A $30 million malpractice award won on behalf of a severely retarded cerebral palsy victim — the state’s highest malpractice verdict ever — was overturned by a 5-1 majority of the Ohio Supreme Court yesterday and sent back for retrial. In the cerebral palsy medical malpractice case, the majority cited errors by the trial judge, evidence that the jury had been swayed by “passion and prejudice,” and “attorney misconduct” by the famously obnoxious trial lawyer Geoffrey Fieger. Here’s the ruling.
The Ohio malpractice case had showcased a variety of push-the-envelope trial advocacy by Fieger, including a summation in which he purported to give voice to retarded plaintiff Walter Hollins’s thoughts when Hollins was still in the womb, awaiting a Cesarian birth and, Fieger theorized, struggling to obtain adequate oxygen: “Please, please nurses, I’m a little baby. I want to play baseball. I want to hug my mother. I want to tell her that I love her. Help me. Please help me to be born.”
The evidence at trial was that when doctors believed that a Cesarian had to be performed immediately they referred to it as a “stat C-section,” and that in less urgent situations the procedure was designated an “emergency C-section.” The supreme court found that Fieger “repeatedly blurred this distinction in order to manipulate the jury into believing that Walter’s ‘emergency’ C-section was more urgent than that term actually implied.”
Fieger also argued without evidence, the court found, that the doctors had concocted a cover-up of their purported negligence, and he invoked race to further stir the jurors’ emotions. (In summation he had contrasted the “poor, terribly injured African American” plaintiff to “the powerful corporation defendants, doctors who did this to him,” and argued: “If you want to have biases … then you should have never been sitting in this jury to begin with.”)
Though Fieger’s expert had opined that a lifetime of appropriate care for Hollins would cost $6.5 million, Fieger also elicited from him, over objection, that 24-hour supervision by a registered nurse would run $13 to $14 million — even though the expert had never recommended such a regimen. In May 2004, a Cleveland jury awarded $15 million in economic damages, and then another $15 million in noneconomic damages — that county’s largest plaintiff’s verdict ever. (The plaintiff also sought about $50 million in prejudgment interest.)
I will leave it to others to comment on whether such conduct is socially appropriate.
For our professional purposes, here what’s important: 10 years, appeals including Supreme Court, $0 collected, new trial.
Expert fees alone certainly exceed $150,000, if they’re lucky. If they hired outside counsel to help with the two appeals, that’s another $100,000. Of course, these numbers could all be far, far higher. That’s out of pocket for the attorney.
And the client? The client — a mentally disabled child and his parents — hasn’t seen a penny for 10 years. No help for treatment (and the lawyer can’t help, that’s unethical).
Sometimes a little restraint can pay off. There’s an old saying about how some of the best trial tactics do nothing but buy you an appeal.