Tuesday, May 1, 2012

Record $74 million-ish Med Mal Verdict In SLO!

Nick Rowely, TLC '04 Grad. TLC List Serve - April 23, 2012.

Defense denied liability, offered zero.  Claimed we could never win in San Luis Obispo because jurors are conservative and would send us packing.  Defense, through the insurance company NORCAL, told us to take our best swing and we did. 

The local news and bloggers and talk shows ridiculed us during the trial.  The paper published love stories about the doctor such as a full page story "DR. HAUPT WAS THE RIGHT ONE FOR OUR TWINS".  We were called greedy, frivolous, among other things.
But, yes a big win.  Everybody is emailing me and texting me.  It feels good.  It boosts the ego.  But, as I sat there with the jury and laid in bed last night, I was humbled by the Justice that the jury decided.  And, with that I want everybody to know some things. 

First, this was a team effort.  Credit is due for what we accomplished to Michels and Watkins, Phil, Shirley and Jin Lew and Russ Kussman (Judge) and our teams.  Judge Kussman had the case initially and believed in the case.  When he made the tough decision of retiring his practice as a lawyer and becoming a Judge he trusted Michels and Watkins with the Blunt Family's case.  Michels & Watkins worked up the case expertly.  Jin Lew's work, Phil's work, Shirley's work, all exceptional.  

We, Carpenter, Zuckerman & Rowley, got called into the case a few weeks before trial because the case was preferentially set and Michels & Watkins had other conflicting trials with preferential settings.

Our partner Robert Ouinjan and I met the Blunt family and took the case on.  Rod Ritner, a trial lawyer from our midwest offices flew out immediately and jumped into the fight.  We worked together with Michels & Watkins all throughout the trial on witness preperation, law and motion issues, and all the chaos that comes with a 7 week med mal jury trial. 

We were all told/warned by the defense that the highest verdict in San Luis Obispo was low seven figures and that a med mal case had not been won in San Luis Obispo County for 24 years. 

As we started trial, the offer was zero.

I handled the voir dire, opening, cross exams of witnesses, and closing arguments.  We split up the other witnesses and Robert and Rod were exceptional during the trial and the jurors followed what they accomplished to the tee.  Robert and Rod were involved with every part of the case.  We would work late night and early morning thinktanking strategy with each witness.

Steven Glass worked endlessly on legal issues in the case which got us the verdict form we needed and the instructions needed to guide the jury to the verdict. 

A jury consultant and trial strategist, Steven Halteman, flew in and was present every part of the trial.  Steve's work and contribution to the case was a big part of the verdict.  He worked with witnesses and storytelling, aligning the chapters of the story of the case to the themes we presented in voir dire and opening.  Steve's role also included staying in tune with each individual juror during the trial and reversing roles with each juror so we could explore what each juror needed each day.  Steve would lead us in role reversals throughout the trial to understand each witness and the feelings of the jury.  Steve leads us in running us into the ground every morning before trial so our heads are clear.  The ideas that come to us as we all run together end up being some of the best at trial.  I would suggest 50 minutes of cardio early each morning before trial for any trial lawyer. 

PATRICK LOGAN, our visual arts genius.  Pat got involved with the case to handle all of the technology and to design a visual presentation which told the story and communicated the themes to the jury.  I have had Pat as part of many of the verdicts I have been part of.  He is one of the hardest workers I know, brilliant, and loyal as old yeller, except his favorite color is orange.  We love you Pat, could not have done it without you. 

I would recommend Pat Logan and Steve Halteman for help on your cases, but I think we plan to keep them busy and close! 

My partners John and Paul made this all possible.  Gave us all the support we needed.  At Carpenters, Zuckerman & Rowley, we are a team.  We support eachother through thick or thin.  I could have never imagined being part of such a wonderful firm.  I am so honored.  Paul and John supported me, helped me, every day.  John came before closing and helped me prepare as he often does and was present during closing and helped me with key points in the rebuttal which the jurors repeated after trial.  Thank you Paul and John, love you. 

There are some of you who I cannot mention by name publicly, who have mentored me, supported me, and who have been integral in my development personally and professionally.  You each know who you are, I am thinking of you, imagining your faces, thinking of you.  I will see you very soon and you are included in this email.

