Gabriel Stoops – When 24 Hours Can’t Wait a Week: A $1.2M Med Mal Verdict

Gabriel Stoops secured a $1.2 million verdict in his first lead civil jury trial, a medical malpractice case that other firms had turned down due to weak economic damages and high risk. His client underwent routine PRK eye surgery to improve her vision, but when she developed pain and progressive vision loss three days later, her surgeon's office ignored her pleas for help. With the defense declining settlement offers, Gabriel – who started his firm in his mom's basement – invested everything into the case. “This could be a movie,” says host Keith Fuicelli as he unpacks the high stakes, incredible odds, and ultimate victory.

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Episode Snapshot

1. Gabriel was inspired to pursue law by hearing his father's medical malpractice stories at the dinner table as a youth.
2. When a summer associate role at a big Houston firm didn’t turn into a permanent job, Gabriel did contract work and eventually started his own firm in his mom's basement.
3. Gabriel's client underwent routine PRK eye surgery, but three days later developed excruciating pain and vision loss in both eyes. The surgeon's office ignored her desperate calls for help and didn't see her until a full week after surgery.
4. The surgeon didn’t start antibiotics to treat the client’s eye infection soon enough, which led Gabriel to his case theme that “when you only have 24 hours, it can’t wait a week.”
5. The defense offered only not to pursue the client's costs if Gabriel dismissed the case before trial.
6. Gabriel had two experts: an economist who developed a vocational economic assessment and a life care planner who accounted for what his client would need going forward.
7. Most of the $1.2 million verdict were economic damages for the client’s life care plan and reduced earning capacity.

The information contained in this podcast is not intended to be taken as legal advice. The information provided by Fuicelli & Lee is intended to provide general information regarding comprehensive injury and accident attorney services for clients in the state of Colorado.

Episode Transcript

(00:00):
Welcome to the ColoradoTrial Lawyer Connection,
where Colorado trial lawyers shareinsights from their latest cases. Join me,
Keith Fuicelli as we uncoverthe stories, strategies,
and lessons from recent Colorado trialsto help you and your clients achieve
justice in the courtroom. Thepursuit of justice starts now.

(00:21):
Hi everyone.
Keith Fuicelli here back for anotheredition of the Colorado Trial Lawyer
Connection Podcast. As you know,
we try to speak with lawyers whenthey've had success and maybe sometimes
failure, but usually success in trialto kind of find out what worked,
what didn't work.
And this episode I'm thrilledto have on Gabriel Stoops

(00:42):
who not only crushed his first jury trial,
his first lead civil jury trial,but this was a meow trial.
And for those of you outthere who tried meow cases,
you all know how difficult they can be.
And to have that be your first trialand to be met with such amazing success,
I'm thrilled to welcome to theshow. Gabriel Stoops. Welcome.

(01:05):
Thanks Keith.
I'm grateful to be here and gratefulthat I've got a positive report to talk
about.
That is the most importantthing. So Gabriel,
tell us a little bit about yourself.
How is it that you cameto be a trial lawyer?
I'm from Tulsa, Oklahoma, and mydad was a trial attorney. In fact,
his specialty was medical malpracticeand I grew up hearing the stories of the

(01:25):
clients that he helpedat the dinner table.
And so I knew from an early agethat that's what I wanted to do.
I wanted to join hispractice once I got older.
He's an Oklahoma, I take it then.
Yeah, he was, unfortunately, my plandidn't work out the way I intended.
I went through undergradas quickly as possible.
I did that in three years so I couldget out of law school as quickly as
possible. And once I got to lawschool during finals of my one L year,

(01:47):
my dad suddenly tragically died.
I of course was not expecting that andwas kind of lost for a while after that.
I'm so sorry.
Yeah, he had cancer buthe was not dying of that.
It was sudden that he did, sowe weren't expecting it at all.
Wow. One of those things that justhas a profound impact on your life.

(02:07):
Tell me a little bit about what youlearned from him growing up about I guess
the right way and maybe thewrong way to practice law.
Yeah,
he was very disciplined and detailoriented on his cases and he would talk
to his kids about the importance oftalking to experts and doing medical
research. And so he imparted eachof those skills to me separately.

(02:28):
And I didn't have the legalframework yet to understand it,
but I knew when the time came,
the separate components of the case thatwere very important to focus on and why
they deserve so much attention.
So then I kind of take it fromyour background and your story,
that you always knew you weregoing to be a lawyer. Is that fair?
I originally wanted to be the crocodilehunter and after that dream, seriously,

(02:50):
yes. That was my first goal. And afterI saw the hazards of that occupation,
I decided law would besafer and better for me.
I mean, I got to be honest, didn't even,
there is such a professionas a crocodile hunter,
but it does sound very dangerous.
I'm taking while you're in highschool you realize I'm going
to become a lawyer.

(03:11):
Yeah. High school started a mocktrial program during my senior year,
and so it was a attempt at mocktrial. They didn't have a plan,
they didn't have a program,anything like that.
They just kind of threw it together.
And I joined that team and we went onto win state and ended up coming 14th in
the nation.
And so that was kind of an early signthat maybe this would be a good path for
the skills that I have.

(03:32):
Holy cow.
So you sound like a natural even Ican just tell in the way we're sort of
chit-chatting, that you're verycomfortable speaking in front of people,
comfortable in front of thejury, assuming that's true.
Has it always been that wayjust with your upbringing?
Just always feel comfortablein front of people like that?
I wouldn't say I feel comfortable.I'm glad it sounds that way.
I think that I've learned to speak frommy dad and listening to him and I picked

(03:54):
up along the way, and so thatpart comes naturally to me,
but there's a lot of nervesfor me. It's not comfort.
Whatever it is, it's working. Amazing.
Where did you do your undergrad thatyou said you did in three years?
That's impressive.
University of Oklahoma College of Law,the in-state tuition was too good.
Okay, so undergrad andlaw school at Oklahoma.
Exactly.

