IN THE TRENCHES - Real Stories From Real Cases
Big Exhibits
In one of my earlier jury trials in 2001, I represented a woman who fell ascending exterior concrete stairs leading to her apartment in an older multi-family home. She sustained numerous serious injuries, including a fractured nose and herniated disk in her neck, both of which required surgery. The woman lived at this apartment for nearly two years before her fall. Although she had stumbled on these stairs many times, she had not fallen on any prior occasions. The stairs were of drastically varying height and depth. Our modern building code addresses the requirement for uniformity in stairway height (riser height) and depth (tread depth), and it is well recognized that safety is the reason for the rule.
The problems in this case were that the Plaintiff had never fallen in nearly two years of climbing those stairs every day. The Defendant was able to argue that the stairs were not dangerous for that reason. Also, the house and stairs were constructed in the early 1900’s, prior to the enactment of the building code.
With the help of a building code expert, we did two things to overcome these problems. First, we researched the history of the home and learned that a car had driven into the front porch in the early 1990’s, resulting in the complete repair and renovation of the porch. The building code expert opined that when the porch was rebuilt, that it, including the stairs, needed to be brought up to code. The second thing we did is build an exact model of the stairs out of wood. We build rectangular sections and stacked them to re-create the stairs in the courtroom. After a hearing where the defense attempted to keep the stairs out of evidence, the trial court allowed them as a full exhibit. The stairs were in the jury deliberating room for the jurors to walk up and down on and evaluate at their leisure.
The jury found for the Plaintiff.
Jury Selection – Strange but True Voir Dire Answers
In a recent jury trial, a man who was a potential juror seemed a little too excited to be a part of a case involving pain and suffering as one category of damages. I asked the Defendant’s attorney if he would agree to release this venireman for that reason. Defense counsel refused based on the assertion that the man could be a fair and impartial juror. I requested that the Court intervene.
The trial Judge held a brief hearing at which I argued that the gentleman had several issues which could make it very unlikely that he would be fair to both parties. The following is an actual transcript of the exchange that took place when the Judge questioned this man about the issues I brought to her attention.
I arrived at the office of a Central Connecticut urologist to take his deposition. This urologist had been involved in my client’s medical care relative to injuries she claimed were caused by the Defendant OBGYN. While waiting in the urologist’s waiting room, I noticed a pamphlet tacked to the wall near the receptionist window. It said “take one” on it.
As I read this pamphlet, I discovered that it was written from the insurance company perspective: that lawsuits are driving good doctors out of town or out of business. The pamphlet was very “anti–lawsuit”. It occurred to me that this pamphlet, free for the taking, hanging on the urologist’s wall, demonstrated some level of bias against medical malpractice claims. I took the pamphlet with me into the small room where I was ushered to take the doctor’s deposition. After I had questioned this doctor for fifteen minutes, it became apparent that he was not going to be a cooperative witness. I had the court reporter mark the pamphlet with an identifying sticker and questioned the urologist about it.
Some weeks later, when I challenged the urologists bill for his time in deposition (he was forty–five minutes late and charges an excessive hourly rate) he filed a complaint against me. The doctor’s complaint is as follows:
“This letter is to lodge a formal complaint against Attorney Kevin C. Ferry for what I believe to be an inappropriate and possible illegal activity in the process of taking my deposition as an expert witness in a medical malpractice action.
On 08/23/07 Mr. Ferry, accompanied by Defense Attorney and a court recorder, came to my office to take my deposition in a medical malpractice lawsuit. While sitting in my waiting room, Mr. Ferry removed a notice from the bulletin board meant for patient education. He proceeded to label it as a Plaintiff’s Exhibit and remove it, the original, from my office. I’m not sure as to whether he is within his rights to make a copy of same and label and remove it, but I’m reasonably sure he is not entitled to take the original.
Please address this matter at your earliest convenience and advise me as to your findings”.
My answer was as follows:
1. Doctor is not an expert witness. He is a fact witness.
2. I was not accompanied by the Defense Attorney. I arrived alone.
3. I was not sitting when I removed an informational pamphlet from the Doctor’s waiting room wall. I was standing.
4. The pamphlet did not specify that it was for patient education to the exclusion of non–patient education.
5. I did not label the document. The court reporter did. There was no objection by anyone to the document being marked.
6. There was no indication that this document was an original or a copy, although for reasons explained later, this is irrelevant.
7. Doctor did not object to the marking or taking of this document. He did not indicate that this was an original or ask to keep it, nor make a copy at the deposition. It was a non–issue at the deposition.
8. Doctor never communicated to me in any fashion that he was troubled by my making his pamphlet an exhibit until after he received my payment to him for his time in deposition. This payment was not in the amount he requested. It was quite a bit less for reasons irrelevant to this matter. It is crystal clear that this grievance is in retaliation for my daring to challenge the amount of his bill. Copy of Doctor’s bill attached as Exhibit A; my letter in response attached as Exhibit B, my payment check attached as Exhibit C., Doctor’s response attached as Exhibit D, and finally my reply attached as Exhibit E.
9. Finally, and perhaps most importantly, the pamphlet which Doctor finds so dear that he has filed this retaliatory grievance clearly is meant to be given away to anyone who decides to take it. I attach a copy as part of my response as Exhibit F.
Even though the doctor subsequently withdrew his complaint, the governing body whose policy requires it complete all investigations formally declared the complaint to be without merit.