My dear friends and mentors of mine Gary Dordick, Garo Mardirossian, and Jude Basile helped me throughout the trial and gave 100% support and advise.  Gary Dordick has become a best friend to me, a brother, a mentor.  Words cannot express how much Gary has helped me over the past couple years.  Jude Basile and Gary Dordick and Garo made themselves available to me everyday.  Jude himself showed up during the entire trial and offered and delievered help, thank you Jude.  Arash and Conal, Brian Witzer, Ricardo Echeverria, and many other fellow warriors were supportive and gave good advice throughout the trial also.  Rex Parris has been a big brother to me who I so very much appreciate.  The support I had, words cannot express how appreciative I am to my friends and fellow trial lawyers who care about seeing a fellow warrior succeed.  Thank you so much, having friends and mentors who believe in you and support you, words cannot express how much it means.  This is a win for us all!  When we support eachother, believe in eachother, put our egos aside, and care about eachother's clients, the battles we face, we all win together.  We also all lose together.  In the military, having commrades, fighting for a team, for a cause, not just for yourself and your own ego, that is what I loved most.  When I see Trial Lawyers for people putting aside their egos and greed (which we all have) that is when I see the best results. 

Geoff Fieger, who has taught me so much, thank you.  Geoff recently obtained a nine figure verdict in a similar case.  Geoff, the way he communicates, the feelings that travel from him to the jury, is something that I have only seen in few.  Geoff is a master at exposing injustice and getting the jury to feel it within themsleves.  Much of what I learned from him went into this trial. 

Tiffany Chung, my mentee, who has worked with me since I first started practicing, and who is now a licensed CA attorney, worked relentlessly on the case.  Thank you Tiffany.

Bekah Krueger and Joe Krueger, flew out from our Iowa office and helped on the case, they are among our most loyal, are hardworking and brilliant.  They are both soon to take the California bar.

Sally Schwartzoff, my personal assistant, and manager of our midwest offices, took care of us all as she always does during trial, which basically means she takes care of us all year around because we are always in a trial.  Love you Sally! 

The Blunt family, are among the most precious people we have ever met.  They are gems, the best clients anybody could ever imagine.  Andrew was a Marine, 7 years, two tours in Iraq.  Jennifer has a Masters degree and is the Director of the Head Start program for the County.  They have their two daughters, Charlotte, almost 2, and SOFIA WHO JUST TURNED THREE.  Sofia has cerebal palsy because of medical malpractice and we exposed a cover up including destroying medical records and Sofia's cord blood which would have conclusively proven acidosis in her brain.  Cord Blood is taken and tested in babies who are born depressed.  Dr. Haupt, the Defendant, and Sierra Vista medical center destroyed the cord blood, when Sofia was born and looked dead and needed resuscitation.  

Sofia is beautiful, smart, trapped in a body that does not work.  She eats through a GI tube.  She needs 24 hour care and will not get it. 

The defense, through the defense lawyers, through their experts took the position that they should have to pay less because Sofia would likely not live to see age 21.  And, the reason she would die is suffocating in a pillow or aspirating (drowning) on her own body fluids.  SO, THE DEFENSE SAID, LETS ONLY GIVE HER 4 HOURS OF CARE PER DAY.  Lets leave her to sleep alone at night. 

WELL, the jury did exactly what I asked them.  They gave Sofia every penny of care in our life care plan.  And, they gave her the life expectancy I asked for, which was age 63 years old!  Thank you ladies and gentleman of the jury for not sweeping this under the rug, and for standing up for a family of your community. 

The experts in the case were exceptional.  They stood up as patient advocates for what had happened to Sofia and her family.  Barry Shifrin, fetal medicine (fetal heart monitor specialist), Dorothy Sims (neonatalogist), Carter Snead (pediatric neurologist), Sharon Kuwai (life care planner), Peter Formuzis (economist). 

The judge, Crandall, was fair, he let both sides try their case.  He gave us the fair shake that we needed.  The jury also agreed to be fair.  I asked them all in voir dire, each one individually "I am asking for a lot of money in a malpractice case against your local hospital and a popular doctor, do I have any reason to be afraid having you on this jury".  I believe we had approximately 20 jurors who disqualified themselves for cause. 

