“He has threatened to commit a mass shooting.” An Army reservist texted those chilling words to the commanding officer about Robert Card, a fellow reservist. Tragically, Card followed through on his threat at a Maine bowling alley. Today, Ben Gideon is leading claims against the U.S. Army and Army Reserve for failing to take steps to stop the risk that Card presented. “Part of our thinking in this case and our presentation is: If we can't stop this, we're hopeless,” he explains to host Charla Aldous. Tune in to hear Ben reveal how he’s approaching this high-profile case and how he’s approached others – including one where he secured the largest med-mal and PI verdict in Maine – to confirm his reputation among the nation’s elite med-mal lawyers.

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More likely than not, that 0.01% is all it takes to tip the scales of justice. Join us as inner circle legend, Charla Aldous, Eleanor Aldous, and Caleb Miller. Walk you through the critical moments, big decisions, and bold strategies that win high stakes cases and show you how to turn that 0.01% into a game-changing verdict. You're listening to the podcast where winning is more likely than not. Produced and powered by LawPods.

Hi there. I'm Charla Aldous. Welcome to another episode of our Aldous Law Firm podcast, "More Likely Than Not." But the great Ben Gideon from Maine here with me today. How have you been?

I don't think I've ever been referred to as the great, but I'm very happy to join you today, Charla. The great Charla Aldous.

I'm far from that, but I love seeing all the snowfall back behind you, this winter storm. My son's been sending me pictures from New York City. It looks like it is pretty darn cold up there.

Yeah, I think New York got about a foot and a half or more of snow. We got six inches in the Northeaster yesterday, but I've got an eight foot snowbank I'm looking at right outside of my window here. So you probably don't have to deal with that in Texas.

We absolutely do not have to deal with eight feet. Snow banks in Texas. So tell us where you're physically located, Ben.

Today I'm at home. I live in Freeport, Maine, which is the home of LL Bean. You may know of that. The flagship store is about a mile from my home. So I'm able to shop for outdoor wear and hunting equipment 24 hours a day, seven days a week, 365 days a year.

It's open twenty four seven. I love it. Now, how long have you lived in Maine, Ben?

Well, I grew up in Maine and left to go to college and go to law school and then took my first legal job outside of Maine and then eventually moved back here with my wife and then six month old first child. And we've lived here ever since. We moved back in 2003, so 23 years since moving back.

You and I met for the first time when you got inducted into Inner Circle, was that 2019?

It was, yes, in Dublin.

Okay, that's what I thought. Dublin, Ireland. That's exactly right. I took all four of my kids over there. That was great. So I've been able to hear you give speeches about your wonderful law practice and the things that you do. But what I want our listeners to do now is to know a little bit about you. You said you grew up in Maine, and as I understand it, was it your dad a law professor?

My dad, I've only been able to use the past tense on that for about six months because up until last semester of last year, despite the fact that he's 86 now, he was still teaching. But yes, he was a longtime law professor at Maine Law School, probably the longest tenured faculty member. And actually they were about to create a endowed professorship in his name, so very excited about that.

How wonderful. 86 years old and was still teaching full-time?

That's the difference between doing what we do for a living and being a law professor. It takes a little bit less of a toll on you and less stressful.

I don't know if I'll be doing this when I'm 86, Ben. So you grew up around the law pretty much.

I did grow up around it, but I didn't really appreciate that much what the law was. I saw my dad lugging around those big case books that you read in law school, and he was always underlining things. But really my experience, whether it was more the way my father interacted, which was a very sort of argumentative approach to everything where we would argue through issues, politics, current events, mostly at the dinner table to do dismay of everyone else in the family, particularly my mom.

So you and your dad would argue?

Constantly arguing, but it was kind of the way we showed our love and appreciation for one another. We would just argue through issues. And my dad would use the Socratic method and try to demonstrate why I was wrong about something. And I didn't really understand that that had to do with the law. I just thought that's how he was.

