The Case We Had to Take: A $6.5M Med Mal Win, with Meryl Poulin and Ben Gideon

Welcome to Elawvate, the

podcast where trial lawyers,

Ben Gideon and Rahul Ravaputi talk

about the real issues that come with the

fight for justice. So let's

find inspiration in the wins.

Let's learn from the

losses. But most of all,

let's keep learning and getting better

and keep getting back in the ring.

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Hey, it's Ben.

Rahul and I started this podcast because

we love hanging out with fellow trial

lawyers and sharing ideas

that can make us all better.

And both of our firms also regularly

collaborate with other lawyers across the

countries in cases where we can add value.

If you're interested in collaboration or

even if you just have a case or an idea

that you want to bounce

off us or brainstorm,

Rahul and I are going to be hosting

confidential case workshops the first

Wednesday of each month.

So here's how it works.

If you have a case or an idea that you

want to talk about or brainstorm with us,

just send me an email to ben@elawvate.net,

L-A-W-V-A-T-E. Net,

or go online to elawvate.net and

submit a case workshop request.

We will schedule you for a confidential

30-minute Zoom meeting where we can talk

about your case to see if we can help.

If you feel like there would be good

value in collaborating on the case

further, we can talk about that. If not,

that's okay too.

We enjoy helping other trial

lawyers because we know

someday you'd be willing to

do the same for us if we

need your help. So again,

if you're interested in

workshopping your case with us,

just send an email to ben@elawvate.net

or fill out a case workshop request at

elevate.net and Rahul and I will look

forward to chatting with you soon.

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Welcome to the Elawvate

Podcast. I'm Rahul Ravipudi.

I'm Ben Gideon. How you doing, Rahul?

Ben, I'm doing great.

Feel like way too long since you and I

have gotten to hang out together on a

podcast and I feel like we could spend

a whole day just catching up together on

everything we've missed out

on in each other's lives,

but I just want to talk briefly

about Mike Vrabel. I mean, you guys.

Oh gosh. You could sideswipe me

without one first thing. Hey,

I'm sorry the bills haven't been

able to get to a Super Bowl. Oh,

that reminds me. I still owe

you the payment on the bet.

I mean, I didn't want to bring it up.

I did text you asking you for the date

that you'd like the lobsters delivered

and you were so busy with your social

media trial. I guess you didn't respond.

Okay. I'll make sure to do that.

You can't really send 12 live lobsters

to someone who's not expecting them

because that doesn't end well.

No, that wouldn't play out right at all.

I don't think Smitha wants to deal

with 12 live lobsters without you being

around.

No, I'm definitely going to ...

Hey, speaking of that social media trial,

congratulations on the win and now you

guys are lining up next trial, right?

Yeah.

Next trial is July 27th in LA

Superior Court and we've got

the four defendants in the case,

Meta, Google, TikTok, and Snap.

And I'm really excited

about that one happening.

So how does that relate

to the first trial?

Will there be expected

to have the same ...

Obviously you have more defendants now

because the first case settled out with

what TikTok. So it's a more complex case.

Definitely.

And the intent of Judge Kool was to

have bellwethers when we have nine

of them, which the plaintiffs

come from have different issues.

Whether that's demographically

male, female, ages,

the types of injuries that are complained,

the types of usages that are at issue.

And so Kaylee is 20 years old now and

that was the first Bellwether trial

and now we're going to Russell,

who's 15 years old and male.

And so then there's different types of

injuries and issues that he's dealing

with.

And the hope is after we finish the nine

bellwethers that one after the other

that we have covered all of the

potential legal issues that Judge Kool

would need to rule on. And then she

describes that it'll be a trial in a box.

She can assign cases out to 20 courtrooms

and have them all going at the same

time until these cases are in a

position where they can resolve.

You expect to call some of the same

... Like Mark Zuckerberg, for instance,

he testified in the last trial.

Will he also testify in this trial?

He will. Zuckerberg will testify.

We'll have Evan Spiegel for Snap.

We'll have folks for TikTok and

folks for YouTube/Google as well.

So everybody's coming live.

How much would I have to pay you to

hire me to come out and do that cross?

Yeah, that's a lot of lobster,

Ben. That's a lot of lobster.

More lobster than I can afford, I'm sure.

Oh, well, I mean,

that's a perfect segue into this

winning streak you and Meryl are on.

Congratulations on ...

I don't think we've even had a chance

to catch up on your last verdict,

but we're going to talk today about your

most recent one in the town everybody

knows across the country, Bangor, Maine.

People know it as dairy because it's

the fictional town in Stephen King's

novel It novel and movie

and television series, It.

It takes place in Bangor, Maine.

Stephen King's hometown, by the way.

That's so crazy. And does it look

like dairy when you go there?

Is there anything, I don't

know, creepy about it?

It does. Yeah. I mean,

it's modeled on that.

So kind of has that vestiges of

an old New England town brick

buildings.

It's got the big river that runs down

the middle of it called the Conduskeg

River,

which is I think the river that all of

the kind of water systems that go through

the town of Dairy where the clown

hangs out underneath in the water,

in the sewers and so forth

is based on. So yeah, I mean,

would you recognize it if you just popped

in there and didn't know that that's

what it was based on? Probably

not. But once you know that,

you can see the similarities of it.

How's the courthouse over there?

Beautiful new courthouse. When

I started practicing in Maine,

it was still the old courthouse, which

is very dated and run down facility,

but they built a new courthouse about a

decade ago. So it's modern, it's nice.

It's a good place to try a case.

So Meryl,

great to see you and thank you for joining

us and congratulations on this really

amazing verdict. I've had a

lot of time to read about it.

Ben and I talk about this all the time,

but medical malpractice

cases and even the words,

all of the different types of diagnoses

and things that you have to deal with,

it just exceeds my knowledge

base. It seems so complicated,

but the way that you both were able

to simplify this case and really

drill down on the heart of the issues

is nothing short of a masterclas.

