by Kevin Deeny
“Yes, of course. I still go every Sunday.”
“Good, I did too when I was young. Do you remember the biblical stories about all of the healings Jesus did?”
“Not all of them, but sure, I remember some of the stories.”
“Ok, now the hard part, what was the point of those healings?”
“I guess I don’t know; maybe to show that he was God’s son.”
“Maybe, but wasn’t he here as a man? And if he came here as a man to show us how a good man can live a good life, isn’t it kind of breaking the rules to dip into God’s bag of tricks if he’s supposed to show us how an ordinary man is supposed to live?
“Well, I never thought about that.”
“What if Jesus healed those people to show us how it’s done and to show us that it is within man’s ability to do this kind of healing?”
“Well…”
“Carlos, there have been healers throughout history that have healed in this way, and some were not particularly religious. They tap into something we all have access to as part of our human potential. If you want to think of it in religious terms, this “gift” was given to us once and forever. We don’t have to seek it every time we have a need, - it’s always there for all of us. Now, what I did with Josh is minor in comparison to what others have done, and I am still trying to understand how this works. I just know that it does. What I believe is that someday, we will all be able to do this for one another. This may not come to pass during my lifetime or yours, but you can be sure that it will never happen unless we try to understand it and work with it.”
Carlos nodded, still trying to absorb what he heard. He knew some of the bible stories, and he knew what he saw when Marcus helped Josh. Carlos also knew from working with Marcus that he is not particularly religious, but he is a good man. He was content to leave their conversation there.
As they finished breakfast, Marcus checked the time and told Carlos that he had to meet with his lawyer before he headed to the courthouse. As they left the diner and were about to go their separate ways, Carlos hesitated and then decided to tell Marcus that a local reporter has been calling around and asking questions about Marcus that don’t seem to be directly related to the case. “He called me yesterday and wants to meet with me.”
Marcus thought for a moment and told Carlos, “I guess it is inevitable that someone would be curious about some of the things we now take for granted. Please feel free to talk to him about me if you would like to do so, but I suggest that if the subject of Josh’s injury comes up, you talk to Josh first to see if he’s comfortable with it being discussed.” Marcus smiled warmly and shook Carlos’ hand, “Thank you. I’ll see you later this morning.” He walked the block back to his hotel parking lot, climbed into his Jeep and headed into town to meet with his lawyers.
Chapter 32
Offense
Everything we hear is an opinion, not a fact. Everything we see is a perspective, not the truth. – Marcus Aurelius
The morning meeting with his lawyers resulted in no changes in expectations or strategy based on the review of the jury. They gathered their files and notepads and walked together to the courthouse to begin the trial.
The opening statement by the plaintiff’s lawyer, Ms. Terri Lawson, emphasized the tragic loss of a 5-year-old little girl whose life had ended far too soon. She described how Lily’s birth had brought happiness and completeness to the family and how Lily loved everything to do with princess characters and butterflies. Her parents had started a collection for her of glass and ceramic butterflies that she loved, but “…would now be forever frozen in time.” The whole family recently mourned the loss of their family pet dog who was killed in a car accident. Lily was deeply attached to the dog and had only recently shown signs of recovering from the emotional loss. Their outing on the lake that day was an attempt to bring back some normalcy to Lily’s life after her loss. Ms. Lawson took them quickly through the events of the day leading up to the time when Lily was brought to the beach but took more time to emphasize Marcus’ pause while performing CPR, which she would show “contributed to the death of 5-year-old Lily Dietz.” Jason deferred his opening statement. He preferred to give it when they presented their defense.
Both sides in the case were barred from discussing the settlement that other defendants entered into with the plaintiff. Thus, as far as the jury knew, Marcus was the only person who was sued. This had the effect of simplifying the case, but as Jason worried, it could cause the jury to assume that Marcus was the only one with some potential responsibility. Jason expected that opposing counsel would gloss over the activities of others and bear down on Marcus’ actions. He would do the same thing in their shoes.
