Legal Reserves

by James Rosenberg

  “At the end of the trial, we are going to ask you in your verdict to find Wendell’s department store was negligent−careless in how they dealt with Mrs. Gebbert and careless in how they developed this shoplifting policy of theirs.

  “We will ask you to find Wendell’s’ carelessness caused Mrs. Gebbert substantial injuries and we will ask you to reimburse Mrs. Gebbert for all of her medical expenses, and more importantly to compensate her for the pain she and her family have endured, and for all of their suffering.

  “Finally, we are going to ask you to find that Wendell’s department store owes punitive damages for their reckless shoplifting policy, because it violates Pennsylvania law, and punish them by awarding the Gebberts money that sends the message to Wendell’s that this is not how we do things in a civilized society.”

  Mike paused, holding the jurors’ gaze, and then turned to head back to his chair at the table next to the jury box. The courtroom was silent as Stan reached over and patted Mike on the back.

  Jeri looked up from her note-taking. She asked if the defendant was prepared to open.

  Jack stood and nodded. He drew back his shoulders and raised his chin as he walked to the front of the jury box. He placed a yellow pad on the jury rail shelf, but walked away from it so nothing was between him and the jurors.

  “Good morning everyone,” he began. “There are always two sides to every story and I would like to take a few minutes to tell you what happened that day, backing it up with the evidence we will introduce during this trial.

  “When Mrs. Gebbert came into the store, she was acting somewhat suspiciously. As you will see on the videotape, she kept picking up items from various displays and she may not have put all of them back. Our security guard, Robert Lombard, followed Mrs. Gebbert on the video as she went through the aisles, never appearing to want to buy anything. He will tell you the suspect was acting suspiciously, which is why he maintained visual contact with her until she actually stole something.

  “As Mr. Lombard was watching Mrs. Gebbert, she was looking around side to side, but not appearing to be shopping. Lombard witnessed her open a box of chocolates by ripping off the cellophane and eating the chocolate. He immediately approached Mrs. Gebbert, identified himself as an employee, and asked Mrs. Gebbert to accompany him, which she did voluntarily.

  “He took her to a room off the sales floor and asked her what she had taken. Mrs. Gebbert became irate and would not cooperate, forcing Mr. Lombard to put Mrs. Gebbert in handcuffs. Ultimately, Mrs. Gebbert acknowledged she stole the candy, so Mr. Lombard let her leave the store.

  “Theft is an ongoing problem for all retail establishments. Everyday people come into stores looking to steal. Most of the time, these criminals look like ordinary people, just like you and me. Laws are designed to help stores prevent shoplifting. Wendell’s developed a shoplifting policy and trained its guards to protect the assets of the stores from theft. The policy is tough, but effective. The retail industry recognizes the company as having the best record for protecting its stores against thieves.

  “The evidence here will be clear. Security guard Lombard had a reasonable suspicion Mrs. Gebbert was committing a crime. He followed the company’s policy in detaining Mrs. Gebbert. She admitted she stole the candy. In short, nothing the defendant did was improper.

  “Finally, a world-renowned neuro-psychiatrist named Doctor Bernard Lawson will inform you Mrs. Gebbert suffered no injury as a result of anything Wendell’s did−rather, if she has any problems, they stem from her own family situation.” Mike shifted uneasily in his chair at Jack’s mention of Mrs. Gebbert’s “family situation,” as he had no context for Jack’s reference. Moreover, Jack had turned and glared at Mike when he made this statement. Mike, feeling challenged and trapped, did not respond. Turning back to the jury, Jack concluded his remarks. “Ultimately, the defendant didn’t do anything wrong and we will ask you at the end of the trial to return a verdict in favor of Wendell’s.”

  “Let’s take a lunch break and then we can begin testimony,” Jeri instructed from the bench.

  Chapter 48

  September 10, 2018, 1:30 p.m.

  Trial Day 1

  “MR. REIGERT, HOW many witnesses do you think we can get through today?” Jeri asked while looking down from her seat high at the front of the courtroom.

  “I think there should be enough time for two, Your Honor,” Mike responded, standing. “For our first witness, we will call Dr. Byron Rathman.” Mike felt apprehensive, knowing he was committing to trying his case backwards. Most times, lawyers have the plaintiff testify first to paint the picture of what happened and to create rapport with the jury. Martha was a wildcard and Mike wanted to gain traction before he put her on the stand. His conversations with Megan convinced him his biggest hurdle was convincing the jurors Mrs. Gebbert was injured and establishing this before weariness set in with the jurors as the trial proceeded. Stan signed off on the plan.

  Byron Rathman, wearing a freshly pressed olive sports coat and dark grey trousers, took the stand and adjusted his microphone with an unsteady hand. The chair squeaked as Dr. Rathman squeezed his six-foot three-inch frame into the small seat. Rathman had treated hundreds of mentally impaired patients over the past 25 years, but this was the first time one of the people he treated was involved in a lawsuit and the first time he testified.