And so I'm really excited to talk to you

about all of this and congratulations

to you. And most importantly,

I'm so happy for your client in getting

this result and how it's changed his

life in the most significant of ways.

So tell us a little bit

about Travis and the case.

Yeah. I'll start just by talking about

the case a little bit. First of all,

thanks, Rahul. It's good to see you

and I'm really happy to be here.

I'm also happy that you didn't

ask me about Mike Vrabel,

although I have a few thoughts of my own,

but we'll focus on the

important stuff here.

So the events of this case

took place in August of 2021,

just about five years before

we got to trial on the case.

It involved a young man, our client,

who's 36 years old at the time, Travis.

He was taking out the trash one

morning and he felt a pop in his back

and he immediately felt the worst pain

of his life. And as the day went on,

he started to develop

more concerning symptoms,

numbness and tingling down his legs,

weakness in his legs and he

stopped feeling the urge to

urinate,

which prompted him to go to the emergency

department right away. He got to the

emergency department at Eastern Maine

Medical Center in Bangor around shortly

after five o'clock that night.

Travis was someone who'd dealt

with some back pain and some

tingling or sciatic pain down his

legs in the past, but this was very,

very different.

Now he's got weakness in his legs so

bad that he can't stand up and he's also

can't feel the urge to urinate,

which is a classic sign of

the problem that he had,

which I'll get to in a minute,

but he gets to the hospital

and he reports his symptoms.

The hospital assigns him like

a priority level of patient,

meaning he's a type of patient

with problems that need

to be seen by a doctor as

soon as possible. About an hour goes

by, he's not seen by a doctor. Instead,

he's seen by a physician assistant who

notes the same problems and orders an MRI

for him based upon his symptoms. And

the reason she writes in the record that

she orders the MRI is to evaluate for

something called cauda equina syndrome.

I know lots of trial lawyers know

what cauda equina syndrome is,

but it's a condition where the nerves

at the base of the spinal cord become

compressed by something.

Usually that's from a slipped or

a herniated disc in the low back,

but that's what was going on for Travis

and the MRI came back and it showed it.

That MRI came back around

7:40 in the evening,

but because the physician assistant

who ordered it went off shift and never

handed Travis off to another provider,

that MRI comes back and Travis is waiting

around the emergency department for

another almost four hours

before he's seen by a doctor.

So he arrives at 5:15.

He's got clear evidence clinically and

on imaging of cauda equina syndrome by

7:40 PM and he's not seen by

a doctor until 11:00 PM. By

the time that emergency department

doctor sees him at 11:00 PM, he's worse.

Now he's got new foot drop on the

right side and he's reporting that he's

had sensation changes in his testicles.

The doctor who sees him contacts

the on- call neurosurgeon and

reports the symptoms and says,

"This patient needs to be seen by

you by neurosurgery right away." The

neurosurgeon cut to the chase.

The neurosurgeon doesn't come until

the following morning. He says,

"Admit him to the hospital and keep

him NPO," and then just doesn't come

in to see him until the following morning.

So Travis waits overnight in the

hospital all while he's getting worse.

He continues to report symptoms.

He continues to report numbness and

tingling in his feet and in his legs.

He's catheterized shortly after

midnight because he was retaining

urine. And by the morning when

the neurosurgeon comes to see him,

Travis is like a full-blown

complete case of cauda equina

syndrome. The neurosurgeon decides

that he's going to operate but doesn't

actually schedule the operation

until 3:00 PM that afternoon.

And by that point, of course,

it's way too late to do anything

about Travis's condition and

he ends up paralyzed from it.

Today, Travis is 41 years old.

He cannot walk without the

assistance of braces and a walker.

Oftentimes he uses a wheelchair if he

needs to go longer distance or navigate

uneven terrain. He does not have normal

function of his bladder or his bowels,

so he's incontinent.

Listening to him talk about is a horribly

demeaning thing to have to experience

as a human being, as an adult human being.

He also permanently lost sexual function.

So he can't achieve an erection.

He can't ejaculate all things that are

just completely devastating to him.

There's a lot more that goes to the case

about the cast of characters and the

way they behave throughout the trial,

but those are things I

want Ben to talk about.

Taking a step back, if I understand a

little bit about Travis, who's what,

about 6'6", 350 pounds,

had some developmental or

learning delays, so neurodiverse,

but lived amazingly independent life,

had a girlfriend and was fishing, hiking,

doing all sorts of outdoor activities,

living his best life despite some of

his adversities and being a vulnerable

person prior to this paralysis.

Yeah.

He was completely independent before

this and now he's lost his independence.

He has to be cared for pretty much around

the clock because he has incontinence

in the middle of the night as accidents

needs to be cleaned up. But yeah,

I mean, to your point about

his life before all this,

he lived with chronic back pain

for quite a long time before this,

but that didn't affect his ability to do

all the things he wanted and needed to

do every day, lived by himself, had a

job where he took care of other people.

I mean, Travis graduated from

Bangor High School, 18 years old,

went right away into the

business that his parents owned,

which was owning several group homes

in the area. So he took his livelihood.

One of the things he loved the most was

being able to take care of other people.

And now, I mean,

one of the great tragedies of this

incident was that it put Travis in the

position of the people that

he once loved to care for.

It took someone who really felt proud

of being a caregiver and made him just

someone who always needed to receive

that care and couldn't give it anymore.

I mean,

he took care of his sister's children

all the time whenever he was needed.

He had a lot that he really loved about

his life and all that's been taken from

him.

So this case and the medical

malpractice claims that are being

brought,

this is a case about 10 hours of delayed

treatment or how many hours are we

talking about here?

I think it was from 5:15

PM to 3:00 PM the following

day. It's somewhere in

the 20 hour range or so.

So when you guys looked at

this case on the front end,

did you look at it and say,

this is a case where it's winnable

or it's obviously there was a wrong

and a permanent harm. And we'll talk

about all the wrongs in a moment,

but did you think that this was something

that you could accomplish what you

did?

Short answer, no. Yeah.

