is delivered. Alexander will be a normal baby. When he is about three or four months old his mother will see and hear that which will fill her heart with happiness for the rest of her life. Alexander voluntarily will smile and then he will laugh. For the next eighteen or more years, her home will be filled with the laughter of her son. He will start sitting when he is about six or seven months old. Somewhere around nine or ten months he will figure out that pushing off with his knees gives him just the boost he needs to get mobile.

He will learn to go from a crawling position into a sitting position. When he is one, he will be a competent crawler. It won't be long until he starts walking. He will begin to speak. The first word he will say will fill his mother's heart. 'Mama." At two he will start putting words together. At two and a half he will begin his potty- training. At three he will learn how to ride a tricycle and begin showing a drive for independence. He will want to do things on his own and sleep in his own bed. At four he is learning his ABCs. At five he is in preschool. At six he begins the first grade.

His mother will start to find his pockets filled with marbles, bubble gum, dead insects, and who knows what else. He learns to read. Even before he starts school, he is showing his curiosity, asking his mother questions like: 'Why is the sky bluer?" 'Where do babies come from?"

Every year in elementary school he learns more. He will learn math, history, and grammar. By the time he finishes elementary school, he is reading, doing multiplication and division, and graphing sentences into nouns, verbs, adjectives, and adverbs. Middle school is always tough, particularly on boys. He may even get into a few fights, but he'll learn how to defend himself. He'll start noticing girls. He'll be like most boys, shy and intimidated by them. But by the time he's in high school, he'll be asking them out on a date. He'll learn how to drive a car. He'll get his driver's license. He'll go to his junior and senior proms. His mother will be so proud when she sees him dressed up for the first time in a tuxedo.

Lisa knows the importance of education and will encourage him to go to college. He may go to a school here in the city such as the University of

252 Houston. So many working-class youngsters do. Or he may go off to school. He'll get his college degree. He will be a better wage earner with a college degree. We are able to project within reasonable certainty the kind of money he will make. He will get married. He will have his own family. But even with his own family he will continue to help his mother. As she ages he will always be there for her. When she can no longer care for herself, he may take her in with his family or help her find an assisted-care residence. He will be with Lisa when she dies. He will probably speak at her funeral. The last thoughts Lisa will have will be of the wonderful son she raised and how proud she is of all the things he accomplished.

But this is just a fantasy, isn't it? It is what could have been-what should have been. If we could go back to that day and tell the nurse not to give the Pitocin, that would be real magic wouldn't it? Everyone in this courtroom wishes we had it, but we don't. But the magic we have here is far from meaningless. You've heard the testimony from the doctors that say Alexander has a normal life expectancy. You've heard from the life planners that Alexander is going to need care for the rest of his life. He will never be independent. You've heard from the economist what it's going to take in present-day dollars to see that Alexander gets the care he needs for the next seventy years of his life. I know the figures are mind-boggling [referring to economic projection chart].

You have the reports and you've seen the evidence. You've seen the line items for physical therapy, speech therapy, and medications. You've seen the line items and you've seen the photographs of the wheelchairs, vans, special bathing and toilet facilities, and other devices needed to improve both his physical condition and his living situation. The defendant won't bring any witness in here to say that maybe Alexander ought to do with a used wheelchair that costs a little less, or maybe he ought to try to make out with an undertrained nurse instead of one that is qualified. They won't do that. They want you to do that for them. They want you to take the last turn for Alexander on their crooked wheel. When someone says to you that these figures are too much, ask them what do you suggest Alexander does without? If there's something that you all agree Alexander shouldn't have, cross it off. It's entirely up to you. Just cross off the items you agree he should not get. Reduce the total down here at the bottom by the cost of that item. That way Alexander gets

253 what you think he should have and doesn't get anything you think he shouldn't have.

When you read the Court's charge, I hope someone will take the time to count up the number of times the word 'evidence" is used in there. It's the most-used word you will find. The reason that the Court uses that word so much is to remind you that your verdict should be based on the proof, the facts you've heard. These defendants didn't bring you a bit of evidence on the issue of damages. We brought you the evaluations, we brought you the projections of the life-care plan, and we brought you the calculations of the economist. The defendants' negligence moved into Alexander's brain during those forty-five minutes after Lisa was given Pitocin without a doctor's order. The effect of the defendants' negligence has been living there rent-free ever since. They took out a lifetime lease. Our job is to decide what the rent ought to be.

We bring you the life-care plan. Why do you think everyone calls it that? All of those figures represent what it takes to give Alexander life. These figures measure just the cost, not the agony. Just the price, not the uncertainty. The fee, not the fear. These numbers are what are necessary to care for, give him life. Give him the ability to get better. Give him the boost to the bottom rung of the ladder. Alexander and Lisa don't look for you or anyone else to climb the ladder for them. But they're not strong enough, big enough, to grab the bottom rung by themselves. They need a little boost up to that bottom rung and they'll climb the rest of the way themselves.

Isn't it interesting that the hospital that injured this mother and baby because they didn't play by the rules, didn't do what they should have in being careful with their patients, now look to you to help them out by doing exactly what they did-not follow the rules. Don't base your verdict only on the evidence you've heard. Do something else. The hospital is hoping that there will be someone on this jury who's going to say that maybe Alexander doesn't need all the things that the doctors, the healthcare planners, and the economists say. Let Alexander get by some other way. Maybe they can use that wheelchair a little longer, maybe Alexander won't need all that physical therapy, maybe they can go stand in line in the dark wards of the charity hospital to get the medical attention they need. They want you to make that last desperate gamble on behalf of Hospital Casino.

254 I'm not ashamed to ask for the money we've asked for in this case. I'm not embarrassed to stand before you on behalf of this family and tell you this is what it will take-this is what is fair. But I know that I don't have the power to bring justice to this family.

You've heard experts on medicine, rehabilitation, life care, and economic projections. You heard no experts on what is a fair price for Alexander's human suffering. There are no experts on that. Only you know what it is like to know you should be holding a healthy child but holding instead one who will depend on you for the rest of your life. Someone who, when you are gone, will be struggling in the darkness of loneliness. That is why you are here. You are the experts on this child's worst losses and what they will be as he gets older.

When I was a young boy growing up in Galena Park, I'm not ashamed to say I grew up doggone poor. My mother was a secretary. I wanted to learn to play the trumpet. I don't know how she got up the money, but she got me a used trumpet. I couldn't play the trumpet. Literally, I couldn't. They say I'm tone deaf. I couldn't play the trumpet so I gave it up. That's one of the reasons I love music so much. I love listening to other people make beautiful, melodious, wonderful music. I admire it so much because I can't do it.

I got a little older, I wanted to go to college. I didn't have the money. I said I'm going to become an All-American football player. I'm going to college on a football scholarship. I played football as hard as I could in high school, but I was too short, too slow. I didn't make it. But I guess that's why you'll find me every weekend out at the University of Houston watching those football games because I really admire those people who can do that. I ended up working my way through school at a smelter out on Market Street.

Then I decided I wanted to be a trial lawyer. I wanted to be a trial lawyer and stand up for people. I want to represent the weak. I want to represent one against many. I want to bring justice to those who cannot bring it to themselves. I want to find injustice and strike it down. Do you know what I discovered? Thirty years I've been at it, and I've discovered it's just like the trumpet. It's just like playing football. I can't do it. I can't do it. I have to look to you to do it. You have to do it. I don't have the power.

255 When Lisa went into Parkway Hospital she expected-she expected that they would be careful with her. When Lisa went in to give birth to Alexander on June 24th, what she expected was for people to be careful with her and her son. I pray to God that all of you, once you get back in there, will be more careful with them than these defendants were. You have the power to do that. Don't squander the magic of this place and this time.

+++++++++++++++++++++++++++++++++++++

The jury finds the defendant hospital negligent and that such negligence was a proximate cause of damages to the adult and minor plaintiff. The judgment entered by the court on the basis of the jury's verdict is for $16 million. The appellate opinion affirming the judgment may be found at Parkway Hospital, Inc. v. Lee, 946 S.W.2d 580 (Tex. App.- Houston [14th Dist.] 1997, writ denied).

256 CHAPTER 16

SHE TRUSTED THE WRONG PEOPLE

On June 20, 1996, closing arguments were given in Lois M. Bush v. Don C. Quast, M.D., M. Sidney Anderson, M.D., Woman’s Hospital of Texas, Inc., and Anderson Pathology Associates, P.A.; Cause No. 94-26249; in the 165th District Court in Harris County, Texas.

Lois Bush was a divorced mother of two who taught elementary school in the Clear Lake School District. In 1993, at the age of forty- two, Lois discovered a lump in her left breast on self-examination.

She conferred with her gynecologist, who was not particularly concerned, but felt that the mass should be surgically biopsied. He referred her to Dr. Quast, a specialist in breast surgery.

Lois presented to Woman’s Hospital of Texas on August 13, 1993, where three lumps were removed from her left breast and sent to pathology for frozen-section analysis. Dr. Anderson orally reported to Dr. Quast during the surgery that one of the lesions was malignant. A written report containing the diagnosis of “intraductal carcinoma in situ” was forwarded to Dr. Quast a few days later.

After she woke from anesthesia, Dr. Quast advised Mrs. Bush of the pathology diagnosis and recommended a radical mastectomy with a lymph node dissection. Five days later, on August 18, 1993, Dr. Quast performed the mastectomy.

A few days following the surgery, Dr. Quast told Lois by telephone that the hospital had lost the breast and underarm tissue before any pathology examination could be performed. He recommended an extensive course of chemotherapy and radiation.

Before consenting to the radical procedures her surgeon recommended, Lois consulted her brother, a physician practicing in San Antonio. He suggested that the original frozen-section slides be examined by other pathologists, all of whom confirmed that they were unable to diagnose cancer.

257

Lois Bush sued Drs. Quast and Anderson, claiming her mastectomy had been unnecessary, as breast cancer could not be diagnosed from the biopsy. The hospital argued that the loss of the breast tissue was not a proximate cause of any damages sustained.

Following her mastectomy, Lois underwent four reconstructive surgeries because of various complications. Since these procedures were done during vacation periods, they caused little lost time from Lois’s duties as a schoolteacher. One of the plaintiff’s challenges was the fact that the “hard” damages consisted of approximately $70,000 in medical expenses. There was evidence of future medical complications, which could require additional treatments and surgeries. Of course, these facts were disputed by the defense.

About a week into trial the defense moved under Texas Rules of Civil Procedure 204.1(a)(1) to have Lois submit to a physical examination by their chosen physician. This request was not timely made under the Rules. But when they told us the name of the doctor they wanted to perform the examination, we did not strenuously object. I knew of him and believed he would be fair. A one week continuance was ordered by the court to accommodate the defense request.

