by A. Turk
“So McCormick & Associates or Dr. Nichols could have found out about your little escapades with patients if they asked Dr. Gaines or some of the residents you worked with?”
“I don’t know. I don’t think Dr. Nichols knew.”
“That’s not my question. He could have discovered it?”
Davis and Maddox at the same time objected, “Speculation.”
“Was there ever anything about your sex with patients during your residency or fellowship written in your personnel file?”
“I don’t think so.”
Willis spent the next hour reviewing Ms. Howard’s medical chart. He showed Dr. Garcia photographs of her necrotic lower lip and asked if that was an acceptable result. Garcia argued that a bad result didn’t necessarily mean he was negligent. Garcia blamed the outcome on the fact that Ms. Howard was a smoker and that he was unaware of that fact.
“Is it your testimony, Doctor, that Ms. Howard’s smoking …”
Garcia interrupted. “It contributed to it.”
“So you did know she smoked?”
“At some point I did.”
“You had sex before the surgery. So you knew before the surgery that Ms. Howard smoked?”
“I can’t agree. I don’t remember.”
“When you were having sex with these female patients, were you aware that having sex with a patient was ethically wrong?”
“No.”
“When did you become aware?”
Paul objected on the grounds of the attorney-client relationship. Harrelson thought that was a valid objection.
Willis must have too. He moved on. “Have you heard of the American Medical Association?”
“Yes.”
“Are you a member?”
“Yes.”
Willis spent the next half hour reviewing with Dr. Garcia the rules of the AMA, which prohibited doctors from having sex with patients. A physician wanting to get romantically involved with a patient had to terminate the doctor-patient relationship first.
“They didn’t teach you about ethics in medical school?”
“There may have been one course. I don’t remember.”
“You didn’t pay very close attention, did you?”
Garcia made no response, and Lester Paul objected. They broke for lunch. Paul rushed out of the conference room and went back to his office for a smoke. Willis skipped lunch and went for a brisk walk.
Davis, Sammie, Sullivan, Donna, and even Maddox ate lunch at Merchants on Broadway. Davis ordered a strip steak smothered in onions and a baked potato on the side. He drank two Frescas. He also ordered key lime pie for dessert. He figured he wasn’t going to fall asleep during this deposition. As they walked back to the courthouse, Davis topped off lunch with an orange Tootsie Pop.
When they got back, Willis started right back in. “Do you know what the standard of care is for an oral surgeon performing a lip enhancement in Nashville, Tennessee?”
“I went to medical school and did a residency and fellowship in oral surgery, and I’ve been in private practice since December 1995. Yes.”
“Are you of the professional opinion that your care and treatment of Ms. Howard were within the standard of care?”
“Objection,” Paul pronounced, “that calls for a legal conclusion.”
Willis snapped back at Paul, “No, that calls for a medical conclusion, and he’s an oral surgeon.”
He switched his attention to Garcia: “Answer the damn question, or I’m calling the judge.”
“I don’t know. Bad results don’t necessarily mean that the standard of care was broken.”
Willis spent the next half hour discussing the breach of contract litigation. Bob Sullivan objected several times to correct the fact that the litigation was with Nichols & Garcia, not Dr. Nichols individually. Dr. Garcia got angry when Willis asked whether his parents had paid the entire $400,000 to settle the case. Sullivan, rather than Paul, objected on the grounds of confidentiality of their agreement.
“Did your relationship with Nichols & Garcia terminate because of the lawsuits filed by my clients?”
“No, but I’m sure the lawsuits didn’t help our relationship.”
“Did your relationship with Nichols & Garcia terminate because of your drug use?”
“No.”
“Didn’t you refuse to take a drug test?”
“Yes.”
“Weren’t you using drugs at that time and would have failed a drug test?”
Paul directed the witness not to answer that question. He indicated that Ms. Pierce was again not present and that drug use related to the charges brought by the Medical Licensing Board.
