The reason for the “lane-change” defense was to try to place some fault on the plaintiff. In Texas, a plaintiff like Mrs. Henderson will have her recovery reduced by the amount of fault the jury places on her—as long as her fault is fifty percent or less. If the jury puts more than fifty percent of fault on the plaintiff, even just fifty-one percent, she gets nothing.
The problem is that the jury isn’t told the effect of putting fifty-one percent rather than fifty percent of fault on the plaintiff, and the lawyers are precluded from giving the jury this information. The defense lawyer will argue that the plaintiff is fifty-one or fifty-two percent at fault and sound imminently reasonable in making such an argument. If the jury then follows that suggestion, their verdict will bar the plaintiff’s recovery, even though the jury may have intended for the plaintiff to recover a percentage of her damages. I knew before the trial started that the defense would set up this hurdle for the plaintiff, but I felt like Mrs. Henderson would be able to get by it.
The police officer gave the pickup driver the ticket at the scene. Most litigants think that fact alone establishes fault. Under Texas law though, the defendant can even pay the ticket; but if he pleads nolo contendre—I do not contest—his admission of guilt on the traffic citation is inadmissible in the civil case regarding the personal injuries. The lawyers are precluded from even telling the jury that a ticket was issued. Of course, I was permitted to call the police officer as a witness at trial and ask him about his investigation, but in a city the size of Houston, even with a subpoena, it was hard to get a police officer to show up for a civil trial. It also seemed to me that the police officers were somewhat antagonistic to the party that subpoenaed them since they needed to take time off from their jobs to appear. I got a break during the trial of Mrs. Henderson’s case, and the policeman showed up and testified that in his opinion (and over the defendant’s objection that the cop was not qualified to render an opinion) the defendant driver’s inattention caused the wreck.
Most of Mrs. Henderson’s “medical” care was provided by a physical therapist whose office was close to her place of work. The defense would, of course, ridicule the therapists’ records, focusing on how short the treatment visits were, how little time the therapist actually saw the patient, how he was not a medical doctor, and how he was not authorized to prescribe medicine for the plaintiff’s sore back and neck.
The defense took the position that most of Mrs. Henderson’s pain and suffering stemmed from a double mastectomy that she had the previous fall. Our firm had taken the therapist’s deposition by videotape a few months earlier (at a cost almost equivalent to the cost of the plaintiff’s medical bill), and I played the video for the jury. After about ten minutes of viewing the videotaped deposition, the jurors’ eyes glassed over, but the testimony was necessary to prove that the bills were “reasonable and necessary” so that the jury would be allowed to consider them.
Recently, as a part of its tort reform package, the Texas legislature had passed a law providing that a personal injury victim is only entitled to recover medical bills “paid or incurred.” While that phrasing may seem innocuous, the insurance defense bar asserted, and the Texas Supreme Court eventually agreed, that plaintiffs are only entitled to recover the medical expenses that the claimant or her health insurance provider actually paid.
Most litigants are unaware that their health insurance have “side deals” with the healthcare providers whereby charges for care are reduced when they are paid. For instance, Mrs. Henderson had almost $6,500.00 in therapy and emergency room bills, but her Blue Cross/Blue Shield health insurance had only paid $3,000.00 to cover the charges.
The defense argued that she should only be entitled to $3,000.00 for medical even though she had $6,500.00 worth of procedures. This argument was made to the court, outside the presence of the jury, because the jury wasn’t permitted to hear that the plaintiff had health insurance. The jury was also not told that the plaintiff’s health insurance company would be entitled to get its $3,000.00 back if Mrs. Henderson made a recovery. In other words, the insurance company charges her a monthly premium for her insurance, takes a risk that it might have to pay for her medical care, negotiates a reduction of those payments with the medical provider, lets Mrs. Henderson bear the burden of hiring a lawyer and pursuing a case against the culpable party, and then recovers from the jury’s damage award any amount that the health insurance company has paid for her bills.