(04:15):
Yeah. My wife is from Edmond, soI spend a lot of time in Oklahoma.
It's amazing.
The community actually of Oklahomansthat are present here in Colorado.
Lots of people.
That's something we have in common.
My wife is actually from Edmond aswell and she's now my partner in law.
Oh really? Okay.
And have you always had your own firmor when you graduated law school,

(04:36):
how did it come to be thatyou established your firm?
Yeah, I mentioned I was kindof lost after my dad's passing.
I didn't know what to do. And in lawschool they present a vision of success,
which is kind of unilateral.If you're successful,
you get in the top 10to 20% of your class,
you can maybe get a position with biglaw and that's really the best you can
have it. That was whatwas presented to me.

(04:57):
And so I tried to follow that pathfor a while and I ended up getting a
position at a big law firm in Houstonto a summer associate position.
And the assumption isthat if you get that job,
they give you a job offer afterwards.So once you get there, you've made it.
And so I was one of the highestperforming summer associates and then they
didn't give me a job offer andthat was absolutely crushing.

(05:19):
Do you know why?
No.
I talked to a bunch of partners afterwardsand one of them said maybe you'd be a
better fit at a boutique plaintiff's firm.
And that meant nothing to me at the time.
And for me it felt like apersonal rejection rather than just not the right fit
in terms of what I want to do and how Iapproach the law and what I really care
about. In a case, being fromOklahoma, the song Garth Brooks,

(05:42):
he has a line that says sometimesI think God for unanswered prayers.
And that's how I really feel about thisbecause I'm really grateful that that
door was closed for me so that Iended up on a path to where I am now,
which there's a little bit more to that.
And I want to explore it a little bitbecause I had a similar experience.
Although my experience,
I went to CU law school and I was middleof the class and I had friends that

(06:06):
were top of the classgetting all these interviews,
getting all these high paying biglaw jobs, and I was personally hurt.
I couldn't get an interview,
I couldn't get anyone to give me a chancefor anything in the world and to your
point, that hurt.
And so I ended up being a prosecutorout of law school for five years,
which was amazing because I got the trialexperience that kind of led me on the

(06:27):
road that I am at today.
But more so than so manythings in life in law with
that rejection often is something lateron in life you come back and you're
like, wow, I'm so glad that thingsworked out the way that they did.
Although I'm sure in that time when hereyou are the highest performing or doing

(06:47):
a great job and then you'refaced with this rejection,
I'm sure at that time thinking,oh, everything's going to be okay,
doesn't make it any easier. Is thatkind of what your take on that is?
Yeah, I was completely lost.
I didn't know how to take that in apositive way and to me there was nothing
good that could come from that. I justdidn't have the ability to see that.
And that's something that I can see inretrospect now and I'm really grateful

(07:09):
for that perspective now.
So how is it then that you mentionedthat you're in practice with your wife.
Did you both form andstart the firm together?
So I graduated during the hiring freeze.
I couldn't find full-timeemployment with any firm.
And so I started doing contractwork for multiple firms.
But even then I wasn't able to getenough work to feel like I was fully

(07:30):
employed. And so I had the crazy idea,
what if I were to see if I could bringin some of my own clients and start my
own practice. But I hadjust moved to Denver.
I was in a new city where I didn't knowanybody during a pandemic where nobody
wanted to meet anybody. So it wasa bit of a crazy idea at the time,
but I felt safe doing that while stillhaving contract work to pay the bills in
the meantime.

(07:51):
So this would've been what roughly 2021?
2020. November, 2020 iswhen I started the firm.
And when you started the firm,
were you doing sort of anythingthat walked in the door?
What kind of cases were you working on?
When I started the firm, myhope was just to get a client.
I was willing to do anythingthat I could to build my way up.
I didn't think that I had the privilegeof being selective at that time.

(08:14):
And so if I could make this dream work,
then I would able build intothe direction that I wanted.
But it worked out surprisingly well thatI started getting personal injury cases
very quickly.
And I think that's by virtue of thecommunity here and really the need here
where there's a lot of peoplethat need representation.
So other than personal injury cases,
were you doing criminal defense typestuff or family law or kind of anything or

(08:37):
did it pretty quickly becomefocused on personal injury?
Very quickly became focused onpersonal injury. Other than that,
it was just smaller disputes,property damage type things.
A lot of property damage cases,they don't find attorneys.
Sure, sure. We already know,
I gave it away that your firstwas a medical malpractice
trial. Tell us the storyabout how you decided,

(09:02):
because in my mind's eye I'mthinking you're running this firm,
it's relatively new,
money's tight and income's a medicalmalpractice case that you decide to take.
Walk us through your thought process ontaking this case is you just knew that
it was righteous.
The client was strugglingto find representation.
She didn't have verystrong economic damages.

(09:23):
And so I think other firms were lookingat this as a case that was risky and it
was going to be costly.But when I heard her story,
I felt very strongly for her. I couldn'tstop thinking about it afterwards.
And what really hit me about her storywas that if this can happen to her,
this can happen to anyonebecause she did everything.
And so I wrote her an email sayingthat my faith in our society depends on

(09:46):
seeing justice in your case.
And so I wanted her to look to see ifthere was another firm that would take up
her case. And if not, I askedher to trust me with it.
And I was very scared about that,
but I didn't want to biteoff more than I can chew.
And so I told myself this would be theonly medical malpractice case that I take
until it's over.
I wanted to focus my time on this caseand I also wanted to make sure that I

(10:07):
proved myself a bit beforecommitting to other cases.
Wow. So tell us the story, the storythat resonated with you so much.
What happened here?
So she had PRK surgery,which is a lot like lasik.
It's a surgery to improve your vision.It's supposed to be very routine.
They tell you that basically nothing badhappens after the surgery and that the
risk of complications is so smallyou don't have to worry about it.