  Speaking in a halting manner and in too low of a tone for Mike’s taste, Dr. Rathman introduced himself to the jury and provided his educational background, which was unremarkable compared to the defense expert who would testify later. After the psychologist explained he treated a variety of patients in a solo practice for the past 25 years, Mike offered Dr. Rathman for questioning about the witness’s qualifications to testify as an expert.

  Jack stood and moved in front of Mike’s table so Mike did not have a clear view of the witness.

  “You are not a medical doctor, are you?” Jack said, zeroing in.

  “No, I am not.”

  “You are not permitted by law to prescribe medication?”

  “No, I am not.”

  “Therefor, if a patient of yours needs additional treatment that may include prescribing medication, you would refer them to a medical doctor, like the defendant’s expert witness, Dr. Lawson, who is a neuro-psychiatrist?”

  “I guess you are correct, but I can usually treat my patients without resorting to pills.”

  “You’ve never published any scholarly articles, have you?”

  “No.”

  “Sir, you don’t maintain admitting privileges at any hospital, do you?”

  “No, I don’t.”

  “Finally, doctor, before today, you’ve never testified in court before, have you?”

  “No, I see and treat my patients.”

  “I suspect no judge has recognized you as an expert in your field before?”

  “I guess not, but I know how to treat my patients.”

  “Perhaps. Sir, thank you. I will question you further when Mr. Reigert is through his questioning.”

  Mike stood again, this time with less confidence, wondering how much damage Jack had done to his first witness in the one minute he questioned him. Trying to regain his momentum, Mike took the psychologist through his treatment of Mrs. Gebbert. Dr. Rathman indicated he first saw Mrs. Gebbert eight months after the incident. She explained to him that Wendell’s security guard falsely arrested her, took her to the basement of the store, handcuffed her to a table, and after being in the room alone, finally released her when she signed a confession.

  According to Dr. Rathman’s testimony, Mrs. Gebbert suffered post-traumatic injury as a result of the incident. She became wary of strangers and after a few weeks she began to have increasing difficulties leaving the house, often sitting in her bedroom in the dark, despondent and virtually a recluse. She grew increasingly unable to assist her family in functions occurrin
g outside the home. Her children, now both high school students, relied on her to help them with homework and to organize their busy schedules, but as time went on, Mrs. Gebbert couldn’t perform those tasks.

  Mike wanted Dr. Rathman to explain Mrs. Gebbert’s problems in greater detail, so he asked, “Doctor, what is your diagnoses for Mrs. Gebbert?”

  “Based on my continued treatment of Mrs. Gebbert, she suffered post-traumatic stress syndrome after being handcuffed at the department store. This led her to suffer panic attacks which became fairly frequent. She began to believe her only safe zone was her home and ultimately her bedroom. The further she gets away from her safe zone, the more fearful she becomes and the more likely she will have another attack. This is known as agoraphobia.”

  “Doctor, what exactly is agoraphobia?”

  “Like I was saying, agoraphobia is an anxiety disorder that causes a person to fear new situations because they think they are going to panic, or will feel trapped, helpless, or embarrassed. So they avoid public places and stay where they are comfortable, usually at home.”

  “What is the treatment for this?”

  “It involves what is known as cognitive psychotherapy. We talk about her fears and develop a plan to overcome them. It is a difficult process because the fear is so real and in this case highly debilitating.”

  “How long will Mrs. Gebbert need cognitive psychotherapy?”

  “We have done it for over a year now with some progress. She and her husband can travel further from her home−for example to a restaurant. But at this point, if she is going to leave the home, she has to do it with a trusted companion, and she is unable to go to places she used to go regularly that might be crowded. She still can’t go to the supermarket or to a baseball game. Too many people are around in those types of situations. Mrs. Gebbert is improving, but recently her improvement has slowed. She is going to need a lot work to get anywhere close to where she was before all this occurred.”

  “How debilitating is her condition?”

  “Depends. For Mrs. Gebbert, it is significantly problematic. She has to stay at home or she will likely suffer a panic attack. It’s like a car hit her and broke both of her legs, physically confining her to bed.”

  Mike paused to allow the jury to digest the ramifications of the doctor’s testimony before continuing. “Doctor, in your opinion, what caused these problems for Mrs. Gebbert?”

  The psychologist looked at the jurors as he leaned forward. “Before she was trapped in that room in the basement of the department store, she didn’t have any mental issues. According to what I learned from her husband and children, she was the rock of the family and never had any sort of problem or any type of treatment before. Since this situation, she has fallen apart. There is only one cause for her problems and that is what they did to her at the department store.”

  “Let me ask it another way, Doctor. If the incident at Wendell’s never happened, what would her mental condition be like today?”

  “If the store employee had not handcuffed her to a table and kept her in the room against her will, she would be the same person she was before−a well-adjusted, caring woman who is able to take care of her family. Unfortunately, this is not what happened.”

  Having completed his direct-examination, Mike was satisfied Dr. Rathman had conveyed the seriousness of Martha’s condition. As he returned to counsel table, his uncle gave him a wink. Both turned to clean pages on their yellow pads and steeled themselves for the doctor’s cross-examination.

  “Doctor,” Jack said, already questioning the witness before Mike could organize his papers, “can you point me to the x-ray showing the problem you claim Mrs. Gebbert is having?”