Some of my associates were concerned that a week long break in our evidence would hurt us. I wasn’t. It would just mean the jury would have a week to consider our evidence (which had gone well). If they called the expert, I was confident my cross-examination would only add value to our case. If the defense didn’t call their designated examiner, they would hear about it in closing argument. And they did.

The trial was a war of experts and medical literature. The defense relied on two studies published in national journals that they contended demonstrated that pathologists often disagree over interpretation of breast tissue slides. They argued that the fact that other pathologists might disagree with Dr. Anderson’s diagnosis did not establish that he acted negligently.

For trial, we brought in a microscope hooked to the courtroom monitor. In this way the jury was able to see what the pathologist experts saw reviewing the slides. I had never heard of this being done, but it was not just effective—it was essential.

258

We presented the case to two focus groups prior to trial. One was conducted at the University of Houston Law Center and was videotaped for inclusion in our Trial Advocacy Department’s practical materials. Through these focus groups we identified a central issue of concern. This is a common issue in cases of misdiagnosis. This defense issue usually arises in cases where a serious illness or condition exists and is missed. Jurors may believe even if the news was “good”, they would have gotten a second opinion. The plaintiff in these cases can often dispel the tendency to blame the patient by introducing during the voir dire examination that most people don’t want to question a negative diagnosis. “If it was good news, most people won’t question that.” This case was different, however. Our focus groups believed that someone faced with a serious diagnosis of cancer should get a second opinion before agreeing to radical surgery. We developed an answer that we introduced during the voir dire examination, carried through the evidence, and emphasized during closing argument.

This case illustrates the importance of attention to details. An obscure note in the operating room records formed the basis for an argument that the pathologist had not done an adequate job in reviewing the pathology slides.

Proper preparation for trial consists of preparing a juror trial notebook which includes copies of all the significant documents that will be used in trial. Twelve copies are passed to the jury at the beginning of the trial, after being reviewed by the defense lawyers and the judge. This is helpful to jurors, as it is a ready reference they can use as the evidence develops.

Beginning a closing argument with proposed values illustrated by a personal story can be an effective introduction. In this case I also used reference to one of Jesus’s parables. Referencing scripture must be done with care, but may well be appropriate depending on the makeup of your jury.

The rhetorical techniques employed are those I teach my law students:

Tell the story of the case. Avoid making a dry “stack of facts.”

259

Tell the story in present tense, incorporating psychodrama.

Take the jury into the place and time of the critical event.

Use metaphors and vivid language to make your presentation memorable and interesting.

Create a memorable theme and repeat it many times.

Tie the figure you propose on general damages to some defined value associated with the defense.

In this case we used the fact that the hospital waived the cost of the patient’s meals to repay for the mistakes that occurred during Lois’s stay in the hospital.

Don’t overplay your strongest, most vivid visual evidence.

The photographs of Lois’s scarred breasts were graphic and compelling. We did not show them to the jury when we introduced them. Rather, in closing argument we asked the jury not to even look at them until after they had determined liability and were considering damages.

In an expert intensive case, jurors can have difficulty remembering the names of all the experts, but they will recall the memorable part of their opinions. I give each of the defense experts a trope or metaphorical label to ridicule their opinions. But be careful with this. Sometime after this argument was published in Winning with Stories (State Bar of Texas 2006), I was approached by a young lawyer attending a CLE program on which I was appearing. He said, “Mr. Perdue, I used your technique of labeling the defense experts and they turned it against me in their argument by labeling mine.” I suggested his mistake was using this technique in his opening. If you are going to use it, save it for rebuttal.

Finally, I construct the closing as a circle. I introduce an idea, a memorable thought, at the beginning, and mutate it for the conclusion.

260

REBUTTAL FINAL ARGUMENT

Mr. Jim M. Perdue, Sr.:

“Lois, you have cancer. We have to operate right away.” Those were chilling words you heard on the afternoon of August 13, 1993. You heard them from men you trusted. It was a devastating diagnosis you got from your surgeon, from your gynecologist of fifteen years, and from a man you never met, the hospital pathologist who had made that diagnosis. And you’ve learned over the past three years that you trusted the wrong people to do the right thing. You didn’t ask for any guarantees. All you wanted was that they would live up to their professional responsibilities, that they would do their best; and now for six weeks, you have heard these doctors and this hospital come forward with their laundry list of excuses to try to explain away the devastation, the disfigurement, and the torment that you have experienced and will experience for the rest of your life. And we’ve all learned, we’ve all learned that some people in this case didn’t grow up the way we did.

May it please this honorable Court, ladies and gentlemen:

You’ve probably figured out by now that the hard bark on me comes honestly. I grew up here east of town on the ship channel in Galena Park. I grew up the way a lot of you grew up. Our country club was the icehouse my daddy hung out in. Our social circle was the church that my mother made sure that my brother and I went to every Sunday, Sunday school, church. We learned some great lessons there from the greatest teacher, a man who lived thousands of years ago and taught in parables.

One of the parables that he used to teach his lessons that most of us try to live by was the parable of the talents. A rich man is going on a long journey. He has three fellows working for him. He gives each of them talents according to their abilities. The biblical scholars tell us that a talent wasn’t a measure of money. It was actually a measure of weight, but it equaled about three thousand shekels, and it represented several years of wages for most people. And so for the oldest, the most senior guy, he gave him five talents. The next junior employee, he gave two talents. The one with least seniority, he gave

261

one talent. He left on his journey. They were fellows that he trusted, and so he entrusted great value to them. When he came back, he learned that the fellow who was most senior, to whom he had given five talents, had worked to preserve and enhance value. He had taken his effort and his time, and he had multiplied those talents. He turned them back over to his master. The second fellow had done the same. He took them and spent his effort and his time and turned double the talents back over to the employer. But the third fellow, the junior fellow, that was only given one talent, that great teacher taught us that he went and buried it in the ground. Because, you see, he didn’t want to spend any time. He didn’t want to make the effort. And so when the rich man came back from the journey and the junior servant dug the talent out and he handed him the one talent back, the rich man was angry because he’d let him down. He just sat on what he had. He didn’t live up to the trust.

I was a junior in high school, and they were building a ballpark—a Little League ballpark—and one of the fellows in the Kiwanis there knew that we weren’t very well off. We were poor. I’d had a little art in school, and the Kiwanis man said, “I’d like to get you to paint some signs, some advertising signs for the companies around the neighborhood to put up in the ballpark.”

And he gave me twenty dollars. A lot of money back in 1956. He gave me twenty dollars so I could go buy plywood and paint. I got with my younger brother and we painted those boards. The fellow came and got them and put them up on the ball field. I remember the day we went out and looked at that ball field, and they had all these signs done by these professional painters, who knew what they were doing, who took their time. Our signs, gosh, I was embarrassed. They weren’t any good, not up to snuff.

Alongside the signs that were done right by people who knew what they were doing were our crude, amateurish signs. So when the guy came to pay me, I said, “I can’t take your money. I didn’t do the job.”

Because that’s the way we were raised.

I remember I worked in the grocery store after school for about three weeks to save up twenty dollars so I could pay him back the twenty

262 dollars he had given me for the boards and paint. Because, you see, that’s the way we were brought up. You and you and you and me, that’s the way we were brought up. If you let somebody down, you make up for it and did what you could to make it right.

Lois’s case will be over in a short time. After you deliver your verdict in this case, you’ll be permitted to do something you haven’t been permitted to do so far, and that is talk to people about the case. When you leave after delivering your verdict, you know as well as I do, your friends, your neighbors, your relatives, your coworkers, are going to ask, “Well, what was that case about?” Some of you may say, “Well, that case was about some doctors who made a mistake and they came in with all kinds of excuses and they just didn’t want to own up to the mistake they made.”

But I’ll bet that there’s going to be one or two of you who will say, “No, that was a case about a drive-by diagnosis followed by a rush to surgery followed by a plunge off the cliff into medical oblivion. That’s what that case was about.”

In the summer of 1993, Lois Bush discovers a lump on her breast on self-examination. She does the responsible thing. She goes to her gynecologist, who does some diagnostic studies, and says to Lois, “I don’t think it’s anything to worry about, but just to be cautious, I want to send you over to a specialist, a breast specialist, a surgeon.”

Lois sees Dr. Quast for this lump on her breast. Dr. Quast says, “Well, let’s do the cautious thing: let’s do a surgical procedure. Let’s cut into your breast and cut the lump out and take a look at it under the microscope.”

Lois agrees. She’s a responsible person. She wants to do her best for herself. And so, on August 13, Lois is in the Woman’s Hospital of Texas. She’s in surgery.

Let’s go stand off to the side in the operating room. Can you see Lois? Can you see her in the operating room? She’s lying on the operating table as Dr. Quast cuts into her breast and removes three lumps. Watch it. We can see it. This is a medical disaster in the making. This is going to be a drive-by diagnosis followed by a rush to

263

surgery followed by a plunge off the cliff into medical oblivion. There are no skid marks in the road here. Look for them in the evidence because you will not find them.

Dr. Quast cuts three lumps out of Lois’s breast. He hands them to the technician to take down to the pathology department. You’ve heard the evidence. When they arrive at the pathology department, Dr. Anderson takes the lumps and looks at them. He peels one lump out, which is seven millimeters in size (demonstrating with playdough the size of the lump). He says, “This is the lump that looks suspicious. This is the one that looks suspicious. Let’s freeze it.”

Standing off to the side down in the pathology department, don’t we want to yell at him, “Wait a minute, doctor. From what we’ve heard, what you ought to know, you don’t freeze a lump that small. Haven’t you read the standards of the American Pathology Association? Haven’t you read those standards? A lump that small you don’t freeze, and the reason you don’t freeze all of it is you won’t have enough left to do the permanent section. Freezing can create artifact.”

And so, as we see him hand it to the technician and say, “Freeze it,” don’t we want to holler at him, “Wait. Wait. Slow down. Not so fast. Think about the standards. Think about what you’re doing.”

But they take it, and they freeze it. They freeze all of it. Dr. Anderson puts the slide under his microscope. He looks at the frozen section, the little slice you’ve seen on the glass slide. He makes a diagnosis of cancer. He says he sees cancer on the slide. You’ve heard six weeks of complex testimony. You have had an amazing experience in this courtroom. You have actually gone into the pathology lab. We have brought you microscopes. We have put up on television screens what the slides look like to the doctors looking in the microscope, and you have seen what different pathology looks like. You have heard experts talk about the size of cells, the shape of cells, the cluster of cells; and you’ve heard that over the years we have adopted standards. Standards. Standards that tell us when a growth, a lump, a mass, some tissue is intraductal carcinoma, which is what Dr. Anderson diagnosed, and when it is atypical hyperplasia, which is what a lot of women forty, fifty years old have. Standards that tell us

264 cancer, not cancer. And you’ve heard one of the premier authorities in the country tell us about the criteria for diagnosing cancer and the criteria that Dr. Anderson used.

Can we play that short excerpt? (Videotape excerpt played.)

