Business litigation and personal injury attorney and SynerG member Jim Ford shared this “SynerG War Story” about what he learned about researching your expert witness and judging your jurors during a trial: Several years ago, my college roommate, Dennis Cathey, a lawyer in Cornelia, and I tried a case against a pathology laboratory in Greenville, South Carolina for having allegedly failed to properly screen a Pap smear, resulting in the death of our client’s 32 year old wife from cervical cancer. We had already reached a settlement with the wife’s obstetrician in North Georgia.
We fortunately had the assistance of two of the world’s foremost obstetrical pathologists from Duke University as our expert witnesses. They had prepared a visual explanation of why any abnormal Pap smear had to be reexamined by a pathologist regardless of the abnormality. The wife’s Pap smear had been screened by a technician and was classified as negative when it actually showed precancerous lesions. The laboratory did not have a pathologist review the smear. Had the smear been properly screened, there was a 90% plus probability that the lesions could have been eradicated.
The defense expert was an obstetrical pathologist from the Medical College of South Carolina in Charleston. The defense expert testified that the smear was actually positive for precancerous lesions but that did not matter because the lesions were glandular in nature and not indicative of cancer. Fortunately, I had done some research on this expert and had discovered a letter that he had written to the American Medical Association in which he exclaimed that any abnormal Pap smear had to be reviewed by a qualified pathologist no matter what the abnormality. The letter had been published in the AMA Journal, and I had it blown up the size of your front door with the relevant statement highlighted. When I put the letter in front of the doctor and the jury on an easel, you could hear a pin drop. I asked the pathologist to please explain his testimony in view of his letter to the AMA. Over strenuous objection, the trial judge directed the expert to answer the question. He responded, “there is not really anything that I can say.” I looked around at our local counsel, Mike Parham, and he drug his finger across his throat. I sat down.
Greenville, and for that matter, South Carolina, was then and still is a very conservative jurisdiction. We had two older women as jurors who sat next to one another on the front row of the jury, all the way down next to the jury door, which caused us concern. We found out after the jury had been seated that one of them attended church with defense counsel. South Carolina does not allow wide open voir dire. The defense had offered $150,000.00 in settlement, and that was only made as we were walking into the courthouse to start the trial. The jury came back with a verdict of $3.5 million in the survival part of the case and $1.1 million in the wrongful death part of the case. The trial judge credited the defendant with the $500,000.00 settlement we had made with the Georgia physician. The defense appealed. The South Carolina Court of Appeals affirmed the verdict and added the $500,000.00 back to it because the measure of damages for wrongful death in South Carolina is not the full value of the life of the decedent as in Georgia.
After the jury had returned its verdict, I was standing outside the Greenville County Courthouse trying to catch my breath. One of the women on the front row of the jury drove up in her brand-new Buick Riviera, got out of her car and asked me if it was all right if we spoke. I told her sure, the case was over. She then told me that she wanted to give me some advice. “The next time you try a case against that pathology laboratory, ask the jury to require it to post a billboard out on I-85 that says having a Pap smear read there can be dangerous to a woman’s health!” You just never know.
At the time, this was the second or third highest verdict in South Carolina for medical malpractice. The other two had also been secured by Georgia lawyers.
Jim Ford has a general business litigation and personal injury practice. His email is firstname.lastname@example.org.
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