Witnesses for the plaintiff were called; the first was a 19-year-old college student who was at the park that day with his girlfriend. As expected, the plaintiff’s lawyer began by asking him to explain what he observed as Lily was brought to the shore, skipping past a description of the accident itself. He described the scene as Lily was carried out of the water by her father and laid down on the sandy beach. Her father kept calling her name and got no response and then called out to the small group who had gathered around and asked if anyone knew CPR. “We all looked at each other for a few seconds, but no one stepped forward until a guy pushed through that I didn’t notice before.” At the lawyer’s direction, he confirmed that the guy who performed CPR was Marcus who was sitting at the defendant’s table. The witness described how Marcus performed CPR for several minutes and then paused for a while and looked out into the distance. “It was kind of weird, but he started up again after the mother screamed at him. The EMTs arrived about 5 minutes later.”
On cross-examination, Jason took the witness back in time before the accident and asked him to describe the scene. With consistent prodding, he got him to explain; where the boat rental company was located, the father-son and mother-daughter pairing in the two seated kayaks, how far offshore the kayakers were when the accident took place, the father’s rescue attempt, and that there were no state employees present.
Jason wanted to get a few more facts on record and wanted to emphasize a few points with the jury. He slowed his pace somewhat with the appearance of pondering questions he would ask, but in truth, he knew and had rehearsed them all. He became a bit more formal and asked, “Mr. Casaverde, Ms. Lawson asked you to describe the events that you witnessed on the beach that day, mainly associated with my client performing CPR and I won’t take you through that again. However, I am interested in what took place before CPR was started. As Mr. Dietz, Lily’s father, placed her on the sand where multiple people had gathered, did you see any signs of life in the child, such as breathing, coughing, talking, or any similar symptoms?
“No, I didn’t.”
“Did Mr. Dietz say anything to anyone who was gathered, related to his daughter’s condition?”
“The only thing I heard him say was “Does anyone know CPR?””
“You stated that my client, Mr. Kenrick, came forward from outside the group that was gathered around Lily to perform CPR. Is that correct?
“Yes.”
“Do you recall if my client, said anything before starting CPR?”
“Yes, he told me to call 911 and get an ambulance on the way.”
“To your knowledge, had anyone in the group of onlookers called 911 before being told to do so by my client?
“I don’t know.”
“You testified that my client paused after several minutes of performing CPR. How long did the pause last?
“I don’t know for sure, it seemed like a long time; maybe about a minute or two.”
Thank-you Mr. Casaverde.”
Jason walked to his table and picked up an envelope and presented it to the judge. “Your honor, I would like to submit a recording and transcript of the 911 call received by the Emergency Call Center from Mr. Casaverde i
nto evidence. The call was time-stamped at 1:47 pm. It was the only call received by the call center for this incident, as attested to by the call center supervisor.” The judge accepted the information into evidence and Jason handed the transcript to the witness and asked: “Mr. Casaverde, please review the transcript and tell the court if this accurately reflects your memory of the call you made.”
After scanning the transcript, he replied, “Yes it looks accurate to me.”
“Thank-you Mr. Casaverde.” Jason turned to the judge and added, “That’s all I have for this witness, Your Honor.”
The plaintiff next called another of the onlookers from that day whose testimony essentially mirrored that of Mr. Casaverde. Since there were no material differences to dwell on, both lawyers moved through the testimony quickly.
The plaintiffs next called Mrs. Dietz, Lily’s mother, and Marcus expected her testimony to be heart-rending. Her lawyer sought to paint a picture of Lily’s life and through a series of questions, took Mrs. Dietz through Lily’s birth and childhood including her pending start of kindergarten that was scheduled to occur two weeks after the accident. Mrs. Dietz talked about her lack of interest and the strain on the family since Lily’s death. She was guided slowly and carefully through the events of the day and focused on her stunned viewpoint as she watched her little girl being brought out of the water by her husband and laid on the sand. Mrs. Dietz lost control several times during the testimony and sobbed and wrung her hands unconsciously. When her account of events came to Marcus’ pause in performing CPR, she couldn’t believe what she was seeing, “He stopped giving her CPR and stared off into the distance almost like he wasn’t really here. I screamed at him, and he came out of it and started again. I still can’t believe he did that.”