The flip side of the law that restricts the jury from learning that the plaintiff has health insurance—which, if known by the jury, would often have the effect of the jury thinking that somehow the plaintiff was making a double recovery—is that the jury is also not permitted to learn that the defendant has automobile liability insurance. Texas required at that time that drivers be covered by a policy with limits of at least $20,000.00. Not everybody complied. The amount was originally set back in 1984 at $15,000.00; it was only increased to $20,000 in 1986, to $25,000.00 in 2008, and most recently to $30,000.00 in 2012. Meanwhile, the costs of medical care have gone up dramatically. While the jury may suspect that the defendant is insured, the lawyers are not permitted to tell jurors that fact, and the suit must be brought against the pickup truck driver rather than his insurance company (even though the insurance company hires his lawyer and is responsible for paying claims against him up to the amount of the policy limits).
The few savvy jurors who understand that insurance is involved, even though it must never be mentioned by the lawyers, often think that by siding with the defendant they will somehow be keeping their own car insurance rates low, a fallacy promulgated by the insurance industry in their tort reform advertising campaign. If a juror really wanted to serve his self-interest and ignore the facts and law, he would always side with the plaintiff because the fact that a plaintiff wins from time to time is the only thing that keeps insurance companies from routinely denying claims, even valid ones.
Unfortunately, most people will eventually have a claim. Hopefully, it will not be a catastrophic claim. Even in my short career, I had already seen the bewildered look on a claimant’s face when I tried to explain to him that consistent defense verdicts had emboldened insurance companies to the point where they were refusing to pay a deserving victim just because they felt like juries in our community would never require them to pay.
The books of reported cases are full of instances in which clever plaintiffs’ lawyers have attempted to inform the jury that the defendant has insurance without running afoul of the law. Some of my favorite cases are those in which the exasperated plaintiff’s lawyer, in his total frustration with the process, says something like, “I’m not allowed to discuss insurance, but you know what is going on here.”
I had wanted to try out an idea I had for an argument on how-to-tell-the-jury-the-defendant-has-insurance-without-telling-the-jury-that-the-defendant-has-insurance, and the Henderson case presented the perfect opportunity. Rather than attempting to slice up the defendant on cross-examination, I was nice to him. I ignored his prior incidents and let go the discrepancies between his comments at the scene, in his deposition, and on direct examination at trial.
On closing argument, I told the jury that I liked the defendant. “My Dad drives a pickup truck just like the one the defendant was driving when he crashed into the back of Mrs. Henderson’s car. He seems like a pretty good guy. I know Mrs. Henderson has a lot of bills and pain and suffering, and whatnot, but please don’t make the defendant pay more than $20,000.00.” I went over, stood behind the defense lawyer’s chair, gestured toward the lawyer, and concluded with, “He’s in good hands up to $20,000.00, but please don’t make him pay more than $20,000.00.”
I guessed that because he had an argument of his own that he wanted to try out, the defense attorney did not object to my argument that informed the jury about the presence of insurance. Instead, he stood up on his closing and told the jury that the case was really only worth $10,000 and that I was inflating the numbe
rs. He said, “It’s just like when your kid comes to you to ask you for twenty dollars to go to the movie and he really only needs ten. He asks you for twenty because he figures that you’ll cut it in half.”
Admittedly, I thought he had a pretty good argument. Whatever I said in response in my rebuttal would tend to make me look greedy. Fortunately, I had seen Sullivan handle a similar argument in the past using a trick that he had learned from the great Joe Jamail. Closing argument is all about plagiarism. In rebuttal I just said, “In deciding damages in this case, you must decide whether to believe me or a man who would cheat his own son out of ten bucks.”
The verdict came back for twenty-point-zero thousand dollars. And for three days I had been able to avoid having any meaningful conversation with Michelle because “I was in trial,” a demilitarized zone universally recognized by trial attorneys and their families.