Questions by Jim M. Perdue, Sr.:

Q: Now, Doctor, back on the issues in the case, you have now seen Dr. Anderson’s description of the slide upon which he based his diagnosis of intraductal carcinoma, am I correct?

A: Yes.

Q: And what is your understanding of the criteria he is using in 1993 for the making of a diagnosis of intraductal carcinoma?

A: Well, he is using some criteria that—for the diagnosis of carcinoma in situ—that are not the criteria for carcinoma in situ—and, indeed, are the criteria for ordinary hyperplasia.

(Videotape concluded.)

Can you imagine that? Dr. Anderson is using the criteria to diagnose cancer that are the criteria for ordinary hyperplasia. He’s diagnosing cancer in women who don’t have it.

Now the defense in this case is based on the premise—the dangerous and seductive premise—that you ought to decide what is good medical care on the basis of what will get by. They offer up the dangerous and seductive premise that you ought to be bottom-fishing for what gets by for good and accepted medical care. The defense comes in and they bring a big chart. You heard that testimony. And they make a chart from the medical literature, the pathology literature, which they put up and they say, “Look here, even your own experts have disagreed. There’s a study in the medical literature that shows they sent these test samples out to all these pathologists, and they

265

couldn’t agree on these difficult slides. Therefore, breast pathology is really just kind of like modern art. It’s all in the eye of the beholder. After all, look here. Your own experts, the most renowned people in the country, couldn’t agree on these slides. It’s reported in the medical literature. Dr. Anderson’s not out of date. He’s not a medical anachronism. This is really tough stuff. It’s just in the eye of the beholder.”

But those tests that they talked about, those studies that were in the medical literature, you remember what Dr. Fechner said about those.

Let’s see the next excerpt, please. (Videotape excerpt played.)

Questions by Jim M. Perdue, Sr.:

Q: Those examples, the slides that you got, was it your understanding that those were easy or difficult cases?

A: Oh, these were difficult cases, no question.

Q: Mrs. Bush’s slides, is it, to you, an easy or difficult case?

A: This is an easy case.

(Videotape concluded.)

We’re talking about an easy case here. We’re not talking about those difficult cases that they tried to challenge the experts with. We’re talking about something that we have now had six pathologists look at under the microscope. They have all said that it is either ordinary hyperplasia or artifact, which was caused when they froze it all.

How could Dr. Anderson be so out of bounds? Is he just a medical anachronism who didn’t keep up? Well—ignorance—I don’t think anybody would find much comfort if we thought that Lois’s tragedy was caused by medical ignorance.

But there is another explanation. It’s one that is so sinister and cruel

266

that I know that when it occurred to you, you didn’t want to consider it.

About three weeks ago, you recall we offered in evidence—and it was in your notebooks that each of you had—we offered in evidence the records of the operation. Dr. Quast tells us that he removed the three lumps. He gave them to a technician. He waited until Dr. Anderson came up to the operating room and said that she had cancer, and then they closed her up. Dr. Quast, if you’ll recall, told us he would never have closed her until he had gotten the diagnosis. We know he had the diagnosis before he closed her up. We offered the records in evidence, and I know that some of you picked up on this. We didn’t make a big issue of it at the time. Frankly, I thought I would give the defendants the rest of the case to answer it. But we’ve heard nothing from them. Nothing. Zero. There is a note in the record, incision time 10:30, closure time 10:35. Five minutes. Five minutes to remove the lumps, take them down three floors, walk what has been estimated to be about twenty yards, take the tissues, look at them, decide which one looks suspicious, decide to freeze it, freeze it, put it under the microscope, make the diagnosis, walk back up to the OR, and give the report to the surgeon.

Standing off to the side, as we see Dr. Anderson now in the laboratory, don’t we want to holler at him, “Wait! Wait a minute. Take your time! Really look at it. Look at it! No, doctor, look at it! Look at it! Really look at it! Look at it! You’re making a life-and-death decision on this woman. You’re going to tell her she has cancer or she doesn’t. Look at it! Really look at it, doctor!”

Is this a drive-by diagnosis? Look for the skid marks. They’re not there.

Lois is told she has cancer. She wakes up from surgery. Dr. Quast and her gynecologist are at her bedside. They say, “Lois, you have cancer. We have to operate right away.”

This is a Friday. Dr. Quast says, “We have to have your answer by Tuesday.”

He doesn’t even have the permanent sections back yet, and he’s already telling her she has to have a mastectomy. Is that a rush to

267 surgery? Is it a rush to surgery? Look for the skid marks. You won’t find them.

And so the breast and lymph nodes are removed the following Wednesday.

And then there is the ultimate insult, the ultimate tragedy. After her breast is removed and her lymph nodes are removed, they’re taken and put in the room that you heard about. Lois’s and two other patients’ tissues are sitting on the counter. An untrained orderly comes in. We’re off to the side. We see the orderly come in. There’s the box of tissues there. The orderly picks up the tissues, and he says, “These go to the incinerator.”

Don’t we want to yell, “Wait! Wait! What’s the rush? Don’t take those to the incinerator. Those go to the lab for further diagnostic studies. Those are this woman’s breast. They’re her lymph tissues. They need to be looked at so that they can tell her, ‘There’s no cancer in the breast! There’s no cancer in the lymph nodes!’”

But he picks up the box and carries it to the incinerator.

Lois doesn’t know any of this. She doesn’t know anything. She is lying on the table unconscious, vulnerable when the surgery is done. She is lying vulnerable, unconscious when the biopsy is done. And so, two days later, when she’s at home and they call her and tell her, “Mrs. Bush, we lost the breast tissues. We lost the lymph nodes. We can’t tell you how bad your cancer has spread. So we think, out of an abundance of caution, you need to have chemotherapy and radiation,” and who knows what else.

To this drive-by diagnosis followed by a rush to surgery followed by a plunge off the cliff into medical oblivion, the defendant offers a head game. They say, “Look, there’s really no good and bad medicine. There’s really no safe and dangerous medical practice. After all, medicine is a matter of judgment. It’s all a matter of judgment. It’s just judgment.”

They want to take the worst concoction of lawyers, pour it into a contaminated beaker of medicine, and then swirl it around and say

268 it’s just all dirty shades of gray. It’s just all dirty shades of gray.

Lois comes home. She’s in bandages. She’s got tubes running out of her. She is in pain. She doesn’t know what to do. She’s searching for answers. She believes she has cancer.

Lois doesn’t have the resources to fight the system. She’s a schoolteacher. She doesn’t have the reserves to demand a repair of this injustice. She has no lobby. She has no hushed corner in the Capitol to go to tilt the field in her favor, to bring the forces to bear. All she has is what she will gather now in her search for the truth.

During the next few years as she searches for the truth, Lois is transformed from a beautiful woman into a scarred and stigmatized woman. Lois and her daughter had gone to a modeling competition in New York City just a few weeks before this happened. She was a gorgeous woman. And she was transformed from that to what you will see when you open the group of photos that we marked as Exhibit 23 when Lois testified. We did not pass those to you during our presentation of evidence. They will be among the exhibits that accompany you to the jury room. I ask that you not look at them until after you have answered the questions the judge submitted asking about the responsibility for this needless tragedy. After you have determined those questions and before you answer the damage questions, please review those photographs before you try to figure out what Lois should be repayed for transforming her from a normal beautiful woman to this painful portrait.

They will not have been seen by anybody else but you. We tried to respect Lois’s privacy. I hope some of you will appreciate that. When it comes time in your deliberations where you feel they are appropriate to your considerations, they will be there.

Lois develops a neuroma, a neuroma that you’ve heard that is so painful that she cannot wear a blouse, she cannot wear a bra. She is in constant torment, constant pain. She ends up having multiple surgeries in an effort to correct that. Dr. Quast’s lawyer says, “Well, what makes anybody think that our surgery caused the neuroma?”

You heard from Dr. Withers. He had in his records very clearly,

269

“Neuroma—post mastectomy.” And he testified to that. He testified to that.

Now I feel compelled to address one issue in this case that I know is going to come up. Somebody on this jury during deliberations may ask or may say, “Well, that would never happen to me. What happened to Lois couldn’t happen to me, it couldn’t happen to my wife, it couldn’t happen to my mother. We would have done something differently.” Because I know there’s a psychological phenomenon that makes you think that. Psychologically, you must think that. Psychologically, you must believe that, “It couldn’t happen to me, it couldn’t happen to my wife or my mother. We would have done something different. We would have gotten a second opinion.”

But, you see, Lois did get a second opinion. When Dr. Quast came in and was standing at her bedside and said, “Lois, you have cancer,” her gynecologist of fifteen years was standing right next to her. And he said, “Lois, you have cancer. We have to operate right away.”

And then Lois called her brother who is a doctor in San Antonio and said, “They say I’ve got cancer. I need a mastectomy. What should I do?”

And what did he say? “Follow your doctor’s advice.”

So Lois got not only a second opinion. She got a third. When Dr. Quast was on the stand, I asked him, “Doctor, are you contending that this lady did not get a second or third opinion?” He said, “Oh, no. I have to admit from the evidence I’ve heard, she got a second and third opinion.”

Lois would believe that she did. So when someone says, “We would have done something differently, we would have gotten a second opinion,” remind them of the evidence. Remind them of the defendant’s own testimony.

So Lois, with the help of her brother in San Antonio, begins what you have heard is a difficult and awkward step. Her brother contacts a pathologist in San Antonio and writes the hospital for the slides. Bear in mind, why she wanted to look at those slides or have somebody to

270 look at them. They had lost the breast tissue. They had lost the lymph nodes. And she said, “Well, let’s get the slides and see if we can make out from the slides how bad the cancer is. Maybe we can learn something. Maybe I’ll only have to have the chemotherapy and not the radiation, or maybe not so much radiation, or maybe a different kind of chemotherapy. I need some help. I need to know what the truth is.”

And so they get the slides so that Lois won’t have to blindly submit to the chemotherapy and radiation. They get the slides. Lois starts looking for the truth. Because she’s looking for the truth, she becomes the accused.

During the voir dire examination, Dr. Quast’s lawyers asked you, “How many of you know about all the problems with silicone breast implants?” We got a lot of hands. And he asked you a bunch of questions about silicone breast implants with his doctor sitting right there knowing that Lois never had silicone breast implants. She had saline. But that’s the way you twist things, see, and turn someone who is looking for the truth into the accused.

When Lois was looking for the truth, the first fellow that looked at the slides was Dr. Allred in San Antonio. He said she didn’t have cancer. Lois took them to the doctors at M. D. Anderson. They said either it’s not cancer or you can’t tell from the artifact that’s in there from the freezing. Lois took them to Dr. Lechago at Methodist. He says, “I can’t diagnose cancer. There’s no cancer there.”

Lois, in her search for the truth, is looking at four-of-a-kind. That’s the hand she’s been dealt. Four-of-a-kind is her truth. (Putting up images of four kings on the storyboard we used during opening statement).