(10:30):
But she is one of those peoplethat did have such a complication.
And so she reached out to the facility,
the surgeon was supposed to be takingcare of her and they just ignored her and
ignored her and ignored her.
And she was trapped because she wassupposed to be under their care,
but they weren't caring for her.And so when she went elsewhere,
they tried to send her back to them.
And that was what really got me thatyou have a duty to this patient and you

(10:52):
have to take care of them because otherproviders are looking to you as the
operating surgeon to carefor somebody after surgery.
And that's what made her so trapped andI don't know what anyone could have done
in her situation to get help.
So what was the complication?And help us understand,
I think this episode,
it might be useful to sort of dig intothe weeds a little bit as you're telling

(11:13):
the story. I'm really curiousto hear what the defense was,
what your strategies were at trial.
So give us a little more detail interms of what complication arose and
what she tried to do about it.
And I'd like to give a littlebit of the medicine to start,
and that was part of my strategy at trial.
I wanted to make a medicine as simple andeasy to understand as possible so that

(11:33):
the jurors wouldn't beconfused by the defense.
And so this surgery removesthe outermost layer of the eye,
it's called the epithelium,
and it takes about a weekafterwards for that to heal.
And during that time youreye is like an open wound.
It's vulnerable to bacteria enteringthe eye and causing an infection.
Let me ask a question.When you say you were,
because I am not at allfamiliar with this surgery,

(11:55):
when you say they removethe outer part of the eye
and it takes a week to heal,does it regrow or does it close?
What is the healing process?
It's really just a thin layer of cells.
It's not as dramatic as itsounds as I describe it,
but it's important to understandthat it's an open wound,
that it's vulnerable becauseonce you understand that part,

(12:15):
you understand why it's important forthe surgeon to be checking on the patient
to check for an infection because an eyeinfection is a very serious emergency,
they progress very rapidly and they cancause permanent damage within 24 hours.
So in that context,
you should be carefully monitoringyour patients and that's just not what
happens after LASIK and PRK surgery.

(12:37):
So do they give you some kind ofantibiotic eyedrops or something that's
supposed to keep out infection?
Because in my mind's eyeas you're explaining this,
I'm thinking it's almost like having anopen cut on your eye infection can come
in. So what do they do to tryto prevent that from happening?
They give you a bandage contactlens as well as antibiotic eyedrops.
And then they assume from that pointon that you're going to be okay because

(12:59):
these are volume-based businesses wherethe surgeons are performing so many
surgeries that they cannot possiblycare for all of the patients afterwards.
And so relying on statistics thatsay that the risk of infection is so
low that they pretty much assume thatthere's no infection even when you start
complaining of symptoms of One.
Real quick question before we go back towhat happened here in the symptoms and

(13:22):
whatnot. You mentioned thatthis is a volume-based practice,
which is kind of what I was thinking.When you think about these lasic centers,
and I'm jumping way ahead now, butwas that a central theme in your case?
Were you able to get the evidence thatyou needed to show how many of these
surgeries they're doing a day in orderto make it a theme in your case at trial.

(13:44):
It was a really precarious area for usbecause we didn't sue the corporation and
so we were trying to stay away fromthe jurors blaming the corporation.
And that was also what the defensewas trying to do and say that this,
if anything, is thefault of the corporation.
And so I was trying to stay away fromanything that blamed the corporation too
much. So that wasn't the anglethat I was taking it so much,

(14:05):
but I also wanted the jurors to appreciatethe context of how this happens and
why this is something that I think weas a broader society should be more
concerned about because thisdidn't just happen in her case,
the way they're operating, it's goingto continue to happen and it does.
So what happened,
walk us through a little bit in termsof what started happening with her eyes

(14:25):
and what she tried to do about it.
So she had the surgery on a Mondayand three days later on a Thursday,
she was having excruciating pain.
She was extremely light sensitive andshe was progressively losing her vision.
And so when she had her surgery,
they gave her a little sheet that hada number to call if you have anything
unusual, and she called that number.She didn't get through to her surgeon,

(14:47):
but she got through tothe on-call optometrist.
And so she was quickly fit in for fiveminutes to see him and he told her
everything looks fine. He wrotedown that she was in extreme pain,
but said that she was fine, didn'tfollow up, didn't notify the surgeon.
Both eyes by the way,extreme pain and both eyes.
Yes. So that was day three.

(15:09):
The following day she had to go tothe ER because she was in suicidal,
worst imaginable pain.
The ER doctors gave her fentanyl forthe pain and then they called trying to
reach her surgeon,
but the on-call doctor answered the calland said an infection is very unlikely
and that her symptomsare normal after surgery.
And so they dischargedher from the hospital,

(15:30):
she went home and justhoped to get better.
Now to me,
was that sort of the cruxthat seems so negligent,
that particular action,that particular call,
am I reading the room right,
that was sort of like that isjust so bad that was the thing,
or was it the culminationof all kinds of actions?

(15:51):
We had to rely on the culmination becausethere were a few problems causation
wise. One,
we couldn't pinpoint when the affectionactually started because they didn't
actually examine her except for that fiveminute examination during a week long
period.
And so we didn't have the data to saywith certainty when the infection began.
And as a result,
we had trouble saying exactly when thedamage was caused because that was all

(16:15):
just unclear because they didn't do more.
The other problem was that they neveridentified who the caller was that
took that call for the surgeon.
There weren't that many peoplethat it could have been,
and I pressed very hardon this during discovery,
but they never gave ananswer with any certainty.
And so they were trying toshirk responsibility for that.

(16:35):
ER calls the treatingdoctor who says everything's
fine. And that's what you said,that was four or five days?
That was four days after surgery.
Just three days after she wasexamined, everything's fine.
Fourth day she goes into the er,they call and the doctor says,

(16:55):
the treating surgeon says,no, everything's fine.
Everything's normal day four. Sowhat happens after that point?
After that,
she goes home for the weekend and she'sbeen told that she's fine by the on-call
optometrist. The ER didn'tdo anything for her.
And so this was the mosthopeless she's ever felt.
She couldn't go anywhere for help becauseshe's still under the surgeon's care

(17:16):
and they're just going to call hersurgeon and try and send her to him.
But nevertheless,
both she and her sister called the eyedoctor's office over the weekend and they
spoke to that same on-call optometrist.
And here's where there'sa factual dispute.
He claims that he offered herappointments over the weekend to see her
immediately, but that shedeclined because of the weather.