Just before we move on,

I just want to make one last point

about Travis. He's a very sweet guy.

You meet him, you fall in love with

him. He's just a really earnest,

good person who's overcome a

lot before all this and I think

speaks to his character,

somebody who easily could have given up

on himself because he has this fairly

severe developmental disabilities. I

mean, when you interact and talk to him,

you recognize right away that he has

challenges so it's quite obvious.

Merrill put him on during the trial.

It was just such a great moment because

what we were trying to accomplish was

just the jury to get to know him a little

bit and fall in love with him the way

we did when we first met him,

which is why we really wanted to take

the case despite the challenges that you

just alluded to,

Rahul. I remember meeting him with his

mom for the very first time at the Dunkin

Donuts in Bangor Main. And interestingly,

the defense lawyer who almost always is

hired as the first in for the defendant

we were suing, Eastern Maine,

came into the Dunkin Donuts during the

initial intake meeting I had with the

client in past, said hello to me.

Now he didn't end up getting hired

to defend the case. I don't know why,

but I just thought that was interesting.

Small town, of course. But Meryl,

maybe you could just talk about that

a little bit because there's a lot of

challenges in presenting someone who

has a difficult time communicating as

Travis does,

but yet wanting the jury to kind of get

a feel for who he was as a person and

get to know him and just

set the stage. Merrill,

he wasn't at the trial except

for the 45 minutes or so he

was there to testify. So the jury

hadn't met him before. During the break,

we helped him get up into the vicinity

of the courtroom and get into place.

He had his walker that could

be positioned as a bench chair

so it could be turned around

with the wheels locked out.

He could sit on the bench of the walker

and instead of trying to climb up onto

the witness stand,

we positioned him in the well of the

courtroom about five feet in front of the

jury box. And then instead of standing

at the podium or in the vicinity of that,

Meryl sat in a chair kind of

a Barbara Walters or Oprah

and conducted the examination in

a seated fashion as a conversation

feet in front of the

jury with Travis there.

And I thought that was

extremely effective. It still

wasn't easy because Travis,

you really have to prod him to get

anything meaningful out of him,

but maybe Meryl could just comment on

that a moment before we move on from

Travis.

And just curious, Meryl,

how did you decide that that's how you

wanted to examine him in front of the

jury? I'm so curious about that.

I wanted to ask you about that,

so I'm glad it's come up.

I love the job of preparing

and putting on a plaintiff in a

trial. It's always different because

people we represent in these cases,

over the years that the case goes on,

they look at it from this 30,000 foot

view and they see it as this process

that's going on with lawyers and doctors

and judges and they sort of remove

themselves from the process over all

those years and don't really see it as

their own.

And then all of a sudden their case gets

scheduled for trial and they have to

learn how to become a main character in

their own story after kind of removing

themselves from the picture.

And when I started to work with Travis

to get him ready to do this, I was like,

"Oh my God, this is really

going to be difficult because

at times he struggles to get things

straight. It wasn't going to be

possible to go through any

of the timeline with him.

We were really going to have to

just keep things as simple as,

what was your life like

before this happened to you?

And now what's your life like

since this has happened to you?

" But through that very simple frame,

we were able to talk a lot about his

life in a way that allowed people to

understand who Travis was and that his

life is drastically different now than it

was before. But as I met with

Travis leading up to the trial,

I would go up to his sister's house

and I would sit in her living room with

Travis there and we often needed to

have someone else around so that someone

from Travis's life who knew him

well could help translate things.

But one thing I really learned working

with him is that he has the ability to

talk about himself in a really

honest and authentic way. Not much.

He's very stoic and very

kind of one word answers,

but once he gets comfortable,

that's when he does the best, right?

I think that's true of anyone.

When they're comfortable,

that comes across in their body language

and their tone of voice and their

facial expressions,

but it also comes through in what

they say and what they don't say.

I realized that the best way to kind

of have that dynamic with Travis

would be to try to recreate those moments

where we could find that sitting in

his sister's living room, sitting

across from each other on the couch.

So when he came in and to the courtroom,

and I wasn't even sure that this was the

right way to do this until he arrived

to the courthouse that day,

largely because I wasn't sure of his

ability to get himself with his walker

through the well of the courtroom,

up the ramp to the witness chair,

into the witness chair with his walker

there and turning and pivoting. A lot of

it was born out of like a question

around physically could he navigate the

courtroom given the assistive devices

that he needs to use and his physical

ability.

So I thought it's probably going to make

sense to not force him to go through

that, to get him somewhere

short of the witness stand,

but still in an area where the

jury can see him and focus on him.

And then I realized if I'm standing

at the lectern and questioning him and

looking down at him, that's not really

going to make him comfortable either.

I just want to give them credit because

I'm sure they're going to listen to this

podcast,

but our legal assistant and paralegal

were there and I said to them during the

lunch break right before Travis

is about to testify, I said,

"I think I want to do this.

I want to question Travis seated on

his walker and I want to be seated just

across from him. Do you think that would

be ... What do you think about that?

" And they both went, "Oh

my God, you have to do it.

"That would be really intimate and that

would be a way for Travis to really show

his personality. And so I said to Ben,

I said, "I think we should do this.

" And he goes, "Yeah, do

it. It'll be different.

It'll break up the monotony

of how everyone has seen

everything so far." And so

Travis comes in and he turns and he

sits on his walker and we start the

examination and he did such

a fantastic job. I mean,

it's one of those moments where

when you're a trial lawyer,

you try to exert control over everything

because you just worry about everything

going wrong. And this was one

of those times where I knew

I cannot control this situation.

I cannot control this person.

I cannot control his narrative. I

cannot control how this is going to go.

There's no amount of preparing that's

going to make this what I want it to be.

And there was something about just

like letting go and letting it be.

I think that really allowed

it to be as authentic as

possible. I know that

sounds so painfully obvious,

but that is one of the things that we

lose sight of so easily doing this.

But I was just so proud

of him and everyone on our

team was and his family was.