This family deserved every penny that the jury gave.  WE PLAN TO APPEAL THE MICRA REDUCTIONS.  We are actually going to ask the Judge, Crandall, Dept 9, San Luis Obispo, to make factual findings that MICRA is archaic, outdated, and not rationally based, and after making those factual findings, we plan to ask him not to reduce pursuant to MICRA forcing the defense to appeal the non economic damages. 

The defendant, during trial, said they wanted any judgment periodicized, which under the law that Steve Glass researched and found meant that the jury decides gross value of the damages instead of present value to prevent a double reduction.  The defense went ape shit to say the least because the writing on the wall was one that told us there would be a good verdict. 

Before trial, zero offer, the defense had a full team of experts from Stanford University.  We exposed them one by one.  The ship was sinking and the hospital jumped off and paid us millions.  The doctor and his group then offered $2M.  We said NO.  It was a tough decision to turn down the "hush money" but we all stayed strong and perservered. 

To the Blunt Family, Thank you for giving all of us the opportunity to be your warriors and for letting us be the voice for your family in this most important case.  You have not only stood up for yourselves, but for all the victims of malpractice and their families throughout this country.  You have shown that courage against all the odds can prevail.

Last, but not least, Gerry Spence, my mentor above all.  You believed in me many many years ago and told me I could do this.  You trained me, not just at your college, but personally mentored me over the past 8 years.  You have loved me and been a father to me.  You have given me so much and I am doing my best to pay it forward.  I, and the teams I am a part of, carry the torch of justice proudly.  I love you old man!

Sometimes, just sometimes, Justice Does Happen, But We Have To Fight Against The Odds and Risk It All, we have to be willing to fight and lose.  We must be willing to get up again and again after being beaten, knocked down and pissed on.  Keep up the fight, never give up, 

Nicholas C. Rowley

This evening Nick Rowley, Robert Ounjian, and Rod Ritner of Carpenter, Zuckerman & Rowley and Phil Michels, Shirley Watkins, and Jin Lew of Michels & Watkins won a $74+ million dollar jury verdict.  It is iby far  one of the largest plaintiff’s med mal verdicts in California history.

We’re told it’s the first plaintiff’s medical malpractice jury verdict in San Luis Obispo in more than 20 years!

The victory is even more remarkable given that the local newspaper – which covered the trial – ran a prominent story praising the defendant obstetrician shortly before closing arguments.

Michels & Watkins worked up the case expertly.  Rowley, Ounjian, and Ritner -- who  were associated into the case as trial counsel a mere three weeks before trial began -- knocked it out of the park.

Briefly, the 7-week trial involved a young girl’s birth injury.  The young girl was born at approximately 41 weeks gestation at Sierra View Regional Medical Center.  She was born after a 4+ hour second-stage of labor and prolonged pushing and crowning.  Plaintiffs alleged that the obstetrician, Kurt Haupt, was oblivious during the delivery – not performing an episiotomy, attempting to vacuum, or conduct a forceps assist -- while the fetal strips deteriorated.  At one point, Dr. Haupt removed the IUPCs but did nothing to assess the mother’s contractions for 30 minutes.  The child was born depressed.  Post-delivery, the hospital staff were unable to adequately incubate or ventilate the baby.

The child suffers from cerebral palsy.

The plaintiffs sued the hospital and Dr. Haupt.  The hospital and Dr. Haupt presented a unified defense insisting that neither were negligent.  They hotly contested causation and damages.

The hospital settled mid-trial for $2 million.  Later in the trial, Dr. Haupt also offered to settle for an additional $2 million, but the plaintiffs trusted the jury.

The jury found 12-0 for the plaintiffs on negligence and causation.  While there was some division on damages, post-verdict interviews revealed that the dissenting jurors wanted to give more money!

The vast majority of the verdict was for economic damages, and therefore is not subject to the MICRA cap on non-economic damages.

Dr. Haupt retired from medicine during the middle of the trial.

Defense counsel for Dr. Haupt: Peter Bertling of Bertling & Clausen (Santa Barbara).  Defense counsel for the hospital: Jay Hieatt of Hall Hieatt & Connely (SLO)

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