(17:37):
She claims he did not offerto see him over the weekend.
And instead the best that he saidwas, if you call back on Monday,
maybe you can get your first postoperativeappointment moved up from the
following Wednesday tothe following Tuesday.
Wow. What then happened after?So we go through the weekend,
she's miserable.

(17:57):
What is occurring withher eyes at that point?
Assuming at that pointthe infection had set in?
Yeah, at that point it's pretty muchundisputed that there was an infection.
It was very severe and so the eye hasthe highest density of nerves anywhere in
the body,
and eye infection is the most excruciatingthing that you can experience.
And there's actually astrong link between lasik,

(18:19):
PRK and suicide because of that reason.
And so it's the worst imaginable painin the place that you want at least.
And she couldn't get any help, so shejust had to hold on and get through.
And so that's what she did. On Mondayshe called, she got her appointment,
moved up from Wednesday to Tuesday,
and that Tuesday was the first timeshe saw the surgeon after surgery.

(18:39):
The first time the surgeon knew anythingabout what was going on with her
postoperative care after surgery.And when he finally saw her,
he prescribed half of the antibioticdose necessary to treat her infection and
he only treated one of her eyes.
I guess lemme back up to that point.
All the medical records would'veshown that the pain was in both eyes.
Yeah.

(19:00):
Is that right?
Yeah.
Okay.
And so what was hisjustification I guess in his
deposition as to why heonly gave half of a dose of
antibiotics and only treated one eye?
The client had a few rheumatologydiseases that he suspected
might be involved here.

(19:21):
He was treating this as a systemicimmunological problem rather than an eye
infection.
And so he was treating her entire bodywith prednisone rather than giving her
fortified antibiotics in her eye becausehe thought that maybe those diseases
might be causing whatshe's experiencing now.
And he just wasn't certainthat it was an infection.

(19:42):
Wow.
So I'm flabbergasted and if I'munderstanding the facts correct correctly,
there's a reason why my son recentlyhad pink eye and called it in,
actually did a telehealth visit scriptwas called in and there were the
antibiotics she just dropped in the eye.
So you're saying that when she wentin and saw the doctor, he said, yes,
you have an eye infection, butI'm going to give you a pill,

(20:05):
prednisone to treat likewhole body infection.
He said that he suspects an infection andso he began to treat just one eye that
he suspected more strongly and there werelots of errors in the medical records
where they didn't document things verywell and they were trying to hide behind
that during trial and twist things sothat anything that wasn't certain in the
record,
they would state a little bit differentlyor the way most favorably for them.

(20:28):
But what we were able to really lock themdown on was that the standard of care
is antibiotics every hour. That'swhat the medical literature says.
That's what we got every expert to say.
And he said in the medical records thathe prescribed them every two hours.
So he prescribed antibiotic eyedrops into one eye every two hours.
Is that right? And thestandard of care is every hour.

(20:50):
And even if you suspect theinfection is only in one eye,
do you only do the eyedrops into that oneeye or would you do it in both eyes to
be safe?
Bit of a different issue.
The evidence was really clear thatthere was infection in both eyes at that
point.
One thing that you look foris a collection of white blood cells in the eye,
and he did document that onhis eye exam at one point,

(21:11):
but just failed to bringthat record forward.
And so the evidence in the record wasthere to support that there was infection
in both eyes. He just didn'tstart treating it soon enough.
And this goes to our theme,
one of the themes throughout the trialwas that when you only have 24 hours,
it can't wait a week.
And he just kept pushing it back 24 hourincrements before he finally gave her

(21:32):
the treatment that sheneeded a week earlier.
So did I hear you say that the recordthat proved that there was an eye
infection in both eyes, thewhite blood cell count that,
was that a difficult record? Did theytry to hide that record or something?
It was at a different office,
so they had different records and thenwhen we initially got the records,
we just got an incomplete recordthat only had a part of that record.

(21:54):
It was not in the traditional format.
And so it took a while to put that intothe sequence where it belonged because
even some of the dates were wrong.Whenever they updated a medication,
they would change all of the dates andso many of the dates throughout the
medical record were just wrong.
And although that generally shows thatthey weren't being particularly careful,
it also makes it hard tonail them down on anything.

(22:17):
I don't know if I should askthis next question or not,
but do you think that that'sintentional or just woefully ignorant?
I think this is a volume-based businessand they don't have the time that each
patient needs and they're not expectingto provide much postoperative care or
really treat anything serious that arisesand they're just banking on this not
happening.
So before you filed suit,

(22:40):
were there any meaningfulpre-suit settlement discussions?
The short of the story is that we didn'tget an offer at all ever before trial.
No offers were ever made. All we got wasa verdict in this case, but we did try.
We tried to engage in discussionsunder candor, which was passed in 2019.
It allows an opportunity to resolvecases without having the implications for

(23:01):
the doctor's license.
And so I see this as a really excitingopportunity to resolve med mal cases
early when otherwise they're going togo the distance to protect the doctor's
license.
But they declined to participate incandor and they declined our offers of
settlement all throughout trial. In fact,
the only offer that we ever got fromthem was that they would not pursue my
client's costs if we dismissedthe case before trial.

(23:23):
So my question is medical malpracticecases are obviously very expensive,
and like you said,
they often it seems no offersor if they do, they come very,
very late.
So how hard was it for you and yourfirm to push forward with this case
given your firm isrelatively new at this point?
This case was everything forus. Everything invested in this.

(23:48):
I'm not going to say Iwas betting the firm,
but I also don't know how I would'vemoved forward had this gone against us.
And so I'd been fundingeverything personally.
I started this out of my mom's basement,
and so this really was amassive investment for us.
And based on the odds, I couldn'tjustify it, but I believed in the client,
I wanted to see her case through and Iwanted to deliver this outcome for her.

