March 20, 2026 • 54 mins
Paula Slaughter gathered a polished, prepared team – starting with co-counsel Sandra Hagen – to represent a 74-year-old man who suffered a stroke seven months after his vehicle was rear-ended. Unpacking the case with host Keith Fuicelli, the team reveal their surgical approach to trial teamwork, including Paula's voir dire method that doesn’t involve questionnaires and Sandra’s meticulous research into the defense expert’s past. After they exposed an unprepared defense and a “Parade of Horribles,” the jury responded with a verdict of $3.2 million.
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Episode Snapshot
- The team’s client suffered a triple cardioembolic stroke seven months after his vehicle was rear-ended. The crux of the case became whether the crash caused the stroke.
- Sandra showed that the defense neurologist's opinions were "historically absurd" by walking the jury through his prior cases — including one where he found no concussion after a warehouse dock door fell on a man's head.
- Sandra and Paula revealed that every single ER systems check — including elder abuse and fall risk — was completed in four minutes.
- Paula used Expert Radar to pull prior reports, depositions, pharmaceutical payouts, and a letter in which the defense neurologist himself complained about the bias of defense doctors.
- Barred from asking a specific non-economic dollar amount by a motion in limine, Paula closed with: "This is his final chapter. This is his only chance. This has to be enough" — and the jury
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(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.
(00:22):
Welcome back everyone to another episodeof the Colorado Trial Lawyer Connection
Podcast.
Amazing episode up ahead where we arethrilled to have Sandra Hagen and Paula
Slaughter on to talkabout just an amazing $3
million plus verdictin El Paso County on a
(00:42):
fascinating medical causation case.
So we are thrilled to have first timeattendees, Paula and Sandra on the show.
Welcome to the podcast.
Thank you, Keith. Thanks for havingus, Keith. Excited to be here.
I'm so excited.
And the one thing that I learned beforeyou all jumped on is both of you have
tried between you eachbetween like 35 and 40
(01:06):
civil trials.
I just want to say that isamazing and kudos to you.
How is it that you bothare obviously very young.
How in your short years of practicewere you able to try so many cases?
That is phenomenal.
I had my own law firm for over a decade,
and so I was front rowto all of those trials.
(01:28):
So that part made it really excitingto try cases from intake all
the way to verdict. I was reallyyoung when I started my law firm.
I think I was like 29 or 30and had nothing to lose and
everything to gain. Andso that's how I started.
And now I'm at Wilhite Law Firmwith Sandy and we are high volume.
So we get a lot of opportunity to tryreally interesting cases with interesting
(01:52):
fact patterns around the state.It's cool to get in there and do it.
Yeah. And the cool thing aboutWilhite is yeah, you're high volume,
but you're also trying a lot ofcases. So sometimes I feel like, oh,
high volume means no trials. And Ithink oftentimes the opposite is true.
Sandra, has that been yourexperience at Wilhite,
that you're just trying casesleft and right? Seems like it.
(02:15):
It is.
I initially started as Rob Wilhite'sparalegal way back in the day.
He's always been very supportive of,
if the insurance company isn't goingto play, let's just go try the thing.
As long as our clients are on boardwith it and the way our firm is
structured, we have litigation team. Ourlitigation team is very trial focused.
(02:39):
When you pick up thatcase from pre-litigation,
you're planning for trial from day one.
So it's a very encouraged thingthat we do in our lit department.
Yeah. And I just think when you try alot of cases and your results speak for
themselves, which they do,then it just trickles down.
And then you're getting better offersin pre-lit and everything just moves
(03:01):
better. So what a great world thatyou have grown up in, if you will,
as attorneys to get to try so many cases.
And let me start with you, Sandra.
Did you always know that you wantedto be a trial lawyer? I mean,
I'm guessing that you'reworking in the trenches,
then all of a sudden you're like, waita minute, I'm going to become a lawyer.
How'd that come about?
(03:23):
Actually, law was my second career.My first part of my adult life,
I was in restaurant management.
Then I had my daughter anddecided to go back to school.
I initially went back to become ateacher. And then somewhere along the way,
I was like, "Maybe I want to be a lawyer."And so I figured we're already broke,
so let's just go for it. And so Idid. And when I started law school,
(03:47):
I actually went in thinking I justwant to be in house somewhere and write
contracts. That was my goal.
And I ended up interning witha criminal defense attorney.
My very first foray into the courtroom was
arguing a case in front of theNorth Dakota Supreme Court as a 3L.
Wow. So what was that experience like?
(04:08):
Terrifying. Absolutely terrifying.
I think there's an audio of it outthere somewhere and I'm just afraid to
listen. I don't wantto know. I didn't win.
But you still argued in front of theNorth Dakota Supreme Court. I mean,
there is something to be said forthat. So congratulations there.
And then how did you end up doingplaintiff's side trial work?
(04:29):
Well, when I movedhere, I wasn't licensed.
And so I was looking for paralegal workand I had applied a bunch of different
places. And this is backin the time of Craigslist.
And so I had an ad out and RobWilhite was in his, I think,
second year of practice. Sohe reached out, interviewed,
(04:50):
and the rest is history.
So you started as Rob's paralegal?
Yes. Yeah. And then about twoor three years later, he said,
"You got to go take the bar." He's like,
"You're just wasting your time here."So he encouraged me to take the bar.
I did. And here we are.
Wow. That is so fantastic. I think thatyou mentioned that you had a daughter,
(05:12):
I guess not too long ago,part of this process.
And your daughter now, I think youtold me off air, is 30 years old.
You must be very proud knowingthat she must be so proud of you
to have done all that you havedone with a young child. I mean,
just tell our listeners a littlebit about what inside of you
(05:34):
kept you going.
Once I got fixated on the idea,
it was more about takingit one day at a time,
sometimes one minute at a time,because if you back up and you look,
it's too much and it's toooverwhelming. So you just say, "Okay,
what do I have to do to get through thenext hour the next day?" 10,000 hours
(05:55):
later, I got a few trials under my belt.
Wow. That is fantastic. Andkudos to you. Kudos. Paula,
tell us a little bit about yourself.
How did you come to be a rockstarplaintiff's trial lawyer?
I just wanted to go snowboarding.
I got out of college and was a realestate broker for a little bit.
(06:17):
Didn't really want to stay in thatlane and came out to Denver to visit a
friend, got some snowboarding in,visited DU law, and I was like,
"I think I could do this. " Soapplied to a few law schools.
DU gave me a lot of money to go there.
I got out and still didn't knowI wanted to be a trial attorney.
Did some tax work. Andthen in my late 20s,
(06:37):
started a law firm and got intothe courtroom and loved it.
I remember waiting for one of myfirst verdicts and it felt like
b know it inches up and I'ma first row rollercoaster
person and you know you're inching upand then your feet start to dangle cause
you're about to drop. That is the feelingright there of being at that table is
(06:59):
the few seconds right before you go.
When you get that phone call and theclerk says the verdict is in, I mean,
I'm getting goosebumps just tellingyou the story right now that you go and
you're sitting there and you're waitingand it's just this buildup and this
buildup and you are watchingthe judge get the envelope and
read the verdict andthere's nothing like it.
(07:19):
There's absolutely nothing likethat feeling. Win or lose, honestly.
That is a very good analogy.
Now I see why you have done so well intrial because your analogy skills are
second to none.
They are on point for sure. I'll.
Tell you what, I am a little bitnauseous hearing you describe it because
what I have experienced, I don'tknow if you all disagree. For me,
(07:42):
sort of one of the best feelings iswhen you're just waiting on the verdict
because you're like, "You know what?I'm done. I can finally relax. Candidly,
I like to go find a place and have abeer because I don't drink like a week
before. I don't drink during trial,
so I need a beer when I'm waitingfor that verdict." I got to ask you,
you are wearing a sweatshirtthat says Clever Bully.
That is an awesome sweatshirt. Tellme a little bit about Clever Bully.
(08:05):
What's that?
Oh, thanks. So Clever Bully is abrand that I came up with my husband.
I had gone through a fewyears where it was a rough ...
I had come out of a reallybig divorce and it was a lot.
And so I was feeling a littlebeat down by the system.
Family law can be really hard.
Shout out to the family lawyers outthere because I could never do that.
(08:25):
I learned that you have to be clever andsometimes outsmart the problem and come
out on the other side on top of thethings that were like really burying you.
And so we kind of came up with thislike, you can be a clever bully.
You don't have to be a bully. Youcan be somebody that's clever.
And then I thought about that and itkind of bled into how we deal with
insurance companies is youjust, you have to be clever.
Yeah.
I almost feel like I want a clever bullyt-shirt to wear underneath a suit when
(08:48):
I'm in trial. Sort of like thatarmor to go into battle. I.
Will get you one because it feels.
Good to wear this. Offeraccepted. Offer accepted.
So let's talk about this amazing result,
three plus million dollarsin Colorado Springs.
Just absolutely amazing.And before we do that,
I know in speaking off air that youboth said that you try a lot of cases
(09:13):
together. So tell us alittle bit about that.
And specifically for this case,
how do you as a trial team goabout dividing up responsibilities?
With any case, when you're assigned acase at our firm, you're the lead counsel,
it's your case. And wework pretty independently,
except for in rare occasions we'll doubleup early on. But for the most part,
(09:38):
you get the case, it's yourbaby. And if it goes to trial,
then you start wandering around thehallways looking for who wants to
co-counsel with me on this trial. Thiswas actually Paula's case. She took lead.
And so she asked me about amonth out, I think. She said,
"This one's going to go. " And I'dhad a case recently settled, so I did.
(09:58):
Yeah, that was going to be my question.
So you start to sort of figure out who'sgoing to do the case with you about a
month or so out. Is that true for you,Paula and Sandra, about a month out?
You have a feeling at thatpoint, mediation's done, you know the case is going,
that's when you go getsecond chair, if you will.
Yeah.
And the other thing that's neat aboutour firm is we have enough litigators who
(10:19):
are pretty seasoned.
So if there's a particulararea of damages,
say TBI or something like that,
some of our attorneys arereally great at certain things.
And so you look at it and say, "Oh, okay,
this is a case maybe where I want ZackElsner on because he's great with the
neuropsych stuff." Or in this case,
(10:42):
and what I do when I'm lead is weusually divide up the case by issue.
So if there's engineering, if there'smedical, if there's lay witnesses,
depending on how many counsel we have,
we kind of put everybody in the same box.
That's what Paula didin this case as well.
Yep. And we had tried a TBI case togetherlike four years ago- It was before.
(11:04):
COVID.
It was right.
After COVID.
Yeah, we tried it four years agotogether and we got a wonderful result.
I think you got a $990,000or something like that.
And we just worked really well together.
I think when you have a trial partnerthat you've worked with before,
you have a lot of faith in each otherthat they're going to get their part done
(11:25):
and they have faith in you that you'vedone that work to get it to verdict and
that they can sort of drop in wherethey're asked to be dropped in. Yeah.
And we just naturallywork really well together.
Who did what in the trial?
So how did you divide up voir dire openingand those various parts of the trial?
So for this trial, opticswere really important to me.
(11:48):
I really wanted us to look like a verywell prepared, female driven team.
I also really wanted to make sure thatwe were kind of in and out surgically
with the jury. So we had two experts.
We had our plaintiff and we had onelay witness, our plaintiff's brother.
And so the way that I dividedit, and they had two experts.
We had a neurologist, theyhad a neurologist. We had like a musculoskeletal MD.
(12:12):
They had the same thing,an orthopedics guy.
And so basically we divided itbetween neuro. Sandy did the neuro,
and then I did themusculoskeletal witnesses.