You thought that's how people talk. Did you find it intimidating at all?

I did a little bit. My father's one of the smartest, intellectually smartest people I've ever met. We both went to Cornell University and Yale Law School. The difference is I failed out of college and then ended up getting into law school by transferring from a different law school into Yale after my first year. My father got in straight. And when he was at Cornell, he was on the College Bowl team, which was where the students would compete in trivia. I remember that. They had something called the Granite State Challenge. In fact, if you watch that movie Diner with Kevin Bacon, there's a scene where he's watching TV and there's these nerdy college kids competing in this trivia thing called the College Bowl. My dad is one of those nerds in the movie.

He's actually in the movie?

He's in the movie.

I love it.

Yeah. He went to see it when he was in New York City and he thought everyone in the movie theater might recognize him, but he's completely unrecognizable and only on the screen for about 30 seconds or less.

What is his given name, Ben?

Martin Rogoff, which was my original last name until I took my wife's name on marriage, which is another quirky thing.

I did not know you took Sarah's name on marriage.

I did. Yeah, I did because she's one of four sisters and I'm one of three brothers. So I figured, well, my name is going to live on through my lineage, but her name was going to die with no heirs because they were only women. So also I really liked the name. I'm Jewish. It actually turns out it's a Hebrew word, a Hebrew name. So it all kind of fit together. And yeah, I thought it'd be a nice thing to do. Also, it really irked my parents, so it had that added benefit.

I was going to ask, how did your law professor, father, and your mother feel about you taking your wife's name upon marriage?

They didn't say as much about it as you might expect, but my grandmother, particularly on my father's mother who was still alive at the time, was really frustrated and annoyed by it. She would refer to Sarah as Mrs. Benjamin Rogoff, rather than agreeing that I was Mr. Benjamin Gideon. But in order to make up to it with her, I named my first son after her late husband and my grandfather. And his name was Julian Rogoff. So my oldest son is named Julian after him. So kind of got one back.

Oh, so did she get over it after that?

Yeah, they're all fine with it, but it's always fun to create some controversy.

Absolutely. I love that story. So you have three brothers. Did they communicate with your dad in the same manner in which you did? Did they argue a lot or was it just you?

It was just me, which was kind of part of the problem because dinner table would turn into just a one-on-one display of argument and everyone else was kind of left out of that.

I would love to have been a fly on the wall and watch that. Are your other siblings or any of them lawyers?

No, my middle brother's a scientist. He got his PhD in viral science, so he's a virologist and he studies cancer treatments and he works at the Dana-Farber right now. And my youngest brother is an author. He's written five or six novels, which are all fantastic, although I might be the only one who's ever read them. And then he wrote one book on Kendrick Perkins, who's a NBA basketball player. He wrote a biography with him, actually. They co-authored his biography, and he's now actually writing a history of the NBA in the 1980s. So he's got two weird fixations. One is kind of obscure literary humor, and the other is NBA basketball.

I love it. So you were the one that would Josh with your dad at the dinner table. So it was kind of in the cards that you were going to be the lawyer of the family.

Yeah, I never really thought I would just because when I saw what it meant to be a law professor and to have to lug around and read all those big books, it definitely wasn't enticing to me. I kind of fell into it after graduating from college and not really having a game plan and deciding that, well, maybe while I'm biding my time trying to figure out what I should do with my life, maybe I'll give law school a shot. And I loved law school. That was really what kind of first opened my eyes to what it would be like to be a lawyer as opposed to an academic.

Ben, you know that's quite strange, don't you, that someone would love law school?

It's weird because I really didn't like school before law school. I tended to be a behavioral challenge in high school and even in college where I was asked to leave after failing out and getting a 1.2 one semester. But it was something about the competitiveness of law school, the idea that you had to always be on your toes, be prepared to respond to questions, the practical side of what you could do with the legal knowledge that you could actually affect change by using that tool set to do something in the real world. That really appealed to me.

