Ben Dupre, TLC ’11
7Step Grad. TLC Alumni List Serve, March 30, 2012.
Dear Listmates,
A week or so ago, we obtained a jury verdict in Santa
Clara County of $150,000 in pain and suffering with a finding of fraud against
a non-dentist who owns a dental company, Hi-Tech Dental, in San Jose. I just wanted to share this for those that
are fighting for pain and suffering as part of their case.
Mr. Bui's Story
In 2008, 68 year old Mr. Bui responded to a radio ad he
heard on the Vietnamese radio station for mini-implants, which are metal screws
screwed into your jaw bone used to support a denture The ad was made and presented by the owner of
the dental clinic Hi-Tech Dental), Kim Trang, a non-dentist (but a Registered
Dental Assistant with Extended Functions).
At Mr. Bui's first appointment, he was seen by Kim Trang, the
non-dentist/owner. Trang examined his
teeth and told him he qualified for the mini-implants. She indicated they would remove the 3
remaining teeth in his upper jaw, replace his partial upper denture with a full
upper denture, and insert 4 mini-implants.
Mr. Bui was very excited that he was a candidate and agreed.
Mr. Bui was then scheduled for an appointment to see Kim
Trang. She proceeded to make impressions
for the anticipated new upper denture.
Then, Mr. Bui was scheduled for another appointment with Dentist #1, who
extracted Mr. Bui's 3 teeth. Following
that appointment, Mr. Bui saw dentist #2, who inserted the 4
mini-implants. Following that
appointment, Mr. Bui saw Kim Trang who attempted to insert the denture,
something only a licensed dentist should do.
Trang inserted the denture, but got it stuck. She neglected to observe that the denture did
not contain a part called housings, which would prevent a denture from getting
stuck. In attempting to remove the
denture, she used a dental pick and a dental drill. She picked and cut the dentures out. The process took approximately 45
minutes. Mr. Bui was in pain and in
great fear, not knowing that Kim Trang was not licensed to perform these acts.
Upon getting the denture out, she then had to repair it
because it had been damaged. She then
gave it back to Mr. Bui to wear temporarily while they made a new denture for
him. The damaged denture looked
horrible. It had crud in the teeth, and
clearly showed it had been damaged. I
thought of it as something you would see in a Halloween store.
A few weeks passed and Mr. Bui returned to Hi-Tech Dental
to get his new denture. Following that
visit, the mini-implants began to become loose requiring Mr. Bui to return to
Hi-Tech Dental. He returned a total of
three times. On two of the occasions,
the same dentist to put the implants in saw Mr. Bui and tried to resolve the
problem by removing implants and putting new ones in. On the 3rd visit, Mr. Bui was not able to
see the dentist, but instead saw Kim Trang.
Mr. Bui complained that he only had 2 implants left. She examined his mouth and told him he still
had two implants left. Mr. Bui said but
he paid for four. Kim Trang said, two
are better than none. She then left him
with this damaged denture. She never
followed up or tried to fix the problem.
Mr. Bui then tried to pick up his medical records only to
be met with Resistance each time. On the
two occasions he called, he was told he first had to talk to Kim Trang. He then sent a letter and got no
response. He then had to go with an
assistant to pick up the records. He
would discover that the medical records showed a dentist that Mr. Bui claimed
never performed services and failed to mention the event where Kim Trang got
the denture stuck and used a drill and pick to remove.
Mr. Bui then went to his family dentist who told him your
insurance would not cover another denture for a few years. Mr. Bui did not have the few thousand dollars
to pay for another denture. Thus, Mr.
Bui had to wear this damaged denture for months. He was embarrassed, humiliated, and
ashamed. He covered his smile. He avoided the break rooms at work. He could not eat hard foods and for a while
had to resort to eating just soup. He
missed no work, had no medical expenses, had no loss of sleep or psychiatric
care supporting emotional distress.
After wearing the damaged denture for over a year, two of
the teeth fell out. Mr. Bui returned to
his family dentist who agreed to give him a new denture and put Mr. Bui on a
financial payment plan.
Mr. Bui Sues Kim Trang et al
In 2010, Mr. Bui, represented by other counsel sued Kim
Trang, Hi-Tech, and three dentists .