He struggled at times. I needed to

ask him several leading

questions to say, "Travis,

wasn't this the case or don't you

remember this happening to kind of keep

him..." Because I knew

the longer we went on,

the more he was going to lose steam and

he was going to get things confused,

but for the most part he was just ...

And you could tell afterwards

he was so proud of himself

He just hadn't felt that good in so long

and that's such a wonderful thing to

see.

What were some of the things ...

A couple questions in two

totally different questions,

but did Travis address

his responses to you?

Was it really like a

one-on-one conversation or

was he looking at the jury at

all, mostly looking at you?

And then what were some of the most

striking pieces of testimony or the way

that things were messaged that

you feel hit with the jury?

I told Travis ahead of

doing the examination that

there are going to be times

when he's going to feel upset,

that I'm going to have to ask him some

questions that are going to upset him,

but that the important thing

is that he share his feelings.

And it is so hard to get people

to talk about their feelings,

even though that's what

this is about, right?

This is about how Travis feels because

this has happened to him and I started

to have to ask him questions about

what it feels like to not be able

to perform sexually despite

having a long-term girlfriend.

That's a difficult question optically

for me as a woman to ask a man in a

courtroom and it's uncomfortable.

His family members are there.

It's a horribly uncomfortable thing

for anyone to have to talk about in a

courtroom,

but he took his time with it and

he let himself get emotional. It

was just such an appropriate

level of emotion,

like seen and present

but not stifled either.

And he just said,

"I don't feel like a man anymore." And

I asked him about what it feels like to

not be able to work as a caregiver

anymore and what he used to

like the most about that.

And he choked up and he asked for a

minute and he took his time and you could

see the tears in his eyes and he said,

"I need a minute." And then he said,

"What I used to love the most was seeing

people smile." There were lots and

lots of moments like that where

he was able to say just enough for

people to understand just how

devastating this was for him.

It was just one of these things where

it's like he doesn't need to say that much

for people to understand

how painful it is for him.

And I will say after the exam and then

we took a break and the jury went out,

the court deputy came over and gave

Travis a big hug and this is the big

burly retired cop court deputy guy.

It takes a lot I think to phase

this guy. And then afterward,

multiple times he came up to me and said,

"Travis was just such a great guy."

It made an impact on him and since it

made an impact on him, I presume

it made an impact on everybody.

That's not something that happens

that often in my experience.

Did the defense even cross-examine him?

No.

That's the Martist move on their part.

I think so. Yeah.

So tell us about the liability

and causation parts of this,

because this sounds like a very difficult

one to illustrate to a jury how 20

hours can make such a big difference and

the missteps and missed opportunities

there. And the structure here in Maine,

you've got to tell everybody about this

panel that you have to present your case

to before you even get to

go to a jury. This is crazy.

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Yeah. So back to your original question

was, did we think this was a hard case?

We did think it was a hard case.

I think our motivation to do the case

came out of our initial love for the

client and wanting to find a

way, a path forward for him,

but it wasn't because we thought at the

outset that this was an easier slam dunk

case.

The cauda equina case is a common fact

pattern that lawyers who do medical

malpractice cases see a lot.

It's well recognized, I think,

in the field of medical malpractice

as a difficult to impossible type of

case to ever win.

And part of that is the medical literature

and kind of thinking around cauda

equina.

I often think it's sort of intentionally

designed this way by the neurosurgical

community,

but the medicine and standards

that apply are almost designed

to prevent the possibility of ever

having a case because the sort of common

theory that you hear from doctors

about cauda equina and based on

literature and studies is that

there's a 24 to 48 hour window

that a neurosurgeon has in order to

address acute cauda equina syndrome and

that as long as you operate

within that window, you've met,

this is their argument,

you've met standards of care.

And the problem is that within

that window,

a patient with acute cauda

equina is likely to progress

to at or near paralysis.

And the other operating principle is that

your condition at the point of surgery

is the best predictor

of your final outcome.

So if you're already

paralyzed before surgery,

many neurosurgeons will tell you that

it's unlikely that you're going to recover

significant function after surgery.

So when you combine the two principles

of a up to 48 hour window to operate

with you're not going to get any better

than you would be at the point when

surgery is performed, you can

imagine in most scenarios,

once they get to the surgery,

you're already paralyzed so therefore

you don't have a causation case,

but you can't argue that they should have

done surgery sooner because there's a

48 hour rule that says you can wait up

to 48 hours. So I went back and read the

literature on the so- called 48-hour

rule and what I gleaned from it is that

these are retrospective studies that

look at populations of patients that have

had cauda equina and what their

outcomes are after surgery.

And the point of those studies is to say

that the outer limits of when surgery

can still be helpful and you can

still get a good recovery is 48 hours.

In other words, after 48 hours,

you're not likely to get much benefit

from the surgery. Within 48 hours,

it still makes sense to do the surgery.

That is completely different than saying

the standard of care allows you to wait

48 hours if a patient arrives on hour

one and you can make the diagnosis

right away. And of course,

there are no prospective randomized

studies where they just wait and let

patients deteriorate to paralysis

without doing surgery to test whether

as a control group,

those patients do better or worse than

patients where they operate right away

and don't allow them to progress.

And it's almost common sense that if the

mechanism of injury is compression of

the nerves to the point where they die

from that compression, which is a function

of compression over time duration,

that earlier intervention

would be beneficial.

But try to find a neurosurgeon to

say that within a 48 hour rule,

that's extremely difficult. So when we

started to vet this case with experts,

we talked to many who just said,

"Well, this was within the 48 hours.

I can't give you an opinion that there

was any deviation standard care and I

can't give you a causation opinion." It's

one of those situations that we see it

a lot in medicine where the

conventional wisdom is just wrong.

It doesn't make any sense. And in fact,

that whole literature about this so-

called 48 hour rule has now been debunked

by other more focused studies that

kind of drill down into that and say,

wait a minute now,

you're lumping all patients together in

this 48 hours. But if you take a patient

who arrives where their equina

syndrome is not complete paralysis,

where there's still functioning nerves,

where there's still an opportunity

to intervene before the progression,

if you pull those out of the retrospective

studies, that's a totally different,

you get totally different result and

that gives you a different conclusion.

