by A. Turk
Davis took his turn with the Malone family and approached Lorraine Burke, sitting with three of her sisters. Davis wasn’t sure who was who. He just started talking, “Hello, ladies, we’re close to the end of a long road.”
Lorraine smiled and held out her hand to Davis. He grabbed it, and she squeezed so hard, it almost hurt.
“That’s quite a grip. I wouldn’t expect that from a history teacher.”
“All of us kids worked the farm while Momma worked the bakery. Thomas was the foreman at fourteen. He had his own private army.”
“It must have been hard with no adult.”
“We didn’t know any better, and between the bakery and the farm we had enough to eat. It wasn’t too bad. I was the only one of the eleven who got to go to community college.”
Lorraine and Davis discussed the tension in Plainview. People were picking sides. Either they or their relatives worked at the hospital, and the lawsuit was affecting business and morale. Some patients believed and supported Dr. Herman, despite the finding of the Medical Licensing Board.
“You can feel the tension in the air. Our community is being torn apart by these lawsuits,” said Lorraine.
“Are you feeling secure with your job at the high school?”
“The principal is a good friend of Woody Douglas, but the parents of my students will protect me if Douglas tries to get me fired. I’m too good a teacher, and I’ve been there over twenty years.”
Davis hoped she was right.
Three hours later, just before lunch, the judge’s clerk came into the courtroom and told Davis that the jury had a question. He needed to get his people. They even brought Littleton. The clerk had already called Barnes’s office, and the defense was on the way over.
When everyone was in the assigned places, the judge took the bench, and the jury was brought in. From experience, Davis knew that a jury’s question could be very telling about how the jurors were leaning.
The young foreman stood and looked straight at Judge Boxer.
“What’s the jury’s question, Mr. Foreman?”
“It has to do with the obligation of the hospital when it credentialed Dr. English. Did the standard of care require the hospital to verify his competency to perform laparoscopic gallbladder surgery if he was the first at the hospital to perform that procedure?”
Boxer paused a moment and then answered, “The hospital, under the standard of care, shouldn’t have allowed any surgery, unless with a reasonable degree of medical certainty it knew that surgery would be performed with a reasonable degree of safety to the patient.”
Davis liked the question, and he loved Boxer’s answer. The jury was seriously considering the liability of the hospital, which meant that it had probably already found the doctors liable.
The jury remained out for the rest of the day. At 6:00 p.m. the judge sent them back to the motel and told them that they would start again at nine the next morning.
Davis believed the lengthy deliberation was a good sign. The jury was taking its time reviewing the evidence. After all, there were 168 exhibits, and they heard testimony from fifteen witnesses. And there were several complicated issues to consider: comparative fault, how much blame to place on each defendant, and whether to find recklessness and award punitive damages. Davis wished he could be a fly on the wall and learn from the process.
The next day, Monday, the defense team hunkered down at Barnes’s office all day. The Malone family had now overflowed to outside the courthouse. Morty kept winning at rummy, first against Littleton, then Davis, and then Sammie. He chewed on cigars the whole time. Eventually he switched his cigar out when the end got too disgusting. At five there was a knock at the door of their small office. It was Thomas Malone.
“Mr. Davis, the jury’s been talking about twenty hours. Is that normal?”
Davis’s tie was loosened. He was getting as nervous as the Malone family, but he knew he couldn’t show it.
“There is no such thing as normal when it comes to a jury, Thomas. It’s a weird and wild animal. I’m only guessing, but I bet they’re fighting over whether to find the defendants reckless and whether to award punitive damages. Our burden is much higher at clear and convincing evidence. They’re divided over something, and eventually it will get worked out.”
“Could you talk to the family?”
Davis agreed to go to the courtroom. Morty, Sammie, and Littleton followed. Davis was shocked to see more than a hundred people in the courtroom. The Malone family constituted about a third, about another third were his clients from the other Plainview cases, and there were at least forty others. Dr. Laura Patel and the six nurses represented by Littleton and more than twenty other interested persons had driven from Plainview to Hewes City for the verdict.
Davis knew he had to say something. These people had a vested interest in the Malone case, and they were looking to him for encouragement.
“I’m stunned by your support and overwhelmed by the importance of the outcome of this case, not only to the Malone family and myself, but to a community. Plainview hasn’t been a safe place to get sick the last few years. The hospital and these doctors took advantage of the most vulnerable members of your community, and I hope the jury appreciates that breach of trust and sends a message: no more. Even if we win, these cases are not over. There could be an appeal, and seven other cases are pending. I promise that my team and I will see it through to the end.”
As the words left his mouth, Davis thought, I might have just made the biggest mistake of my life.
Fifteen minutes later, right in the middle of a hand of gin rummy, after twenty-one hours of deliberation, the court clerk announced that the jury had reached a verdict.
They all assembled in the courtroom. The defense side, including lawyers, defendants, and insurance representatives, totaled more than a dozen additional persons.
Boxer took the bench and called for the jury. They walked in single file, led by their foreman. The jurors were trying not to make eye contact with any of the parties. That was a dead giveaway.