Willis would not be put off. “I offered for Ms. Pierce to be here today and told you that I would proceed to questioning the witness if she chose not to be here. She’s not here, an associate is not here, and no motion was filed. I’m asking him these questions.”
Paul was ready for this problem. “She didn’t choose not to come. She had a prior commitment, which she was unable to break.”
“What was it?”
“You’ll have to ask Ms. Pierce. I’m not her social secretary.”
Willis persisted, and eventually Dr. Garcia testified that while employed by Nichols & Garcia, he didn’t use illegal drugs. Harrelson knew that was a lie.
“Why didn’t you agree to take the drug test?”
“Out of principle.”
Davis almost came out of his chair, but he used self-control. What is this clown thinking? There’s a video camera running. Who does he think he’s kidding?
Willis continued, “Those principles cost your parents the settlement dollar amount paid, right?”
“I guess so.”
“Those principles didn’t prevent you from having sex with your patients, did they?”
Paul objected, and Willis moved on. There was no jury to impress. He’d made his point.
Willis pulled out a copy of the complaint he filed on behalf of Ms. Howard and the answer filed by Dr. Garcia. Garcia admitted most of the sex acts described in the complaint but denied that any of the sex was forced. According to Dr. Garcia, Christy Howard was a willing participant and enjoyed every perverted turn. He denied offering her Ecstasy or ever taking Ecstasy.
It was almost five o’clock when Willis called it quits. Bob Sullivan asked thirty minutes of questions, which established that Dr. Garcia worked for the corporation and that Dr. Nichols never discussed sex with Dr. Garcia or his relationship with any of the patients or employees.
Garcia also admitted that he had sex with Donna Burns, which he described as “fucking her.” According to his testimony, Donna Burns, to his knowledge, wasn’t aware of his relationship with other employees or patients.
Karl Maddox went next. He got Dr. Garcia to admit that he never told Rocky McCormick about his relationship with patients when he worked in New York.
Davis announced that he had no questions for the witness. Sullivan had asked all the important questions for Davis’s motion for summary judgment. The deposition adjourned right before six twenty-five. It had been a long day for everybody.
CHAPTER THIRTY
INNOCENT AS THE DRIVEN SNOW
Thursday, May 22, 1997
The deposition of Christy Howard was scheduled for May 22nd. There was quite an argument between Davis, Bob Sullivan, and Lester Paul as to who would get to question her first. Finally, Davis sided with Sullivan, and that made the vote two against one, so Sullivan took the lead.
Davis gave in to Sullivan for two reasons. First, he’d come to dislike Paul, who smelled of cigarette smoke. Davis smoked good cigars and also worked for more than twenty years with Steine. He was not sensitive, but Paul really did stink. Second, Sullivan’s investigator found the Howard website. It was only fair he got to drop the bombshell. Besides, this deposition would make Sullivan look good with Tennessee Mutual, which was paying him for his legal services. Sullivan had been a good friend, and Morty taught Davis how to treat a
friend.
After it was agreed that Sullivan would start the deposition, the next disagreement between defense counsel was whether to use the provocative photos at deposition or save them for trial. Paul wanted to save them for trial and surprise the witness on cross-examination and destroy her credibility in front of the jury. Trying to ambush the witness at trial carried certain risks, though. If an exhibit wasn’t disclosed and exchanged before trial, Judge White could refuse to allow the defense to introduce the photos. A document used to contradict a witness’s direct testimony at trial is an impeachment exhibit.
A compelling reason to use the photos at the deposition was that Davis and Sullivan didn’t want to put their clients through a trial. They reasoned that Willis would be so shell-shocked by the photographs that a settlement could be negotiated with no further depositions, including Dr. Nichols and Donna Burns.
Sullivan started slowly. He questioned Ms. Howard about her background and education. He then went through her employment history, which included several modeling jobs. Sullivan asked her specifics about those jobs. She described several of the shoots. She’d done some ads for department stores and for a grocery chain.
“Do you always wear your hair in a bun, like today?”
“No. Sometimes I wear it down or in a ponytail.”