She comes to us, and we did what I would do for any of you. I said, “Well, let’s get the slides, and let’s have them looked at by the preeminent authorities in the country, Dr. Page and Dr. Fechner.” These are the guys who did all the studies. These are the guys who have participated in all the research. These are the guys who have written the books. These are the guys who have written the standards. Dr. David Lee Page at Vanderbilt and Dr. Fechner at Virginia looked at the slides. They say there’s no cancer. Now Lois is

271

looking for the truth. She’s got four-of-a-kind and two aces (putting up two aces on storyboard), in her search for the truth.

We know what the truth is. We know what the truth is! This business about these things being confusing—you can call it atypical hyperplasia, you can call it fibrosis and intraductal hyperplasia, you can call it intraductal epithelial proliferation, you can call it epithelial proliferation hyperplasia. You can call it any of those things, but you can’t call it cancer. You can call it any of those things, but it’s not cancer.

The defense, in order to support their excuses, calls three experts.

The first fellow you heard was Dr. Anything Goes. He comes in, and he testifies that they did everything right. He’s a surgeon. I asked him in cross-examination, “Doctor, can you give me some examples of medical negligence?”

He said, “Oh yeah, I can give you some examples.” He said, “If you operated on the wrong patient.” He said, “If you got up and left the operating room and walked out, that would be malpractice.”

I said, “Well, doctor, let me ask you this: what if a doctor cut the common bile duct during a gallbladder, would that be negligence?” He said, “I don’t know. Maybe so, maybe not.”

Dr. Anything Goes, he’s from that brotherhood, you see, who believes that a courthouse call is more important than any code they ever get in a hospital.

The next fellow they call is the Wizard of Oz. He’s the guy who comes down from Illinois and claims to be an expert in everything. He’s written books. I wrote down some of them. He’s written books on microwaving. He’s written books on pediatrics. He claims to be an expert in obstetrics. He claims to be an expert in water dynamics. He’s an expert in everything. He’s the Wizard of Oz. And he comes down, and he says, “Lois, why are you complaining? You can never get cancer in that breast now.”

By his theory, if a woman finds a suspicious lump, what she ought to

272

do is go have a double mastectomy and uncork the champagne. This is the way he wants medicine practiced. The Wizard of Oz.

The third expert you heard is a fellow I call the Wizard of Oz in Reverse. He went all the way to Kansas to testify on behalf of a pathologist up there. He works with these defendants all the time. They hire him all the time. He testifies for them in asbestos cases. He’s an expert in pathology, but he’s really not an expert in breast pathology, by his own admission. His specialty is more in the field of male organs, prostate.

He comes in and tells us, “I’m a pathologist. I’ve looked at the slides. There’s cancer there.” We asked him, “Well, how long have you worked on this case to get ready to testify today against Lois?” He’s the Wizard of Oz in reverse. He wants to keep her in Oz. Just like the Wizard of Oz who testified before him felt like there wasn’t any reason Dorothy couldn’t click her heels and just go back. You know, Lois ought to be able to click her heels and just get out of there somehow.

The Wizard of Oz in Reverse wants to be sure she never gets out. “No, Lois, you have cancer.” He spent forty hours preparing to testify in this case. Forty hours.

You know what galled me in this case? It may have galled some of y’all. You’ve heard all these people testify either by deposition or in person, people who were helping Lois try to determine what she should do by way of treatment, world-renowned experts. Every witness we called, every one of them, you heard the defense lawyers, one of the first questions they asked, “Well, what are you charging to testify, doctor? How much are you paid for an hour of your professional time?” Every one of our experts was asked those questions. And then they bring in three people to testify that when they walked in the courtroom, they could not have picked Lois Bush out of any woman in this audience because they didn’t know who she was. They had never seen her. This guy spends forty hours to testify. Do you realize how long Dr. Anderson would have to work to put in that much effort looking at breast slides? He says that the time he spent looking at Lois’s slide was typical for him. He claims he spent five minutes looking at that slide. Do you realize he’d have to look at

273

480 slides to equal the time that the Wizard of Oz in Reverse spent getting ready to testify against Lois? When I asked Dr. Anderson, “How many breast slides do you look at each year?”

He said, “Well, a little under a hundred.” Do you realize Dr. Anderson would have to work five years, five years to have as much time looking at breast slides as their one expert spent getting ready to try and keep Lois in the nightmare of Oz that they put her in?

Well, those were the witnesses you heard from the defense. I suggest what we ought to do is pull the curtain back. Just pull it back. There is no wizard. There is no wizard back there. There’s just some people pulling a bunch of levers to put out a bunch of smoke and colorful images so that you can’t see the road. Because they know if you look at the road, you’ll see there are no skid marks leading up to this medical disaster. This was a drive-by diagnosis followed by a rush to surgery followed by a plunge off the cliff into medical oblivion.

The hospital says they’re not responsible for anything. Their attitude about this case is there’s nothing wrong with Lois that wouldn’t be fixed with a lifetime supply of Wonderbras. You think I’m kidding. When they lost the tissue, they wrote Lois a letter. It’s in evidence. You’ve seen it. And they apologized for losing the tissue and said, “We’re going to make an adjustment on your bill for losing the tissue.”

I had the lady from the hospital on the stand, and I said, “Well, these adjustments y’all make, what is that like?”

And she said, “Well, you know, we make adjustments like when a patient complains of a bad meal.”

I said, “So this is the kind of adjustment y’all make when somebody gets a bad meal in a hospital?”

She said, “Well, no, but sort of.”

Well, since the hospital talked about meals, it’s an appropriate topic. Let me talk about that a little bit. You know, meals—and you can look at me and tell they’re pretty important—but meals are a part of life. Meals also are something we need so we don’t have to endure the

274

pain of hunger. And to nourish ourselves. You’ll leave the courtroom today, and some of you will go out to eat, some of you will probably go to the grocery store over the weekend. You go to the grocery store, buy food for yourself, it’s a hundred dollars. It is when I go. You go out to a cafeteria, you’re going to spend ten, fifteen dollars. If you go get a good meal, you’ll spend thirty, forty, fifty dollars easy. Well, we all eat our meal and, you know, we don’t think much about it when we do. We pay that out just a few dollars at a time. We don’t think about it. We have to eat, and we pay for our meals. A few dollars at a time. We don’t think about it. But, you know, justice doesn’t work that way. Justice, you’ve got to put the figure down all at once. You’ve got to write it in all at one time. So when it comes to the damages, we’ve only got $70,000 in medical bills. Lois didn’t miss much time from work because she would always use her vacation time, her schoolteacher vacation time and her days off. She doesn’t have a lot of lost wages. But for the disfigurement and humiliation that she has experienced, for the injustice that she’s experienced, we have asked for $3 million. And when it comes time to consider that figure, I’d hope some of you would think, “Well, let’s start by figuring out what it would cost if we were to say to her, ‘Lois, we’re going to give you the price of a real good meal three times a day for the rest of your life.’”

You’d be surprised what that adds up to. It’s a start. A good meal three times a day for the rest of your life (referring to chart with calculations).

Ladies and gentlemen, that is not my calculation. It’s the hospital’s. They’re the ones who said, “You just kind of adjust like you do for a bad meal.”

Well, I know that there’s going to be somebody on the jury that when we get to that point, they’re going to say, “Well, Mr. Perdue, that’s too much money for a verdict in this case. We’re not down here to make people rich.”

And I hope if you hear that in the jury room, one of you will reply and say, “No, we’re not down here to make people undeserving millionaires. That isn’t our job. But our job isn’t to accept the unjustifiable and let go people who are irresponsible.” The idea of civil damages is not just to compensate. It is to encourage—no, it is to

275

compel—that we act responsibly, and you compel accountability. You make people responsible by awarding full damages for the injustice that they do.

So what is this case about? What will you say it’s about when you go home after your verdict or go back to work? Some of you will say it’s a drive-by diagnosis followed by a rush to surgery followed by a plunge off the cliff into medical oblivion, but I’m going to bet you there’s going to be one or two of you who are going to say, “No, that was a case about courage. That was a case about courage.” I saw an awful lot of courage in that courtroom. I saw a woman who came after three years of embarrassment and humiliation, after four operations of scarring and disfigurement, a woman who is a single schoolteacher, who has raised her children by herself, who has been independent, who went to work many days when she didn’t feel like it, when she was drained and fatigued and battered and still went to work. I saw a woman tell us about her most humiliating experiences and never shed a tear. I saw a woman who had the most personal photographs passed to us that we looked at, and she never shed a tear. Because all the tears were gone. The well had run dry a long time ago. I saw a woman who would do things for her children and worry about her children when most people would have been worried about themselves. I saw a woman who suffered a final humiliation in this courtroom when two weeks ago you heard one of the defense lawyers stand up in this trial and say, “Your Honor, we want to request an independent medical examination of Lois Bush by our doctor.”

We let them have it. Lois went to their doctor. She disrobed. She showed herself, she bared her body, she showed her scars, she bared her soul to this doctor who they hired. You haven’t seen him yet, have you? They didn’t call him. And so, ladies and gentlemen, the law says that you are entitled to infer that since they hired him, since he’s their doctor, you’re entitled to infer that what he would say supports Lois, supports her.

You’ve seen a lot of courage in this courtroom. You saw Dr. Lechago from Methodist Hospital and Baylor College of Medicine come down and testify. That’s hard cheese. Listen, that’s hard cheese. Baylor and Methodist are right out there by Texas Woman’s Hospital.

276

They’re really close. And here they had the Wizard of Oz in Reverse who is on the staff at Baylor and Methodist, testifying for them, but Dr. Lechago said, “I don’t care. I’m going to testify to the truth.”

It took a lot of courage to do that. It took a lot of courage. Well, what will you say the case is about when the evidence is over? Will you say it’s a case about courage?

You know, it takes courage to do the right thing these days. Finding against doctors and hospitals isn’t popular. Finding significant damages isn’t popular. It takes courage. It takes courage. So I hope that this will be a case about courage, the courage of Lois, the courage of Dr. Lechago, the courage of this jury.

Three years ago, two doctors stood at the bedside of Lois and said, “Lois, you have cancer. We have to operate right away.”

Today, you’re standing at Lois’s side in a courtroom. “Lois, you don’t have cancer. You never did. But you did have a heck of an injustice— and we’re going to fix that right away.”

Thank you very much.

The jury found in Lois’s favor and awarded $3.5 million in damages.

277

CHAPTER 17

DEATH AT THE HANDS OF STRANGERS

My last jury verdict was the hardest case I ever tried. In the March 2000 issue of TRIAL MAGAZINE, it appeared as part of a symposium entitled, “Cases We Remember”. But I did not tell the full story there. For personal reasons, some of the most salient facts were omitted. Now twenty years later it is time to tell the full story.