One of the challenges in the case

was I had read all the literature,

all the neurosurgeons

have read this literature,

you could debate the literature,

but we wanted to make sure we didn't

turn the trial into debate over medical

literature. And so all the stuff I just

told you, that never came up in trial.

That's just the backdrop of why these

cases are really hard and it's hard to

find somebody to support

a cauda equina case.

But we went with the simple points

of this is compression over time.

He came in, he got worse and our core-.

Did the defense agree with that concept

that compression over time leads to

nerve damages permanent?

They did actually. I mean,

they called a neurosurgeon,

a doctor from a regional hospital in

Massachusetts who I've actually used as an

expert in paralysis cases myself,

high level doctor, well respected,

but honest. And so when I crossed him,

which is he was the last defense witness

in the trial and I presented him with

kind of these basic arguments

based on the science and common

sense,

he agreed with us on every point because

it's hard to disagree with it and to

honestly disagree with

any of these points.

That seems like a significant sort of

meeting of the minds and I agree with you

on a totally irrefutable point,

but that seems like a great anchor to

kind of work off of to build your case

around, especially on a timing case.

Yeah. And again, as lawyers in

any type of plaintiff's case,

but particularly in med mal,

it's really important for

us to independently think

through things and there is

often a conventional wisdom about things

and sometimes we're running upstream

against that and you're taking

on the entire industry because

everybody believes these things, but if

it just doesn't make any sense to you,

it probably isn't going to make

sense to a lay jury either.

And these people haven't been to medical

school or read all the literature.

So the common sense understanding

may end up prevailing

even if that's not what every 95% of

neurosurgeons around the country believe.

They have a self-interest in creating

a framework for a rule that protects

themselves from being sued

in these cases, right?

So you've got the meeting of the

minds that the longer you wait,

the more permanent and significant

the harm and you've got ...

So kind of walk us through some of the

significant issues in the case and some

of the turning points for you.

Yeah. So as Meryl alluded to,

there were some quite interesting dynamics

in this case as every case has that

are unique to it and I

think impacted the result.

One was this issue of the panel hearing

and you alluded to that. In Maine,

in every single medical malpractice case,

we have to try that case to a three

person panel before we're even

allowed to file the case in regular court.

And it's a bad process

because the panel process is

designed to be heavily biased

in my view against claimants,

partially because one of the panelists

has to be a doctor in the same

subspecialty as the doctor

you're suing. So in this case,

you'd have to have a neurosurgeon

on the panel in a state where every

neurosurgeon knows each other.

It's a small state and finding a

neurosurgeon who's going to find against a

colleague is just extremely difficult.

Then the other panel members are a

permanent panel chair who's kind of

a professional panelist who is paid

by our state and has tried

panels now for 30 years and a

volunteer lawyer, neither of whom

have real medical backgrounds.

And so you can imagine in many panels

if the medical expert on the panel

tells the other panelists when

they're deliberating, "Well,

this is how it's supposed to go. " Or,

"I understand the expert said this,

but this is ... " If you're looking at

imaging, this is what the MRI shows.

I don't care what the plaintiff's

expert said. I'm looking at it myself.

You know what I mean?

So you're really prisoner to what the

view of the individual medical panelist

is in most of these cases.

The other challenge for the panel

process is that you have to make a lot of

strategic decisions that you wouldn't

have to make otherwise. For instance,

it's very hard to win a panel, at

least historically it has been,

unless you call your experts to

testify live at the panel. A,

that's extremely expensive,

of course, as we know,

pulling in experts for a day hearing,

but it gives the defense an opportunity

to cross-examine them for a second time

because in most cases they've already

taken the expert depositions before the

panel.

So now your expert has been cross-examined

twice before they're cross-examined

at trial.

The defense has ironed out the kinks in

their crossed by that and figured out

effective approach. That's on problem,

but the bigger problem

from our perspective is it

eliminates the spontaneity of

your own cross on their experts because

they're calling their experts at panel.

If we take the expert deposition,

now they're seeing us for

a second time at the panel.

By the time they get to trial,

this is the third time they've been

crossed by us. So we've changed our entire

approach to the process. We now

no longer take the depositions.

We no longer present our experts at the

panel so they don't have an opportunity

to cross them for a second time and that

creates risk that we're going to lose

the panel,

but it provides us better

strategic positioning as we

go forward towards trial.

So just a lot of things that go into

this that wouldn't have to deal with

without this ridiculous process

in the middle of your case.

This is fascinating.

So now one of the things that without

bearing the lead here that you got to

share, Ben and Meryl, is if there is

a unanimous decision by the panel,

your jury gets to hear that, right?

That is generally the rule. However, and

this is something you're not aware of,

Rahul. In this case,

we were able to knock out the panel

decree entirely because we were able to

develop an argument that the

panel process was defective

procedurally.

This is the very first time that argument

has been successfully made in our

case in our state,

but it has enormous precedential value

now because based on that procedural

defect we identified in the panel,

every single panel up until that panel

and going forward if they don't fix the

process will not be allowed if the judge

follows the ruling of this judge to be

presented to the jury.

So we are able to get the panel finding

completely excluded from evidence at

this trial. But you're right,

normally in a normal case,

if you have a panel finding against you,

then the defense is

allowed to present that,

blow it up on a big poster board with

the name of the doctor that decided

against you and to tell the jury

that before this case ever got to the

courtroom,

a panel found unanimously in favor

of the defense in this case. That has

been challenged constitutionally as an

infringement of a plaintiff's Seventh

Amendment right to a jury trial.

Our Supreme Court upheld

that as not unconstitutional,

but then limited what one can say

about the panel proceeding and required

the judge to give sort of a contextual

instruction that tells the jury this was

just a preliminary procedural step that

they may or may not have heard all the

evidence, that they're

not required to follow it,

that they can consider it

as one piece of evidence.