That played out really great in terms ofpreparation because Sandy could really
focus on just the neuro. She did thelay witness, our plaintiff's brother,
and then I took everything else.
I was really excited about this case.I really was.
(12:34):
The defense team wasn't paying attention.They weren't taking it seriously.
And so I knew Sandy had beenreally busy. And so I said, look,
let me do voir dire, opening, closing.
I've really doubled downon voir dire lately.
It's something for the past two yearsthat I've focused on pretty heavily is
voir dire. And so I justwanted to keep going with that.
So Paula, you were sort of,I guess this was your case,
(12:55):
your baby from the get-go. How did you divide up?
How did you and Sandra decidewho's doing what during trial?
So this case for me, I reallywanted us to look really prepared,
really ready and to really tighten upour story and be surgical about how we
presented it to the jury.
Sandy and I had done a TBI trialtogether before a couple of years ago.
(13:17):
And so I really wanted her totake the neuro on this one.
She's just really gifted at gettingreally beautiful pieces of testimony out
from direct examination of our doctorsand then her cross-examination. I mean,
to watch Sandy cross any expert, butto cross a neuro is like a masterclass.
And I had seen her do it inArapahoe County when we did a TBI case together four
(13:38):
years ago. And when I askedher to do this trial, I said,
"You have to cross their neuro.
You have got to be that guy that's goingto go in and bruise them up." And she
did exactly that.And I knew she had been really busy.
So one of the things that we try to dothat I've kind of said before is you want
your second chair to really drop in reallyeasily and without too much pressure.
(14:00):
And so I told her, "Look,I'll do the rest of the trial.
If you can do the neuro portion,do our neuro, cross their neuro,
and then take a lay witness,I'll do everything else.".
Okay. So did you do voir dire in opening?
I did. I've really beenfocusing on voir dire.
I've kind of doubled down on voir direin the past two years. I've gotten into,
sorry, Delamot, I don't know if you'refamiliar with her, Hostage to Hero,
(14:22):
12 Heroes, One Voice,
and that's kind of where I've beenputting the focus of my trial work.
Everybody does thingsdifferently, but honestly for me,
doubling down on voir direis what's worked for me.
I've noticed that my verdicts have gottenbigger and bigger and bigger as I've
started to really double down onvoir dire and employ what I've been
learning through these books and podcasts.
(14:42):
I went from smallerverdicts to like 750,000,
600,000 and now 3.2 millionfrom really focusing.
On it. It's marvelous. And I willgive a plug to sorry de Lamont.
I went out and spent three days doingher trial lab on a big case that I had
where three days on the opening, it wasvery, very useful. I'm sort of with you.
(15:02):
I feel like for me, voir direis always an evolving process,
but one of our core values isbetter tomorrow than today.
And I do feel like as long as we'rebetter tomorrow than we are today,
then life's moving in the right direction.
Sounds like you're emboldening thatand embodying that. Amazing. Love it.
I have to interjectsomething because she and I,
(15:23):
while we're both pretty chill andthat's why we work pretty well together,
she didn't want to look at anyof the juror questionnaires.
And I just couldn't even wrapmy head around doing a voir dire
without having looked atthat. And she's like, "Nope,
I don't want to look at it. " She doesn't.
She goes in cold and buildsher tribe and I love it.
Oh, that's amazing. So Paula, tell us alittle bit about the facts of this case.
(15:46):
And then I want to get into the crossof the neuro and some of the sort of
fascinating medical issuesthat arose in this case.
Absolutely. So ourplaintiff is Anthony Carter.
This crash happened on December 7thof 2021. He was about 74 at the time.
He had been a tile master for his life,
had done a lot of like hands-on workand he was fishing down at the reservoir
(16:10):
with a friend of his.
He's coming back up on I- 25 northboundand there's all that construction right
around Colorado Springs. Andso he comes to a dead stop.
He's driving like a 1990, 1991 Mercedes,
the kind that used to be made out ofmetal. The bumper was fully metal.
Everything in the car is metal.
And then defendant Matthew Monday isdriving this Ford Transit van and he's
(16:33):
driving it for this weedfarm called Montefiore.
And he's going about 65 milesan hour. He'll never admit it.
He said he looked down for a second,
but I have my suspicions about what hewas looking down at. He hit Mr. Carter at
65 miles an hour.
Wow. And you said weed farm,like marijuana farm or?
Yeah. So the van was just full of weedproducts that he was delivering to these
(16:54):
various dispensaries.
The property damage wassignificant. I mean, the collision,
the forces of the collision were enoughthat the metal bolts of the driver's
seat in Mr. Carter's car broke andcame undone. His headrest broke.
He was dazed at the scene,
but obviously concerned about anybodyelse that was involved in the wreck.
(17:16):
And so he was transported byambulance, so was Mr. Monday.
And basically what thatled to is at 74 years old,
he started having someAFib, atrial fibrillation.
And then after about seven months,
he suffered like a triplecardioembolic stroke,
which I'm going to let Sandy talk to youabout because she's got it dialed in on
(17:36):
the neuro. But the crux of the case was,
did this crash cause these strokes or not?
And he had some significantmusculoskeletal injuries as well. He had a T2,
T3 compression fracture, but Ireally think that the case was,
is this person significantlyand permanently injured.
So client gets AFib thatthen eventually leads to the
(18:00):
stroke. So help me understand how,
what did your neurologist, Iunderstand it was Dr. Gray.
What did she tell the juryhow one thing led to another?
Honestly, I had never heardof this before either.
So I got a big education ina very quick period of time
(18:20):
on this.
So how she explained itwas obviously this crash
is hard enough and the forces are hardenough for whether he hits his head on
the headrest or it's a whiplash.
I don't think it really mattered becausethere was certainly enough force there
to give him a TBI. Whenhe's taken to the ambulance,
(18:42):
and an interesting fact is thathe doesn't really talk to anybody
super early on because there'sthree cars involved in this.
And one of the cars, that guyhad a warrant out for his arrest.
And so there was like a whole thing.
By the time he's actuallytalking to someone,
there's plenty of time that has passed,probably close to a half an hour,
(19:05):
I think. Whatever he's feeling,
he's feeling a little dazed andconfused right after it happens,
but doesn't report it to anybody. And sohe goes to the hospital and because of
his age, they did a head CT, butdidn't diagnose him with a concussion,
didn't diagnose him witha TBI. But interestingly,
they didn't find the compressionfracture either. So there was a lot of,
(19:29):
not necessarily missteps, but alot of things missed at the ER.
And I'm assuming thehead CT scan was normal?
Correct. Okay. Yeah, it was.All right.
Which is important because we're notseeing any of the indications for the
ischemic strokes that hehas then down the road.
So he has a TBI.
He gets his treatment and he'sreporting headaches and some
(19:53):
irritability and the usualcognitive type stuff.
But he lives with his brother.
They're both in their late 70s andnobody's really thinking about this.
They're treating the physicalside of it. And like Paula said,
about seven months later,he has this stroke.
So Dr. Gray explained it tothe jury that he has this TBI,
which starts sort of thiscascade. He's put into,
(20:17):
for lack of a betterterm, fight or flight.
So he's operating at this sortof high level called sympathetic
overdrive.
So your parasympathetic systemis just idling really high.
And then that is creating
these heart palpitationsand leading to the AFib.
(20:39):
Then the AFib starts runningits course through the heart.
Those little clots are makingtheir way to his brain.
So he ends up having,
I want to say it was five areas ofischemic stroke, seven months later.
Okay. So it's making a little more senseto me because I'll sort of confess my
(20:59):
ignorance when you're talkingabout an ischemic stroke,
that these are micro strokes, if you will.
So this isn't one big bloodclot going to the brain.
These are small little bloodclots over time. Is that right?
Yeah. They don't happen. Andthe way Dr. Gray explained it,
these don't happen overnight. That wasanother piece of the causation was, well,
(21:20):
if this was going to happen, it shouldhave happened more immediate. Well,
it didn't because it's a wholecascade of symptoms that lead to this
ultimate result.
And so the defense doctor blamed it on
Imbruvica because he had-.
Cancer.
Yeah, he had leukemia andso he was on Imbruvica,
(21:42):
but we were able to show thestudies he'd been on this for years.
And so with Imbruvica,yes, it can cause AFib,
but it typically causes the AFib withinfour months of starting the medication.
So you usually know pretty early on ifthe Imbruvica is going to be an issue.
All right.
I want to do a little more of a deepdive into this medical issue for the
(22:05):
education of our listeners andstrategically ... And first of all,
tell us a little bit about the defenseneurologist, Bruce Morganstern.
I think you can look at it two ways.
You can either look at as acurse or a gift because he's
going to stick to his guns.
He has testified far more timesthan I've ever been in trial.
(22:28):
And he's got his script andhe's very polished when he's
talking to the jury. He also,
what I found was kind of aware of thetraps that he could be walked into.
So he wasn't fighting me on things becauseI think he realized I had the goods.
So he knew to just sort of caughtto things, if that makes sense.
(22:50):
So it was kind of more like,
I have to show the jurybasically that your
opinions are sort of absurd andthat they are historically absurd.
We had audio taped his Rule 35 exam,
and so there were inconsistencies betweenthe tape and what was in his report.
(23:11):
So we highlighted those.
We had the tape ready to rollif he were going to try and work
around it, but he knew.
He did this comprehensive cognitive testand the three words and you wait five
minutes. And I'm like, "You didn't waitfive minutes, did you? " He's like, "No,
it's probably a little less." Half.It was two and a half minutes.
(23:32):
And two of the words he'dactually repeated in another test.
So you're dropping thehints along the way.
So he was interesting. He was tough.
He wouldn't keep himself containedto a yes or no and things like that.
But I think after a period of time, Ithink the jury just kind of realized,
(23:52):
this is insane,
he had found no concussionin some pretty clear
cases,
a warehouse doc door falling onsomeone's head and a pretty significant
electric shock. My owncolleague, Anastasia Evans,
had a client and she had a big hematobaon her head and he had done that report
saying no concussion. So I think itwas just showing the jury absurdity.
(24:17):
Jerry didn't.
Like him.
Yeah.
I was going to ask sort of how you wentabout finding these prior examples of
absurdities.
Were those just in office cases or didyou reach out to the Listserv or other
ways to get those examples?
So I did pull a fair amountof stuff off of the Listserv,
but Paula had also been workingwith Expert Institute and
(24:40):
they had done a trial.And so she said, "Hey,
look up what you can find on Dr.Morganstern through here." And it was
crazy the amount ofinformation that was available,
not just prior reports, prior depositions,
but things that his messages ondifferent message boards throughout
(25:02):
the medical community,
there was a listing of all of thepharmaceutical payouts he had taken,
letters that he'd written back inOhio regarding malpractice claims,
including there was one that hadjust this absolute piece of gold
saying- Yeah, that's a good one.
The problem with these malpracticecases is the bias of defense doctors.
(25:24):
I mean, you can't make it up, right? It's
little drops of gold. So.
Paula,
tell us a little bit about the servicewith the Expert Institute that you use
and we've heard some of the amazinginformation. Was it easy to use?
Is that something you do alot of cases going forward?
So I had never done it before. I said,"All right, let's give it a shot.
(25:44):
It's called Expert Radar and it's likeops." They get all the ops on the other
guy and it was incrediblyeasy to use. I mean,
they did a really quick turnaroundfor me. It was like 24, 48 hours.
They kind of walk you through it. It lookskind of like a Filevine system maybe,
and you can click throughall the different tabs.
So you can go into a tab that gives youthe general overview of how many times
(26:07):
he's testified for the defenseversus plaintiff's work.
It'll give you where he'stestified in the country.
And then you can go on a tab andit'll have all of his employment.