10
AFTER THE HENDERSON VERDICT, Michelle had attempted to initiate sex. When I said that I was tired and that my head hurt and that we should wait until we were both up to it, Michelle took it to mean that I didn’t find her attractive. I couldn’t tell her that I was unable to determine whether the headache I was experiencing was from surviving on coffee alone for the past three days or if the STD was reoccurring. Gritting my teeth in a caffeine-induced clench during trial always gave me a headache, but the prodromal onset of symptoms also included a pain that started above my upper molars and sliced into my frontal lobes.
On Monday, back at the office, the reception was decidedly cool, almost the opposite of the Monday after the Alvarado verdict. I had expected this, but it still felt peculiar when it happened. I had seen it with Eli when he had separated himself from the rest of the pack of young associates by virtue of the amount of money he was bringing into the firm. I had won two cases in a row, a feat not incomparable to DiMaggio’s hitting streak given the cases the associates were trying. I had been given the assignment of “working up” a significant case. And a partner’s daughter and I were about to have a baby.
My fellow associates at the firm, all vying for a limited number of partnership positions, had seen me previously as a friend involved in the same struggle. Now, I was clearly a competitor with an advantage or two, and I perceived that I could expect to receive no assistance from them. After the Henderson verdict, it would be a long time before I ever ate lunch with any of the associates again. I was always by myself at lunch, or joining Sullivan and Riza when Sullivan summoned me. The other associates didn’t know that the only case I had was about to be thrown out of court, resulting in a loss of more than a million dollars to the firm, or that my personal life portended a similar disaster.
On Tuesday I met Michelle at her obstetrician’s office for the twenty-week sonogram. I had read sonogram reports before and had seen the black-and-white photographs, but I had never seen a sonogram performed. While she was still a bit cold and standoffish after the failed attempt to have sex, both Michelle and I were excited about the chance to see the baby. There was a good chance that we might learn the baby’s sex. It was also my first chance to meet Michelle’s obstetrician, Dr. Nathan.
Michelle signed her name on a clipboard handed to her by a greyhaired woman at a reception desk who smiled at her and called her by name. Each of the ladies working in the office stopped and talked to Michelle as they passed through the lobby assisting patients to and from their examinations. I learned that Michelle’s mom had been Dr. Nathan’s patient, and that he had in fact delivered Michelle and her brother Jonathan.
The room must have looked like it did in the late fifties—clean tile floors, worn but clean chairs that alternated between avocado green Naugahyde and harvest gold fabric with a cranberry plaid burlap placed here and there for accent. On one wall was a huge cork bulletin board covered with snapshots of newborns. “Happy customers,” I thought to myself and smiled.
“What are you grinning at?” Michelle asked, as I studied the photographs. “Do you think that bulletin board should be titled ‘Leave It to Beaver’?”
I laughed. “Is your picture up here somewhere?” I asked, teasing her.
“No,” the receptionist interjected, “we take down the pictures every year or so. But, I’m sure we have a Polaroid of baby Michelle around here somewhere . . . probably in her mother’s file.”
In a few minutes, a woman dressed in light green scrubs came through the door to the back and called Michelle’s name. We got up and followed her back to a large examination room, where she had Michelle put on a hospital gown over her underwear.
We sat talking about whether it would be a boy or girl, and how we had better get serious about coming up with a name. A different lady came into the room pushing a cart with all kinds of equipment on it.
In a friendly but efficient tone, the woman introduced herself to Michelle as Miriam and asked Michelle to raise her gown up over her abdomen and lie back on the tissue paper-covered examining table. Miriam plugged various wires into the machines around the table and positioned a monitor so that she could see it as she stood alongside Michelle.
As Miriam spread a clear jelly over Michelle’s abdomen, she explained how the transducer would send and receive sound waves that would be converted into a black-and-white picture on the screen. She invited me to stand where I could see the monitor better. After several swipes across Michelle’s stomach with the transducer wand, an image began appearing on the screen of a squirming infant somewhere inside of Michelle’s body.