But with that curative or

that contextual instruction,

we are then not allowed to

comment on it. So for instance,

if they didn't hear all the evidence,

if somebody changed their testimony,

we would not be allowed to say, "That

expert that you heard from in this trial,

that expert didn't testify at the panel

hearing. The panel didn't hear that.

Or the defendant who changed his testimony

said something at the panel but then

said something different in

this courtroom. The panel

made its determination

based on that assumption, but that

assumption turned out to be wrong.

We're not allowed to comment on it.

So it just sits there as a finding.

And we've done a lot of focus group

work and data studies that try to assess

how much weight the

juries give to the panel.

And what we've found is for the most part,

they don't give it a ton of weight because

the jury doesn't want to believe that

they're just rubber stamping

somebody else's decision. Now,

if they're spending two weeks

of their lives in a jury trial,

they want to believe that has some meaning

and that they're the decision makers,

not some other bureaucratic body. However,

for jurors that are defense

jurors that want another

reason to find against the plaintiff or

to argue their case toward their fellow

jurors,

that it becomes an important tool for

them to do that. So I do think it has some

significance in that respect in

terms of on the margins helping the

defense jurors either feel

comfortable being a defense juror or

arguing their position to their fellow

jurors and trying to get them on board.

So we successfully navigated

the panel issues in this case.

The big 10,000 pound gorilla issue in

this case has to do with the testimony

of the neurosurgeon.

It's one that I found

to be really interesting

intellectually in terms of trying

to figure out strategically how

to handle it. So in this case,

one of our strongest arguments we thought

when we took the case on was that when

they finally recognized somebody

figured out that the MRI results

confirmed that this patient

likely had cauda equina syndrome,

which as Meryl said,

took hours and hours because they

lost track of the patient in the ED,

but they paged the neurosurgeon and the

neurosurgeon didn't come in. And this is

a medical emergency where every

hour can make a difference.

And we thought that

was pretty significant,

that a jury might think that the

neurosurgeon who's on call for these

circumstances should respond properly

and come in and see this patient and

evaluate. So when I got to this,

took the deposition of

the neurosurgeon early on,

my plan was to lock that down to

try to understand why he didn't

come and see this patient and to build

the record centered around that issue.

Well, about 20 minutes into the

deposition, when I asked the neurosurgeon,

sort of just even a general kind

of question relating to this,

he launched into telling me that he had

come and seen this patient shortly after

fock,

shortly after the patient arrived in the

emergency department and had a detailed

recollection of doing so. Now,

that caught me by surprise.

I wasn't prepared for that.

I pointed out to him that there's not

a single record in the medical chart,

not an order, not a progres note.

None of the other providers noted

he was there. And I said, I mean,

that surprises me, doctor, because

there isn't a single record.

He acknowledged that but

said, I remember going.

And not only did he remember going,

he remembered exquisite details

about all of the interactions he had,

the examination he performed at the time.

He said he went there with the chief

of neurosurgery from the department.

He said he was there with one to two

neurosurgical physician assistants.

He described doing a

detailed neurological exam.

He went body part by body part and told

me what the results of the exam were

at the time. He recounted conversations

he had with my client in detail,

including eliciting the history

from my client that this weakness,

inability to stand, inability to walk,

weakness in both of his lower extremities,

which was a very important symptom

in terms of coming to the diagnosis,

said our client told him that

that was a longstanding problem,

that it had been there at

least a week and maybe longer,

which really changes the equation

because if it's not an acute issue,

if it's chronic,

the timing of surgery is not that

critical. He then went on to say what his

differential diagnosis was at that time.

He described learning that our client

had a history of a congenital spinal

condition called spina bifida.

He said that the urinary incontinence or

retention issue wasn't that concerning

because for patients with spina bifida,

they often have urinary dysfunction.

He said he couldn't move forward with

anything else until he understood the

spina bifida better because that was

the likely root cause of all of these

problems.

He said that the next step

had to be ordering an MRI

study leading us to believe

that he either ordered the study or

caused somebody else to order the study.

And he went and then later asked

about the timing of surgery,

he explained that again, that this

wasn't in his mind an acute issue,

it was a chronic issue and that the timing

wasn't that important because of the

chronicity of things. So that was the

state of the record coming out of the

deposition.

I deposed him over about an hour and

a half of that was going into detailed

testimony about this bedside evaluation

he did shortly after our client arrived

in the emergency department. Well,

we then got to the panel hearing.

At the panel,

my game plan was to examine him

to point out that none of that

made any sense because there's not a

single record illustrating that nothing

else that none of the other witnesses

who were involved testified that he was

there.

There was a whole host of other things

happening that he had no involvement in.

He didn't order the MRI study.

He certainly didn't even know that there

was an MRI study ordered because he

didn't follow up on it within hours and

hours after it resulted on and on and

on.

And when he did come to see the patient

the following morning and did document a

note, he didn't mention anything about

having been there the day before or any

interval changes in the

patient's condition over

hours since he had last seen

him. So that's where I started my

examination, but within minutes-.

Did you have the audit trail after that

deposition to confirm that everything in

the record as you understood it?

Right.

So he had said one of the things he

had relied on in that bedside exam was

reviewing the patient's chart so that

he had a history of the patient beyond

what he was able to glean.

Because I had pointed out, "Well,

this patient has intellectual

disabilities. I mean,

how much can you rely on the patient's

own history?" And he said, "Well,

I had also reviewed the chart."

So yes, after the deposition,

we got the audit trail,

which lo and behold showed that

he had not reviewed the chart.

He had not reviewed it at all that day.

Even when he was paged at 11:30

at night, he didn't review it.

He'd reviewed it the following

morning for the first time.

So we knew that he hadn't been there.

We knew that he hadn't done any of

the things he said he did and we were

prepared to cross him on that at the

panel hearing. Within minutes of my

examination of him at the panel hearing,

he fell on the sword entirely and

he said, "That testimony I gave,

I've searched my mind.