My wife of 24 years and I divorced in 1989. There is nothing unusual or atypical about that. Statistics demonstrate that the divorce rate for trial lawyers is among the highest of the professions. We grew apart as couples so often do. I moved out of the family home, went through the usual financial settling up, and moved into a small rented apartment in the Lamar Tower, a high-rise Houston condominium. Our oldest son was in law school, the middle one chose to live with me, and the youngest with his mother.

Dating was an unfamiliar and challenging experience in my early 50’s. This was before the age of the Internet with its myriad of dating sites that specialize in matches based on religion, ethnicity, age, or even income. I was never a bar person, even when I was single and in my 20’s. And so, without the Internet and bar scene all we had were some single professional groups that held functions at local restaurants. It was at one of these I met Joan Latch.

Joan was no beauty queen, but then I never saw myself as any kind of hunk, although I had managed to shed about 40 pounds going through the divorce (somewhere I read men often lose weight during divorce, while women gain weight). Joan had auburn hair from her English and Irish heritage. She stood 5’3” and had a nice curvy figure. She was the most gorgeous person inside and out. Her personality was warm, without pretense. Compared to the women I had been meeting, she was “simple”. Not simple minded; just not complicated. She was from Pittsburgh. Her parents were both deceased. She had no children, and her only sibling, an estranged brother, lived in Pennsylvania. They had little contact.

278

We had only gone out a couple of times when I got that “help” call at 3 a.m. one wintry morning.

“Hello….”, a rather garbled response to a 3:00 a.m. unexpected phone call.

“Is this Jim Perdue?”, a rather deep and gruff voice replied.

“Yes.”, still not fully with it.

“Do you know Joan Latch?”

“Yes.”

“This is Deputy Robert Ramirez with the Waller County Sheriff’s office. We need you to come to the Bellville General Hospital in Bellville. Do you know where that is?”

I took a deep breath and managed to say, “Is Joan alright? Has there been an accident.”

The gruff voice slowly and calmly replied, “We just need you to come. She is at the hospital in Bellville. Can you do that?”

I told him I should be there in a little over an hour. I had been to Bellville a couple of times at the courthouse on sundry motions and hearings. I knew it was just over an hour’s drive west of Houston. I was dressing when my son, Joe, awakened by the phone and my stirring about in the middle of the night, came into my bedroom and asked what was happening. I told him I had to go to Bellville. Seeing my concern, he volunteered to drive.

Worry was my companion for the next hour. All I could think about was, “Has she been in a bad wreck? How badly was she injured?”

I was greeted in the emergency room by a brown-shirted deputy sheriff. I introduced myself and was told the story.

Joan had been shopping at the Galleria in Houston that afternoon when a seedy looking red-headed man in his twenties had

279

approached her as she was loading her shopping bags into the car. He flashed a revolver and forced her into her car. They drove around all afternoon until the thug found a deserted road. He was raping her when an off-duty fire marshal happened by. He slowed down to check what was going on. When the perpetrator aimed the gun at the officer, Joan hit his arm, causing him to miss.

Joan jumped out of the car.

The criminal drove off leaving Joan in the road. The off-duty fire marshal brought her to the hospital, where they had performed a rape evaluation and captured the rapist’s DNA.

After the officer’s explanation, I was taken to Joan.

She was in a hospital gown. Her clothes had been taken as part of the police investigation. She was in shock. I took her home with me. She would stay there for the next 10 days. The crook had her purse with all her keys, credit card, and driver’s license.

The next day I drove her to her apartment where we met a locksmith for entry. She packed a bag and returned to my place. A day later a police artist came by for a draft composite of the rapist. I told Joan she would be staying with me until they caught the perp and she felt comfortable returning to her apartment.

The sheriff had a pretty good idea of who he was and where they might find him.

In the evenings I would sit with Joan, holding her, and telling her everything would be alright. I knew it would. She was a strong woman. Quiet, but strong.

A week later, the Waller County sheriff called to tell us they had the rapist in jail. I drove Joan to the jailhouse where she picked the young man out of a lineup. He looked like he came from a long line of inbreeding. He had a thin, pimpled face, red hair, and those vacant eyes you see in people whose elevator is stuck in the basement. He reminded me of the character Scott Fargus from a Christmas Story.

280

Joan and I continued to date off and on until the second tragedy hit, a tragedy that would play out far worse than the call of three years earlier from the Waller County Deputy. Joan had asked a nurse at Methodist Hospital to call and ask me to come to the hospital. I asked for directions. “Where in the hospital should I go?” The reply, “The general surgery floor.”

I felt like someone had dropped a bucket of ice water down my back. The nurse, trying to allay my obvious concerns said, “Joan was not feeling well and saw her OB today. He immediately referred Joan to a urological surgeon for emergency surgery”. She was already under the knife when I bolted from the office. I drove down Main Street going as fast as I could without getting a ticket. I don’t know how I avoided a wreck.

Joan was admitted to Methodist Hospital with a diagnosis of possible uterine cancer. The anxious wait for her surgeon’s report was a long one. Finally her doctor dressed in scrubs appeared in the room furnished with Naugahyde couches and linoleum flooring. Only my office manager and I were waiting for Joan’s results. After mutual introductions, Joan’s cancer specialist gave us devastating news, “We weren’t able to get all of it.”

I asked, “How long do we have?” He explained with a rigorous regime of chemotherapy Joan might live as long as a year, but “that would be pushing it.”

Joan moved in with me and I did my best to make those last days memorable and pleasurable. We enjoyed movies, dinners out, and some professional and vacation trips. But mainly we tried to make every day special.

It is against this background that I tried my most memorable case from the over 100 jury verdicts taken during 40 years at the bar.

On November 4, 1999, the jury returned a substantial verdict in a wrongful death case that named three anesthesiologists as defendants.

281

The plaintiffs were the surviving widow and elderly parents of Mark Alexander, who was 40 years old at the time of his death.

It wasn’t my largest verdict or most rewarding.

It wasn’t my best courtroom performance.

Nothing funny happened.

And while there were dramatic moments in trial, it wasn’t what happened in the courtroom that forever indelibly carved this case’s image in my mind. It was what happened in my personal life involving Joan Alexis Latch that made this my most memorable case.

Being single at 50 is not the way I thought life would tum out. But it was only after I met Joan that I realized you can find romance and happiness in the sixth decade of life.

Joan was not only a friend, a companion, and a lover, she was my biggest fan. She did not aspire to the law, but she loved its power to repair injustice. She would sit in the courtroom, smile, and look like she was about to cheer every time we made a point with an opposing expert or took apart the defense’s deception.

I would put Joan up against the best of the paid jury consultants. During our preparation and trial of cases, she would often ask questions that seemed irrelevant and far from the issues we had identified. But invariably they were keys to success.

Joan loved to travel, and we attended many bar conventions and seminars. If I was deposing out of town, she wanted to go even though she knew I might not have a lot of time with her. If I spoke at a conference, all I had to do was look at the back row to find the smiling and admiring face of the auburn-haired Irish girl.

Because Joan never had children and had no close relatives, she had a special love of family. When I first met the Alexanders in late 1997, I knew immediately that they represented and shared Joan’s belief that the most valuable commodities in our personal inventory are the members of a loving family.

282 After getting the medical records, we had experts review them. Our story would need to be developed beyond that told by the records, so we filed suit and began discovery in Alexander v. TOPS Specialty Hospital, Ltd., et al.

Mark and Lisa Alexander had been married three years when his right shoulder started giving him problems. He picked an orthopedist from his health plan’s list of preferred providers, who tried conservative treatment without success. Then Mark’s doctor recommended TOPS Specialty Hospital, a day-surgery facility, and a routine arthroscopic repair of the right shoulder.

Lisa and Mark met Dr. Laverta Jane Crowder for the first time the morning of surgery. She told them she was an anesthesiologist and would be giving Mark his general anesthetic. This was not true. A nurse anesthetist was left to intubate, induce, and monitor Mark’s anesthesia while Dr. Crowder lounged in the break room.

Dr. Mark Stuart, the surgeon, was about two-thirds of the way through the procedure when he saw the nurse anesthetist fiddling under the surgical drapes, saying, “I can’t hear air in one lung.” Dr. Stuart stopped the surgery. They rolled Mark from his side onto his back and pulled back the surgical drapes. He was markedly cyanotic. His face, chest, and upper thighs were blue. He had no pulse.

Clinic personnel came to Operating Room Number 6 and performed resuscitative efforts for 10 minutes. After an electroshock, Mark’s heart returned to a normal sinus rhythm.

Dr. Stuart told the family he didn’t know what had happened. He didn’t even know the name of the nurse anesthetist who had given Mark the anesthesia. She had gone home after the operation, but was to return to the clinic a few days later and give a full report. But she never came back.

The family wanted answers.

Mark Alexander lay in a coma for two weeks after the surgery, as the brain damage caused by a lack of oxygen took full squatter’s rights to

283

his body. His family was at his bedside every day. They were there when Mark took his last breath.

We got the records and learned that the Certified Registered Nurse Anesthetist (CRNA) was Constance Cemosek.

We filed a petition to perpetuate testimony and immediately deposed her.

I had an extended conversation with an anesthesiologist in an operating room at Methodist Hospital. There I learned the details about the anesthesia and monitoring equipment. By the time I took the CRNA’s deposition, I felt it might be possible I knew as much about anesthesia and monitoring equipment as she did. It turned out I knew more.

Prior to her deposition, I moved to require the hospital to produce the anesthesia equipment and monitors. We would depose her in the presence of the equipment she used during Mark’s operation.

During her deposition it was obvious she was unfamiliar with the alarms on the machines that were designed to warn when a patient’s vital signs approached critical limits. Her version was that everything was going fine when suddenly she saw an arrhythmia on the EKG monitor, gave Atropine, and called for Dr. Crowder to return to the operating room. The alarm on the anesthesia monitor had never sounded.

None of her “facts” were reflected in the medical records.

One of the essentials of discovery in malpractice cases is getting the comparables.

We wanted the anesthesia record on the surgeries before and after Mark’s. We wanted the anesthesia records on other surgeries performed at the hospital during Mark’s. We wanted five other anesthesia records from Nurse Cemosek.

The defendants objected.

284

The court ordered production. The defendants filed a mandamus action that took the issue all the way to the Texas Supreme Court.

We got the comparables. They established the nurse’s pattern of incompetence.

Most modern-day anesthesia monitors have a memory function. Recall functions of the monitor’s computer will retrieve and print out vital signs that were displayed during a procedure. We requested any memory strip or data contained in the memory function of the monitoring and anesthesia administration from Mark’s procedure.

The defendants refused to produce it on the grounds that it was protected by the peer review privilege. The court ordered it produced. Their previous efforts at setting aside the trial judge’s discovery rulings having failed, this time they gave it up.

Plaintiffs contended the CRNA left in charge of giving the patient his general anesthesia made numerous mistakes that caused Mark to be inadequately oxygenated. This led to his heart stopping.