“Are you wearing contact lenses?”
“Yes.”
“Do you ever wear glasses?”
“When I’m alone at night in bed watching TV, but I wear the contacts when I’m in public.”
“You wouldn’t model in glasses, would you?”
“No.”
Willis was getting impatient.
“Where is this questioning going, Mr. Sullivan?”
“Give me a minute, Jack. I’m about to get there.”
“Well, let’s get there already. You’re wasting all our time.”
Davis thought, Jack, you just asked for it, and you’re about to get it.
Sullivan slid an eight-by-ten glossy in front of Willis and his client. He handed one to Maddox, who was the only other attorney in the room who hadn’t studied the photographs for months.
The reaction on Jack Willis’s face was priceless. His mouth opened, and his eyes went wide. It was as if somebody wearing golf shoes kicked him in a vulnerable place.
Howard’s reaction was quite different. She started crying. All the time the camera was rolling.
“Is the redhead wearing glasses in that photograph you?”
Christy Howard couldn’t answer. She was crying hysterically.
The photograph was of her and another woman. Christy had a black gag in her mouth and was sitting on a desk. She was wearing a very short schoolgirl’s green plaid uniform skirt. Her white oxford shirt was wide open. She wasn’t wearing a bra or panties. The other woman was sucking on her right nipple.
Sullivan pulled out another one, slid it to the witness and her attorney, and gave one to Maddox, whose face was bright red. This one had Howard’s green plaid skirt hiked up to her waist, and the other woman was performing cunnilingus.
The second photo got another reaction from Willis, who was an experienced litigator. He put the palms of both hands to his face, then repeatedly ran his fingers through his hair and shook his head. Davis thought it was a shame that the camera was fixed on Howard only and that Willis’s reaction was off camera.
At that moment, every attorney in the room understood that the value of the Howard case just plummeted. Howard continued to cry, but no one had sympathy for her. She knew she’d made these photos and intentionally put them on her website. She hadn’t told Willis, who was obviously taken completely by surprise.
Davis wondered what he would have done if he represented Howard. In his interview of the client, would he have revealed that she’d made pornographic pictures? Davis thought about how he would word such a question on his intake form completed by his personal injury clients.
It had been fifteen minutes since the first photograph was shown, and Christy Howard still hadn’t acknowledged that she was the redhead in the photographs. Sullivan wanted to move the deposition along. He didn’t want to make all of the photos exhibits for her deposition. He intended to save some.
“I’ve got forty-eight of these. I can wait for you to stop crying, and we can go through them one by one. I need you to acknowledge that you’re the redhead.”
Willis finally shook off his daze. “Let’s take a break. I need to talk to my client.”
Sullivan could have insisted that the examination continue, but what the hell? The pictures wouldn’t change during the break, and the witness would still have to face them when she got back.
When Willis and Howard left to go to another office, Paul smiled and congratulated Sullivan for his good work.
“I didn’t take the photos, Lester. My investigator found them.”
Maddox, who was as shocked as Willis, asked, “How did you get them?”
“She has a website. They were just sitting there on the Internet.” Even though Davis had copies for months, he still found them shocking.
After a half-hour break, Paul left the conference room to find Willis and his client to discover when they could expect to resume the deposition.
Paul came back and reported, “Willis can’t get her to come back in the room. As you might imagine, he’s shocked and upset. She lied to him and damaged his other lawsuit. He asked if we could continue the deposition to a later date. She’s broken. If we press her, and she won’t come back, Judge White might dismiss her case. That will leave just Perkins …”
Davis interrupted Paul, “Think about it. You said it yourself. Howard brings the value of the Perkins case dramatically down. I say we enter an agreed order right now and adjourn the deposition as long as Willis stipulates that the redhead in the two photographs is Christy Howard. Willis also has to agree to resume the deposition before the end of the month.
“Later today, I’ll call Willis and suggest that we try to settle both cases, or we resume Christy Howard’s deposition. We just might have these cases settled by the end of the month.”