I've now realized that I must have been

thinking of a different patient or I

must have been confusing

the times. I'm really sorry,

but none of that really happened the way

I said it happened." And I was caught a

little bit flatfooted because my whole

plan for the exam was to point out that

the things he said happened didn't

happen. Now he's falling on the sword,

acknowledging that,

trying to get some extra points for

honesty and coming clean about it.

And ultimately I was able to play some

clips from his deposition to the panel

showing the detail in which

he had testified about this,

but not that effectively.

I only had 15 or 20 minutes

for my examination because

it's short. I was caught

a litle bit flatfooted and the panel

still found unanimously for him in a

case where he testified the things

that were totally different than he had

testified to under oath in his deposition,

which I think illustrates how

biased our panel process is.

So we started approaching

this case for trial.

Now the interesting thing about a trial

is neither side is allowed to reference

or use the panel testimony

except for impeachment

purposes, but I knew I knew what

his testimony had been, right?

And I knew that if I put him on the stand,

he was going to try to reenact the same

strategy he did at the panel of trying

to come clean about it and sort of

removing the moral force of this dramatic

change. And to me,

it wasn't so much the change

in the testimony of the

facts of what happened. It

was the change in how that affected

his medical decision making because his

whole premise for why he didn't act

sooner was that this was a chronic issue.

The premise for why it was chronic is

that's what the patient had told him at a

bedside exam,

because there's nothing else in the

record anywhere that suggests it was

chronic.

So that's the only way he would've

known or believed that to be the case.

So it wasn't just academic that

he had a different factual basis.

That's the premise for the

decision making. At trial,

they had an entirely different

premise for the decision making,

which was that it wasn't really

true cauda equina day one because it

was inconclusive what his real diagnosis

was and that didn't become clear until

the next morning for various reasons,

but that's not the reason he gave for why

he waited at the deposition tim. So it

had a real impact on real

issues. It wasn't just, "Well,

we got you saying something different."

And so what we elected to do at trial

knowing that that was going to be his

strategy if we put him on the stand and

asked him any questions at all,

just played essentially virtually the

entirety of his deposition and I don't

think they were prepared for that.

They wanted to reexecute the plan they

had done so effectively at the panel

hearing. And it was such a crazy thing,

Rahul, because keep in mind, okay,

we've already done opening

statement. In opening,

we give a timeline of what actually

happened, goes to the AD, as Meryl said,

5:00 PM. They don't figure this out

until 11:30 PM, page the neurosurgeon,

neurosurgeon doesn't come

in. In the defense opening,

they don't allude at all to him being

there earlier. They acknowledge that the

timeline is exactly what

we're saying the timeline was.

They're arguing that there's different

conclusions to be drawn from the

timeline, but they don't

question the timeline at all.

They don't suggest that

the doctor said one thing,

but you're going to hear that,

but now you're going to hear

that that was different.

They don't preface that in any way.

And then now they've heard from all of

the people that saw our client in the

emergency department, the intake nurse,

the PA, the emergency department doctor,

all of whom just testified to the same

timeline that the jury's already heard

about.

There's been zero reference by anybody

of the neurosurgeon having been there

and done anything earlier. And the

premise that everyone has agreed to,

including all of the doctors

that worked for the hospital,

is that he wasn't there and he hadn't

been page till 11:30. Now they're watching

an hour and a half of his testimony in

excruciating detail about things they

already know didn't happen and watching

their faces during that testimony

on the screen was just priceless because

you could just see the wheels in their

brain turning like it was like

a, "What the fuck is this?

What is going on here?

This doesn't make any sense." And some

of them probably didn't know at that

point. Well, did that

happen? Did it not happen?

Probably they mostly

assumed it didn't happen,

but probably some

lingering doubt about it,

but it just was such a great thing

because ... And then when he did ...

So I didn't put him on lit all.

So now the defense has to call him in

their own case in chief and they have to

do this whole set of contortions

and maneuvers after hearing the

excruciating detail of his testimony and

specific recall to things that didn't

happen. Now he has to get up and

start by explaining all of that away.

It just didn't work in trial when they

attempted to do that and I hadn't even

crossed him yet.

So then I was able to do my cross after

all of that and just go back and point

out that everything he's saying now

contradicts what he said before,

but more than that,

the reasons for not acting he's

giving now are not the reasons he gave

before,

which were based on things he had said

before that he's now acknowledging never

happened. And I just think it

was just at that point the case,

there were still a few witnesses

left, but I think for the most part,

that was the end of it.

And that's when they approached us with

the high low that we were looking to

lock in after their neurosurgeon,

the defendant testified.

I just want to add just to

having watched this all unfold,

because of course Ben comes up with this

plan before the trial and he explains

like, "This is what I

think I'm going to do.

I think I'm going to play the

deposition testimony in our case,

then just wait and do my

principal cross after the defense

calls him in their case." And

I thought, okay, to be honest,

I had a hard time envisioning how

this was going to land with people.

And so after we play the

deposition testimony and I'm

trying not to, but I can't help myself,

but to look over and see how people,

jurors are reacting to it and you

can see a lot of furrowed brows and

confused faces and I thought, great.

Because a lot of what the doctor was

talking about in his deposition testimony

was this spina bifida condition,

which Travis didn't have,

but somehow this doctor thought Travis

had spina bifida probably because

Travis said something about that when it

just wasn't true. I'm like starting to

get worried people are really confused.

And after the deposition

testimony is done,

I think that was the last event

that we had in that court day.

And as we're packing up this same court

martial that Ben referenced who came

over to Travis and said how great he was

and who patted Travis on the back and

stuff, this marshal comes over

and he says, "Boy, that doctor,

what an ass." And I thought, "Okay.".

Seriously,

what an amazing strategy and a way

to really hone in on the point of the

false premise for the false conclusion

and get that crystallized with the jury

in such a succinct way because it could

get muddied up in so many different ways

and the way you strategized and

executed on that cross-examination,

that is a huge takeaway for anybody

listening to this because that's

both outside the box and awesome.