The defense claimed the arrest was explained by microscopic defects in the conduction tissues of the patient’s heart.

Our reconstruction of the events from the memory monitor established that Mark was without a measurable heartbeat for 10 minutes before Nurse Cemosek alerted Dr. Stuart that she was having problems. In short, Mark laid on the operating table in arrest for about 10 minutes before anybody did anything about it. The monitor strip graphically painted his suffocating while under negligent medical care.

The pathologists at Methodist Hospital autopsied Mark following his death on October 3, 1997. They found his heart to be normal and attributed his severe brain damage to an anoxic episode. The autopsy supported our contention that Mark had suffocated at the hands of an incompetent stranger.

After we had designated our experts, the defense sought a court order authorizing them to do additional recuts into the conduction

285

system of Mark’s heart, which was preserved at Methodist Hospital. The defense obtained 60 recuts and forwarded them to their cardiac pathologist.

A few months later, they requested and obtained second recuts of another 260 slides.

They hired four pathologists, who reported that Mark had “idiopathic fibrosis” in the conduction system of his heart. The defense contended that these microscopic changes proved that Mark Alexander was a candidate for sudden death at any time. According to the defense, the conduction defect explained why he had arrested suddenly on the operating table.

We were just getting started on the case.

It was February 1998 when Joan was diagnosed with ovarian cancer. I continued spending as much time with her as possible while we prepared the Alexander case for trial. We were engaged, but Joan didn’t want to get married until she had beaten the cancer. I knew after my first visit with her oncologist that that day would never come.

She spent the next year and a half fighting the spreading disease, a squatter of a different name.

Joan went into the hospital for the final time as the case was called for trial, October 15, 1999. I have never known any greater champion of little people who are abused by arrogant professionals than this courageous woman. She wouldn’t hear of me putting off the trial. “Go get that family justice,” she told me from her hospital bed.

I was with Joan every weekend and most nights during the trial.

The proof at trial painted a stark picture of medical misadventure. It’s hard to convey to laypeople the ominous nature of a heart rate in the high 40s in a man who normally ran a pulse of 88.

We used a metronome with our first anesthesia expert, Dr. Robert Kirby from Gainesville, Florida. With the metronome, the jury heard a pulse of 88 and could compare it with Mark’s slowing heart. The slow

286

tick-tock in the courtroom echoed what I knew would be coming on the sixth floor of Methodist Hospital, where Joan’s vital bodily functions were being met by an array of catheters and intravenous lines.

The second weekend of trial, Joan lapsed into a coma. She died on November 1, All Saints Day.

Trying the case while the person I loved lay dying in a hospital was the hardest thing I have ever done.

The case went to the jury late on November 3rd, following closing arguments.

Deliberations did not begin until the next morning.

Our trial judge, the Honorable John Devine, submitted a 20-page charge of legal instructions and 11 complex factual issues for jury determination.

My son, Jim, Jr., gave the eulogy at Joan’s funeral on the afternoon of November 4th.

He left the memorial service to return to the courthouse. At 3:30, I was driving family members back home when I got a call from Jim. “Dad,” he said, “you’ve got to get back to the courthouse right away. We’ve got a verdict.”

My heart sank into the pit of my stomach.

The only way that the jury could be coming back this soon was with a defense verdict.

By the time I got to the courthouse, the verdict had been accepted, and the jury was leaving. I looked at this fine family, two elderly parents in their 80s, two surviving brothers, one of the brother’s wives, and Lisa. They all smiled and gave me big a thumbs-up. They deserved their victory.

287

That afternoon, when I had looked back into the cavernous sanctuary of the First Presbyterian Church, in the first row occupied by visitors, there was the entire Alexander family. Even though the church was filled with personal and professional friends, I knew that the Alexanders had a special appreciation for the occasion. It had been almost two years before when they had been at Mark’s bedside for two weeks and watched him die.

You will note, I didn’t give a closing “argument”. I told a story full of allegories, quotations, visual imagery analogies, and a metaphorical theme, all in the present tense.

REBUTTAL FINAL ARGUMENT

Mr. Jim. M. Perdue:

“Mr. Alexander, my name is Dr. Crowder. I will be giving you your anesthesia today.”

It wasn’t until after Mark arrested on the operating table, lay in a coma for two weeks, and died, that Mark’s widow and parents sought out a lawyer and the lawyer started asking questions that this family learned the fable, the fiction, the misrepresentation in Dr. Crowder’s words. She doesn’t put down the breathing tube that was improperly positioned. Dr. Crowder doesn’t put down the esophageal stethoscope that is improperly driven into Mark’s lung. She is there when the nurse anesthetist, Cernosek, does it. But she doesn’t do it. She leaves OR 6 and only goes back for a few minutes to make adjustments when Nurse Cernosek can’t get an alarm on the monitor turned off. Then she leaves again and is gone for almost an hour. She isn’t in the operating room when Mark arrests and lies on the operating table for at least ten minutes with no heartbeat before anyone does anything about it. When they stop this routine out- patient procedure on Mark’s shoulder and turn him over on his back, he is blue from lack of oxygen. His heart has stopped.

Dr. Crowder didn’t give Mark his anesthesia. This family came to know that what would have been routine and safe in the hands of

288

professionals became tragic and catastrophic in the hands of strangers.

Nurse Cernosek was asleep at the helm while the ship was sailing into a storm. Dr. Crowder was the first officer who was down in the coffee bar relaxing when she should have been on the bridge. Dr. Battaglia and Dr. Polk were the captains and the owners of this ship. They hired Dr. Crowder and Nurse Cernosek and were supposed to train and supervise them.

May it please the Court, ladies and gentlemen:

You know, justice doesn’t come cheap, and it doesn’t come easy. You have to work to get it and you have to deserve it. Defense counsel said several things during his closing argument, but one of them I really have to take exception to is when he told you that in looking at these issues it really wasn’t important to consider the kind of man Mark Alexander was.

The Apostle Paul writes in Galatians, “God is not mocked: for whatsoever a man soweth, that shall he also reap.” In Paul’s other letters, he tells us that God rewards us on the basis of our works.

How much can you learn about a man in three weeks? More than many of us thought we could. We know Mark Alexander. The man who would catch a sparrow, make a waitress laugh, help the stranger whose car broke down on the side of the road, lend a helping hand to coworkers when they couldn’t find the answer in the books or the manuals. The big man who stood six feet four but was never so tall he couldn’t reach down to pick up the small child or the one whom age had made frail or weakened.

You have two doctors who get an exclusive contract with one of these drive-through surgery centers. We hear how they operate. Day surgery. They give seven thousand anesthesias a year. They charged seven thousand patients for giving them anesthesia in 1997. They don’t give the patients the anesthesia. They turn it over to the CRNAs. But they charge seven thousand patients a year for anesthesia.

289

Nurse Cernosek works there off and on for seventeen years part- time. And during that time, they say there’s no indication she ever does anything that would indicate that there’s anything wrong with her abilities. We’ve seen her testify. She was unfamiliar with the equipment. She didn’t know whether the alarms on the monitors were on or off. She does not know the basics of anesthesia.

Mark and Lisa go to TOPS. Mark will have surgery on his shoulder. Day surgery. He will be operated on and Lisa will be driving him home about noon and he’ll be back at work on Monday. They meet Dr. Crowder. Dr. Crowder says, “I’m your anesthesiologist. I’ll be giving you your anesthesia today.” But she knows, she knows that they will take Mark back behind the operating room doors and she won’t put the tube down. She won’t be there for the anesthesia. Nurse Cernosek will. A stranger, someone Mark never met. A man like Mark deserves better than that. The way he lived his life, he deserved better than that.

They wheel Mark through the wide doors that go to the operating rooms. It’s cooler back here and smells of alcohol, disinfectant, iodine, and chloroform. They take Mark to OR 6. Nurse Cernosek puts down the tube. The defense says nobody knows how deep the tube is. There’s all kinds of factors here. We know that you put down the tube, you put the patient on the side, you raise their arm—all this can cause the tube to displace—to go deeper. But Nurse Cernosek does all of that. A stranger intubates Mark. Mark deserved better than that.

After they get Mark on his side, they run the esophageal stethoscope, which is supposed to be down about this far—think about that—in the esophagus, just down where you can measure the temperature. And she runs it—Nurse Cernosek runs it all the way down into his lung. We know that, we all saw the X-ray. Mark Alexander deserved better than that.

Toward the end of the surgery, Nurse Cernosek is up under the drapes. Dr.Stuart says, “What’s going on. Is there a problem?”

Nurse Cernosek says, “I’m not getting air in one lung.” She’s up under the drapes. Dr. Stuart stops operating. They turn Mark on his

290

back. They pull off the surgical drapes. Mark is blue all over. His face, his shoulders, his upper body, his thighs. Dr. Crowder comes back to the operating room. Dr. Battaglia comes in the operating room. They give him heart-starting drugs, they electroshock his heart, they get his heart started again, but Mark is brain damaged. They transfer him across the street to Houston Northwest Hospital. Then they tell the technicians and nurses in the operating room, “Don’t talk to anyone about what went on here.”

This family deserved better than that.

Mark dies two weeks later in Methodist Hospital. The family hires us to find out what happened. “Do whatever you need to do to get the truth.”

The defense starts coming up with their theories. One of them is Mark Alexander had a bad heart—a diseased heart. You’ve heard the evidence. This is what they did. After the original autopsy is done, the EKGs before and after the surgery are all normal, no one suggests he has any heart problems. The original autopsies don’t. No indication of any heart problems.

They get a court order. They cut into Mark’s heart and get sixty slides. They don’t find what they need; and so they go back and they cut 260 more times to, in the words of their expert, if we just keep looking, maybe we’ll come up with something.

This family deserves better than that. This family deserves better than that. And most of all, most of all, this family deserves the truth.

Some of you have read Robert Fulghum’s book, All I Really Need to Know I Learned in Kindergarten. Fulghum makes the point that the basic lessons we all need to know and remember about how to get along with each other are things we learned in the sandbox and Sunday school and kindergarten. One of his basic rules is, “When you hurt somebody, say you’re sorry.”

These folks don’t want to be here. If Vernon or Ruby or Lisa could stand before you right now, they would tell you there’s a thousand

291

places they’d rather be. They’d rather be up at Marble Falls, working on that old truck with Mark. They’d rather be out sitting around the picnic table with the family. There’s a thousand places they’d rather be. There’s a thousand places in the last two years they’d rather be. They didn’t want to be at Houston Northwest Hospital hoping for the best. They didn’t want to be at Methodist Hospital living there for two weeks knowing that the worst was inevitable. There’s a thousand places they’d rather be now. But they’re in this courtroom, the last place they want to be.

Justice being imperfect as it is, you know what they want? You know what they would say that they would like to have? They’d like to tell you we want specific performance. That’s what we want. We want specific performance as the law permits, open the back of that courtroom door and let Mark walk through it.