Davis stared hard at the jurors, looking for a smile or a twinkle in their eyes. Betsy Blue gave him what he wanted, and his stomach finally stopped doing flips.
Judge Boxer became very serious and in a ceremonial tone asked: “Has the jury reached a verdict?”
The young foreman responded: “Yes, we have, Your Honor. We, the jury, in the case of Malone vs. Plainview Community Hospital, Dr. Lars Herman, and Dr. Charles English, find that all three of the defendants were negligent.”
“What is the amount of compensatory damages awarded?”
“We award $250,000.”
Davis never expected a large award of compensatory damages. Rosie Malone was sixty-seven years old and in ill health, regardless of any negligence of the defendants, and without any lost income because she had retired.
“How do you divide the fault among the parties?”
“We find that Rosie Malone had no contributory fault; Plainview Community Hospital is forty percent at fault; Dr. English thirty-five percent; and Dr. Herman twenty-five percent comparatively at fault.”
Davis noted that the percentages assigned against each defendant were the same as the Jones settlement. Jury’s got to the right place, even through all the bullshit thrown at them. The next question was critical, and Davis actually held his breath.
“Do you find any of the defendants by clear and convincing evidence reckless?”
There was a hush in the courtroom. The foreman looked at Davis, and a big smile broke out across his face. Davis relaxed for the first time in two years.
“Yes, we find that all three defendants were reckless.”
“Do you award punitive damages, and if so, in what amount?”
“We award the plaintiff $2 million in punitive damages, for a total verdict of $2,250,000.”
It was bedlam in the courtroom. The Plainview plaintiffs and their families were shouting and jumping, hugging, or crying for joy.
Although Boxer tried to get control of his courtroom, it was almost impossible to hear either him or his gavel.
Herman began to cry, his body heaving as he did.
English had a crazed look on his face, and Davis vindictively gave him a victory smile. Without warning, English flipped the defense table over, causing a deafening noise. He balled his fists and tried to run across the room to attack Davis. Several people, including the foreman of the jury, forcefully tackled English to the floor. Sheriff Dudley, who had been close by, slapped the handcuffs on the distraught physician.
At that point, Boxer took control of his courtroom and shouted at the top of his lungs: “Everybody get in a seat right now! Anyone standing in ten seconds is the loser of my game of musical chairs and will spend the next twenty-four hours in the Hewes County jail.”
Davis believed him, and apparently so did everybody else. Within seven seconds, no one was standing.
“Tomorrow morning at nine o’clock, I want all of the plaintiffs and their lawyers, the defendants and their lawyers, and their insurance representatives to meet me at Plainview High School to discuss the status of these cases. Attendance is mandatory, no exceptions. Now everyone, except Dr. English, leave this courtroom, and unless you live here in Hewes County, get out of the city limits of Hewes City. You’ve got thirty minutes to leave, or you’ll be a guest of our jail. Dr. English, you’re in contempt of court. Sheriff Dudley, take him to a cell.”
Most people in the courtroom didn’t know that Dr. English was going to his jail cell anyway, regardless of how well he took the verdict. English was now being held in contempt by two judges, and his prospect of seeing daylight was increasingly unlikely.
As Davis walked out the courtroom door, the jury foreman grabbed him by the elbow. “Mr. Davis, I just want you to know what a learning experience watching you and Mr. Steine has been. I know it’s been a once-in-a-lifetime experience to participate in these jury deliberations. I’ll be a better lawyer for it. Thank you for keeping me on the jury.”
Davis wished the young lawyer good luck. He was waiting on his Bar results taken in July.
Morty, Davis, and Sammie made their way past a pushy TV news reporter from Nashville and the newspaper reporters from Plainview County standing just beyond the courthouse steps. They figured that Boxer’s gag order was still in effect, offering no comment as they went. There were reporters taking notes in the courtroom, so Davis knew that Dr. English’s antics would be mentioned in the press, despite any gag order.
The Davis team headed straight for Davis’s convertible and out of town. In the safety of the car Sammie asked, “What do you think Boxer has up his sleeve?”
Davis laughed and said one word, “Settlement.”
CHAPTER FIFTY-FIVE
THE JUDGE TAKES CONTROL
TUESDAY, AUGUST 23, 1994
Davis learned from Lorraine Burke that Judge Boxer called the high school principal and commandeered the facility for the entire day. School didn’t start until next Monday, but the staff was supposed to be there, preparing for the new school year. Instead, the staff was given the day off. Boxer refused to inconvenience Hewes County’s high school. Plainview needed to clean up its own mess.
Plainview was just as hot, and the humidity just as unbearable, as Hewes City. It was so bad that Morty wouldn’t let Davis drive with the top down.
As everyone assembled in the high school’s auditorium, Davis spotted Stevenson.
Wearing a perfectly pressed blue pinstriped suit and with his white hair styled immaculately, Stevenson looked like a television attorney. He addressed the judge, and Davis could tell that he regretted the decision the moment he opened his mouth.
“Well, we’re back here at the high school. It feels like déjà vu, doesn’t it, Judge?”