They have a miscellaneous tab where Ithink it's where Sandy found that he had
written this letter to thisnewspaper while he was being sued for
malpractice about the bias ofthese defense experts. And so what
(26:31):
an awesome tool. I am going to use it.
I'm going to trial again in June andI plan to use it on all three experts.
I have Allison Fall, Dr.Chen and Peter Himpsel.
Oh my gosh. Yeah, the big three.Yeah, I was going to say the trifecta.
God. So Sandra, how did you,
this nugget, this golden nugget youhave, did you lead your cross with this,
(26:56):
the concern about the bias of defensedoctors or where did you place that in
your cross?
Honestly, Keith, I have tobe honest, I didn't use it.
Wow.
I didn't use it. I had plannedto and sort of the way,
the trajectory of how the cross went,I ended up pulling back on some of it.
I thought that we had already gottenthere and I don't think it would have
(27:18):
mattered at that point.
I want to dive a little bit into thatbecause I'm hearing you say that,
and I know from talkinga little bit offline,
is it you got to a spot where you feltlike the jurors were on your side,
you had accomplished what you wanted to,
and you didn't want to like beatthem up anymore and like go too far.
(27:40):
Is that kind of how thatwent down in your mind?
Yeah.
I think at one point the cross examinationgot a little bit heated to the point
where the judge had to intervene,
he called a break and at thatpoint I just felt like, "Okay,
let's recalibrate." Actually, honestly,
I can't remember if I brought out theParade of Horribles before or after the
(28:01):
break, but once I had done that,
I think out of the corner of my eye Icould kind of see the jurors kind of doing
that like, "Yeah,
we're done here." And I try and as muchas I can take my cues from where the
jury is done with it, so we wrappedit up pretty quickly after that.
With the Parade of Horribles,
is that the prior cases where there wasan obvious concussion and he was saying
(28:24):
no concussion?
Yeah, multiple of those, but yeah.
Walk the listeners through sort ofhow that played out practically.
Do you remember this caseand would he admit, "Yes,
I do remember that case." Would he fightyou on the individual facts of those
cases or give us a little bit moreabout how that particular strategy of
showing absurdities in othercases, absurd opinions,
(28:47):
how you practicallyput that into practice?
So, and this is where I'm saying heseasoned enough to know what I was doing.
I would say, we would switch gears.
We were talking about something where hehadn't found a concussion in our case.
And I said, "Well,
I want to switch gears a little bit andask you about a few other cases you've
(29:07):
testified in.
Do you recall testifying in a trialcalled whatever the name of the trial?"
And he's like, "Oh, I'mnot sure." And I'm like,
"Let me give you a few facts." And thenthis was a case where this gentleman was
delivering candy to a Walgreens and thewarehouse dock door fell on his head.
Do you recall that? And then hewas like, "Oh yeah, I think so.
(29:28):
" He didn't fight me on itbecause I think he realized
I was going to be readywith the testimony.
I guess that's my question is because mymind is spinning about how we're going
to do this in the trial we have next week.
Did you have the report ready to go torefresh his memory if he waffled at all
or the deposition? What did you have?
Absolutely. I had the deposition.
(29:50):
I had copies ready for defensecounsel and the judge if he were going
to ... So I walked in
the binder about this big ofhis cross But like I said,
this is where you can tell probablymore of the seasoned experts,
he didn't fight mebecause I think he knew.
And it was easier for him tosort of downplay. He's like,
(30:11):
"Yeah, yeah, I think I might. Yeah. Well,
there was other things going on. " Andhe would be very wishy-washy about it.
But again, what I wanted formy purposes was to just ...
I didn't want to get intothe whole situation of it.
I wanted the optic of garage doorfalls on somebody's head and you're not
finding a concussion. Okay, next.
(30:33):
And so his excuse was, "Well,
there's other facts that you're notcovering." And you're just like, "Okay,
let's move on to the next case."Is that kind of how it went down?
Right, right. And I think withthe electric shock, he's like,
"That's a good one. Well,
how many volts or whatever?"And I think it was 120 volts.
What does he say? A hairdryeror an outlet or something?
I can't remember what it was.
(30:55):
It was like that was sortof his back and forth to it.
Do you believe that, becauseas you're explaining this,
I'm thinking on the one hand,
it sounds a little bit of a difficultcausation of tying the strokes
to this crash.
And you have Dr. Gray explainingphysiologically how that occurs.
(31:16):
And then on the other hand,
you have the defense doctorgoing almost too far.
And so I almost wonder if thefact that that doctor took such an
extreme position of no concussion then
resulted in your verdict. Do you havean opinion on if that's what happened?
(31:36):
I think it very well couldhave. Again, with Morganstern,
we spent so much time on the TBI itselfversus the stroke because he wasn't
finding the TBI in the first place.
So that I had to show the jurythat his opinion on the TBI
seemed to lack credibility.
And then they can pick up whereAlison Gray was and then run the
(31:59):
ball to the end zone on.
That. Talk to us a littlebit about the difficulties,
how difficult it was to establish theexistence of a concussion given the 30
minute delay, the negative CT scan.
I'm assuming that theneurologic examination in the emergency room was fine,
totally intact, no issues whatsoever.
(32:20):
So how did you overcome that piece toestablish the concussion occurred here?
A couple of things. Firstof all, there is nobody,
he's not speaking to anybodyin the first nearly half hour.
And so it kind of came down to a, "Well,
if a tree falls in the forest," andI think those words actually came out
(32:40):
of my mouth during mycross. Second of all,
we went through verymeticulously the ER records.
There was a timeline in thenursing notes of when all of
these evaluations were to have occurred.
The neurologic examwas ... Well, actually,
I think every single systems check,including the neurological exam,
(33:03):
was four minutes fine.
Four minutes.
Something like that.
Every single check, includingelder abuse and fall risk. I mean,
we walked them through in yourcross of Morgan Stern in Dr. Gray,
and then I did it with Hailey Burke,
that timeline of look at how manytests they're doing and it's four
(33:23):
minutes. And that wastheir complete assessment.
So the timeline,
was that on the actual records or didyou have to get the medical audit,
the medical metadata to findthose timelines of what occurred?
No, it was right in their medicalrecords. It was in the nursing notes.
So in the ER records,
(33:44):
they would put timestamps next to thedifferent things that were happening.
So I think when we were preparing, Iwas like, "Paula, look at this. This is.
Ridiculous." Yeah. Iwas just going to say,
it's one of the things I love aboutdoing this is I'm learning something new
myself because I recallsome of these ER records,
like I have seen those timestamps,
but not always for you to be able tolook at that and say, "Wait a minute,
(34:08):
to be able to provesomething that we all know,
which is that these ER examinationsare very quick, very cursory.
And so you're able to look at it and say,
look at all these things that they didin four minutes and they want to have you
believe that this is some kind ofcomprehensive neuropsychological or
neurological assessment."That is brilliant.
Yeah.
And Hailey Burke was great at really sortof digging in on what the point of the
(34:32):
emergency room is. It's not to doall of these assessments. It's,
are you going to die? Yeah.
Quick practical question on thatbecause I love that testimony
and Dr. Burke testifies for the defenseoften as well and can be devastating on
the defense side, as I think we all know.
Did you include in your expert disclosuresthat Dr. Burke was going to talk
(34:55):
about what normally occurs inthe emergency room and that
it's designed to save your life,
but they're not doing sortof a full blown assessment.
And the only reason whyI asked that question is,
is that something that our listenersneed to be aware of finding out if
a treating doctor is going to testifyabout that and actually putting in the
(35:15):
body of our expert disclosures or A,did the defense not object? And B,
if they did object, areyou sort of like, "Look,
this is just part andparcel of the underlying.
Opinions." So it wasn't in our expertdisclosure and it wasn't in her report.
And I was really surprised at how muchwe got in. Overall, broadly speaking,
I don't think, and thedefense team was very gifted.
(35:36):
It's Brandon Freedy and Jason Mellakar,they're both gifted attorneys.
I just don't think theytook this case seriously.
And so there were some parts that theyweren't paying attention to. For example,
Sandy does this beautiful directof Allison Gray, and at the end,
she moves to admit Dr. Gray's recordsbecause Dr. Gray was our hybrid
(35:56):
treater/retained. There was noobjection to those records coming in.
And so in my closing,
I urged the jury to read thefirst eight pages because it
had a records review in there.
There had been some letters that Mr.Carter's treating cardiologist had
written about the AFib and anothertreating doc in there. And so Dr. Gray had
(36:20):
kind of gone through all of that.
And when there was no objection toit coming in, and I told the jury,
"You should read it. " Our colleagueson the other side after that said,
"Wait a second, that camein. " And we were both like,
"You didn't object." And thenJudge Prince said, "Yeah,
you didn't object." And then you couldjust sort of see the color on their face
(36:40):
was like,
"Uh-oh." So there were just some thingsthat trial kind of gives you as a gift
of them just not really taking thiscase as seriously as I think we took it.
And in speaking to the juryafterwards, that is what came through.
And the jury did tell our friends on theother side that we were very much more
prepared and polished, not only ourselves,
(37:02):
but also our doctors andthat their team didn't have
that same presentation.
You mentioned at the beginning that youreally wanted the optics to be prepared
on the right side.
Tell us a little bit more aboutyour thinking and preparation of the
optics piece of this andwhat our listeners can learn as they're getting ready
(37:25):
to march into trial.
Absolutely. So anytime acase is assigned to me,
the first thing I do is I think aboutwhat am I going to tell a jury in my
closing argument? And then Ibuild backwards from there.
How do I want this to look?
As I was taking depositionsand kind of building this case,
I was realizing that what we reallyneeded was just a really prepared,
(37:47):
polished team because these were goingto be really complicated neurological
things that I don't think your averagejuror was going to be able to understand.
And so I wanted,
we already had Allison Gray on thecase because she was already a treater,
but I brought Haley Burke in becauseshe absolutely demolished me in Adams
County a few years ago. And I was like,"I'm never going to have that again.
(38:08):
I want her on my team." Because she canexplain things in this really beautiful,
polished way to the jury thatthey really grab onto. I mean,
she was 80% of the reason that whenshe demolished me in Adams County,
it was admitted liability and we got adefense verdict because she just wiped
us. And so I wanted us to havethis team and Sandy comes with it.
(38:31):
She is so prepared. She'sso polished. She's so ready.
She knows every medical record in andout because that's how she prepares for
trial. And I wanted that look. Iliked the look of having four women,
no offense to the men outthere, no offense to you, Keith.
But I wanted this look of this teamwhere we were really taking care of this
older gentleman who isa cute little old man.
(38:52):
And he's got this team of like legalfolks and medical folks that are here to
be able to tell a story and take careof him. And then on the other side,
we had these two defense attorneyswho weren't taking it seriously.
We had two male doctors who alsoweren't taking it seriously.
In fact,
(39:13):
Philip Stull got on the stand andsaid that he wasn't sure why he
was there because he was only supposedto talk about the shoulder and didn't
know he was supposedto talk about the back.
I just kind of rolled into thatand cross of him. I was like,
"You don't even know why you'rehere." It was this whole other team.
The defendants never came, so theyalso didn't show up for trial.
So it was this whole other team offolks not taking our client and his
(39:36):
very, very serious injuries andpermanent injuries seriously.
Oh my gosh.
Did you know that Stoll was going tosay that he only thought it was the
shoulder before trial? I mean, that wasjust like a gift that was given to you.
It was a gift. A gift. I think we lookedat each other and we're like, "What?".
His whole report was aboutthe compression fracture.
(39:57):
His report only had a little paragraphabout this big about the shoulder.
