by A. Turk
Back in the courtroom as Morty got up from counsel table, Davis squeezed his elbow. In that split second, there was an exchange between the two men of love, friendship, respect, and Davis’s complete confidence in the old man—who had no shortage of confidence in himself.
Morty thanked the jury for their service and attention. He then walked too close to the defense table, violating Boxer’s rule, as Boxer let him know.
“Members of the jury, this lawsuit was filed in October 1992. These defendants, in at least two dozen pleadings and in at least a dozen depositions, have denied liability. We just spent almost two weeks together in trial, and at the beginning of these proceedings, these defendants denied liability. Just minutes ago I heard each defendant, like rats leaving a sinking ship, blame the other for liability.
“You heard them concede negligence, but it was the other guy’s fault. They’ve made my job a lot easier. All I have to do is talk about recklessness. I will not lecture you on compensatory damages. Collectively, you the jury must decide the amount. How much is a human life worth? It’s a difficult question, but I am confident you will be fair and just.
“Under the law, a defendant acts recklessly when he disregards the consequences of his actions and places others at significant risk. The plaintiff has proved recklessness by clear and convincing evidence. In a nutshell, it was reckless for Dr. Herman to recommend surgery when Dr. Gerald’s report stated no gallstones or gallbladder disease existed. It was reckless for Dr. English to perform a totally unnecessary surgery. It was reckless for Dr. Herman to fail to transfer the patient to Nashville when there was no pulmonologist, cardiologist, or infectious disease specialist at the hospital. These were not negligent acts below the standard of care. They were reckless acts.
“The hospital was also reckless. It granted these two doctors privileges that never should have been granted. Dr. English was not properly trained, proctored, or competent to perform the surgery that killed Rosie Malone. The hospital, through its recklessness, made that possible.
“I anticipate a finding of recklessness against all three defendants. Those damages are to punish, not to compensate. That award is to send a message to these defendants and to others that conduct such as this will not be tolerated.
“On behalf of Mr. Davis, Mr. Littleton, Mr. Malone, and myself, thank you for your time and attention.”
CHAPTER FIFTY-THREE
THE COURT’S FINAL INSTRUCTIONS
SATURDAY, AUGUST 20, 1994
A long day of closing arguments was winding down, and Davis was tired, even though he said nothing in the proceedings. Morty carried the ball, and Davis reluctantly sat on the sidelines. It was now all up to the judge, who would instruct the jury on the law. Davis and the defense fought hard over exactly what Boxer would tell the jury. Boxer would actually read it to them, and Davis and the other lawyers would follow along as he read.
The Malone verdict was important not only to the Malone family; it would also affect the outcome of all the other Plainview cases. It was most likely that Judge Boxer would be consistent in his rulings throughout all the cases. Over the last two years, Judge Boxer had ruled on various motions. Several of them were procedural in nature, while others determined the scope of the law and its application to the facts of the Plainview cases.
Boxer had made several decisions that had shaped the Plainview cases. The ruling, in the Malone case, that no pattern of negligence or recklessness could be argued was a devastating blow to the plaintiff’s proof.
On several occasions, Boxer had refused to rule, taking the motion under advisement to be considered at a later date. This allowed him to apply the law to the specific testimony or document presented. The law was unclear. The Tennessee Supreme Court in 1992 changed critical aspects of the law, and now, eighteen months later, a trial judge, such as Boxer, was no closer to knowing what he should instruct a jury.
For the last three days, the attorneys, after the day’s proceeding, stayed past eight o’clock arguing what Boxer should charge the jury in regard to the law. Each side, in writing, filed briefs objecting to several aspects of the charge. Both sides, through their actions and positions, created appealable issues.
Davis looked at the faces of the members of the jury. Male, female, black, white, young, or old, they had one thing in common: they were tired. Almost two weeks together, confined in the courtroom, in the jury room, or at the motel, away from family and friends, they wanted the trial to be over. Davis was confident that they paid attention and would do their duty. He hoped that they were convinced that the defendants deserved to be punished and that they had the guts to do so.
The last thing the jury would hear before it began its deliberations was the jury charge. For that reason and because it came from the judge, the jury instructions were important—and possibly pivotal.
Boxer said, “I want to thank you on behalf of the citizens of Plains County. The alleged wrongful conduct occurred there, at Plainview Community Hospital. The case was moved to Hewes County so that the parties could receive a fair and impartial trial. That did occur. As citizens of Hewes County, you should be proud that you were instrumental in guaranteeing that our system of justice diligently worked to afford an unbiased trial.
“As we discussed in the preliminary instructions, we all have our jobs to do in this trial. The attorneys have finished their part. They have presented the proof and given their closing statements. Remember, what the lawyers say is not evidence. The evidence is the testimony from the witness stand or the depositions read into evidence and the documents introduced into evidence as exhibits. There were one hundred sixty-eight documents introduced into evidence as exhibits. Those documents will be available for your review and discussion during your deliberation.