(24:11):
And I'm so grateful that she trusted us.
Too. Wow.
Talk about something that you are nevergoing to forget for the rest of your
life. It is going to bethis case and what you did.
Holy cow. So let's talk a littlebit about, and generally speaking,
what was the defense?
Was the defense if they're saying thestandard of care is kind of murky,

(24:31):
maybe it's one hour, maybe it's two,
although I think you were saying everyoneagreed that antibiotics every hour.
So how were they defending this?
It was just reasonable actionsin the part of the doctor.
Yeah,
so the optometrist said that he actuallyruled out an infection when he saw her
that Thursday after surgerybecause he examined her,
he didn't see any sign of an infiltrate.
And so he says that he ruledout an infection on that day.

(24:54):
And so when the ERcalled the following day,
he didn't need to reexamine her becausean infection had been ruled out the
previous day. And so they werekind of banking on that part of it.
And then from the surgeon side of things,
they were saying that he didn'tknow anything, nobody contacted him.
And so he couldn't have done anythingbecause he didn't have any knowledge or
information about what was going on.
So I guess then was there astrategic reason to not go

(25:18):
after the corporation and reallytry to hone it in on the doctor?
Because I guess what I'm hearingyou say that I think, okay,
well if it was a systemic issue,
then that defense wouldn't fly.
So was a strategic reasonto name only the doctor.
In Colorado. There's nocorporate practice of medicine.
And so as much as they liketo blame the corporation,

(25:39):
once you're litigatingagainst the doctors,
if you had filed against the corporation,they would've cried about that too.
And so that's really the biggest reason.
Makes sense. So sort of knew thatthis was the defense coming in.
Tell us a little bit about your themesand how you plan to present this case.
Yeah, my greatest fear was that the jurywas going to get confused or not have

(26:02):
certainty because there'sa lot of uncertainty about every aspect of this case.
And really this case is about the weekafter surgery because after that week,
there is nearly a year in which thesurgeon proceeds to try and treat her.
And she already has permanentscarring at that point.
He can't really do anything but thetreatment goes on and on and on and on.
And so I was trying to focus the case onjust that week after surgery and I was

(26:24):
trying to make the medicineas simple as possible.
And the congruency between when youremove the outermost layer of the eye,
it takes a week to heal.
And everything important in this casehappened in that week after surgery.
That gave me a really narrow, focused,
digestible bit of medicine and knowledgefor the jurors to understand and to.
So tell me a little bit aboutwhat the actual damage was and

(26:48):
because you mentioned that your clienthad treated for a year afterwards,
what were they trying to do to help her?
I'm just not familiar with this typeof injury at all, so I'm just curious.
So the damage put simply is cornealscarring because of the eye infection.
Her corneas are scarred and thataffects her vision in two ways. One,
when she looks through hercorneas and her normal vision,
she's looking through scar tissue.It's not clear perfect tissue,

(27:11):
it's cloudy scarred tissue,
which obscures her vision and then alsomesses with your vision a second way
because it misshapes the cornea. And sowhen the cornea isn't shaped properly,
then it's affecting yourvision in another way as well.
And so that was what I really wanted thejurors to understand because it's very
easy for the defense to say thatshe has 20/20 vision. That's true.

(27:34):
That was the biggest hurdlethat we had to get over.
She has cleal contact lenses andwith those, she has 20/20 vision.
So I had to explain what's wrongwith scleral contact lenses.
Yeah, I've never even heard of them.What are they and what's wrong with them?
They're not like the contactlenses that most people think of.
It's like a prosthetic cornea.
It's a big piece of plasticthat has to sit over your eye.
It has to be taken outrepeatedly throughout the day.

(27:56):
You have to apply artificial tears.It's itchy, it's uncomfortable,
and you can't wear itfor long periods of time.
And so it's not a good replacement foryour natural vision and it didn't enable
her to do things that she did before,
such as work with computersfor long periods of time.
Are they expensive, moreexpensive than regular contacts?
Not really.
And that was kind of another problem withour case because one treatment option

(28:17):
for her is a corneal transplant. Theycan do bilateral corneal transplants.
They're not thatexpensive, and if it works,
it technically solves theproblem and cures the damages.
But she was understandably terrified ofhaving another surgery after a simple
one went so horribly wrong.
And the risks of cornealtransplants are horrifying.
Your corneas can literally melt.

(28:38):
I've dealt with a lot of cases inlitigation where we've had to address
failure to mitigate defenses when thedefense is trying to say that you should
have done X, Y, and Z.
So I'm pretty familiar with the caselaw that says that you don't have to do
anything invasive.
Were you successful in keeping thedefense from making that kind of
argument or did it kind come inany way through the back door?

(29:01):
It came in a little bitthrough the back door. I mean,
we strongly argue there'sno duty to undergo surgery,
but they still discussed that optionas if it were a perfect solution.
And so it was very important to educatethe jurors as to the problems and risks
with corneal transplants.
And it really can set you ona path where if you have one,
you're probably going to have to have atleast two more over the course of your

(29:21):
life and each one increasesthe risk of rejection.
So it's a very scarypath to start going down.
Did you ask for the cost ofthose potential surgeries down the road as part of
your damages?
Yeah, that was a component of ourdamages, but it was relatively small.
Part of me wishes that this was moreexpensive treatment because it's just not
the to her problems in any way.

(29:42):
So what kind of damages,remind the listeners again about what the verdict was.
It's a huge seven figure verdict.
Yeah, we got a $1.2 million verdictand the majority of her damages
were one our life care plan andtwo reduced earning capacity.
But those were difficulties on bothsides because she works really four jobs

(30:04):
and she was only no longerable to do one of those jobs,
but she was making moremoney than ever before.
And so I had to work really hard toeducate the jury that reduced earning
capacity is the loss of the ability.
She could not go back tothat job that she had before.
She can never go back to that job.
This surgery and the corneal scarringhas taken away that option and it chooses

(30:25):
what she has to do withthe rest of her life,
and that's damage in and of itself.
Did you use a damaged formulaas you're explaining that,
I'm like that makes perfect sense.
I've had similar cases too where we'retrying to figure out how to quantify
that.
How did you go about suggesting tothe jurors they quantify this loss?
So we had two experts.