“Not quite, Mr. Stevenson. The Medical Licensing Board has found Dr. Herman reckless, and the jury found all three defendants reckless in the Malone case. Or have you forgotten?”
Stevenson turned the same shade of green as McCoy’s bow tie.
“Look, gentlemen and Ms. Pierce, I want these cases settled,” said Boxer. “It’s in the best interests of all the parties, and more important it’s in the best interests of two communities. These lawsuits are tearing Plainview apart. The community is taking sides, and many people have lost faith in the hospital. The town needs a hospital. I’m also concerned about Hewes County. Its resources and citizens will be exhausted by these cases.”
Davis had to agree. An appeal and seven more trials would destroy not only both communities but also his law practice and marriage.
“I want all counsel, the defendants, and their insurance people in classroom 11 in five minutes. The plaintiffs will wait in the auditorium. It’s the only room big enough to hold the plaintiffs from all eight cases. Mr. Davis or one of his team will be providing you with updates as these negotiations progress.”
Classroom 11 was a tight squeeze with more than fifteen people in the room. Boxer came in and suggested that the men take off their jackets and roll up their sleeves if they thought it would help.
“Look, there’s no court reporter present. That’s no accident. We’re going to have a frank discussion off the record.”
No one dared challenge the judge. He held substantial discretionary power under the law.
“I’ll decide what record is made after this hearing if this case goes to the Court of Appeals. I meant what I said in there. We’ve got to get these cases settled.”
Stevenson spoke up again. Davis gave him credit for guts. “It has to be fair—”
Boxer cut him off. “A jury’s found your hospital guilty of recklessly credentialing these two doctors and allowing them to perform unnecessary surgeries to make more money. You might want to listen rather than talk. I’m reversing my ruling about whether the plaintiffs can introduce evidence of a pattern of reckless care. This jury verdict supports that decision. Mr. Davis, you draw the order.”
Morty cleared his throat and asked the judge if he would take a question.
“Go ahead, Mr. Steine.”
“Can you tell us if each defendant is liable for the $2 million punitive damage award, or is that award divided between the parties based upon the percentages assigned by the jury? There’s a pretrial motion pending that the court took under advisement.”
“Good question. I elected to hold off ruling on that one; I have no guidance because our Supreme Court didn’t answer the issue. If the Supreme Court meant to apply comparative fault to punitive damages, it could have held so. I’m holding each of the defendants liable for the entire $2 million, just like in the old days, joint and several liabilities. Mr. Davis, you can go after any of the defendants, or one of the defendants to collect your $2 million in punitive damages. The defendants can file a lawsuit against each other to figure out if the $2 million should be divided based on percentage. That should cost them each at least another $200,000 in legal fees.”
Boxer was letting the two insurance companies and the Board of Directors of the hospital know that they would be spending a fortune in legal fees to resolve all these issues and that they were better off using those same funds to settle Plainview.
Davis thought that he would add fuel to the fire: “Just for everybody’s information, the plaintiff will be seeking collection of the award of punitive damages from the hospital, not the doctor defendants, since I suspect their policies might not cover punitive damages. That could be another lawsuit between the defendants.”
Boxer turned to Pinsly of Tennessee Mutual and Davenport of PIC and demanded, “What’s the dollar limit of your policies, and are punitive damages covered?”
Both remained quiet, and McCoy broke in: “Judge, this isn’t federal court where insurance limits are
discoverable. Under Rule 408 of the Tennessee Rules of Evidence, those dollar amounts are not admissible or even discoverable under Rule 26 of the Rules of Civil Procedure—”
“Damnit, McCoy, I’m not the plaintiff, and I’m not trying to introduce the dollar amounts of coverage into evidence. How much does each of your companies have?”
Pinsly reported that $1,980,000 was left, and Davenport, English’s insurer, had a few dollars less because of the Jones settlement.
“You’re both kicking in $2.5 million each to get these cases settled,” said the judge firmly.
Pinsly protested, “That’s more than our coverage.”
“You would have spent more than $2 million each on legal fees if you were to appeal and try all cases. I’m doing you a favor. Let me remind everyone, I’m the presiding judge on the other cases in which there will probably be more than a hundred motions filed. If the defendants aren’t reasonable and get these cases settled, I predict they might not win any of those motions.”
Davis thought, Boxer made a good point. A smart lawyer knows when to keep his mouth shut.
“The jury found that the doctors were sixty percent comparatively at fault, so the hospital’s going to match the payment of the two insurance companies and pay another $5 million, for a total settlement of $10 million. I’m saving the hospital legal fees as well. That’s a nice, round, even number. Does that work for you and your clients, Mr. Davis?”
“I’d like to confer with my team and my clients, but I think I can make that work, Your Honor. How would the settlement funds be divided?”
“That will be my decision. You’ll submit a damage sheet on each case, and I will divide the total settlement among the eight cases. Everyone will agree to be bound by my decision as a condition of settlement. This method doesn’t place Mr. Davis in a conflict of interest between his clients. He won’t be in the uncomfortable position of dividing the pie among them.”
Pierce got the judge’s attention: “Mr. McCoy and I have to make a phone call before we can agree to the terms of any settlement.”