This would lead to two years of long, protracted litigation. Two dentists were ultimately dismissed from
the case and the third settled. The remaining
defendants were Kim Trang and Hi-Tech Dental.
Neither one had offered any money to settle the case all the way up to
trial.
Mr. Bui's Trial
Myself and a friend (Mary Dumont) came into the case as
trial counsel. We spent many full days
with Mr. Bui to get to know Mr. Bui and understand what happened. Mr. Bui is from South Vietnam and was in the
South Vietnamese Army for 16 years. He
was then imprisoned in a reeducation camp for almost 6 years. He immigrated to US, raised 8 children (all
educated), and has worked for the same company for the last 16 years. He is one that does not share pain,
embarrassment, humiliation. He did not
share his pain re what happened at Hi-Tech Dental with anyone. Only his wife could see some of his physical
limitations re his inability to eat solid foods. But as far as communicating the emotional
side of that, it lacked. Thus, to tell
Mr. Bui's story, we had just Mr. Bui and the dentists and Kim Trang. Katlin Larimore came out and helped a great
deal (I cannot emphasize that enough) with Mr. Bui and framing our case. Reminding me it is not about Mr. Bui, but
about the defendant's predatory practices.
Telling Mr. Bui's Story
Essentially, this was a he-said, 'they' said case where
defendants also waived up and down medical records that supported
defendants. We put the medical records
on the stand in opening, through all witnesses, essentially showing that these
medical records could not be believed and were part of a cover up.
We put the star defendant Kim Trang on as our first
witness and proceeded down the line of adverse witnesses. Mr. Bui was one of
our last witnesses and told his story honestly and consistently. As far as Mr. Bui's damages, there were no
3rd party witnesses. No medical
costs. No lossed time from work.
We had an expert forensic handwriting witness opine that
she thought signatures that were purportedly made by a dentist were not, but
made by Kim Trang. She also testified to erasures in the medical records. In
rebuttal, defendant put on the dentist with the questioned signatures and had
her sign her name 5 times and showed separate medical records where she signed
her name like the way signed in Mr. Bui's chart. I felt that our expert's
opinion had been dealt a severe blow and was scared that the jurors would start
distrusting our case. As for the erasures, defendant pointed out (by admission
of our expert) that one of the erasures said something innocuous like 'don't
bill" which had been erased. His point was all the penciled items were
erased b/c they related to insurance and not to treatment, thus innocent.
We had a dental expert examine the denture and testify
that it appeared to be cut out with a drilling device consistent with Mr. Bui's
story. Defense got expert to admit that
it is possible the damage could have been caused by something else. At the time, I thought this was ridiculous
and a weak question, the truth was clear at this point, and did no redirect on
it.
Opening
I used David Ball's template from Damages 3 and found it
very helpful. I felt I really had the
jurors on the edge of their seat for most of my opening. Then, I took a risk and did a action scene
with the drill day. Mr. Bui in the
chair, gripping the arms, praying out loud to G-D to overcome this problem,
squinting, shaking the head, and doing the drill sound. I noticed jurors pushed back. I saw I had lost them. I felt rejected. I felt horrible. I had regret.
I had to keep going on, thankfully only 10 more minutes. Also, I noticed one juror, front row very
unhappy to be there was giving me the coldest looks, hard to block out. Made me feel like I needed to back off. Made eye contact quite a bit with many of
the jurors.
Closing
I used Carl's template in his 12 heroes book, very
helpful. I also reviewed a closing
transcript from Luke Wallace and saw that he emphasized about 98% of closing on
defendant's conduct and only like 2% on damages, only 2%. I did about 85%, 15%. Mr. Bui said he almost cried during my
closing. That makes me almost cry as I
write this.
Defense's Story
Defense continued to argue that Mr. Bui's allegations
were false, examining 2 dentists to disprove Mr. Bui, multiple rebuttal
witnesses, and of course the medical records that disputed Mr. Bui. Defense argued that Mr. Bui came in with
deplorable teeth and he left with deplorable teeth. We took that theme and used it against them. We essentially challenged their practice of
doing this to folks, then denying it, then covering it up, and then arguing
that nobody will value a old man with deplorable teeth. And, they are betting you jurors won't
either.
Our trial was 14 days, two being 1/2 days total, and
about 9 days of trial. In almost
granting non-suit motions for defendant, the judge mentioned that our evidence
pain and suffering was painfully thin.