So when he said that, I thought,
"Gosh." And then you have these momentsafter you've tried a bunch of cases,
you realize the jury doesn'tknow what's in his report.
I'm going to capitalizeon this. "Hey, jurors,
you don't know that the report that I'mholding in my hand is eight pages of
compression fracture. "So thisguy gets up there and says," Oh,
(40:20):
I don't even know why I'm here.
"He was very cutesy about itand my cross was less than
maybe 10 minutes. I mean,
I didn't have a lot to say after he gotup there and said," I don't know why I'm
here.
"Does that come with experience when youhave accomplished what you need to and
then just do sit down?
Yes, absolutely.
Don't open the door to redirect.
(40:40):
You don't. And so you learnthat as you go along, right?
And the only way to learnthat is to actually be in trial and have those moments
of, " I think I need to sit down now.
We've done the work here and we've leftthe impression we want to leave with the
jury and in speaking with them afterwards,it absolutely played out that way.
So I'm kind of glad that my trialinstinct was I want this trial to be about
(41:03):
optics.
And that's exactly what the jury toldme at the end was what did it for them
and why they awarded so much money.
And what foresight youhad about the optics,
not just of having the female teamagainst to help this older gentleman,
but of being super prepared,having everything inside and out.
And then the defense walks inand puts up a doctor that's like,
(41:24):
" I don't know why I'm here. "It justmakes the defense look incompetent.
And you couldn't have predicted that, butit played out perfectly. Kudos to you.
Thank you. It was a fun trial.I mean, admittedly, Keith,
in my closing, I only askedfor 900,000. I did not.
Ask. I was just about to askfor the damage ask and how ...
(41:45):
So let's talk a little bit about your,
because you both have so muchexperience trying so many cases. Sandra,
let's start with you.
Talk to us a little bit aboutyour philosophy on impairment,
non-economic damages,
and what sort of you have found worksand what doesn't work and what can we
learn from you?
Well, I actually was going to defer thisback to Paula because we did have an
(42:07):
interesting quirk withnon-economic damages in this case.
But in cases now,
I'm trying to do my best to get actualimpairment doctors because I think that's
historically for me been the hardestcategory of damages to quantify to
a jury and explain. We've had it,
I think the last few trials I'vehad, the impairment has come through.
(42:30):
The juries have really sort ofgrasped onto what that's about,
but I'm going to defer to Paulaactually on the non-economics because,
like I said, they're alittle quirk in this case.
Well, and let's talk about thatbecause I know from your writeup,
it has to do with responding to writtendiscovery where they're asking you to
quantify impairment ornon-economic damages.
(42:51):
So give us the setupand how that played out.
Sure. So in the CMO, we didn'tput a range. We just said TBD,
which under Rule 26, that's fine.
But then they propounded writtendiscovery and our answer in written
discovery to how much areyou going to ask for non-ec,
it's going to be determined by ajury. I didn't put a range in there,
(43:12):
which now I have ... I'm not sure if Ilearned was a mistake or not, honestly,
but that was what our response was.
And so they filed a motion in limine topreclude us from asking for any specific
amount.
And so we duked it out in motions practiceand ultimately Judge Prince said,"
You can ask for non-act,
but you may not give themany formula number nothing.
(43:34):
You can just say that non-ec exists. "Now,
most of my voir dire is based on damages.
So I like to talk to the jury reallyearly on about versus non-ec versus
impairment and kind of get theirfeelings on as we're building that tribe,
what can you do with this squishyconcept of non-ec that you have to go in
(43:55):
and decide,
right? So I felt comfortable that wehad a jury pool that was going to work
together. I wasn't allowedto ask for an amount.
I couldn't give any sort of formula.I couldn't do anything. In fact,
Judge Prince interrupted me in my closingwithout an objection from the other
side. He interrupted mein my closing to say,
as I was starting to talk aboutnon-economic damages on the verdict form,
(44:19):
he said," You're not going to do whatI think you're going to do, are you?
"And I said," I'm not doing anything.
I'm just telling them that there'sa bucket here called non-neck.
"And then he told me to move on.
Well, before we talk abouttheir actual award, in response,
I just want to put out this,
this is what we're doing right nowand I want to get your thought on it.
When we are getting interrogatoriesasking for specific amounts of
(44:42):
non-economics and impairment, what I did,and I just did this I think last week,
so I haven't seen this play out, but weresponded with the typical objection,
the rule doesn't requireit. And then I put in there,
if counsel for defendant disagrees,
we ask that you please raise this withthe court now because I don't want to
come in. I want to have that as if youdon't raise it, I don't want to have ...
(45:04):
And I think maybe I read your ...
I think that actually I'm going to thankyou because I read your trial report on
the Listserv and saw that and I wassort of concerned. I'm like, " Look,
if they're asking that question, Idon't want to just say objection.
I want to say objection and if youdisagree, raise it with the court.
So we'll see how that plays out. Now,
(45:25):
I guess based on what happenedto you before you heard that idea
from me,
are you now answering with a range whenthose questions are coming in or what
are you all doing?
I'm giving a range and my rangetypically is at least the underlying
economics up to double the cap.That's kind of the range I live in.
(45:45):
And I usually note that it's tooearly in discovery to determine a
precise number.
And we have a whole objection thatwe use firm wide on that as well.
The other thing too, and I thinkif you're going to do that range,
I think then it's incumbent uponus as well to do motions in limine,
basically stating defense can't stand upin their opening or voir dire and say,
(46:08):
they're going to ask you for $2 million in
non-economic, because Ithink that's where it goes.
They want them to show thisabsurdity right out of the gate,
and I think we need to temper that.
So if the court's on one handgoing to make us give a range,
they also kind of, I think,
need to protect the outcomeof how that range happens.
(46:31):
Wow, that's a reallygood way to handle that.
So you sort of object saying therule doesn't require it, number one.
Number two, it's early in discovery.Number three, this is for the jury.
And then without waiving said objection,the range is between here and there.
And then if defense counsel believesthat we need to provide additional
(46:54):
information, raise it with the court,
and then eventuallyfile a motion in limine,
how have you seen that playout during depositions?
Have you found defense attorneysaggressively trying to get
testimony in depositions from yourclients about both non-economics and
impairment? And if so, what are youdoing to prepare your clients for that?
(47:16):
Essentially, it's something thatas an attorney or as attorneys,
we need to have thatconversation with our clients.
That I believe enters into aprivileged conversation in a
deposition, particularly if wehaven't had that discussion.
And so my clients typically are saying,"I need to talk to my lawyer about that.
" I don't know. That'skind of where it's been.
(47:37):
I don't know if I've had anyclients who've actually spit out.
A number. Have you ever had toinstruct your client not to answer,
sort of aggressively assertingattorney-client privilege on that?
I'm trying to think if I haveor not. I did have one counsel.
We ended up almost calling the courton it because I must have said not to
answer, but I'm not recalling itoff the top of my head. But yeah,
(48:00):
I absolutely can see a scenariowhere that happened. So.
All right, Paula, back to you'renot allowed to ask a number,
but I thought I heard you say earlierthat the jurors said you didn't ask for
enough.
So help me understand sort of how thatpractically played out in terms of what
you asked for and what the jury awarded.
(48:21):
So I wasn't allowed to askfor non-ec. For economics,
we asked for the meds, whichwas a little over 186,000,
and then I asked for an extra 100,000on top of that for future care because I
had a slide in my closing.
Allison Gray had given us monetaryvalues for her future care
recommendations. Hailey Burke did not.
(48:44):
So we had a slide where we hadDr. Burke's recommendations with
no dollar figures and then AllisonGray's with dollar figures.
And I figured $10,000 a year for 10 years.
So that's why I only asked for 100,000.
I was being really careful because ElPaso is a conservative jurisdiction.
You don't want to walk in there and juststart asking for all kinds of stuff.
(49:06):
And then for permanentimpairment, I asked for 650,000.
I had thought about morethe night before. In fact,
I had always valued this case at aboutthree million in my mind. We work a lot
with Steven Padway withElite Trial. He's awesome.
So I had been on the phone withhim for about an hour and he said,
"I think you should ask for 2.7 millionin permanency." And so I had that in my
(49:30):
closing and then I don't know, 20minutes before I said, "I can't do it,
put in 650,000.
I have to be able to say a number thatI can get behind." So that's what we put
in and the jury decided otherwisethey thought that it wasn't
enough is what they told me.They said that in my closing,
I had talked about how this is,
(49:51):
it was my rebuttal and I had talkedabout how this is his last chance at
any sort of closure and anysort of chance of having
an award to him to take care of him forthe rest of his life. This is his final
chapter because our friends on theother side, their closing had been,
"When is it enough? When is itenough?" And I said, "This is it.
(50:12):
This is his only chance.
This has to be enough." And Italked about how the mortality table
says he has 10 years leftof his life and that's it.
And so they went back and one of thejurors told me that it really made her,
what I had said,
think about her own mortality and herfamilies and what it would look like to
have to fund medical care in this economyand with these soaring medical rates.
(50:35):
And so they all kind of thoughtabout themselves a little bit.
And then they said,
"What you asked for wasn't enough." Andthen they came up with these numbers.
Yeah. And sorry, Delamot says that youwant your juries to come back and say,
"Can we give them more?" And that hasbeen a goal of mine for two years. And so
it was really exciting to have thisjury say, "You didn't ask for enough.
(50:55):
We needed to give him more." Yeah.
And I do have to shout out because whenJason Mellicar did the closing and he
did, he sort of was like, "And thisand this, then when is it enough?
Ladies and gentlemen, whenis it enough?" And again,
because she's brilliant and experienced,
but she walked right into thatand just it was a brilliant
(51:15):
rebuttal. Absolutely brilliant.
Thank you.
Yeah. No, it was. Again, she just ...
I don't know if that's what shewas planning, but when she got up,
it was just raw and itwas beautiful. I never.
Know what I'm going to sayuntil I get up there sometimes.
I'm just so impressed thatyou have accomplished all these bucket list items for
(51:39):
me that I'm not sure will ever occur,
including can we award more than wasasked for and can we have a calculator?
None of those have ever. Maybe someday.
Last question before we wrap this up,because I'm a little bit confused.
You weren't allowed toask for non-economics,
but you were allowedto ask for impairment.
What was the reasoningbehind that difference?
(52:01):
It.
Was the interrogatory.
Yeah, it was the interrogatory. Theyonly asked for the non-act piece.
And the motion in limine also was onlyabout non-economics because they didn't
take this seriously.
They didn't even think that they had totalk about permanent impairment, right?
Because they thought never in a millionyears are they going to tie this
permanent stroke, this permanentthoracic fracture to the crash.
(52:24):
So we're not even going to worry about it.
Well,
I'll tell you one thing thatI have learned after doing a bunch of these podcast
episodes,
which I love because I learned so muchis that so many of these great results
are as a result of mistakes made bythe defense. And for whatever reason,
we live in this world where allwe do is catastrophize our own
cases, our own abilities, and we'realways thinking about what can go wrong.
(52:48):
And we don't spend enough timethinking about, "Well, you know what?
What can go wrong with the other side?"When they come walking in and their
doctor comes up and says, "What?I'm here to talk about the shoulder.
What are you talking about? "Compression fracture. And you're like,
"Okay." And to be present enough, Paula,
there's two of those in trial gifts thatwere given to you that I'm hearing you
handle just masterfully.This shoulder issue,
(53:09):
no talking about the compression fracture,
and then this when is enough enough sothat you are present probably as a result
of your experience or justyour brilliance to listen and
respond is just amazing.Kudos to you and Sandra,
what an amazing result. So thankyou so much. And with that,
we'll wrap this up until the nextepisode. I am just so inspired,
(53:33):
truly inspired by the amazing workthat you and your firm is doing.