So verdict, six and a half million?

Yeah, six and a half million. So it's

worth mentioning we didn't cover this,

but we did not get voir dire in this case.

We filed our motion for attorney

directed voir dire. The judge denied it.

We ended up having a

supplemental questionnaire and

we did get a good amount of

information on individual jurors and

then we were able to question people

individually in camera on some

of their questionnaire responses.

But when we got our jury seated,

I think I made the comment to Meryl and

other people on our team and our jury

consultant that I thought we had a

good liability jury. We had a lot of,

I would say 40,

50 something or younger women and

well educated women. Our jury,

our foreperson actually had a PhD I

think in biology or something and we were

looking for well educated jurors.

So my view was we had a

really good liability jury,

but not a great damages jury and that's

sort of how it bore out. This case

really deserved a bigger number

than what the jury awarded,

but keeping in mind this is Bangor,

Maine and this is one of the highest

verdicts ever returned in Bangor Maine.

We were just happy to get the result

and happy to get a number that can take

care of Travis for the rest of his

life and make him secure. But yeah,

that's what I would say

about the number. Well.

Two things and you're being so modest,

it's the second highest verdict ever

in Bangor Main and since you had the

high low locked in,

it's the highest that's ever been paid

out any reduction and that's simply

amazing on so many levels,

but a reflection of what you

and Meryl did in this case.

But I think hopefully an awesome way

to finish this is why don't you tell us

about how you let Travis

know about the verdict?

I want to add something because Ben

mentioned the jury selection and meant he

called it this was going to be a good

jury on liability but maybe not the best

jury on damages. The

deliberations period was really,

really interesting.

It was the busiest deliberation

I think I've ever witnessed,

but the jury went out around

four o'clock on a Wednesday

and within about 10 minutes of going

out, they sent a note and they said,

"We're tired. We want to go home."

So we all went home and that night,

interestingly,

the local newspaper releases an article

about the state of the financial

health of this hospital system,

which we saw and we thought, "Oh God,

what is this?

" And we went back and forth about

what to do about it and we show up the

following morning and we decide-.

I mean, just on that,

it was front page above the fold on

the local paper basically saying,

"This hospital system is in a world of

financial trouble." It almost seemed like

it was planted to be published on

that date waiting for this jury

to return a verdict. So go ahead, Meryl.

Well, we decided the way to deal

with that is to have the judge just

say to the jury,

there was an article published about the

hospital and the paper has nothing to

do with this case.

And so I'm not going to ask anyone

whether they read it or not,

but I'm just going to remind people that

what they see in here outside of this

courtroom is not evidence and is

not to be considered during their

deliberations. So that happens and

they go back out to deliberate.

About 10 minutes after that,

they send a note with three questions

on it and the questions are,

I literally have a copy of this on my

desk in front of me. The questions are,

may we please have a copy of

the instructions for the jurors?

May we have a copy of the emergency

department doctor's testimony and

may we have a copy of the slides of the

life care plans? So kind of a mixed bag

there. We liked the

life care plan question,

but the copy of the instructions we'd had

a battle about the medical malpractice

instruction, which Ben has

a lot of experience with,

but it used to be the case that Maine

had a pretty bad medical malpractice

instruction that said a lot about what

medical malpractice isn't and not much at

all about what medical malpractice is.

That changed and the current

instruction is quite good and is very

clear about what medical malpractice is,

but for some reason this judge

wanted to give the old version of the

instruction, which was not good for us.

We were very worried about them

getting a copy of this instruction.

The emergency department

doctor's testimony,

the court reporter had not

generated a transcript,

so they had to bring the jury back into

the courtroom to do a read back of this

doctor's testimony.

And while the read back is going on,

we had to go to sidebar about

something during the read back.

So we didn't see this, but

our paralegal saw this happen.

She saw a group of female

jurors in the front row after

hearing much of the read

back of the testimony.

They all turned and looked back at a

male juror in the back row and they said

something like, "Are you good?"

And that guy says to them, "Yeah,

I'm good. I'm sorry.

I didn't realize it was going to

involve coming back into the courtroom.

I'm good." And they go back all of

this, we finished the read back,

they go back into the deliberation

room, we're like, "Oh,

now we can take a break.

It's going to be a bit,

leave the courthouse to go get lunch."

And my paralegal calls me five minutes

later and she says,

"There's a verdict." I think what

happened is that this guy in the back row

was the compromised juror, right?

He came over and he decided to vote,

but that's probably what resulted in the

number being what it was a compromise.

And that number ended up

being like basically the

midpoint of the two life care

plans. But when we got the verdict,

we called Travis and I think he

was in shock to be honest because

I don't know, it's hard for me to know

what he expected from all of this.

He was quiet and he was with his mom

and I told him the number and he just

kept saying, "Wow." He didn't say much,

but I could tell he knew that

his life was going to change.

He's been able to say more about it

as time has passed since the verdict,

but it's just so palpable for him

that this amount of money is going

to change his life.

It's going to give him a completely

different life than he could have ever

imagined he would have, truly. So that's

the most rewarding, as everyone knows,

that's the most rewarding moment of

it all is to call someone and say,

"A group of strangers believed you and

they believed in your story and they

believed that you were deserving." That's

a moment every single person who goes

through this process deserves to

have and very few get to have,

but boy is it Rahul,

you and I were talking about

the pinnacle of this profession,

the really bright moments where you

feel all the feelings and see all the

colors, all of everything all coming

together and that's one of them.

Getting to spend time with both of you

today. Ben, when we started this podcast,

we did it hoping we'd get to learn,

other people would get to learn and today

is just a reflection of exactly that.

I've learned so much from both of you

on strong Strategies on examining your

client, strategies on sequencing,

when to hold your powder and then

blow them up at the right time.

You two are amazing.

So congratulations and congratulations

to Travis and thank you for sharing this

with everyone.

Thanks, Rahul.

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