I got to tell you, first of all, the behavioral issues, I have never seen that side of you, Ben. You've hidden it well. I cannot imagine you having behavioral issues in college, but you had a 1.2 GPA.

Yeah, I mean, it didn't help that I didn't go to classes, but I did. I did carry a 1.2 GPA.

How did your law professor father feel about that? I bet some Socrates got into that conversation.

My father had a very odd response to me failing out of college, which was that he brought me on a all- expense paid trip with him to Europe the following summer. We were able to spend a lot of time together, and I think he views it as kind of a turning point because I grew up in Maine. I kind of had a very small perspective on life. College was mostly driving around, getting drunk, maybe getting high, going to parties. I extended that behavior in a dysfunctional way through my early days in college. I didn't really have a good perspective on much outside in the larger world beyond Maine, which is very poor and very provincial. And so spending some time traveling around Europe, and just it clarified in my mind that I was squandering all of my opportunities, that I had such a great opportunity in life, and I was really close to going off the cliff of not being able to recover from that.

And I don't know what it was. I think it was really my parents had instilled a good set of values in me, deeply held that underneath the superficial dysfunction still was there somewhere that I was able to rely on and kind of pull myself up and get back on track. But I really do feel like that was a turning point for me. Yeah. I mean, my father could have really brought the hammer down on me, probably deserved that at that point in time, but he didn't. He showed love and compassion. And in my case, I think it worked.

Sounds like he had a lot of wisdom involved as well, knowing what you needed to do and what you needed to see. That is really interesting. I'm sitting here thinking about you growing up as a law professor son. I had never met a lawyer when I started law school, so I had no clue. And I hated every bit of it. Well, not every bit. I liked the mock trial and the moot court, but the rest of it I hated. So when you started in law school, Ben, did you know that you wanted to do plaintiff's work or did you have any idea what you wanted to do?

I mean, the truth is when I started law school, I didn't even know I wanted to be a lawyer. I just knew that I had no other game plan and I wanted to give it a shot. I remember first year of law school, tort law was my least favorite class. I didn't understand it at all. It was all fact-based. I was much better at the analytical frameworks, like a contracts course where there were clear rules to follow. Tort law didn't seem like there were any rules, just seemed like they made it up every time. And that was hard for me to relate to. So no, I definitely didn't know I wanted to be plaintiff's lawyer and I certainly didn't know I wanted to be even a lawyer at all. I just didn't know where I was heading, but I figured I'd get the education and then find my way from there.

And then you started off where at Boston, wasn't it, law school in Boston?

I was at BU for one year and then transferred to Yale after my 1L year. Spent my last two years in New Haven.

And what made you want to transfer to Yale?

Truthfully, it's because I knew I had underperformed in my undergraduate years and my dad went there and I thought, well, I'm trying to follow in his role model. And the day that I got into Yale was like the best day of my dad's entire life. And I mean, it was so phenomenal. I can't imagine. I couldn't believe it. And it was just an amazing turn of events. I didn't expect it. And then that turned out to be really an amazing experience too, because I was in a place that I met people and experienced things that I never thought I would. I got

To ask you this. Did you tell him in person or was it over the phone? I don't think we had Zoom back then. No,

It was over the phone. The first thing I did in my fashion at the time was I went immediately to the bar, of course, and got drunk. I was interning at the AG's office for the Massachusetts AG, Scott Harshbarger at the time. And it was a pretty unpleasant and thankless job. They didn't really give me any responsibility. I didn't have much to do. So after getting into Yale, I didn't really go back much for the rest of the summer. And yeah, I just called him and yeah, probably.

Were you drunk when you called him? He didn't care because he got into Yale.

Yeah,

Exactly. That is great. So after you finished law school, what did you do next in your professional life, Ben?