So thank you both so muchfor coming on the show.
Thanks, Keith. Thank you for.
Having.
Us. We loved it. Let's go get them.Let's get them some more. Yeah.
Yeah.
Go get more and come back on and tellus what we can do and what we can learn.
So thank you so much.
Thanks.
Keith.
Thank you for joining us.
(53:55):
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
cases and learn fromColorado's top trial lawyers.
Our mission is to empowerour legal community,
helping us to become better trial lawyersto effectively represent our clients.
(54:16):
Keep your connection to Colorado'sbest trial lawyers alive at
www.thectlc.com.
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.
(00:22):
Welcome back everyone to another episodeof the Colorado Trial Lawyer Connection
Podcast.
Amazing episode up ahead where we arethrilled to have Sandra Hagen and Paula
Slaughter on to talkabout just an amazing $3
million plus verdictin El Paso County on a
(00:42):
fascinating medical causation case.
So we are thrilled to have first timeattendees, Paula and Sandra on the show.
Welcome to the podcast.
Thank you, Keith. Thanks for havingus, Keith. Excited to be here.
I'm so excited.
And the one thing that I learned beforeyou all jumped on is both of you have
tried between you eachbetween like 35 and 40
(01:06):
civil trials.
I just want to say that isamazing and kudos to you.
How is it that you bothare obviously very young.
How in your short years of practicewere you able to try so many cases?
That is phenomenal.
I had my own law firm for over a decade,
and so I was front rowto all of those trials.
(01:28):
So that part made it really excitingto try cases from intake all
the way to verdict. I was reallyyoung when I started my law firm.
I think I was like 29 or 30and had nothing to lose and
everything to gain. Andso that's how I started.
And now I'm at Wilhite Law Firmwith Sandy and we are high volume.
So we get a lot of opportunity to tryreally interesting cases with interesting
(01:52):
fact patterns around the state.It's cool to get in there and do it.
Yeah. And the cool thing aboutWilhite is yeah, you're high volume,
but you're also trying a lot ofcases. So sometimes I feel like, oh,
high volume means no trials. And Ithink oftentimes the opposite is true.
Sandra, has that been yourexperience at Wilhite,
that you're just trying casesleft and right? Seems like it.
(02:15):
It is.
I initially started as Rob Wilhite'sparalegal way back in the day.
He's always been very supportive of,
if the insurance company isn't goingto play, let's just go try the thing.
As long as our clients are on boardwith it and the way our firm is
structured, we have litigation team. Ourlitigation team is very trial focused.
(02:39):
When you pick up thatcase from pre-litigation,
you're planning for trial from day one.
So it's a very encouraged thingthat we do in our lit department.
Yeah. And I just think when you try alot of cases and your results speak for
themselves, which they do,then it just trickles down.
And then you're getting better offersin pre-lit and everything just moves
(03:01):
better. So what a great world thatyou have grown up in, if you will,
as attorneys to get to try so many cases.
And let me start with you, Sandra.
Did you always know that you wantedto be a trial lawyer? I mean,
I'm guessing that you'reworking in the trenches,
then all of a sudden you're like, waita minute, I'm going to become a lawyer.
How'd that come about?
(03:23):
Actually, law was my second career.My first part of my adult life,
I was in restaurant management.
Then I had my daughter anddecided to go back to school.
I initially went back to become ateacher. And then somewhere along the way,
I was like, "Maybe I want to be a lawyer."And so I figured we're already broke,
so let's just go for it. And so Idid. And when I started law school,
(03:47):
I actually went in thinking I justwant to be in house somewhere and write
contracts. That was my goal.
And I ended up interning witha criminal defense attorney.
My very first foray into the courtroom was
arguing a case in front of theNorth Dakota Supreme Court as a 3L.
Wow. So what was that experience like?
(04:08):
Terrifying. Absolutely terrifying.
I think there's an audio of it outthere somewhere and I'm just afraid to
listen. I don't wantto know. I didn't win.
But you still argued in front of theNorth Dakota Supreme Court. I mean,
there is something to be said forthat. So congratulations there.
And then how did you end up doingplaintiff's side trial work?
(04:29):
Well, when I movedhere, I wasn't licensed.
And so I was looking for paralegal workand I had applied a bunch of different
places. And this is backin the time of Craigslist.
And so I had an ad out and RobWilhite was in his, I think,
second year of practice. Sohe reached out, interviewed,
(04:50):
and the rest is history.
So you started as Rob's paralegal?
Yes. Yeah. And then about twoor three years later, he said,
"You got to go take the bar." He's like,
"You're just wasting your time here."So he encouraged me to take the bar.
I did. And here we are.
Wow. That is so fantastic. I think thatyou mentioned that you had a daughter,
(05:12):
I guess not too long ago,part of this process.
And your daughter now, I think youtold me off air, is 30 years old.
You must be very proud knowingthat she must be so proud of you
to have done all that you havedone with a young child. I mean,
just tell our listeners a littlebit about what inside of you
(05:34):
kept you going.
Once I got fixated on the idea,
it was more about takingit one day at a time,
sometimes one minute at a time,because if you back up and you look,
it's too much and it's toooverwhelming. So you just say, "Okay,
what do I have to do to get through thenext hour the next day?" 10,000 hours
(05:55):
later, I got a few trials under my belt.
Wow. That is fantastic. Andkudos to you. Kudos. Paula,
tell us a little bit about yourself.
How did you come to be a rockstarplaintiff's trial lawyer?
I just wanted to go snowboarding.
I got out of college and was a realestate broker for a little bit.
(06:17):
Didn't really want to stay in thatlane and came out to Denver to visit a
friend, got some snowboarding in,visited DU law, and I was like,
"I think I could do this. " Soapplied to a few law schools.
DU gave me a lot of money to go there.
I got out and still didn't knowI wanted to be a trial attorney.
Did some tax work. Andthen in my late 20s,
(06:37):
started a law firm and got intothe courtroom and loved it.
I remember waiting for one of myfirst verdicts and it felt like
b know it inches up and I'ma first row rollercoaster
person and you know you're inching upand then your feet start to dangle cause
you're about to drop. That is the feelingright there of being at that table is
(06:59):
the few seconds right before you go.
When you get that phone call and theclerk says the verdict is in, I mean,
I'm getting goosebumps just tellingyou the story right now that you go and
you're sitting there and you're waitingand it's just this buildup and this
buildup and you are watchingthe judge get the envelope and
read the verdict andthere's nothing like it.
(07:19):
There's absolutely nothing likethat feeling. Win or lose, honestly.
That is a very good analogy.
Now I see why you have done so well intrial because your analogy skills are
second to none.
They are on point for sure. I'll.
Tell you what, I am a little bitnauseous hearing you describe it because
what I have experienced, I don'tknow if you all disagree. For me,
(07:42):
sort of one of the best feelings iswhen you're just waiting on the verdict
because you're like, "You know what?I'm done. I can finally relax. Candidly,
I like to go find a place and have abeer because I don't drink like a week
before. I don't drink during trial,
so I need a beer when I'm waitingfor that verdict." I got to ask you,
you are wearing a sweatshirtthat says Clever Bully.
That is an awesome sweatshirt. Tellme a little bit about Clever Bully.
(08:05):
What's that?
Oh, thanks. So Clever Bully is abrand that I came up with my husband.
I had gone through a fewyears where it was a rough ...
I had come out of a reallybig divorce and it was a lot.
And so I was feeling a littlebeat down by the system.
Family law can be really hard.
Shout out to the family lawyers outthere because I could never do that.
(08:25):
I learned that you have to be clever andsometimes outsmart the problem and come
out on the other side on top of thethings that were like really burying you.
And so we kind of came up with thislike, you can be a clever bully.
You don't have to be a bully. Youcan be somebody that's clever.
And then I thought about that and itkind of bled into how we deal with
insurance companies is youjust, you have to be clever.
Yeah.
I almost feel like I want a clever bullyt-shirt to wear underneath a suit when
(08:48):
I'm in trial. Sort of like thatarmor to go into battle. I.
Will get you one because it feels.
Good to wear this. Offeraccepted. Offer accepted.
So let's talk about this amazing result,
three plus million dollarsin Colorado Springs.
Just absolutely amazing.And before we do that,
I know in speaking off air that youboth said that you try a lot of cases
(09:13):
together. So tell us alittle bit about that.
And specifically for this case,
how do you as a trial team goabout dividing up responsibilities?
With any case, when you're assigned acase at our firm, you're the lead counsel,
it's your case. And wework pretty independently,
except for in rare occasions we'll doubleup early on. But for the most part,
(09:38):
you get the case, it's yourbaby. And if it goes to trial,
then you start wandering around thehallways looking for who wants to
co-counsel with me on this trial. Thiswas actually Paula's case. She took lead.
And so she asked me about amonth out, I think. She said,
"This one's going to go. " And I'dhad a case recently settled, so I did.
(09:58):
Yeah, that was going to be my question.
So you start to sort of figure out who'sgoing to do the case with you about a
month or so out. Is that true for you,Paula and Sandra, about a month out?
You have a feeling at thatpoint, mediation's done, you know the case is going,
that's when you go getsecond chair, if you will.
Yeah.
And the other thing that's neat aboutour firm is we have enough litigators who
(10:19):
are pretty seasoned.
So if there's a particulararea of damages,
say TBI or something like that,
some of our attorneys arereally great at certain things.
And so you look at it and say, "Oh, okay,
this is a case maybe where I want ZackElsner on because he's great with the
neuropsych stuff." Or in this case,
(10:42):
and what I do when I'm lead is weusually divide up the case by issue.
So if there's engineering, if there'smedical, if there's lay witnesses,
depending on how many counsel we have,
we kind of put everybody in the same box.
That's what Paula didin this case as well.
Yep. And we had tried a TBI case togetherlike four years ago- It was before.
(11:04):
COVID.
It was right.
After COVID.
Yeah, we tried it four years agotogether and we got a wonderful result.
I think you got a $990,000or something like that.
And we just worked really well together.
I think when you have a trial partnerthat you've worked with before,
you have a lot of faith in each otherthat they're going to get their part done
(11:25):
and they have faith in you that you'vedone that work to get it to verdict and
that they can sort of drop in wherethey're asked to be dropped in. Yeah.
And we just naturallywork really well together.
Who did what in the trial?
So how did you divide up voir dire openingand those various parts of the trial?
So for this trial, opticswere really important to me.
(11:48):
I really wanted us to look like a verywell prepared, female driven team.
I also really wanted to make sure thatwe were kind of in and out surgically
with the jury. So we had two experts.
We had our plaintiff and we had onelay witness, our plaintiff's brother.
And so the way that I dividedit, and they had two experts.
We had a neurologist, theyhad a neurologist. We had like a musculoskeletal MD.
(12:12):
They had the same thing,an orthopedics guy.
And so basically we divided itbetween neuro. Sandy did the neuro,
and then I did themusculoskeletal witnesses.
That played out really great in terms ofpreparation because Sandy could really
focus on just the neuro. She did thelay witness, our plaintiff's brother,
and then I took everything else.
I was really excited about this case.I really was.
(12:34):
The defense team wasn't paying attention.They weren't taking it seriously.
And so I knew Sandy had beenreally busy. And so I said, look,
let me do voir dire, opening, closing.
I've really doubled downon voir dire lately.
It's something for the past two yearsthat I've focused on pretty heavily is
voir dire. And so I justwanted to keep going with that.
So Paula, you were sort of,I guess this was your case,
(12:55):
your baby from the get-go. How did you divide up?
How did you and Sandra decidewho's doing what during trial?
