First Do No Harm (Benjamin Davis Book Series, Book 1) (38 page)

Pierce sat down and the courtroom grew silent. Boxer ordered a short break.

In the hall, Davis told Morty, Sammie, and Littleton, “I can’t believe that the defendants turned on each other in closing arguments. They held it together for years, and at the last moment, their common defense crumbled.” Davis whispered to Morty that he needed to take advantage of this turn of events. They agreed that the focus should be on recklessness and assume they had won the issue of negligence. Littleton, who overheard the conversation, insisted that Morty urge that the jury throw caution to the wind and sting the defendants until it hurt.

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.”

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:

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 importance 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:

Judge Boxer was almost finished. All he had left was to give the concluding instructions.