(30:45):
We had an economist who came up with avocational economic assessment for the
client, and that gave us the componentof the reduced arting capacity.
And then we also had a life care plannerwho accounted for everything that
she'll need going forward.
And the majority of that was reallyhome care and things that she could no
longer do due to chemicals likehome cleaning, for example.

(31:08):
Okay. So you've got life careplan and loss of earning capacity.
Did those damages make upthe majority of the 1.27?
Yes.
Majority of it was economic damagesand they really split it evenly,
pretty much giving us half of what weasked for on both the life care plan and
the economic assessment.
Okay, got it. So wheredid you try this case?

(31:30):
This was in Boulder.
Okay. And how you able to,
did you face any venue issues withbeing able to file in Boulder on this?
There were no issues,
but we did have a decision to make onthis case because the majority of the
treatment was not in Boulder. In fact,
only a single appointmenthappened in Boulder,
but we decided to file in Boulder inpart because of a conversation I had with

(31:50):
another CTLA attorney in which hetalked about how educated the jurors are
there. And I reallywanted educated jurors.
I thought they would be less likely tobe swayed by confusing defense tactics
and more likely to understand the case.
And I thought that I couldwin them over on the merits.
What about I love Boulderfor those same reason.
And the other thing that's nice aboutBoulder is that the people tend to have

(32:14):
more money. So not onlyare they more educated,
but sometimes it seems like theycan appreciate the value of money.
What did you face as far asdefense experts trying to
prove up the defense in this caseand how to address that during cross?
Yeah, there were originallysix defense experts.
Only two of them endedup presenting at trial,

(32:35):
but they had glowing praisefor the care that was provided.
The two doctors here,
they claimed that they went aboveand beyond the standard of care,
but really what they were trying todefend was the signs and symptoms that she
was exhibiting and sayingthat everything's subjective because at the end of the
day, pain is subjective.
And so they're saying that no amountof pain by itself is sufficient,

(32:57):
indicate an infection, rather,
you have to look to the eye exam and forother symptoms to correlate with that
pain.
And so that's really what they werehiding behind as the first part at least.
So I guess what other signs and symptoms,
because I heard you explain before thatthis was 10 out of 10 worst pain she's
ever experienced in her life.

(33:17):
And I guess I can understand theargument that pain is subjective,
but if someone is experiencing pain ofthat level and they're reporting that
this is the worst pain thatthey've ever experienced,
obviously that seems like avery reliable metric to use
to diagnose an infection.
So I guess I'm just curiousfor my own education purposes,

(33:37):
if not that subjective measure,
did they have to actually go in anddo white blood cell counts in each
individual eye at the emergency roomor what were they suggesting was the
standard of care here?
Some experts would say that you can'tdiagnose a corneal infection without doing
a culture, which takes one to two days,
but they'll pretty much all agree thatyou at least have to do a slit lamp exam

(34:00):
and look into the eye forevidence of an infection there.
The symptoms alone aren't enough.
And that's not somethingthat your client had done.
Well,
that's what they should have done for herthat they did that slit lamp exam that
first day and then afterwards they didn'tdo a culture the next time that they
saw her.
And so the way that we tried to turnthat argument was they should have done

(34:20):
more. I'm not saying that thisis definitive at this moment,
but this is at least a warning sign.
This is at least a sign that the surgeonshould be contacted or that the surgeon
should look into this furtherthat she do a culture.
And so we really used thejury instructions language there to say that this was
not reasonably careful what they did.
So I just had a thought about the factthat they should have contacted the

(34:41):
surgeon.
And then so was your point that thesurgeon did not provide clear instructions
to the other facilities tonotify him in the event of a
potential infection like this?
And this loops back to why I didn'tinvolve the corporation in the first place
because the medical literature is verystrong and very clear that the surgeon is

(35:01):
responsible for postoperativecare. He may delegate that,
but he has supervisory duties and that'sclearly stated and agreed throughout
the medical literature.
And so we were very strong onthe surgeon's responsibility there and there was
what we believe to be improper delegation,
which is kind of a whole nother sideissue in this case where he was relying on

(35:21):
optometrists to handlepostoperative care when in Colorado,
optometrists bylaw cannothandle postoperative care.
Now I think it's makinga little more sense.
So when she went to the emergency room and
they called and were reporting his office
never notified him, is that right? Right.
The surgeon's office because heimproperly delegated it to other

(35:45):
individuals.
And so that surgeon and it's hisown office didn't put in place
procedures so that he's notifiedin case like this. Is that.
Right? Exactly.
Okay. See, simple. It's making sense tome. It must've made sense to the jury.
I'm really curious about your thoughtsand feelings going into this first trial

(36:06):
and really what you were feeling.
I think I heard you say before that youstarted out in your mom's basement and
in my mind's eye,
you're sort of put together all themoney you can invested in this most
difficult case. Everyonetells you you're crazy.
Med mal cases are defense verdicts.Nine times out of 10, you don't care.
You believe in the clientyou're going to trial.

(36:27):
So I said that this could be amovie. What were you feeling?
What was in your heartwalking into that trial?
Passion. I really believedin what I was doing.
And even though the client had prettymuch been gaslighted since the very
beginning,
I had gone through everything so carefullyand I felt so strongly about their
responsibility and I knew how to backit up. But the scariest thing for me,

(36:50):
given that this was a big first for meacross all fronts was just not knowing
what I don't know. And when youdon't know what you don't know,
it's really hard to figure out whatyou need to know in order to fix that.
It's a hard pit to be in.
And so I tried to compensate bytalking to everybody that I could with
experience and asking permissionto ask dumb questions and reading
everything that I could. And onething that was really helpful,

(37:14):
I bought a lot of booksfrom trial guides.com,
but I also had my dad's library andhe was a medical malpractice attorney.
And so going through hisbooks, I had his annotations,
his notes and the margins,
and it was a really special experiencefor me where it felt like I was doing
exactly what I was supposed to and Iwas being guided where I needed to go in
order to present this case.