So this case for me, I reallywanted us to look really prepared,
really ready and to really tighten upour story and be surgical about how we
presented it to the jury.
Sandy and I had done a TBI trialtogether before a couple of years ago.
(13:17):
And so I really wanted her totake the neuro on this one.
She's just really gifted at gettingreally beautiful pieces of testimony out
from direct examination of our doctorsand then her cross-examination. I mean,
to watch Sandy cross any expert, butto cross a neuro is like a masterclass.
And I had seen her do it inArapahoe County when we did a TBI case together four
(13:38):
years ago. And when I askedher to do this trial, I said,
"You have to cross their neuro.
You have got to be that guy that's goingto go in and bruise them up." And she
did exactly that.And I knew she had been really busy.
So one of the things that we try to dothat I've kind of said before is you want
your second chair to really drop in reallyeasily and without too much pressure.
(14:00):
And so I told her, "Look,I'll do the rest of the trial.
If you can do the neuro portion,do our neuro, cross their neuro,
and then take a lay witness,I'll do everything else.".
Okay. So did you do voir dire in opening?
I did. I've really beenfocusing on voir dire.
I've kind of doubled down on voir direin the past two years. I've gotten into,
sorry, Delamot, I don't know if you'refamiliar with her, Hostage to Hero,
(14:22):
12 Heroes, One Voice,
and that's kind of where I've beenputting the focus of my trial work.
Everybody does thingsdifferently, but honestly for me,
doubling down on voir direis what's worked for me.
I've noticed that my verdicts have gottenbigger and bigger and bigger as I've
started to really double down onvoir dire and employ what I've been
learning through these books and podcasts.
(14:42):
I went from smallerverdicts to like 750,000,
600,000 and now 3.2 millionfrom really focusing.
On it. It's marvelous. And I willgive a plug to sorry de Lamont.
I went out and spent three days doingher trial lab on a big case that I had
where three days on the opening, it wasvery, very useful. I'm sort of with you.
(15:02):
I feel like for me, voir direis always an evolving process,
but one of our core values isbetter tomorrow than today.
And I do feel like as long as we'rebetter tomorrow than we are today,
then life's moving in the right direction.
Sounds like you're emboldening thatand embodying that. Amazing. Love it.
I have to interjectsomething because she and I,
(15:23):
while we're both pretty chill andthat's why we work pretty well together,
she didn't want to look at anyof the juror questionnaires.
And I just couldn't even wrapmy head around doing a voir dire
without having looked atthat. And she's like, "Nope,
I don't want to look at it. " She doesn't.
She goes in cold and buildsher tribe and I love it.
Oh, that's amazing. So Paula, tell us alittle bit about the facts of this case.
(15:46):
And then I want to get into the crossof the neuro and some of the sort of
fascinating medical issuesthat arose in this case.
Absolutely. So ourplaintiff is Anthony Carter.
This crash happened on December 7thof 2021. He was about 74 at the time.
He had been a tile master for his life,
had done a lot of like hands-on workand he was fishing down at the reservoir
(16:10):
with a friend of his.
He's coming back up on I- 25 northboundand there's all that construction right
around Colorado Springs. Andso he comes to a dead stop.
He's driving like a 1990, 1991 Mercedes,
the kind that used to be made out ofmetal. The bumper was fully metal.
Everything in the car is metal.
And then defendant Matthew Monday isdriving this Ford Transit van and he's
(16:33):
driving it for this weedfarm called Montefiore.
And he's going about 65 milesan hour. He'll never admit it.
He said he looked down for a second,
but I have my suspicions about what hewas looking down at. He hit Mr. Carter at
65 miles an hour.
Wow. And you said weed farm,like marijuana farm or?
Yeah. So the van was just full of weedproducts that he was delivering to these
(16:54):
various dispensaries.
The property damage wassignificant. I mean, the collision,
the forces of the collision were enoughthat the metal bolts of the driver's
seat in Mr. Carter's car broke andcame undone. His headrest broke.
He was dazed at the scene,
but obviously concerned about anybodyelse that was involved in the wreck.
(17:16):
And so he was transported byambulance, so was Mr. Monday.
And basically what thatled to is at 74 years old,
he started having someAFib, atrial fibrillation.
And then after about seven months,
he suffered like a triplecardioembolic stroke,
which I'm going to let Sandy talk to youabout because she's got it dialed in on
(17:36):
the neuro. But the crux of the case was,
did this crash cause these strokes or not?
And he had some significantmusculoskeletal injuries as well. He had a T2,
T3 compression fracture, but Ireally think that the case was,
is this person significantlyand permanently injured.
So client gets AFib thatthen eventually leads to the
(18:00):
stroke. So help me understand how,
what did your neurologist, Iunderstand it was Dr. Gray.
What did she tell the juryhow one thing led to another?
Honestly, I had never heardof this before either.
So I got a big education ina very quick period of time
(18:20):
on this.
So how she explained itwas obviously this crash
is hard enough and the forces are hardenough for whether he hits his head on
the headrest or it's a whiplash.
I don't think it really mattered becausethere was certainly enough force there
to give him a TBI. Whenhe's taken to the ambulance,
(18:42):
and an interesting fact is thathe doesn't really talk to anybody
super early on because there'sthree cars involved in this.
And one of the cars, that guyhad a warrant out for his arrest.
And so there was like a whole thing.
By the time he's actuallytalking to someone,
there's plenty of time that has passed,probably close to a half an hour,
(19:05):
I think. Whatever he's feeling,
he's feeling a little dazed andconfused right after it happens,
but doesn't report it to anybody. And sohe goes to the hospital and because of
his age, they did a head CT, butdidn't diagnose him with a concussion,
didn't diagnose him witha TBI. But interestingly,
they didn't find the compressionfracture either. So there was a lot of,
(19:29):
not necessarily missteps, but alot of things missed at the ER.
And I'm assuming thehead CT scan was normal?
Correct. Okay. Yeah, it was.All right.
Which is important because we're notseeing any of the indications for the
ischemic strokes that hehas then down the road.
So he has a TBI.
He gets his treatment and he'sreporting headaches and some
(19:53):
irritability and the usualcognitive type stuff.
But he lives with his brother.
They're both in their late 70s andnobody's really thinking about this.
They're treating the physicalside of it. And like Paula said,
about seven months later,he has this stroke.
So Dr. Gray explained it tothe jury that he has this TBI,
which starts sort of thiscascade. He's put into,
(20:17):
for lack of a betterterm, fight or flight.
So he's operating at this sortof high level called sympathetic
overdrive.
So your parasympathetic systemis just idling really high.
And then that is creating
these heart palpitationsand leading to the AFib.
(20:39):
Then the AFib starts runningits course through the heart.
Those little clots are makingtheir way to his brain.
So he ends up having,
I want to say it was five areas ofischemic stroke, seven months later.
Okay. So it's making a little more senseto me because I'll sort of confess my
(20:59):
ignorance when you're talkingabout an ischemic stroke,
that these are micro strokes, if you will.
So this isn't one big bloodclot going to the brain.
These are small little bloodclots over time. Is that right?
Yeah. They don't happen. Andthe way Dr. Gray explained it,
these don't happen overnight. That wasanother piece of the causation was, well,
(21:20):
if this was going to happen, it shouldhave happened more immediate. Well,
it didn't because it's a wholecascade of symptoms that lead to this
ultimate result.
And so the defense doctor blamed it on
Imbruvica because he had-.
Cancer.
Yeah, he had leukemia andso he was on Imbruvica,
(21:42):
but we were able to show thestudies he'd been on this for years.
And so with Imbruvica,yes, it can cause AFib,
but it typically causes the AFib withinfour months of starting the medication.
So you usually know pretty early on ifthe Imbruvica is going to be an issue.
All right.
I want to do a little more of a deepdive into this medical issue for the
(22:05):
education of our listeners andstrategically ... And first of all,
tell us a little bit about the defenseneurologist, Bruce Morganstern.
I think you can look at it two ways.
You can either look at as acurse or a gift because he's
going to stick to his guns.
He has testified far more timesthan I've ever been in trial.
(22:28):
And he's got his script andhe's very polished when he's
talking to the jury. He also,
what I found was kind of aware of thetraps that he could be walked into.
So he wasn't fighting me on things becauseI think he realized I had the goods.
So he knew to just sort of caughtto things, if that makes sense.
(22:50):
So it was kind of more like,
I have to show the jurybasically that your
opinions are sort of absurd andthat they are historically absurd.
We had audio taped his Rule 35 exam,
and so there were inconsistencies betweenthe tape and what was in his report.
(23:11):
So we highlighted those.
We had the tape ready to rollif he were going to try and work
around it, but he knew.
He did this comprehensive cognitive testand the three words and you wait five
minutes. And I'm like, "You didn't waitfive minutes, did you? " He's like, "No,
it's probably a little less." Half.It was two and a half minutes.
(23:32):
And two of the words he'dactually repeated in another test.
So you're dropping thehints along the way.
So he was interesting. He was tough.
He wouldn't keep himself containedto a yes or no and things like that.
But I think after a period of time, Ithink the jury just kind of realized,
(23:52):
this is insane,
he had found no concussionin some pretty clear
cases,
a warehouse doc door falling onsomeone's head and a pretty significant
electric shock. My owncolleague, Anastasia Evans,
had a client and she had a big hematobaon her head and he had done that report
saying no concussion. So I think itwas just showing the jury absurdity.
(24:17):
Jerry didn't.
Like him.
Yeah.
I was going to ask sort of how you wentabout finding these prior examples of
absurdities.
Were those just in office cases or didyou reach out to the Listserv or other
ways to get those examples?
So I did pull a fair amountof stuff off of the Listserv,
but Paula had also been workingwith Expert Institute and
(24:40):
they had done a trial.And so she said, "Hey,
look up what you can find on Dr.Morganstern through here." And it was
crazy the amount ofinformation that was available,
not just prior reports, prior depositions,
but things that his messages ondifferent message boards throughout
(25:02):
the medical community,
there was a listing of all of thepharmaceutical payouts he had taken,
letters that he'd written back inOhio regarding malpractice claims,
including there was one that hadjust this absolute piece of gold
saying- Yeah, that's a good one.
The problem with these malpracticecases is the bias of defense doctors.
(25:24):
I mean, you can't make it up, right? It's
little drops of gold. So.
Paula,
tell us a little bit about the servicewith the Expert Institute that you use
and we've heard some of the amazinginformation. Was it easy to use?
Is that something you do alot of cases going forward?
So I had never done it before. I said,"All right, let's give it a shot.
(25:44):
It's called Expert Radar and it's likeops." They get all the ops on the other
guy and it was incrediblyeasy to use. I mean,
they did a really quick turnaroundfor me. It was like 24, 48 hours.
They kind of walk you through it. It lookskind of like a Filevine system maybe,
and you can click throughall the different tabs.
So you can go into a tab that gives youthe general overview of how many times
(26:07):
he's testified for the defenseversus plaintiff's work.
It'll give you where he'stestified in the country.
And then you can go on a tab andit'll have all of his employment.
They have a miscellaneous tab where Ithink it's where Sandy found that he had
written this letter to thisnewspaper while he was being sued for
malpractice about the bias ofthese defense experts. And so what
(26:31):
an awesome tool. I am going to use it.
I'm going to trial again in June andI plan to use it on all three experts.
I have Allison Fall, Dr.Chen and Peter Himpsel.
Oh my gosh. Yeah, the big three.Yeah, I was going to say the trifecta.
God. So Sandra, how did you,
this nugget, this golden nugget youhave, did you lead your cross with this,
(26:56):
the concern about the bias of defensedoctors or where did you place that in
your cross?