“Thank-you Mrs. Dietz, your witness.”
Jason approached the cross-examination of Mrs. Dietz carefully. She had cause to be upset and emotional, even though he thought that the anger directed at Marcus was misplaced. With subdued questioning, he guided her through the day; the rental of the kayaks, her lack of experience with kayaks and the instructions she received regarding their use.
As his questioning drew closer in time to the accident itself, she could not remember all of the details, only that Lily had lost her paddle in the water and they were both leaning over to retrieve it when the kayak rolled. Between sobs, she recounted how she struggled underwater and upside down and how she was unable to right the kayak until her husband was able to help. Mrs. Dietz then immediately looked back to Lily who was slouched in her seat. She remembered screaming for her husband who was next to her in the water. She couldn’t recall how much time had elapsed from the time her kayak rolled over until Lily was pulled to shore by her husband.
Jason thanked her for her testimony and returned to his table and sat down. There were several more questions he was prepared to ask but chose not to push too hard. The woman was still suffering, and he didn’t want to add to her distress.
The trial broke for lunch and Rosalind joined Marcus in a quick bite to eat and a walk through town with no particular destination. They sought only to enjoy the time out of the courtroom. Rosalind thought that the plaintiff’s case so far was more emotion based rather than fact-based which should also be apparent to the jury. Marcus agreed, but cautioned “People often act on the basis of emotion rather than fact and the jury may be motivated to find some way to ease Mrs. Dietz’ grief.”
When they had returned to the courtroom after lunch, Dr. Simone Krieg was next called by the plaintiff as their medical expert. Dr. Krieg, now retired, was the former head of emergency medicine at the St Agnus Hospital in Allentown. He provided testimony on the necessity to perform CPR continuously to maintain circulation and critical brain function. He was guided through a discussion of CPR, rescue breathing, and the present understanding of the benefits of chest compressions in preserving brain function. He offered the opinion that the pause in the performance of CPR could have deprived Lily of critical oxygen supply to the brain.
In an effort to blunt an argument that the defendant would be sure to make, Ms. Lawson broached the subject of the Good Samaritan Law and carefully guided her expert witness through several questions.
“Doctor, from a physician’s perspective, could you describe what the Good Samaritan Law is?”
“Yes. The law essentially shields a Good Samaritan or layperson from liability if he or she performs CPR in a good faith manner and their actions are reasonable.”
“And in this case, was it reasonable to stop CPR once it was initiated?”
“Not in my opinion. The typical situations for stopping CPR include when the subject begins to recover, or there are safety concerns or exhaustion of the person performing CPR. None of these conditions were encountered in this situation.”
While Jason listened to the testimony, he was surprised at the lack of specificity. Timing and duration were important, but there was no discussion of either in the doctor’s statement. From his trial preparation research, Jason knew that there were windows of time that are relevant and this witness avoided any discussion of them. As he rose from his table to begin cross-examination, he went over the math again in his head to make sure his numbers were correct.
On cross-examination, Jason planned to explore the time and duration estimates associated with Lily’s accident, but before doing so, it was necessary to establish what times or durations were relevant.
“Dr. Krieg, is it generally recommended to begin CPR as soon as possible after circulation has stopped?”
“Yes.”
“Is there general guidance on a timeframe in which you should begin CPR?
“You want to start CPR right away; generally, within the first two minutes for the best outcomes.”
“And what is the timeframe to avoid brain damage without oxygen circulation to the brain?
“About 3 to 4 minutes.”