So I did a one-year clerkship for a federal judge who sat on the First Circuit, which is based in Boston, but his chambers was in Maine. He was one of the main judges on the First Circuit Court of Appeals. His name is Kermit Lapez, wonderful judge, great mentor, just a really very, very smart lawyer. So that was an intense year, learned a lot. My writing improved dramatically during that year of working for him. But after one year of doing that, I was also ready to move on. Real job and also have more human contact because as a law clerk for a circuit court level judge, you don't have any clients, you don't really have any ... The phone isn't ringing. You're just doing research and drafting. And I enjoyed it for what it was, but I wanted more real world exposure.

And then you went with a big law firm, as I understand it. I did not know that until I started reading what Caleb had prepared for today. You went to Latham & Watkins?

Yeah, I went to Latham and Watkins in New York City. I had done two years of summer associateships at Sidley in Austin, which is another big law firm. That's a Chicago based firm. I was in their New York and their DC office, but I didn't love the mix of work that Sidley had. And Latham did a lot of intellectual property litigation, which I was actually quite interested in. And so yeah, I went there, spent several years there in their Manhattan office.

I can't envision you at a big firm. You just don't seem like the big firm, tall building lawyer type of guy. Did you like that atmosphere at all?

I didn't love it. I mean, I tend to be an anti-authoritarian type of person. I don't like a lot of hierarchy. I don't like a lot of bureaucracy, but I did feel like I made some really great relationships with people there. I had a lot of interesting case experiences and I learned a lot. And I feel like when you first get out of law school, if you're not entirely sure what you want to do, getting that background where you're really getting solid mentorship and training at the very highest levels is a good way to start. I knew how to draft a top-notch brief. I knew what really good work product looked like. I knew what really smart lawyers looked like from that experience, and I was able to ... That was helpful to me when I moved into the plaintiff's work.

And while you were at Lithum and Watkins, were you able to go take depositions or try any cases, anything like that?

I didn't try any cases. And from what I could tell, nobody there did while I was there.

That's what I was wondering. Yeah.

But I actually had more hands-on deposition experiences than I think anybody else I knew there. I really sought them out and I had some very interesting experiences. There was one case where we ended up deposing involved a Chinese corporation that essentially took over a New York Stock Exchange company by implementing a strange rule about share ownership. And we were able to get the court to order a deposition of the Chinese owner of the company. And generally in China, they don't allow depositions and it took place over a full night. So I started the depo about 5:00 PM and ended the next morning at like 6:00 AM and the whole thing was done in Chinese. And because I got the court to order the depo, the partner let me take the depo, which was a pretty fascinating experience. I also had my very first depo, which I took there was of a lawyer.

It was a case that was brought by Yuri Geller, who was, I don't know if you've heard of him, but he's a psychic. He was best known for bending spoons with his mind. We represented Nintendo at Latham and they included the Pokemon franchise. Well, there's a psychic Pokemon character whose name in Japanese is called Yungalar, which Yuri Geller said was an infringement on his trademark likeness and he sued Nintendo for $40 million.

Are you kidding me?

Yeah, no, that's great. We had a lot of crazy cases involving Pokemon characters and cards, like all these intellectual property things like that, which they're quite fascinating and fun to work on. But in that case, one of the witnesses was this lawyer who was good friends with Yuri Geller, and she wrote a book about him, and one of the chapters involves them being abducted by space aliens. She also was the head of the Legalized Marijuana Coalition for the State of New York. So the very first depo that I took was of a lawyer who was head of the state's legalized marijuana coalition who claimed to have been abducted by space aliens. And that was a very fun deposition to take except that the partner and the middle level associate were sitting next to me and I was shaking in my boots, having just probably thrown up in the bathroom, taking my very first depo as a young associate, having to be watched over by all the higher ups at my firm.

That's

What I was going to ask you. You were nervous.

Extremely nervous, yes.

And how did the deposition go?

Probably poorly. I mean, I remember it-

Oh, I don't believe that.

I don't remember much about it because it was when you know you're nervous enough that your brain isn't-

You're in the zone.

I remember them handing me notes and various things.