  “No, her type of issue wouldn’t appear on an x-ray.”

  “How about on something more sophisticated, like an MRI?”

  “Of course not, those imaging tests aren’t going to show her problem.”

  “Well if I broke a bone, I would show the jury my x-ray to prove my injury. Some objective test would prove if I sprained my ankle, correct?”

  “Yes,” the doctor answered, beginning to sound a little defensive.

  “How about bloodwork−that often proves when a condition exists within the body−can any blood test conclusively prove Mrs. Gebbert has this problem you say she has?”

  “No, bloodwork doesn’t detect mental illness.”

  “Doctor, some test that objectively establishes this problem you say Mrs. Gebbert has exists, doesn’t it?”

  “No there aren’t any. Mental illnesses like these are diagnosed by speaking with the patient, understanding their complaints, and working through how they deal with these problems.”

  “Has any other doctor reviewed your findings to determine if your diagnoses are valid?”

  “No. I am the only doctor who has treated her.”

  “I guess this jury has to accept your word, because nothing is available other than what you are saying to support your conclusion, is there Doctor?”

  “What you are suggesting is completely unfair,” Dr. Rathman responded through gritted teeth. “I have twenty-five years of experience diagnosing and treating patients like this, so I am confident in my conclusions.”

  Jack turned his back on Rathman and walked to his counsel table. Wagner held up a manila folder which Jack snatched out of his hands. He faced Rathman and held the folder up in the air.

  “Doctor, you just said you are the only doctor who had treated Mrs. Gebbert for psychological problems.”

  “Yes, that is what I said.”

  “That’s not true, is it?”

  Rathman shifted uncomfortably in his chair. “I am not aware of any other treatment.”

  Jack pulled documents out of the folder. He handed Mike a copy and placed another copy in front of Rathman. “Looking at these documents, Doctor, it’s true that Mrs. Gebbert treated with another psychologist, isn’t it?”

  Mike stood. “Objection, Your Honor!”

  Jeri thought for a moment. “Overruled. The witness will answer.”

  Rathman glanced through the documents. “Yes, it’s true, but give me a minute to look through them.” Rathman took five minutes to read through the records he had been provided. He continued, “Looking through these, it appears that Mrs. Gebbert five years ago treated on six occasions by a psychologist after her mother died.”

  “She withheld that information from you, didn’t she?”

  “She never told me about it, true.”

  “Doctor, look at page three of those records. Isn’t it true that Mrs. Gebbert complained that her husband didn’t pay enough attention to her?”

  “Yes, it does say that.”

  Jack looked at his yellow pad. “You said earlier that you had treated other patients like this, referring to Mrs. Gebbert, but you never had any patient before who was in the middle of suing someone?”

  “Yes, but so what?”

  Jack smirked. “Because aren’t patients in litigation different than your other patients?”

  “No, I don’t think so.”

  “Come on doctor, patients in litigation have a reason to stretch the truth, don’t they?”

  “Perhaps,” Rathman conceded.

  “Patients who have a lawsuit may not tell the truth to their doctors because it can benefit them financially.”

  “Yes.”

  “Thank you, Doctor. I have one last question: Given you are unaware of any objective test supporting your conclusion Mrs. Gebbert suffers from a mental illness, and because she has a reason to lie to you and stands to make money if you believe her lies, isn’t it possible Mrs. Gebbert duped you?”

  “Oh my god, no. She is a wonderful woman and I have no basis to think she isn’t being anything but one hundred percent honest with me.”

  “No further questions.” The smirk returned to Jack’s face.


  As Dr. Rathman shuffled off the witness stand and walked out of the courtroom, Mike pondered whether Jack’s attack on the doctor’s conclusions resonated with the jury. Mike put those concerns out his head as he called Paul Gebbert to testify. Looking meek and out of his element, Gebbert ambled to the front of the courtroom to take his oath. Mike hoped Paul would be able to paint a picture of how their family’s life had changed since Martha’s incident.

  Chapter 49

  September 10, 2018, 3:15 p..m.

  Trial Day 1

  PAUL GEBBERT TRIED to ease into the witness stand, but instead sat with a thump, causing his striped blue tie, which hung a tad too low, to bounce against his grey pants. Mike took a position at the far edge of the juror box. He began with simple questions. Paul sat straight when he told the jury that his job as a welder for a local union allowed him to take whatever jobs he wanted and spend the rest of his time with his wife and children. Despite never graduating from college, he had worked consistently since he was eighteen. He directed his gaze towards the jurors as he explained that he was able to provide for his family so Martha didn’t have to work and could be home for her kids.

  Now 42 years old, Paul said he split his time between working, spending time with his family, and having an occasional beer with his pals. Mike guided him through the preliminaries and turned everyone’s attention to the incident.

  Paul spoke slowly. “I wasn’t there and I had no idea what was happening because she couldn’t call anyone. Martha has a cell phone but they took it away from her. I got home early, around three in the afternoon and I was surprised she wasn’t there. The kids got home from school and a few minutes later Martha returned.