“Doctor, we’ve heard testimony that the kayak that Lily traveled in with her mother rolled over and Mrs. Dietz struggled to turn it upright. During that time, they were suspended upside down under water. When the kayak was righted, Lily was slouched in her seat and showing no signs of activity. After removing Lily from the kayak to give her a rescue breath, her father swam to shore from a point estimated by witnesses to be about 100 yards away. She was then carried to shore, and a call went out for someone with the knowledge to perform CPR. All of these actions took time. Is it conceivable Doctor that the time for a successful outcome had expired before CPR had begun?”
“It is conceivable, but we may never know.”
“We’ve also heard testimony that my client performed CPR for several minutes before the 1 to 2 minute pause. This is well below the time period of 3 to 4 minutes to risk brain damage, and CPR resumed continuously thereafter until EMTs took over. What is the medical basis for your opinion that this limited pause “…could have deprived Lily of critical oxygen supply to the brain.”
“Her autopsy report confirmed that Lily suffered Cerebral Hypoxia or loss of oxygen to the brain.”
“Does drowning itself result in Cerebral Hypoxia?”
“Yes, it does.”
“Doctor Krieg, what is the cause of death that the Coroner determined for Lily Dietz?”
“Death due to drowning.”
“One more question Doctor; you indicated that the typical reason for stopping CPR includes recovery, safety concerns, and exhaustion. Is that correct?”
“Yes”
“Would the list of reasons also include the death of the subject?”
“Yes, of course.”
“Thank-you Doctor.”
The plaintiff’s lawyer rose and addressed the judge, “Your honor, we rest our case.”
The judge turned to look at Jason and questioned “Mr. Pritchard?” expecting a motion to dismiss the case. Jason began to rise to do just that; the p
laintiff had not presented any evidence of wrongdoing by his client; their whole case was based on a presumption. Marcus placed his hand on Jason’s arm to get his attention, “Can we have a minute?” Jason was puzzled and turned back to the judge to request a brief moment to confer with his client. The judge ordered a 15 minute recess.
Marcus and Jason found a quiet place in the courtyard to talk, and Marcus asked, “Can you delay the motion to dismiss; I would like to testify?” Jason replied, “Sure, but I’m not certain I see the point of it. They have a weak case, and if I’m reading the judge accurately, she feels the same way. If I make the motion and the judge agrees, we are done here.”
“That’s what I understand, and I agree that it is a good possibility that the case would be dismissed, but what will be left hanging out there in many people’s minds is that I might have been responsible, but their lawyer just wasn’t able to prove it. I would like to put it completely to rest.”
Jason shook his head, “If we continue, we run the risk of giving them something to use against us; the smart thing to do is to get out now if we are able.”
“If it’s possible to do so, could we start the defense with my testimony and leave the rebuttal witnesses for later? You could then make the motion as soon as my testimony is done and it either ends there or follows the normal course as the judge decides.”
“We could do that, but it’s risky, and I would advise proceeding with the motion now.”
“I understand, but I would like to testify.”
They returned to the courtroom and Jason addressed the judge, “Your honor, I have no motion to submit at this time. We are ready to proceed.”
The judge raised her eyebrows in muted disbelief and responded, “Given the lateness of the hour, we will proceed with the defense in the morning.”
Jason and Cecily were talking earnestly as Cecily was filled in on what just transpired and they hardly noticed as Marcus left. Marcus felt bad that his decision meant that their work was not yet over. He joined up with Rosalind and Carlos, who both had spent the day in the courtroom, and they went to an early dinner. Marcus explained his discussion with Jason and his decision to delay seeking a dismissal until he was able to testify. Carlos shook his head, “I agree with Jason. This is risky business, my friend.” Rosalind was silent. They had a pleasant dinner, and afterward, Carlos excused himself to go off to a late meeting. Rosalind and Marcus went in search of a movie theatre for some much-needed distraction. As they pulled into the parking lot of the theatre, Marcus turned off the ignition, and Rosalind inquired, “OK, what’s the real story? Why didn’t you end it today?”