“You are the judges of the facts. Based on the evidence presented, you must determine the truth of what happened. My job is to tell you what the law is. I am not the one who determines what happened. That is solely your job based on the relevant evidence.”
Judge Boxer gave them the definition of relevant evidence: anything that would make a fact more or less likely. He also discussed how during the trial, each of the parties objected to certain testimony or exhibits. The judge reminded the jury that if he sustained an objection, the jury was to disregard not only the answer but also the question.
The judge discussed the credibility of witnesses. He provided the jury with a list of factors to consider in evaluating witnesses’ credibility:
Was the witness able to see, hear, or be aware of the matter to which he or she testified about?
How well was the witness able to recall and describe the facts he or she asserted?
How long was the witness watching and listening?
Was the witness distracted in any way?
Did the witness have a good memory?
How did the witness look and act during testimony?
Did the witness evade questions?
Did the witness have any interest in the outcome?
Did the witness have any motive, prejudice, or bias that would influence his or her testimony?
Was the witness’s testimony reasonable in light of the other evidence?
Was the witness’s testimony contradicted by other testimony?
What is the witness’s reputation for truth and veracity in the community?
He explained that if the jury found discrepancies in a witness’s testimony, they could disregard that witness’s entire testimony. He also emphasized that if the jury believed that a witness had lied under oath, the jury could accept or reject any part of that witness’s testimony.
Judge Boxer made it clear that the burden of proof was on the plaintiff to prove by a preponderance of the evidence liability of the defendants. If the plaintiff failed to meet that burden, the jurors’ job would stop there, and they should award a defendants’ verdict. If they found the defendants more liable, then and only then would they consider damages.
He discussed the importanc
e of expert testimony in the case. Because this was a medical malpractice case, the plaintiff had to prove a breach of the standard of care through expert testimony. Judge Boxer identified the expert witnesses who testified, including Dr. English and Dr. Herman.
He then turned to the newly adopted concept of comparative fault. This part of the jury instruction, he read verbatim: “Ladies and gentlemen, I want you to picture a hot apple pie. That entire apple pie represents the total liability of this case. If you believe that the plaintiff Rosie Malone contributed to her death, you must assign a portion or a slice of that pie to her. If Mrs. Malone did nothing wrong, the pie, or the liability, must be divided among the defendants. The more liable a defendant, the bigger piece of the pie you assign to them. It may be that only one defendant breached the standard of care; if so, then that defendant gets assigned the whole pie and all the liability. As a jury, you must collectively decide how to divide up the pie. After the pie is divided, the jury must collectively decide how much the pie is worth. If you assign any liability to the plaintiff, the damage award will be reduced by that percentage of liability. For example, if you were to award one dollar in damages and determined that Mrs. Malone was twenty percent responsible, the compensatory damages would be eighty cents, reduced by the twenty percent comparative fault of the plaintiff. The remaining eighty cents would be divided by the percentage of liability you assigned to each of the defendants.”
While the judge explained various aspects of the law, the jurors listened intently. Most of them took notes. Boxer, in a pre-trial motion filed by the plaintiff, issued notebooks at the beginning of the trial.
Boxer finally got to compensatory damages. He described how compensatory damages were to compensate the plaintiff or, in this case, the plaintiff’s family.
Davis thought, It would have been much better to have tried a case where the plaintiff was in the courtroom rather than some middle-aged son. The jury is far less likely to compensate a family member than the victim herself. That was the luck of the flip of the coin. There is nothing I can do about it now.
The judge explained that the plaintiff had alleged that the defendants had been reckless in their care and treatment of Mrs. Malone. Then he defined recklessness: “A person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all of the circumstances.”
Judge Boxer continued, “In order to find that any of the defendants have acted recklessly, you must do so by a higher burden of proof. Liability is determined by a preponderance of the evidence. In order to find recklessness, you, the jury, must find such recklessness by clear and convincing evidence. Clear and convincing evidence requires the plaintiff to prove that there is no serious or substantial doubt about the conclusion the party is attempting to prove. It is a much higher burden of proof than preponderance, but not as a high as in a criminal case, which is beyond a reasonable doubt.
“If you find that any of the defendants acted recklessly, by clear and convincing evidence, then you may award punitive damages to punish one or more of these defendants and to send a message to others to refrain from similar reckless conduct.”
Judge Boxer handed out to the jurors the questionnaires that they would be using to determine liability and damages. The first four questions on the questionnaire asked:
Do you find, by a preponderance of the evidence, that the plaintiff Rosie Malone breached the standard of care and was negligent?
Do you find, by a preponderance of the evidence, that the defendant Dr. Lars Herman breached the standard of care and was negligent?
Do you find, by a preponderance of the evidence, that the defendant Dr. Charles English breached the standard of care and was negligent?
Do you find, by a preponderance of the evidence, that Plainview Community Hospital breached the standard of care and was negligent?