Yeah, that's funny that you say that. There's sometimes been when I'll be in trial and I'll finish cross-examining and I'll sit down and I'm like, I don't remember much of what I did. You kind of get in the zone. And of course, if you have an associate and a partner sitting there at your first deposition, taking a wizards deposition, it would be a little awkward. Yeah.

And I mean, they only gave me the depo because there was nothing that could come out of it that was going to be damaging for the case. It was all upside and no downside, right?

You couldn't screw it up.

Yeah.

I love it. Experience is experience. So you were at Latham and Watkins for how long?

Well, I was a fifth year associate when I left. I think I was, give or take four years, maybe three and a half if you were around it specifically.

And what made you decide to leave the big firm life?

I knew it wasn't for me. I looked around and saw what success looked like in a big firm, and those were the partners who were making millions of dollars a year and always eight o'clock on a Friday night and they were still in the office. They were beholden to 24-year-old in- house counsel clients who were making unreasonable and quite silly demands on fourth drafts of briefs that nobody cared about and nobody was ever going to read. There was a lot of paper pushing, a lot of work done just for the sake of billable hours. And it just seemed like a soul sucking way to spend one's life. You didn't have any personal relationship with clients. The case that sent me out of there and packing was the Enron case. We represented the Arthur Anderson former accounting firm. They were the outside auditor for Enron, and there were like 25 lawyers staffed on the case.

By the time we started representing Arthur Anderson, it was no longer a viable business. It was defunct because they had been found criminally liable and then the accounting firm went basically disbanded, but they still had a huge amount of assets, a pool of assets, and they were being sued for security fraud and under multiple investigations. Basically, all of our lawyers there were representing only a pool of assets now. And so we were literally just representing money, basically. And the partner on the case was very driven and extremely talented lawyer, but we would have meetings on seven o'clock on a Friday night on things that had to be completed by 9:00 AM Monday morning, and there was no reason for that. And so you were just giving up your life for pointless exercise of just trying to acquire as many billable hours to take the biggest chunk of those billable, of those assets that were still remaining from a defunct business as we could.

And it just didn't seem like something I wanted to keep doing.

That doesn't sound like something that would really feed your soul.

Does not feed your soul. It really doesn't. I see the rationale for the big firm and why they exist. And there's some people that good fit for that lifestyle, but I started to act out so I would not show up for meetings. And it was my way of kind of passive aggressively resisting the lifestyle of it. And I realized that over time that just it wasn't going to go well if I did that and I needed to move on. So I did.

Were you and Sarah married at that time?

Time we left New York, we were married. When I started there, we were not. Yeah, we got married shortly after nine eleven, actually.

So-

That was the other thing. We were living in New York City on nine eleven.

Oh, I didn't know that.

We had had our first child there. We lived in a 400 square foot co-op that we purchased on East 28th Street next to a methadone clinic where there was generally car alarms that went off every morning at around 2:00 AM. And then there were two roommates that lived above us. One of the roommates seemed to be in the business of collecting furniture that was left on the side of the road, fixing it up in his apartment, but most of the collecting and fixing occurred between the hours of midnight and 4:00 AM. Then at one point I got home from work late from Latham as I always was after our son was born and there were police cars lining the road outside of our apartment. And I learned that one of the roommates upstairs from us had murdered the other roommate in his apartment. So all of these things were kind of like red flags in my mind that maybe it was time with our young child to move on from New York City.

I was going to say, you're living there with Sarah and a baby and there's a murder taking place in the near vicinity. That'd be kind of a sign that it's time to maybe move on. Org. So what did you do after you left Latham,

Ben? So I came back to the state of Maine where I grew up and I-

What made you want to come back to Maine? I just got to know that. Was it the weather?