Honestly, Keith, I have tobe honest, I didn't use it.
Wow.
I didn't use it. I had plannedto and sort of the way,
the trajectory of how the cross went,I ended up pulling back on some of it.
I thought that we had already gottenthere and I don't think it would have
(27:18):
mattered at that point.
I want to dive a little bit into thatbecause I'm hearing you say that,
and I know from talkinga little bit offline,
is it you got to a spot where you feltlike the jurors were on your side,
you had accomplished what you wanted to,
and you didn't want to like beatthem up anymore and like go too far.
(27:40):
Is that kind of how thatwent down in your mind?
Yeah.
I think at one point the cross examinationgot a little bit heated to the point
where the judge had to intervene,
he called a break and at thatpoint I just felt like, "Okay,
let's recalibrate." Actually, honestly,
I can't remember if I brought out theParade of Horribles before or after the
(28:01):
break, but once I had done that,
I think out of the corner of my eye Icould kind of see the jurors kind of doing
that like, "Yeah,
we're done here." And I try and as muchas I can take my cues from where the
jury is done with it, so we wrappedit up pretty quickly after that.
With the Parade of Horribles,
is that the prior cases where there wasan obvious concussion and he was saying
(28:24):
no concussion?
Yeah, multiple of those, but yeah.
Walk the listeners through sort ofhow that played out practically.
Do you remember this caseand would he admit, "Yes,
I do remember that case." Would he fightyou on the individual facts of those
cases or give us a little bit moreabout how that particular strategy of
showing absurdities in othercases, absurd opinions,
(28:47):
how you practicallyput that into practice?
So, and this is where I'm saying heseasoned enough to know what I was doing.
I would say, we would switch gears.
We were talking about something where hehadn't found a concussion in our case.
And I said, "Well,
I want to switch gears a little bit andask you about a few other cases you've
(29:07):
testified in.
Do you recall testifying in a trialcalled whatever the name of the trial?"
And he's like, "Oh, I'mnot sure." And I'm like,
"Let me give you a few facts." And thenthis was a case where this gentleman was
delivering candy to a Walgreens and thewarehouse dock door fell on his head.
Do you recall that? And then hewas like, "Oh yeah, I think so.
(29:28):
" He didn't fight me on itbecause I think he realized
I was going to be readywith the testimony.
I guess that's my question is because mymind is spinning about how we're going
to do this in the trial we have next week.
Did you have the report ready to go torefresh his memory if he waffled at all
or the deposition? What did you have?
Absolutely. I had the deposition.
(29:50):
I had copies ready for defensecounsel and the judge if he were going
to ... So I walked in
the binder about this big ofhis cross But like I said,
this is where you can tell probablymore of the seasoned experts,
he didn't fight mebecause I think he knew.
And it was easier for him tosort of downplay. He's like,
(30:11):
"Yeah, yeah, I think I might. Yeah. Well,
there was other things going on. " Andhe would be very wishy-washy about it.
But again, what I wanted formy purposes was to just ...
I didn't want to get intothe whole situation of it.
I wanted the optic of garage doorfalls on somebody's head and you're not
finding a concussion. Okay, next.
(30:33):
And so his excuse was, "Well,
there's other facts that you're notcovering." And you're just like, "Okay,
let's move on to the next case."Is that kind of how it went down?
Right, right. And I think withthe electric shock, he's like,
"That's a good one. Well,
how many volts or whatever?"And I think it was 120 volts.
What does he say? A hairdryeror an outlet or something?
I can't remember what it was.
(30:55):
It was like that was sortof his back and forth to it.
Do you believe that, becauseas you're explaining this,
I'm thinking on the one hand,
it sounds a little bit of a difficultcausation of tying the strokes
to this crash.
And you have Dr. Gray explainingphysiologically how that occurs.
(31:16):
And then on the other hand,
you have the defense doctorgoing almost too far.
And so I almost wonder if thefact that that doctor took such an
extreme position of no concussion then
resulted in your verdict. Do you havean opinion on if that's what happened?
(31:36):
I think it very well couldhave. Again, with Morganstern,
we spent so much time on the TBI itselfversus the stroke because he wasn't
finding the TBI in the first place.
So that I had to show the jurythat his opinion on the TBI
seemed to lack credibility.
And then they can pick up whereAlison Gray was and then run the
(31:59):
ball to the end zone on.
That. Talk to us a littlebit about the difficulties,
how difficult it was to establish theexistence of a concussion given the 30
minute delay, the negative CT scan.
I'm assuming that theneurologic examination in the emergency room was fine,
totally intact, no issues whatsoever.
(32:20):
So how did you overcome that piece toestablish the concussion occurred here?
A couple of things. Firstof all, there is nobody,
he's not speaking to anybodyin the first nearly half hour.
And so it kind of came down to a, "Well,
if a tree falls in the forest," andI think those words actually came out
(32:40):
of my mouth during mycross. Second of all,
we went through verymeticulously the ER records.
There was a timeline in thenursing notes of when all of
these evaluations were to have occurred.
The neurologic examwas ... Well, actually,
I think every single systems check,including the neurological exam,
(33:03):
was four minutes fine.
Four minutes.
Something like that.
Every single check, includingelder abuse and fall risk. I mean,
we walked them through in yourcross of Morgan Stern in Dr. Gray,
and then I did it with Hailey Burke,
that timeline of look at how manytests they're doing and it's four
(33:23):
minutes. And that wastheir complete assessment.
So the timeline,
was that on the actual records or didyou have to get the medical audit,
the medical metadata to findthose timelines of what occurred?
No, it was right in their medicalrecords. It was in the nursing notes.
So in the ER records,
(33:44):
they would put timestamps next to thedifferent things that were happening.
So I think when we were preparing, Iwas like, "Paula, look at this. This is.
Ridiculous." Yeah. Iwas just going to say,
it's one of the things I love aboutdoing this is I'm learning something new
myself because I recallsome of these ER records,
like I have seen those timestamps,
but not always for you to be able tolook at that and say, "Wait a minute,
(34:08):
to be able to provesomething that we all know,
which is that these ER examinationsare very quick, very cursory.
And so you're able to look at it and say,
look at all these things that they didin four minutes and they want to have you
believe that this is some kind ofcomprehensive neuropsychological or
neurological assessment."That is brilliant.
Yeah.
And Hailey Burke was great at really sortof digging in on what the point of the
(34:32):
emergency room is. It's not to doall of these assessments. It's,
are you going to die? Yeah.
Quick practical question on thatbecause I love that testimony
and Dr. Burke testifies for the defenseoften as well and can be devastating on
the defense side, as I think we all know.
Did you include in your expert disclosuresthat Dr. Burke was going to talk
(34:55):
about what normally occurs inthe emergency room and that
it's designed to save your life,
but they're not doing sortof a full blown assessment.
And the only reason whyI asked that question is,
is that something that our listenersneed to be aware of finding out if
a treating doctor is going to testifyabout that and actually putting in the
(35:15):
body of our expert disclosures or A,did the defense not object? And B,
if they did object, areyou sort of like, "Look,
this is just part andparcel of the underlying.
Opinions." So it wasn't in our expertdisclosure and it wasn't in her report.
And I was really surprised at how muchwe got in. Overall, broadly speaking,
I don't think, and thedefense team was very gifted.
(35:36):
It's Brandon Freedy and Jason Mellakar,they're both gifted attorneys.
I just don't think theytook this case seriously.
And so there were some parts that theyweren't paying attention to. For example,
Sandy does this beautiful directof Allison Gray, and at the end,
she moves to admit Dr. Gray's recordsbecause Dr. Gray was our hybrid
(35:56):
treater/retained. There was noobjection to those records coming in.
And so in my closing,
I urged the jury to read thefirst eight pages because it
had a records review in there.
There had been some letters that Mr.Carter's treating cardiologist had
written about the AFib and anothertreating doc in there. And so Dr. Gray had
(36:20):
kind of gone through all of that.
And when there was no objection toit coming in, and I told the jury,
"You should read it. " Our colleagueson the other side after that said,
"Wait a second, that camein. " And we were both like,
"You didn't object." And thenJudge Prince said, "Yeah,
you didn't object." And then you couldjust sort of see the color on their face
(36:40):
was like,
"Uh-oh." So there were just some thingsthat trial kind of gives you as a gift
of them just not really taking thiscase as seriously as I think we took it.
And in speaking to the juryafterwards, that is what came through.
And the jury did tell our friends on theother side that we were very much more
prepared and polished, not only ourselves,
(37:02):
but also our doctors andthat their team didn't have
that same presentation.
You mentioned at the beginning that youreally wanted the optics to be prepared
on the right side.
Tell us a little bit more aboutyour thinking and preparation of the
optics piece of this andwhat our listeners can learn as they're getting ready
(37:25):
to march into trial.
Absolutely. So anytime acase is assigned to me,
the first thing I do is I think aboutwhat am I going to tell a jury in my
closing argument? And then Ibuild backwards from there.
How do I want this to look?
As I was taking depositionsand kind of building this case,
I was realizing that what we reallyneeded was just a really prepared,
(37:47):
polished team because these were goingto be really complicated neurological
things that I don't think your averagejuror was going to be able to understand.
And so I wanted,
we already had Allison Gray on thecase because she was already a treater,
but I brought Haley Burke in becauseshe absolutely demolished me in Adams
County a few years ago. And I was like,"I'm never going to have that again.
(38:08):
I want her on my team." Because she canexplain things in this really beautiful,
polished way to the jury thatthey really grab onto. I mean,
she was 80% of the reason that whenshe demolished me in Adams County,
it was admitted liability and we got adefense verdict because she just wiped
us. And so I wanted us to havethis team and Sandy comes with it.
(38:31):
She is so prepared. She'sso polished. She's so ready.
She knows every medical record in andout because that's how she prepares for
trial. And I wanted that look. Iliked the look of having four women,
no offense to the men outthere, no offense to you, Keith.
But I wanted this look of this teamwhere we were really taking care of this
older gentleman who isa cute little old man.
(38:52):
And he's got this team of like legalfolks and medical folks that are here to
be able to tell a story and take careof him. And then on the other side,
we had these two defense attorneyswho weren't taking it seriously.
We had two male doctors who alsoweren't taking it seriously.
In fact,
(39:13):
Philip Stull got on the stand andsaid that he wasn't sure why he
was there because he was only supposedto talk about the shoulder and didn't
know he was supposedto talk about the back.
I just kind of rolled into thatand cross of him. I was like,
"You don't even know why you'rehere." It was this whole other team.
The defendants never came, so theyalso didn't show up for trial.
So it was this whole other team offolks not taking our client and his
(39:36):
very, very serious injuries andpermanent injuries seriously.
Oh my gosh.
Did you know that Stoll was going tosay that he only thought it was the
shoulder before trial? I mean, that wasjust like a gift that was given to you.
It was a gift. A gift. I think we lookedat each other and we're like, "What?".
His whole report was aboutthe compression fracture.
(39:57):
His report only had a little paragraphabout this big about the shoulder.
So when he said that, I thought,
"Gosh." And then you have these momentsafter you've tried a bunch of cases,
you realize the jury doesn'tknow what's in his report.
I'm going to capitalizeon this. "Hey, jurors,
you don't know that the report that I'mholding in my hand is eight pages of
compression fracture. "So thisguy gets up there and says," Oh,
(40:20):
I don't even know why I'm here.
"He was very cutesy about itand my cross was less than
maybe 10 minutes. I mean,
I didn't have a lot to say after he gotup there and said," I don't know why I'm
here.
"Does that come with experience when youhave accomplished what you need to and
then just do sit down?
Yes, absolutely.
Don't open the door to redirect.