(37:34):
Wow. Did you feel your dad'spresence with you at all?
I know maybe that's a silly question,
but I can't imagine that hewasn't there on some level
during this.
Yeah,
I really felt that I'm not somebodywho tends to get emotional or anything,
but I had one moment driving to court inBoulder where I just broke down because

(37:54):
I felt that presence with meand I felt so strongly about it,
and that gave me the reassurance thatI need. So I could say I was confident,
I was terrified, but I had faith.
I can't imagine how special it must'vebeen for you to open up your dad's
medical books and see his annotationsin there. That must've been really cool.

(38:15):
Yeah, it felt like divine intervention,
and so I wasn't goingto rely on just that.
I wanted to do everything else I couldto over prepare as much as possible,
but it was really special.
Now, talk to us a little bitabout your damage ask here.
You said that they gave you about halfof what you were asking for your life
care plan and others.
What was your strategy in terms ofwhat you asked for from the jury?

(38:37):
My strategy with the jury overallwas to maintain credibility.
I cared more about credibilitythan anything. And so I didn't want to over ask.
I wanted to justifyeverything that I asked for.
And so we asked for the full amountsof the life care plan and the full
amount of the reduced earning capacity.
And the way that I explained thatwas she doesn't get to come back.

(38:58):
We don't know exactly what hercosts are going to be going forward,
but this is her one shot, andif it ends up costing more,
which it very well could,we don't get to come back.
And so this is what theexperts say is a fair,
unbiased estimate of what herfuture costs are likely to be,
and it's been expensive to gethere and to put this trial on.
What a fascinating story. I'mwondering about your voir dire.

(39:21):
What I'm curious aboutis it's your first trial,
and did you sort of embrace that?
I'm thinking of the Jerry Spence,I'm nervous this is my first case,
or were you really trying to go inand put those nerves aside as much
as you can and just come off,it wasn't your first trial.
So my question is did you embracefirst trial or hide first trial?

(39:44):
I definitely hid it from the jurors,
but this is an area where I like to saythat Nick Rally is the best mentor I've
ever had,
that I've never met because he's producedso many guides and materials that
really gave me a framework to workwith and so many lines and just
attitudes that I could work with.
And one of those was how youshould approach the jurors.

(40:04):
He talks about accepting them and lovingthem rather than looking for reasons to
reject them and focusingon that connection and listening to them and making
them feel validated, showingthat you care about them.
And so that was really myapproach going into it.
Yeah, so a little brutalhonesty. Voir dire axon.
Yeah, although funny story on that.
Yeah, tell me.
The judge gave us a fewrules before voir dire,

(40:27):
and I thought that I was following those,
but I went through the whole brutalhonesty thing and at the end of kind of
explaining that,
I asked the jurors if they would agreeto be brutally honest with me. Well,
that infuriated the judge because hehad asked us not to solicit promise from
the jurors. And the example that he gavewas promises as to how they'll behave,
should they be jurors on the caseor things that they'll abide by.

(40:49):
And I didn't think that I was oversteppingby asking them to be honest during
voir dire, but he wasvery furious about that.
Wow. I'm very surprised tohear that as well. I mean,
I suppose the judges could be concerned,do you promise if I prove my case,
you're going to give me $10 million orsomething? But it seems a little unusual.
Certainly must've been caught off guardif the judge is all of a sudden jumping

(41:11):
down your neck because of that.Was it a complete surprise?
Was the judge visibly angry?
He didn't visibly show anger butdidn't hold back in telling me
that I had not followedhis very clear instruction.
And when this is a big first,
that's not exactly the encouragingstart that you want to have,

(41:32):
but nevertheless, brutal honesty,
a success jurors continued to bring upbrutal honesty throughout the case one
time in a question andspeaking to them afterwards.
So even though I didn't get to finishdoing it, it still had an impact.
So you received during the trial a juryquestion where they referenced brutal
honesty?
Yeah, they asked questionsthroughout the trial.
I honestly love this panel of jurorsthat we had. They were so engaged,

(41:54):
they asked great questions,
and that's really what carried me throughthis case because I continued to feel
throughout the case that they were withme based on the insightful questions
they asked.
Do you remember what the question waswhere they referenced brutal honesty.
I don't remember it exactly just thatthey threw that in there and there's
nowhere else that comes from.
I'm a huge fan for that very reason,

(42:14):
and it just seems to come up throughouttrial as soon as you introduce it in
voir dire that way, thenthe next thing you know,
you're asking defense experts like,look, come on brutal honesty here.
And then it just repeatsitself and repeats itself. It's really fantastic. You,
I'm assuming the answer is yes.Did you really go by the trial,
by human spend all of your time thatyou possibly can getting to know your

(42:37):
client inside and out to prepare for this?
Absolutely.
And I'm so privileged and grateful thatI had such a wonderful client for this
case. She's truly an incredible humanbeing. I mentioned she has four jobs,
one of that as a foster parent,
she's raised 30 young women over thecourse of her life as a single parent.
She's adopted two of herfoster children as her own.
You can't ask for a better client. Andit was a privilege to get to know her,

(43:01):
had dinner in her house before trial,
and I really consider them to be family.
Did you find that spending, and I thinkI know the answer to this question too,
but did you find that spending allof that time with her really paid
tangible dividends in how you presentedthe case and what you did at trial?
Absolutely, and I thinkat a fundamental level,

(43:22):
just the connection that you have with aclient shows to the jurors that my care
was not fake. I truly, deeply feltthat care. We had that connection.
It was not fake. And Ithink that the details,
the little things of seeing howher bathroom is, for example,
just little things that make everythingfit together and allow you to understand

(43:43):
things in a different way,
just all adds together andhelps you be a better advocate.
When you mentioned seeing howher bathroom was put together,
were there certain ways that she set upthings as a result of her eye injury,
where the contacts wereor things like that?
Yes. When you have basically no vision,
you have to do a lot tocontinue to do the same things,
even in a familiarenvironment like your home.