The jury came back with 12-0 verdict for 150k (50K against the
individual defendant and 100K against the company b/c the individual was acting
w/n the scope of employment) The also
came back 9-3 against finding defendant acted with malice, fraud, oppression,
thus triggering a punitive damage day of trial. This was very disappointing.
Talking with the Jurors
I have had the opp to talk with 3 jurors. I was greatly surprised by the fact that
they did not find a battery (one of our claims) b/c a camp of 4 jurors just
felt there was not enough evidence to prove she got the denture stuck and
drilled. I was so surprised. Our client was honest and people knew
it. The defendant was not and people
knew it. The engineer in the group said,
since they both are disputing each other, you discount them and look at other
evidence. But, we had the damaged
denture and pictures. We had a dental
expert. The juror said that they did not
want to buy the expert b/c he admitted that it could have been caused by
something else, despite his opinion that it was caused by the drill. I felt like they are not being honest with
themselves, why else award such money and a conclusive finding on another
claim? But, I also struggle with what I
did wrong that caused that to happen.
During closing, I particularly made a point to go over sufficiently
drill day and the evidence, but not beat it to a dead horse. i failed to go over the Burden of Proof. But, in talking with the juror, she seemed to
imply that in discussing the drill day she mentioned to the camp that they were
applying a higher standard.
Post Trial
We are in the process of trying to obtain an injunction
prescribing that Hi-Tech maker certain disclosures, in part, on their
advertisements that this owner, Kim Trang is not a dentist. Also, defendant is filing motion for new
trial bc the verdict is inconsistent, ambiguous. He says how can you have 50k for pain and
suffering against the individual and then assign 100k against the company for
the same pain and suffering. So, a
month from now, we will be fighting over that.
Lessons
So many to list.
For the most part, this was my first jury trial doing opening, closing
and exams. I admire those that have
done trial after trial, this stuff is brutal.
I needed and still need time to recover from the emotions and
exhaustion. During the course of trial,
I made a list of lessons to learn from, one of them is jury instructions. Man, do I wish the vicarious liability thing
was not there. It seems to now make the
whole house that was recently built have to be demolished. I am of mixed feelings about the drill day,
do I continue to do action scenes? The
answer is yes. Do I think long and hard
about them and try to find ways to reach those that would otherwise reject,
yes. Long trials like this require
co-counsel, bottom line. Could not have
come close to doing this alone without Mary.
Pick solvent and collectible defendants, we will likely not obtain a
penny. Prepare closings way way in
advance, even if I revise it substantially, it still will make the revisions
deep with feeling and power. Don't try
to interrupt a defendant's exam to call impeachment witnesses, save that for
another day. This blew up in our face
giving the defendant the names of all of our impeachment witnesses (5) so he
could dig dirt out and simply prepare.
Thanks to TLC
Man, words can't really put it right. I e-mailed multiple times regarding questions
and fears I had about this case. I
always got gifts from you all. Reading
other posts and seeing how incredibly hard you work and how skilled you all are
is so powerful and inspiring. It is fuel
to fight for righteous causes and for the hard working folks that otherwise
would not have a voice. You all are so
gifted, skilled, and caring. I remember
day of opening, I got a few e-mails and it was so uplifting for me, as I
started to feel fear about my presentation.
I wear my pouch daily to remind me of my tribe of warriors and that I am
part of that tribe, and with it comes great responsibility. A huge and special thanks to Gerry for making
TLC possible for me and writing 'Win Your Case', which calmed me during trial,
as it is easy to pick it up and get some gifts right away. A special thanks to Balam Letona, who sat
right there with a chart and helped me pick my jury and gave me amazing gifts
re my opening and closing. A special
thanks to Ron Wilcox who woke up at 4:30 a.m. to write a motion so he could be
there at my opening, gave me some gifts, and was there giving great help during
voire dire, and there to support me at closing.
A special thanks to John Shepardson who helped squash the fear and
demons on asking for a lot of money and was there for closing. A special thanks
to Luke Wallace for sharing wisdom right before my closing, give the jurors a
reason to care. That is what I put my
soul into doing. I love TLC and am so
blessed to be a part of you all.
Ben Dupre
Santa Clara, CA