(40:40):
You don't. And so you learnthat as you go along, right?
And the only way to learnthat is to actually be in trial and have those moments
of, " I think I need to sit down now.
We've done the work here and we've leftthe impression we want to leave with the
jury and in speaking with them afterwards,it absolutely played out that way.
So I'm kind of glad that my trialinstinct was I want this trial to be about
(41:03):
optics.
And that's exactly what the jury toldme at the end was what did it for them
and why they awarded so much money.
And what foresight youhad about the optics,
not just of having the female teamagainst to help this older gentleman,
but of being super prepared,having everything inside and out.
And then the defense walks inand puts up a doctor that's like,
(41:24):
" I don't know why I'm here. "It justmakes the defense look incompetent.
And you couldn't have predicted that, butit played out perfectly. Kudos to you.
Thank you. It was a fun trial.I mean, admittedly, Keith,
in my closing, I only askedfor 900,000. I did not.
Ask. I was just about to askfor the damage ask and how ...
(41:45):
So let's talk a little bit about your,
because you both have so muchexperience trying so many cases. Sandra,
let's start with you.
Talk to us a little bit aboutyour philosophy on impairment,
non-economic damages,
and what sort of you have found worksand what doesn't work and what can we
learn from you?
Well, I actually was going to defer thisback to Paula because we did have an
(42:07):
interesting quirk withnon-economic damages in this case.
But in cases now,
I'm trying to do my best to get actualimpairment doctors because I think that's
historically for me been the hardestcategory of damages to quantify to
a jury and explain. We've had it,
I think the last few trials I'vehad, the impairment has come through.
(42:30):
The juries have really sort ofgrasped onto what that's about,
but I'm going to defer to Paulaactually on the non-economics because,
like I said, they're alittle quirk in this case.
Well, and let's talk about thatbecause I know from your writeup,
it has to do with responding to writtendiscovery where they're asking you to
quantify impairment ornon-economic damages.
(42:51):
So give us the setupand how that played out.
Sure. So in the CMO, we didn'tput a range. We just said TBD,
which under Rule 26, that's fine.
But then they propounded writtendiscovery and our answer in written
discovery to how much areyou going to ask for non-ec,
it's going to be determined by ajury. I didn't put a range in there,
(43:12):
which now I have ... I'm not sure if Ilearned was a mistake or not, honestly,
but that was what our response was.
And so they filed a motion in limine topreclude us from asking for any specific
amount.
And so we duked it out in motions practiceand ultimately Judge Prince said,"
You can ask for non-act,
but you may not give themany formula number nothing.
(43:34):
You can just say that non-ec exists. "Now,
most of my voir dire is based on damages.
So I like to talk to the jury reallyearly on about versus non-ec versus
impairment and kind of get theirfeelings on as we're building that tribe,
what can you do with this squishyconcept of non-ec that you have to go in
(43:55):
and decide,
right? So I felt comfortable that wehad a jury pool that was going to work
together. I wasn't allowedto ask for an amount.
I couldn't give any sort of formula.I couldn't do anything. In fact,
Judge Prince interrupted me in my closingwithout an objection from the other
side. He interrupted mein my closing to say,
as I was starting to talk aboutnon-economic damages on the verdict form,
(44:19):
he said," You're not going to do whatI think you're going to do, are you?
"And I said," I'm not doing anything.
I'm just telling them that there'sa bucket here called non-neck.
"And then he told me to move on.
Well, before we talk abouttheir actual award, in response,
I just want to put out this,
this is what we're doing right nowand I want to get your thought on it.
When we are getting interrogatoriesasking for specific amounts of
(44:42):
non-economics and impairment, what I did,and I just did this I think last week,
so I haven't seen this play out, but weresponded with the typical objection,
the rule doesn't requireit. And then I put in there,
if counsel for defendant disagrees,
we ask that you please raise this withthe court now because I don't want to
come in. I want to have that as if youdon't raise it, I don't want to have ...
(45:04):
And I think maybe I read your ...
I think that actually I'm going to thankyou because I read your trial report on
the Listserv and saw that and I wassort of concerned. I'm like, " Look,
if they're asking that question, Idon't want to just say objection.
I want to say objection and if youdisagree, raise it with the court.
So we'll see how that plays out. Now,
(45:25):
I guess based on what happenedto you before you heard that idea
from me,
are you now answering with a range whenthose questions are coming in or what
are you all doing?
I'm giving a range and my rangetypically is at least the underlying
economics up to double the cap.That's kind of the range I live in.
(45:45):
And I usually note that it's tooearly in discovery to determine a
precise number.
And we have a whole objection thatwe use firm wide on that as well.
The other thing too, and I thinkif you're going to do that range,
I think then it's incumbent uponus as well to do motions in limine,
basically stating defense can't stand upin their opening or voir dire and say,
(46:08):
they're going to ask you for $2 million in
non-economic, because Ithink that's where it goes.
They want them to show thisabsurdity right out of the gate,
and I think we need to temper that.
So if the court's on one handgoing to make us give a range,
they also kind of, I think,
need to protect the outcomeof how that range happens.
(46:31):
Wow, that's a reallygood way to handle that.
So you sort of object saying therule doesn't require it, number one.
Number two, it's early in discovery.Number three, this is for the jury.
And then without waiving said objection,the range is between here and there.
And then if defense counsel believesthat we need to provide additional
(46:54):
information, raise it with the court,
and then eventuallyfile a motion in limine,
how have you seen that playout during depositions?
Have you found defense attorneysaggressively trying to get
testimony in depositions from yourclients about both non-economics and
impairment? And if so, what are youdoing to prepare your clients for that?
(47:16):
Essentially, it's something thatas an attorney or as attorneys,
we need to have thatconversation with our clients.
That I believe enters into aprivileged conversation in a
deposition, particularly if wehaven't had that discussion.
And so my clients typically are saying,"I need to talk to my lawyer about that.
" I don't know. That'skind of where it's been.
(47:37):
I don't know if I've had anyclients who've actually spit out.
A number. Have you ever had toinstruct your client not to answer,
sort of aggressively assertingattorney-client privilege on that?
I'm trying to think if I haveor not. I did have one counsel.
We ended up almost calling the courton it because I must have said not to
answer, but I'm not recalling itoff the top of my head. But yeah,
(48:00):
I absolutely can see a scenariowhere that happened. So.
All right, Paula, back to you'renot allowed to ask a number,
but I thought I heard you say earlierthat the jurors said you didn't ask for
enough.
So help me understand sort of how thatpractically played out in terms of what
you asked for and what the jury awarded.
(48:21):
So I wasn't allowed to askfor non-ec. For economics,
we asked for the meds, whichwas a little over 186,000,
and then I asked for an extra 100,000on top of that for future care because I
had a slide in my closing.
Allison Gray had given us monetaryvalues for her future care
recommendations. Hailey Burke did not.
(48:44):
So we had a slide where we hadDr. Burke's recommendations with
no dollar figures and then AllisonGray's with dollar figures.
And I figured $10,000 a year for 10 years.
So that's why I only asked for 100,000.
I was being really careful because ElPaso is a conservative jurisdiction.
You don't want to walk in there and juststart asking for all kinds of stuff.
(49:06):
And then for permanentimpairment, I asked for 650,000.
I had thought about morethe night before. In fact,
I had always valued this case at aboutthree million in my mind. We work a lot
with Steven Padway withElite Trial. He's awesome.
So I had been on the phone withhim for about an hour and he said,
"I think you should ask for 2.7 millionin permanency." And so I had that in my
(49:30):
closing and then I don't know, 20minutes before I said, "I can't do it,
put in 650,000.
I have to be able to say a number thatI can get behind." So that's what we put
in and the jury decided otherwisethey thought that it wasn't
enough is what they told me.They said that in my closing,
I had talked about how this is,
(49:51):
it was my rebuttal and I had talkedabout how this is his last chance at
any sort of closure and anysort of chance of having
an award to him to take care of him forthe rest of his life. This is his final
chapter because our friends on theother side, their closing had been,
"When is it enough? When is itenough?" And I said, "This is it.
(50:12):
This is his only chance.
This has to be enough." And Italked about how the mortality table
says he has 10 years leftof his life and that's it.
And so they went back and one of thejurors told me that it really made her,
what I had said,
think about her own mortality and herfamilies and what it would look like to
have to fund medical care in this economyand with these soaring medical rates.
(50:35):
And so they all kind of thoughtabout themselves a little bit.
And then they said,
"What you asked for wasn't enough." Andthen they came up with these numbers.
Yeah. And sorry, Delamot says that youwant your juries to come back and say,
"Can we give them more?" And that hasbeen a goal of mine for two years. And so
it was really exciting to have thisjury say, "You didn't ask for enough.
(50:55):
We needed to give him more." Yeah.
And I do have to shout out because whenJason Mellicar did the closing and he
did, he sort of was like, "And thisand this, then when is it enough?
Ladies and gentlemen, whenis it enough?" And again,
because she's brilliant and experienced,
but she walked right into thatand just it was a brilliant
(51:15):
rebuttal. Absolutely brilliant.
Thank you.
Yeah. No, it was. Again, she just ...
I don't know if that's what shewas planning, but when she got up,
it was just raw and itwas beautiful. I never.
Know what I'm going to sayuntil I get up there sometimes.
I'm just so impressed thatyou have accomplished all these bucket list items for
(51:39):
me that I'm not sure will ever occur,
including can we award more than wasasked for and can we have a calculator?
None of those have ever. Maybe someday.
Last question before we wrap this up,because I'm a little bit confused.
You weren't allowed toask for non-economics,
but you were allowedto ask for impairment.
What was the reasoningbehind that difference?
(52:01):
It.
Was the interrogatory.
Yeah, it was the interrogatory. Theyonly asked for the non-act piece.
And the motion in limine also was onlyabout non-economics because they didn't
take this seriously.
They didn't even think that they had totalk about permanent impairment, right?
Because they thought never in a millionyears are they going to tie this
permanent stroke, this permanentthoracic fracture to the crash.
(52:24):
So we're not even going to worry about it.
Well,
I'll tell you one thing thatI have learned after doing a bunch of these podcast
episodes,
which I love because I learned so muchis that so many of these great results
are as a result of mistakes made bythe defense. And for whatever reason,
we live in this world where allwe do is catastrophize our own
cases, our own abilities, and we'realways thinking about what can go wrong.
(52:48):
And we don't spend enough timethinking about, "Well, you know what?
What can go wrong with the other side?"When they come walking in and their
doctor comes up and says, "What?I'm here to talk about the shoulder.
What are you talking about? "Compression fracture. And you're like,
"Okay." And to be present enough, Paula,
there's two of those in trial gifts thatwere given to you that I'm hearing you
handle just masterfully.This shoulder issue,
(53:09):
no talking about the compression fracture,
and then this when is enough enough sothat you are present probably as a result
of your experience or justyour brilliance to listen and
respond is just amazing.Kudos to you and Sandra,
what an amazing result. So thankyou so much. And with that,
we'll wrap this up until the nextepisode. I am just so inspired,
(53:33):
truly inspired by the amazing workthat you and your firm is doing.
So thank you both so muchfor coming on the show.
Thanks, Keith. Thank you for.
Having.
Us. We loved it. Let's go get them.Let's get them some more. Yeah.
Yeah.
Go get more and come back on and tellus what we can do and what we can learn.
So thank you so much.
Thanks.
Keith.
Thank you for joining us.
(53:55):
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
cases and learn fromColorado's top trial lawyers.
Our mission is to empowerour legal community,
helping us to become better trial lawyersto effectively represent our clients.
(54:16):
Keep your connection to Colorado'sbest trial lawyers alive at
www.thectlc.com.
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