“Do we want to know the sex?” Miriam asked, as she made notes in a file and began performing a process on the equipment by which she appeared to be taking measurements. The way she asked the question, it was apparent that she already knew the answer. With all of the movement, I couldn’t see how Miriam could tell the sex of the child, but with just a brief glance at me, Michelle said, “Of course we want to know. We’ve got a nursery to decorate.”
“Congratulations,” Miriam said with an air of anticipation, “you’re going to have a little boy. And judging by his size, I would say you’re due in about nineteen weeks. Everything looks great. Let me snap a few pictures for Dr. Nathan, and then he should be in to talk to you.” She cleaned up Michelle’s abdomen and told her to leave on the gown until the doctor had been in to visit with us.
In the past two months, Michelle’s body had begun to change significantly. Her breasts were larger, her abdomen clearly showed that she was pregnant; she was even beginning to have some difficulty getting out of comfortable chairs. I had seen her naked getting in and out of the shower, and we had talked about the increasing size of her belly, but until she had that ultrasound, I don’t think I truly understood that a separate body was living inside of her.
We had not had sex since I had been to the STD clinic.
Dr. Nathan cleared his throat as he entered the room. He was peering through thick reading glasses at the contents of a manila folder. He put the folder down on the examining table and looked over his glasses at Michelle as he touched her on the shoulder and said hello. Then he extended his hand and introduced himself to me. He had thick, bushy, grey eyebrows, wisps of grey hair coming out in all directions on his predominantly bald head, and the kind of hands that old doctors have after washing them every five minutes for more than forty years.
“So, I see that we’re about to have a little boy. That should make his grandfather quite happy,” Dr. Nathan said and smiled. “Everything looks good. I estimate that you will deliver around September 15th. We may adjust that somewhat as we go along. How is everything with you, Michelle? Did you get over the morning sickness?” He asked patting Michelle on the shoulder.
“Yes,” Michelle said. “I’m feeling much better. In fact, I’m feeling pretty good. I’m hungry all the time. No real cravings or anything. Just hungry. I did have some itching and burning the other day . . . you know . . . vaginally . . . I’d say it lasted a week or so, but everything’s fine now.”
Dr. Nathan raised his eyebrows quizzically,
and then he put his hand on my shoulder. “Why don’t you wait outside just a moment, Mr. Jessie, and I’ll take a look. I’m sure everything is fine.”
I stepped outside of the examining room and walked down the hallway to the lobby. I knew that even if I had given Michelle herpes and she had experienced an outbreak, it seemed unlikely she would present the symptoms at this time. Dr. Nathan couldn’t see what wasn’t there. Still, as I sat in the lobby waiting on Michelle, I wondered if she might come through the door and ask me how in the world it could be that she had contracted genital herpes. And of course, I worried that both she and our unborn child might have the disease.
A moment ago, I thought I would have until mid-September to develop a response to that question. Now, I thought that the entire issue might explode in the next two minutes. I could feel the blood rushing to my head. Was I light-headed? Could the employees in the office tell that I was in distress?
I rubbed my sweaty palms on my pant legs and tried to take a couple of deep breaths. I could feel myself getting dizzy. The receptionist got up from her desk, walked over to me and put her hand on my forehead. “My, you are hot, Mr. Jessie. Do you feel alright?” she asked.
“I’m fine,” I said. “I guess I’m just a little nervous.”
“It’s a nervous time,” she said. “There can be a lot to worry about, especially with your first one.”
I nodded.
“You are really sweating. Can I get you a cold drink or something?” She asked in a reassuring voice.
Before I could answer, Michelle came through the door to the lobby. She was beaming. In her hand, she gripped tightly a copy of the sonogram photograph of our baby.
“Look,” she said proudly. “Little Pablo’s first picture.”
A Minor Fall Page 15