(44:03):
And so a big dispute in this case wasthat they wrote in a medical record that
she admitted later on that she stoppedtaking her antibiotic eyedrops.
And she showed me when I went to herhouse, how she had those in her bathroom.
Her bathroom was perfectly clean. Sheis an immaculate organized person,
and she had little rubber bands on thebottles so that even in middle of the

(44:26):
night with no vision,
she could take the right bottle andjust had a brilliantly organized system.
And something that you might not haveknown had you not been inside our home.
Is that right?
Exactly.
Wow, that's absolutely fantastic.
The other thing that I'm sensing fromyou and that you've mentioned a couple of
times is that you loved thisclient and we all have had

(44:48):
clients that we love andothers that maybe we don't.
But how important is it,
I guess maybe a better question is doyou think that it was apparent to that
jury how much you cared for your client?
I think so, yes. At every momentwe're looking to each other.
We were just a team goinginto that courtroom and the two other attorneys at my

(45:08):
firm met my wife, Alexa and Josh Jacobson,an attorney who joined us recently.
They were a perfect part of that teamand also built this bond with her and her
children, her sister, and you justcan't fake that. It's so apparent,
it's so tangible,
and I think that oftentimes the defensefails to do that and shows a stark
contrast from what a lackof connection looks like.

(45:29):
Yeah, and even I have found, I don'tknow if this was your experience,
but the whole brutal honesty and thewhole way that Nick Rowley does vo dire,
who's probably the best inthe country at doing vo dire,
and then the stark difference withthe way defense lawyers do it,
it just puts it on suchdisplay. Let me ask you this.
How effective do you believe the defenseflaw DI was and what was sort of their

(45:53):
main takeaway?
We were just on completely differentwavelengths in terms of what I was looking
for and what they were lookingfor. They seem to have a rigid,
we're trying to exclude peoplethat check certain boxes.
So if you've had anyvision issues in the past,
if you have any disgruntlement withmedical providers or opinions about
medical procedures,
they were looking for attitudes andpeople that they could write off on more

(46:16):
superficial things, and that was nothow we were approaching it at all.
I'll give an example of Wonder Juror,
and he was asked aquestion and he said, well,
it depends on what the evidence says.
If she stopped taking her antibioticeyedrops, then I would blame her.
So he said something against my client,
but I wanted him on my panel immediatelybecause he was looking at the evidence

(46:37):
and he was actually saying that thatevidence was important beforehand.
And I thought that once we actuallygot to that point and showed him the
evidence that we could get him to ourside because he cares about the evidence,
that's what he's looking at.
And even though he was suggestinggoing against us during voir dire,
I thought that he would come around oncehe actually saw it because he's looking
at that evidence.
Well, that's a brillianttalk about spot on instincts

(47:00):
because it's very easy tointellectualize why that is
so obvious and smart becauseif the juror is saying, well,
if they did x, I wouldhold it against them. Well,
if you know that your client didn't do X,
then it's almost the converse must betrue, then he's going to be on your side.
That's brilliant. Awesome.So what was it like?

(47:23):
Just give the listeners an idea of whatit was like for you and your client when
this was all over when you walked outof that courtroom and justice being
achieved and such a marvelous,and this isn't even,
what's really cool aboutyour story honestly,
is it's not like it's awesome becauseit's 50 or a hundred million dollars.
It's a fantastic result. Don't getme wrong. This is a massive result,

(47:46):
but the odds that you had against you,
everything that you put into thispersonally and then for justice to be
obtained is like you're going to bechasing that feeling for the rest of your
career. What was it like whenyou walked out of that courtroom?
It was surreal and emotional.
We walked outside the courtroom and justsat down at a picnic table and didn't

(48:09):
do anything for a long time because wewere taking it in and talking about it.
And she had been told for almostfive years at this point that
she was wrong, that they did everything.It had been nothing but denial.
And then once litigation started,they'd been blaming her for everything,
every step of the way.
And so for her to be damagedand then put that back on her,

(48:29):
and for her to believe inherself, for me to believe in her,
and for finally thejury to believe in her,
there was so much dignity in that theygave her back so much more than the
amount of the verdict. They sawher, they saw what she went through,
and they validated that experience.
And there's something that's reallyhealing and special about that.
Aside from the money.
Maybe this is a dumb question,but I mean, are you just itching?

(48:51):
You cannot wait to get backin. Next case, next trial.
I'm terrified about losing the next trialbecause after this unlikely victory,
I would hate to trip up on the nextone. And so I have a lot of confidence,
but I'm not blindly confident. Myconfidence comes from preparation.
It comes from the rightclient, the right case,
and putting in the work overa very long period of time.

(49:12):
So I don't have any confidencegoing forward other than that.
If you do the work and put in the time,you can achieve it against the odds.
I just got to say that your responseto that answer sounds like you
had an amazing upbringing from somebodythat knew this profession well,
because that is, itjust feels very spot on,
and I'm sure your father'svery proud, honestly.

(49:35):
Thank you. That means the world.
Well, Gabriel,
thank you so much for taking time outof your day to come on and tell us about
this story.
It is truly inspirationaland men mal cases can be so
scary.
But what I'm hearing from youis simplicity and righteous
client justice can be done.
So congratulations to you and Thankyou so much for coming on the show,

(49:58):
and until next time,
we'll welcome you back to the ColoradoTrial Lawyer Connection Podcast.
We'll have another lawyer come on andtalk about an amazing result. So Gabriel,
thank you so much for coming on theshow. Thanks, Keith. It's been an honor.
Thank you for joining us.
We hope you've gained valuable insightsand inspiration from today's courtroom
warriors. And thank youfor being in the arena.
Make sure to subscribe and join us nexttime as we continue to dissect real

(50:22):
cases and learn fromColorado's top trial lawyers.
Our mission is to our legal community,
helping us to become better trial lawyersto effectively represent our clients.
Keep your connection toColorado's best trial lawyers
alive at www.thectlc.com.