They’d say we want some injunctive relief. We want the Court to enjoin these people and tell them, you will tell people when nurses are going to give anesthesia. You will introduce them. There won’t be anesthesia by strangers anymore at TOPS. Patients will know who’s giving anesthesia.

And you will be careful and you will evaluate people and you will train them and you will turn the alarms on. You will turn the alarms on the anesthesia monitors at TOPS because they help warn when patients are in trouble. It’s a safety feature. The defense still has no explanation for why the alarms didn’t go off when Mark’s heart stopped. But I know why, and so do you. Dr. Crowder turned them off when Nurse Cernosek called her back because she didn’t understand the equipment.

You know, when—when they wheel our loved ones back behind those doors, we’ve all—if we haven’t had this experience, most of us probably will—we expect the people, the anesthesiologists, to be vigilant, to be careful, to be watchful. If something goes wrong, we expect them to attend to it. And we expect to know who’s back there, who is responsible for us.

They wheel Mark back. And when they do, they don’t have just Mark Alexander on that gurney, they have this family’s hopes and dreams.

292

They wheel him into a Bermuda Triangle—a Bermuda Triangle. Think about it. All those hopes, all those dreams disappear into a black hole.

When they turn Mark over, he’s blue. He’s blue. They don’t dispute that. He’s blue. The defense says, well, the CPR was done timely. Well, isn’t it interesting that of all the people that were there during the surgery, none participated in the resuscitation? Of all those that were there at the time of the arrest, not a single one of them can say they helped in the resuscitation. Resuscitation is all done by people who were—had to come in. More strangers. Mark Alexander deserved better than that.

You would think with a medical catastrophe like this that a thousand ships would have been launched to figure out what happened. But they were operating in that operating room using the same equipment, the same monitors, the same anesthesia equipment an hour later.

Something like this happens to you and you have to start digging hard. How did this ship get lost out there in the fog? What can we get to help us tell how and where the ship was lost, because the defendants are going to say, gee, unless you can show us the exact longitude and the exact latitude where that ship is lost, we have no responsibility. You’ve heard that. Show us exactly the minute, the degree, the instant. And so you heard, with some difficulty, we got the memory strip. We got what they had pulled out of the machine and put in Dr. Battaglia’s drawer. We didn’t have it for a long time, but we got it.

The defense wants to debate this family over the difference in the time on the clock in the anesthesia monitor and the clock on the wall in the operating room. Everyone agrees they do not correspond. There is a time difference between the two clocks. The defense wants to say that that difference was ten to thirteen minutes. They need to say that because if it was a ten-minute difference, then resuscitation efforts began timely. On the other hand, if there was an eighteen or twenty-minute difference, then Mark lay on the operating table without a heartbeat for ten minutes and no one did anything about it. Nurse Cernosek was asleep at the helm.

293

We know it was a twenty-minute difference because the first blood pressure they obtained after resuscitation was eighty-eight over sixty- two. That’s an unusual blood pressure. We don’t find it anywhere else in these records.

And if you line that up, eighty-eight over sixty-two, and say, well, they could not write it down until it showed up on the monitor, you will see it lines up exactly like this. There’s not any ten or thirteen-minute difference like the defense experts claimed. It’s more like a twenty- minute difference between the memory tape and the anesthesia records (using “slide rule” exhibit prepared to compare memory strip with anesthesia and code records).

Now, what you will find when you line it up is Mark was lost in that Bermuda Triangle. It’s true. That’s the blood pressure he went in with. This is his heart rate.

That’s the signals he was sending out that he was healthy (referring to metronome beats consistent with beginning heart rate).

This is when he started sending out an SOS. This is what the SOS signals sounded like that are on the tape (metronome used to illustrate heart rate). Those are the SOS signals. You heard the experts. Of course, Nurse Cernosek says, unless it gets below forty, below forty, she does not worry. There is no problem.

But if somebody back in the jury room says, well, maybe that’s not necessary. Maybe the kind of care that Dr. Kirby and Dr. Sheinbaum and Dr. Fromm told us about is a little high. Maybe we ought to settle. Maybe we ought to bottom-fish like the defense said and get down there on the bottom and pick out what gets by. Ask them to play this minute and a half of tape that was done at Methodist Hospital (video showing Mark Alexander in coma and on life support). Ask them to look at that one more time. When somebody starts saying, well, a lesser degree of medical care will get by, consider what that lesser- degree standard of anesthesia care leaves in its wake.

This family deserved better than that.

294

Now, we hear that, well, after all, Nurse Cernosek got a check from TOPS and, therefore, we’re not responsible for her. You heard the testimony from Becky Lee. It was by video and I know it was about a week ago about the control these men, Dr. Battaglia and Dr. Polk, exercise over the CRNAs.

Some of you on this jury are old enough to remember Harry Truman. He had a sign on his desk that said, “The buck stops here.” Because President Truman was the kind of man that always accepted responsibility. He wouldn’t duck it. I think Dr. Battaglia and Dr. Polk must have a sign on their desk that says, “The buck comes here. But not the responsibility.” That’s their position in this case.

I want to talk to you about percentage of negligence because you’re going to have to decide and write some percentages down and there’s going to be somebody that says, well, if Nurse Cernosek was at fault then we ought to put most of the percentage on her.

Let me suggest this to you: when they sailed that ship into that Bermuda Triangle into that fog and lost it, they had somebody at the helm. It was Nurse Cernosek. She was asleep at that helm. But if we entrust a precious cargo to somebody and they sail off into a fog, do we blame the lowly helmsman at the wheel? Is that the person we really blame?

Or do we blame the owners of the company who said they’d take good care of our cargo? Or do we blame the captain who’s supposed to train the helmsman? Do we blame the first officer who was on the bridge and said, well, I’ll just go down and have a cup of coffee for an hour while we sail into the fog?

Don’t be misled. Don’t get off on what the defense hopes that you will do in this case. The defense brings you a truckload, a literal truckload, of junk science based on guesses and speculation and selective disregard of the facts and accept everything Nurse Cernosek said and ignore everything else anybody in the operating room saw. They do these cuts. And here’s the interesting thing: they cut into Mark’s heart some four hundred times. And I’ll be honest with you, they could have cut a thousand times, they could have cut two thousand times, and they would have never found what was in his

295 heart that really counted because they can’t see it. They’ll never be able to see it.

But they cut into his heart. They get a court order, and they cut into it. They get another court order. They cut into it. Because you see, they want Jack Titus, who is the renowned cardiology pathologist, to look at these slides and come in and say, well, we didn’t suffocate him. He had a bad heart.

But Dr. Titus wouldn’t go along with him (videotape excerpt played).

Q. You indicated that the microscopic changes you saw in the left bundle branch were a definite abnormality, and that if that were the extent of the fibrosis, you would not expect the patient to have a complete heart block or even a complete left bundle block on an electrocardiograph study.

A. That is correct. That’s what I said. I said repeatedly I did not find complete interruption in the left bundles, and I only found a minor of the right to look at, so I can’t comment on that, but just based upon my microscopic findings, as I’ve said several times this afternoon, and I opined that this patient should not have had complete heart block whether he did not.

Q. The heart can have significant tissue abnormalities that can be seen on autopsies with a microscope and yet not be severe enough to cause the pump to stop working, that is a true statement?

A. Yeah, that could be.

Q. Well, let’s take, if I suffocated, if you knew by history that somebody put a plastic bag over my head and suffocated me, you would not attribute my death to microscopic changes, would you?

A. No, I would not. (Videotape concluded.)

296

Let’s take this load of junk science the defendants’ hired experts dumped into this courtroom and do the right thing by it. Let’s take the molded idea that it was the surgeon’s Epinephrine wash that explains why Mark was blue. Let’s take the soured idea that Dr. Stuart caused a vagal response by tugging on the suture and that caused Mark’s arrest. Let’s take the rancid idea of microscopic changes in the heart, and let’s put them all in a big bag. And let’s carry them off somewhere far away from that hallowed ground that Mark is buried in, the junk science graveyard, and let’s dump them out there and give this family what they deserve.

How many times have you heard this statement: someone will have to get hurt before somebody does something about this. How many times have you heard that? Or, why doesn’t somebody do something about that?

There are always those who excuse misadventures that claim lives, saying, “Money can’t bring Mark Alexander back so what good will money damages do?”

This is your opportunity to say something about the kind of medical care we expect. We hold people accountable. We hold people accountable so they will act responsibly.

You know, if Mark was making a million dollars a year, laying off people to boost up company profits, we would not question that he was a valuable person. If he was making a million dollars a year with some kind of questionable business practice and abusing people, we wouldn’t question this family’s right to substantial damages.

The courtroom is a magical place. There is no other place like an American courtroom. It is the one place where the ordinary citizen can stand up and say, “These are my values. This is the way things ought to be.”

People like Lisa, Vernon, Ruby, and each of you don’t have access to the high-priced lawyers and lobbyists who meet in the dark halls in Austin and Washington. The only place we have to be truly heard is in a courtroom.

297 A lot of people think that in many ways our country has gotten off on the wrong track. We place a greater premium on wealth than we do integrity. We measure people by the assets in their balance sheet rather than the good they wrote in the Book of Life. The businessman who always tells the truth about his product, always shoots straight, doesn’t hide anything by what he says or doesn’t say is unlikely today to be much of a success. But if he puffs, distorts, and beguiles, he can be successful. It’s a curious thing the way we look at people. The schoolteacher, dedicated to students—maybe she’s worth a little less because she doesn’t earn as much. Mark was earning $55,000 a year. But you’ve heard well, you know, the loss can’t be great. Not to those who measure a man’s heart by the width of his wallet.

But you know, for most of us, what gives us our pride is our family, isn’t it? Isn’t it our family that we take pride in? There are no human appraisers.

And I’m never ashamed—never be ashamed to ask for the kind of money we’ve asked for in this case. The parents, now in their seventies, deserve the half million dollars each we’ve asked for. This widow deserves the three-and-a-half million dollars in damages to repay for her loss. Parents like Vernon and Ruby planted the seeds of mercy, hope, love, and charity in Mark. Lisa planted the seeds of fidelity, commitment, and compassion. What was this family’s treasure worth? All we can ask is that for once someone gives Mark and his family what they truly deserve.

Thank you.

298

On November 4, 1999, the jury returned its verdict against the defendants and awarded Mark’s wife, Lisa, and his parents, James and Ruby Alexander, $4 million dollars in damages. During the trial, the hospital and CRNA settled. After the verdict, Dr. Crowder settled. The professional associations of Dr. Battaglia and Dr. Polk appealed. The court of appeals affirmed. Battaglia v. Alexander, 93 S.W.3d 132 (Tex. App.—Houston [14th Dist.] 2002). On review, the Supreme Court of Texas affirmed in part and reversed in part, 177 S.W.3d 893 (Tex. 2005), reversing only on the issue of how to calculate the prejudgment interest on the damages awarded. In one form or another, the family recovered the full amount of the damages awarded by the jury.