The questionnaire proceeded:
Please assign to each party a percentage of comparative fault from zero to one hundred percent. The total of the comparative fault must equal one hundred percent.
Rosie Malone ________________ %
Dr. Lars Herman _____________ %
Dr. Charles English ___________ %
Plainview Hospital ___________ %
Total Comparative Fault: 100%
IF YOU ASSIGNED MORE THAN FIFTY PERCENT TO ROSIE MALONE, THEN STOP NOW. YOU HAVE COMPLETED THE VERDICT FORM. IF YOU HAVE ASSIGNED MORE THAN FIFTY PERCENT OF THE COMPARATIVE FAULT TO THE DEFENDANTS, THEN ANSWER THE NEXT QUESTION.
What dollar amount of compensatory damages do you award to the plaintiff Rosie Malone?
$________________________
Do you find that any of the defendants acted recklessly, by clear and convincing evidence?
If so, which defendants?
Dr. Herman YES____ NO_____
Dr. English YES____ NO_____
Hospital YES____ NO_____
PLEASE STOP HERE!
Judge Boxer was almost finished. All he had left was to give the concluding instructions.
Davis was generally pleased with the jury instructions. His defeat occurred when Boxer excluded the pattern of gross negligence on the part of the defendants.
Boxer concluded, “Your attitude and conduct at the beginning of your deliberations are very important. It is rarely productive for a juror to immediately announce a determination to hold firm for a certain verdict before any deliberation or discussion has taken place. Taking that position might make it difficult for you to consider the opinions of your fellow jurors or to change your mind after you review the evidence. Please remember that you are not advocates for either party. You are the judges of the facts, and you must apply the law that I have instructed you.”
Boxer reminded the jury: “You are a collective body. You must, in the end, speak with one voice. You must come to a unanimous decision as to liability and, if necessary, to appropriate damages. It is your duty to consult with one another. You should listen carefully and respect the opinions of others. In the course of your deliberations, do not hesitate to reexamine your own views and to change your opinions. However, do not surrender your honest conviction as to the weight of the evidence solely because of the opinions of your fellow jurors or for the mere purpose of returning a verdict. On behalf of the people of Plains County, Hewes County, the parties, their attorneys, and this court, I wish you Godspeed in your deliberations and good luck.”
With that said, Boxer dismissed the jury to deliberate.
Davis turned to Morty: “Now the hardest part begins. We wait.”
CHAPTER FIFTY-FOUR
THE VERDICT
SATURDAY–MONDAY, AUGUST 20–22, 1994
As Davis watched the jurors leave to begin their deliberations, his heart skipped a beat. This was the most important trial of his life. He knew that, and the defense knew it. Despite his game face, the math and his tired blue eyes couldn’t lie.
A lot was riding on the verdict. He didn’t know how much more his marriage could take. It wasn’t only the fact that he had gone into debt. It was the time and commitment that Plainview required of him. He missed his family. His kids were growing up without him, and he desperately needed to be there for his wife, who had sacrificed in so many ways.
The problem was that even if the jury returned a large verdict of both compensatory and punitive damages, there would still be an appeal and seven more cases to try. Logic dictated that he first had to win the Malone trial, avoid an appeal, and negotiate a settlement of the remaining cases. He had quite a difficult task ahead.
The defense team had the luxury of waiting in Barnes’s office across the street from the courthouse, right there on the square. It had air conditioning and access to a kitchen and soft drinks while the defense team waited in comfort.
Boxer took pity on the Davis team, who had no place to go, and gave them a small office
in the courthouse to wait. Although he was clearly an outsider, Littleton was included as a common courtesy. Davis, Morty, Sammie, and Littleton easily over-crowded the very small room.
There was no room for the clients. The Malone family was everywhere. All ten living children were in the courtroom, as were more than a dozen grandchildren. With spouses, the group added up to more than thirty people.
Davis and Sammie took turns leaving their cramped retreat to visit with the family in the courtroom. Out of respect, Morty was given a deferment, and out of the abundance of caution, Davis kept idiot Littleton away from the clients. Davis and Sammie could only repeat to the family, “It is in the hands of the jury,” so many times.
Morty took out a deck of cards and challenged Davis to gin rummy. The old man loved the game and never lost. Over the last nineteen years, Davis figured the two of them had spent more than two hundred hours playing while waiting on juries. Morty knocked with two, and Davis was caught with eighteen points.
At five o’clock, the judge sent the jury back to the motel so they could get a fresh start in the morning. The clerk told Davis’s team to go home and called Barnes’s office and sent the defense home.
Sunday morning opened with the judge reminding the jury, “You’ve taken an oath to find the facts of this case, determine liability and, if necessary, award appropriate damages. Good luck and Godspeed.”
The defendants, with the exception of Dr. English, left the courtroom for the sanctuary of Barnes’s office, and Davis and his team settled in to wait. Sheriff Dudley returned Dr. English to his cell on Judge Lewis’s orders.
