Trial Day 7: showing not just telling medical damages
Trial day 7
Part of a trial lawyer’s worry – is the concern that without a clear cut case, pounding on damages may be too much. Perhaps jurors will be pushed over the edge into voting against liability. But while looking at the dynamics from all directions is always a worthy exercise, we are in trial and there is no time to be faint of heart.
Mr. P went through torture ending in death. We must own that. Not shy away from it. At the same time we should be guided by principles of compassion, decency for the survivors’ sake, and overall humanity in the presentation.
Heed David Ball’s wise teachings. Trial is for the purpose of obtaining damages. Even in a disputed liability case – if you spend all your time fighting over fault and win that but get nothing for damages then you have failed.
There is a slow building of damages in this case. 15 big boards are waiting. With their backs to the jury. Leaning against the side wall. As we get ready for the morning’s first witness, Blake objects to my intended use of Ex 494 which is a powerpoint illustration of the progression of injury and invasive medical procedures. This was done by medical illustrator Aaron Weholt. Claims it is cumulative and prejudicial, and too scary for the defense. Well, he doesn’t say the last part. But that’s what’s really going thru his mind. Denied says Judge P. Then Mark starts talking about the boards and the multiple doctors from Harborview as being cumulative. Judge says – well up to now she hasn’t shown any of those pictures and we are getting ready to hear from the first doctor so can’t rule on that yet. Blake is foiled again.
Dr. Sam Mandell is out in the hall. While escorting him in say. You are going to talk about all the procedures and presentation of the patient. I’m going to have Dr. Gibran talk about pain, nursing procedures, and end of life tomorrow. This is how will prevent claims of cumulative testimony.
Dr. Mandell is a personable smiling crush-worthy doctor. Whips on mask in half a second. Beams at the jury as they enter. We begin with this:
Dr. aside from the medical records do you have independent recollection of this case. Yes, he says. I have used Mr. P’s case as a teaching tool for residents and doctors for the past 8 years. Then he states his educational history.
Have placed two easels directly in front of the podium (which I only stand behind for zoom witnesses). . Doctors in burn units take the photos. Here they are pre-debridement. And then post debridement showing the escharotomies.
The boards are 4’x6’. As big as we can get them. But still a quarter of the size of the big hanging screen. In addition, Dr. Mann is now outfitted with a cordless microphone and a yard length pointer. He is going to teach the jury as he’s been teaching residents and fellows these past 8 years.
The process goes like this. He calls out a number. Krysta has placed them in order. Ray and I walk over to the wall. Pull out the poster. Walk it forward. Flip it around. Rest it on the dual easels. Dr. Mandell explains what we are seeing. It is fascinating in terms of learning about not just Mr. P’s body but all of our bodies. There is also blood and body fluid and terrible details.
We take down the photo. Ray puts it back. I get the next photo. Joe comes to help and we put it up. A production line. This is not awkward or disruptive. We are in an efficient flow. It also is the opposite of the deadened covid jury trial spectacle have previously seen played out. Where voices drop into the carpet. You can’t tell who’s speaking. And there is no movement. Here we are kinetic. Visual. While we are moving the boards around. The screen has the last slide still up on it which involves the use of physical restraints on Mr. P. The whiteboard still has the chart of injury levels. And the witness is standing front and center instead of off to the side huddled behind a table covered with a box of clear masks.
There are no theatrics from me. The doctor is clinical but he is also a great communicator. Every part of Mr. P has been burned except his head, feet and a ruler sized patch where his waistband/belt had been. Points out the blisters. The drainage of fluid that soaks the sheets when those blisters break. The escharotomy photos show the fat layer under the dermis. He uses the analogy of a sausage being cooked. The outer skin becoming hard. Leather like. Even as the under layer continues to cook and expand. This is why they need to perform the cuts. When asked about the swelling he says that the way they describe the phenomena in the hospital is like the tire commercial. The Michelin Man.
Am not sure how long this all takes. Maybe one minute per photo. The last one is removed from the easel. Sense the jury’s relief. Turn back to the PPT charts. Continue forward. All the way to Mr. P’s demise.
Blake crosses Dr. M. And it is bad. The first ten questions not sure if he is for the plaintiff after all or what. Things like – how big is the department now. How big was it then. How wonderful and special is the HMC burn unit.
Sit there still as a bug in a rug.
Then he gets to what he wants to do which is to minimize pain. But I’d drawn a line around that not because Dr. Mandell can’t do a great job. But because want to bring in another HMC doctor to spend more time on the subject tomorrow. Object as beyond the scope. Denied. Blake pulls up pain ratings. Three more times I end up objecting. All overruled. But don’t want to have Mark stuff cumulative back in my face tomorrow. Even so, his is a puny effort. The jury was probably just exposed to the worst real life injury they have ever seen. And he wants to talk about pain numbers on a chart.
Morning break. Walk Dr. Mandell outside after the jury exits. Thank him. He says – would it be okay if I went and talked to the family. Let me repeat. Swoon worthy.
Our next witness has arrived. Judge walks in. We have a problem with Juror 12. His girlfriend was just in an accident. Calls him in. Shaking and tearful. GF’s okay but it was a rollover. He leaves. Judge tells us we will adjourn for the rest of the day. Calls in the remaining jurors to advise. They shake their heads in understanding. Leave. It is 11:30. Defense is clearly hoping that 12 won’t return. If he’s that shaken up about his physically uninjured GF, how is that going to play out here.
Drive over bridge in rain. Pick up Nala. Do a teams meeting with Krysta. Call Joe, Ray and Krysta again. Continue working. Court texts us. Juror 12 will return tomorrow. Then the sun comes out.
Photo: Trial day 7