Paul was the designated representative to approach Willis. Paul returned to the conference room five minutes later and suggested May 27th to resume the deposition.
Sammie was designated to prepare the agreed order continuing the deposition, which also stipulated that Ms. Howard was the redhead in the two photographic exhibits. She came back in less than ten minutes.
During that time, Willis didn’t say a word. He just sat there looking very defeated.
“How’s this sound?” Sammie began to read, “On May 22nd, 1997, the deposition of the plaintiff Christy Howard was taken. During the course of her deposition, two photographs were shown to the witness, marked Exhibits 5 and 6, which are attached hereto. As evidenced by the signature of Jackson Willis to this agreed order, Christy Howard stipulates that she is the redheaded woman in the photographs and that said photographs are admissible at the trial of this cause. It is hereby stipulated that the deposition of Christy Howard shall resume at the law offices of Lester Paul on May 27th, 1997, at 9:00 a.m.
There was a place for each lawyer to sign.
“I never agreed that the photographs would be admissible,” said Willis. “I can’t do that. The judge will make that decision, not us.”
Davis suggested that they delete the language concerning admissibility and sign the agreed order. Everybody agreed.
Willis walked out to retrieve his client, who was sitting by herself in a small conference room. Davis suspected that Jack might have a Jack Daniel’s when he got back to the office. The videographer also left, leaving all of his equipment set up. He knew to make himself scarce. There wasn’t going to be a record of what was said at this next meeting.
Davis suggested that Dr. Garcia and Ms. Burns leave the conference room separately and that only the attorneys remain. Paul agreed. Dr. Garcia left first and was placed in Paul’s office. Davis hoped he choked on the smell in the smo
ke-inundated furniture. Donna Burns walked out with instructions to tell Dr. Nichols what happened and inform him that Davis and Sullivan would be calling him later.
When only the defense attorneys were present, Davis took charge. “We have an opportunity to end this. My client, Dr. Nichols, doesn’t want to be deposed, and he certainly doesn’t want to go to trial. I’m confident that Dr. Nichols individually will be dismissed from the case. He wasn’t Dr. Garcia’s employer. The company was. As part of any settlement Dr. Peter Nichols individually must be dismissed with prejudice, without any admission of liability.”
No one voiced an objection, and they all remained silent, which encouraged Davis to go forward.
“As I see it we’ve got the remaining defendants insured by two different insurance companies. McCormick & Associates is insured by Equitable, and Tennessee Mutual insures both Dr. Garcia and Nichols & Garcia. I think it’s our job to convince our respective companies to pay their fair share, so we can get these cases settled. Lester and Bob will take the lead with Tennessee Mutual, and, Karl, you’ve got Equitable. We’ll need to agree how much of the comparative fault to apportion to each of the other defendants, and their carriers will pay for that percentage.”
Karl Maddox spoke up, “Well, Dr. Garcia caused ninety-nine percent of the problem. He’s an animal, a pervert. Ms. Howard may be a tramp, but Dr. Garcia’s a filthy pig.”
Lester Paul jumped up. “Don’t talk about my client like that. This wasn’t rape. These women voluntarily had sex with him.”
Davis saw he was losing control of the meeting. There were a lot of egos in the room, and they were getting in the way of a constructive discussion.
Davis stopped him in his tracks. “Lester, the voluntary nature and the character of the plaintiffs go to the amount of the settlement, not how it should be divided up among the defendants. You’ve got to admit that the vast majority of any settlement payment should fall on Tennessee Mutual for the conduct of Dr. Garcia.”
Sullivan made a contribution: “Let’s examine what Nichols & Garcia, the company, is charged with, and what McCormick & Associates has been sued for. Nichols & Garcia is sued for negligent supervision of Dr. Garcia and his negligent hire. Let’s put the supervision to the side for a moment. Nichols & Garcia asserts that it hired McCormick & Associates because of its expertise, to help in the hire decision. McCormick found Dr. Garcia and held him out as an excellent candidate. McCormick did a negligent background check on Garcia.”