Even if the tragedy of Joan’s death had not coincided with the Alexander case, it would still be my most memorable trial. It was the last case my son and I tried together.

Now looking back over my career as a trial lawyer who has been intimately involved with the misfortunes of others—death, brain damage, paralysis—and has fought for those wrecked by tribulation and isolated by a cherished loss should be strong enough to handle a personal tragedy. I wasn’t. Joan was the love of my life.

She was a quiet person who preferred to listen to others rather than dominate a conversation. Picking up the legal jargon, her common expression was, “I just want to be second chair”. She never forgot my birthday and always remembered my sons at Christmas. She enjoyed any celebration, especially the firm dinners we held following a successful verdict or settlement. Even when my trial schedule kept us apart, once I became available she was always there for me.

While Joan was not yet 50, her death came as no surprise. I had known this day was coming for nine months. Her oncological surgeon had predicted it the day of her surgery. When I asked him what we could do, he said, “Fill her days with all the happiness you can find.” We spent time traveling, enjoying group and private dinners, and attending upscale functions. Toward the end I witnessed the decline in body and spirit leading up to her final hospital stay where beeping monitors, draining catheters, and multiple IVs were her constant companions. After her passing, I felt as if a train that I had had hit me

299 head-on. It was a disaster that could not be fended off, not by me, nor more importantly, by Joan.

I had represented clients who had lost children, spouses, parents, or romantic partners. I had tried to understand their grief, their sorrow, their loss. I know now I had no idea. Try as I might, Joan’s death taught me that my imagination could not reach deep enough to experience the real thing.

Joan’s death brought about truly unrequited love. Joan had wanted to marry, but still aching from a failed marriage, I didn’t want to risk failure a second time. Most of us have had the experience of missing opportunities because of bad past experiences, but as time passed we regretted our decision. With me it was only a short time after Joan died. The more time passed, the more I missed her. The more time passed, the more I regretted not marrying her. I became so messed up, unable to function or process, that my son told me I had to get counseling. I did. Even though I had managed to stay composed for Joan’s funeral, my grief sessions were always filled with tears—tears of guilt, tears of failure, and tears of loss.

In the years following Joan’s passing, I struggled with some rebound relationships. They never lasted long. I went out with some really nice ladies, but nothing seemed to click. And then I met Patty. It wasn’t very long after Joan died that I developed some serious medical issues and was hospitalized on multiple occasions. These difficult hospitalizations lead me to step away from the courtroom. Patty came into my life at just the right time and filled that hole in my heart. She led me down the return path to happiness. Patty and I have now been married twelve years. Through all my multiple hospitalizations, she has been with me. Together we have met head-on some of the most difficult of life’s challenges. She has been my dedicated companion and a robust supporter of my teaching career. Maybe the loss of Joan taught me to appreciate the gifts God gives me and treasure those gifts every day. One of those gifts is my wife. The other one is the opportunity to teach and prepare law students for their first day when they will announce “ready” for trial.

I hope these days never end.

300 EPILOGUE

It seems as if it was only last week I was a fledgling, wide-eyed lawyer beginning my career with Fulbright and Jaworski. The business suit I was wearing I had just bought at Bonds Men’s Clothiers on Main Street, known for their modest prices and the fact that every suit came with a vest and two pairs of slacks.

A few days after reporting for work one of the more senior lawyers asked me to accompany him to trial. I was sporting my vest and new suit. He took one look at me and said, “Take off that vest. You can’t go to court looking like a big-firm, insurance lawyer”. That was the first step in my learning the importance of looking and sounding like a lawyer—the right kind of lawyer.

My assigned office was a 14x16’ windowless room. Furnishings were a humble wooden desk on which sat a telephone and Dictaphone, a swivel chair, and two gratuitous chairs for “visitors”. I was given my first business cards and I stocked my desk with legal pads and ballpoint pens. I knew where the library was because I had worked there the previous summer before leaving for active duty in the reserves. All legal research was from the books—the digests for direction and the Southwestern Reporters for published appellate decisions. Once you found the decisions you planned to use in your brief, you piled the Southwestern Reporters and other books that would be referenced in your brief on a rolling library cart and took it either to a small dictating room or to your office. You spoke into a “Dictaphone” that recorded onto a soft vinyl cylinder called, because of its shape, a belt. The secretary had a transcribing machine and would type the dictation on one of the early forms of electric typewriter. Carbons were almost always required. Most correspondence was prepared this way, although some of the older lawyers had secretaries proficient in shorthand and dictated directly to the secretary.

I didn’t spend much time those first few months in my office. I toiled like a waif in Oliver Twist doing legal research in the law library. It was only later when I got my own docket that I learned an important difference that separates the brief writer from the trial lawyer. It is similar to the difference between someone operating the ordinance depot and a marine in a rifle company. It is reflection versus response. The calm environment of brief writing gives time for reflection and research. In trial, evidence issues often arise unexpectedly, which is why I continuously studied the rules of evidence as part of the first years of my “apprenticeship”. Trial lawyers in those days began their careers studying the works of two legendary legal scholars, John Henry Wigmore and Charles T. McCormick. Texas did not codify our rules of evidence until 1983, relying on common-law case precedent until that time. After that, a trial advocate’s copy of the Texas Rules of Evidence was an essential in a lawyer’s briefcase like an extra box of ammunition in a Texas Ranger’s saddlebag.

While the codified rules and landmark treatises work well for an appellate lawyer, an essential for any Texas trial lawyer today is the recent work, FELTON’S TEXAS EVIDENCE LAW, organized by topic and annotated with the Texas Rules of Evidence and case authority. We had no book like this back in the 1960’s. If we did it would have been in my old belt leather briefcase I carried for sixty years.

Sixty years of trial practice brought me to the point where I thought a book such as this might be helpful to young lawyers and law students such as those in my storytelling class at the University of Houston Law Center. By sharing not only my trial experiences, but also parts of my personal life, I hoped that the youngest of our legal profession could aspire to pursuing and achieving success in the courtroom. Having a jury return a favorable verdict in a case in which you have spent months or years to develop, weeks in trial with little sleep, toiling in a courtroom with 12 people who began as strangers and with whom you now share a special bond, to now find they shared your ideals and saw the facts as you did creates a truly magical moment in your life. It is one that only other lawyers who have had that same experience can share.

The other lesson I hoped to share with younger advocates is that professional failures and disappointments are seldom fatal. If you are a plaintiffs’ lawyer, unlike defense lawyers, you will only pursue those causes you chose to prosecute. In those cases you decide to pursue you will invest your resources of time and treasure to prepare, develop, and prosecute. Even if done fully and thoroughly you will still experience disappointment, frustration, and failure, either in trial or at the appellate level. Nothing hurts more than losing a case we thought we should have won. Every trial lawyer has returned to his or her office looking and feeling like Jess Willard in 1919 after his brutal heavy weight beating by Jack Dempsey. But, all is not

302 lost if you learned something. Most trial lawyers will tell you they learned more from their losses than they did from their courtroom triumphs.

Few trial lawyers have experienced the degree of professional and personal lows of Abraham Lincoln. At one point during the Civil War when it appeared the Confederacy might prevail, our 16th President recounted a time an Eastern monarch charged his wise men to invent a sentence, to be ever in view, which would be true and appropriate in all times and all situations. They gave the potentate this sentence:

This too shall pass.

There have been more times than I care to recall when I had to fall back on the wise men’s apothegm. Then again, maybe it is because the agony of defeat is so deep that the thrill of victory tastes so sweet.

Before every semester I give my students a written questionnaire in an effort to identify their interests and career goals. The most common trend I find in exploring student ambition is a desire to “make a positive difference” in their community. That is a truly worthy goal for any young (or older) lawyer, and one that fits the legal profession.

Many join the legal profession because they want to help make the world a better place. Whether you’re interested in family law, environmental law, civil rights, business law, personal injury, immigration, or military law, there are many opportunities to use legal skills to help someone. Other lawyers find great fulfillment from walking into a courtroom and insisting on justice for the wrongfully accused. Lawyers are in a position to help protect the voiceless—the hurt and the wounded, children, animals, the planet.

Lawyers have a chance to further the public good and have an impact on the way the world runs. Many in the legal profession perform pro-bono work during their career. Our State Bar of Texas encourages this to help under- served parts of the population (children, victims of abuse, elderly, the marginalized, and low-income clients), who might not otherwise be able to afford the services of a lawyer. These are the lawyers who, like in the words of the 1874 gospel hymn by Knowles Shaw, Bringing in the Sheaves, are: “Sowing seeds of kindness”.

303 Attorneys have stood as pillars at the center of society for centuries. They’re in a unique position to affect societal change as lawmakers and thought leaders. They write the laws, rule the courts, and hold influential positions in government. They’re in a position to impact top policymakers and leaders and to affect change around the globe. Because we have such influence many disparage us as if those learned in the law are somehow disqualified from shaping and forming the rules for a stable and peaceful society.

From the beginning of our Republic, law was one of the three true professions, along with medical doctors and clergy. Everything else was just a business or trade, even though they like to call themselves professionals. Two hundred years ago Alexis de Tocqueville observed that lawyers were the American aristocracy.

Even before I was in college, I considered the law to be a “calling.” Many, like me, knew they wanted to be a lawyer before they ever left a footprint in the halls of one of our law schools. I believe that one must be truly inspired by a higher ideal and “called” to the profession, just like what inspires people of the cloth to serve God. The inspiration is not monetary reward. In fact, when I hear one of my students say that money is why they want to be a lawyer, I am perplexed and disappointed. Financial reward for a lawyer comes from working hard, working smart, and being determined. Doing that requires dedication to a cause or to a client. Absent that, it is hard to see how someone will last long or do well in the legal profession. The emptiness of objectives and the demands of the law practice pile up over time, leaving a burned out shell marked only by yellowed certificates, an ever-aging law degree, and a piece of paper they call a license issued by the State Bar.

But those lawyers constantly rewarded by making others’ lives better never lose their zeal. They know they have the ability to affect society, regardless of reward. The law affects everyone, everyday. It takes a special type of person to put in the long hours filled with stress that is sometimes unrewarded to continue their career. But these are exactly the kind of people we need in the legal profession today. And, from my experience, it is these men and women who are happiest and will find themselves content and fulfilled when they receive their “Final Verdict.”

304 I hope you didn’t enter the legal profession to get rich. I hope you were “called” to become a lawyer to help people, to speak for those that can’t, to be a voice for the voiceless, and to protect people’s rights so they don’t get screwed. Never lose sight of your calling. You are needed. You can’t help everyone. But for those you can, you make all the difference in the world.

ACKNOWLDGEMENT

This book would not have been possible without the invaluable assistance I received during every stage of composition and editing by Linda and Dale Felton, two of the finest and most gifted legal writers I know.

305