No, it was definitely not the weather. I think I had a great childhood in Maine. It's a nice community, a nice place to live and grow up and raise a family. And I wanted that from my own kids. My wife, Sarah, is from Rhode Island, so she's also a New Englander by birth and she loved the idea of moving back to New England somewhere and she wasn't partial to wear New England, so she was just as happy coming to Maine. So yeah, that was the thinking about it. I knew I wanted to give a shot at trying cases and going to court and doing trials. Honestly, I didn't think I'd be any good at it. I was pretty confident I wouldn't be good at it, but I figured I'd better find that out now because I'd rather realize I'm no good at it and then move on to do something different than wait for 20 years and realize I squandered that opportunity to give it a shot.

So I found the firm in Maine that everyone told me where I would have the most opportunity quickly to get into a courtroom and start trying cases. And that happened to be a firm called Berman & Simmons that was a plaintiff's firm.

I got to say this because many of our listeners are young lawyers and I think it will resonate with them that you didn't think you would be any good at it, but you had the courage to try it. Were you nervous about that prospect?

I was extremely nervous about it. So I had been struggling with anxiety issues. I mean, I don't know if you recall my maiden speech at the inner circle, but it's something that it's weird because I didn't have it as a kid, but really came to a head in law school and years shortly after law school where it got to the point where it was really sort of pathological for me where I couldn't even function normally in regular social settings. And actually it got to the point where I had to go seek ... I went and got help and really worked on it. But strangely, it was because of the challenge of it and because I knew that this was an area of weakness for me that's what drew me to the challenge of trying cases because I've just always been challenged by things that are hard.

And also, I always thought that my image of what a real lawyer was, was somebody who could go into a courtroom and persuade people to follow their lead and to move people in a direction. And I wanted to see if I could be that kind of a lawyer. And I didn't want to be the kind that just pushed papers across the desk and build my hours. And if I couldn't do that, I think I probably would've left and done ... I don't think I would've been a different kind of lawyer. I think I just would've done something different for my career.

I assume you know this through since you've been to therapy and everything, but it takes a lot of courage to face that demon and to walk through that wall of fire. You know that, don't you?

I try not to give myself too much credit for doing anything. It's a constant struggle. I mean, I still get nervous before a trial. I still face demons and challenges. What I've loved about this career though is that every single day to be better at what we do, you have to get better. You have to be better as a human and a person. And part of life and what has been valuable and satisfying to me is that journey of growth. And I'm just so thankful I found a career that where growth, personal growth and professional growth are the same. There's no daylight in our career between the two things, I think. I don't know if you feel differently about it, but ...

I love the way you ... I've always felt that way, Ben, but I haven't put it in words like that. Personal and professional growth are all the same thing. That is exactly how I feel. I was a single mom with four kids, and I've thought so many times, how lucky am I that I get to work in a profession where I'm never bored, I'm always learning new things, and I really, really get to help people. And I've realized in helping people, I've helped myself. I always say this isn't a profession to me. It's a calling. It's what I feel like I was put on this earth to do, but I love the way you said professional and personal growth, and they go hand in hand. So how long did you stay at Berman and what was the other names?

Yeah, I was there for 17 years. Yep. Oh,

Wow. I didn't know that.

Became an owner and a member of our executive management team. So I helped run the firm and helped to build the firm. I think to a large extent, hired a lot of the lawyers, some of whom are still there now. And it was a firm that-

How many lawyers did the firm have?

At our peak, I think we had 17 or 18 lawyers, and we were really the dominant plaintiff's firm in Maine. I mean, the 8,000 pound gorilla, really all of the most important, significant cases ran through Berman & Simmons in that era. And it was a great place. I had a lot of really great colleagues, mentors, learned a ton, both about the practice of law and management of a law firm, which has helped me now that I've moved on to run my own firm.

And what made you decide to leave and start your own firm?

Part of it is just you get to a turning point in life where you only get to live once. I had a vision for what I wanted a firm to be that I didn't feel like I can fully implement at Berman & Simmons, and I didn't want to navigate the internal politics to try to turn that institution to what I was looking to do. It was easier for me to just move on and do it. It was a really tough decision for me because I probably left the best law job in the state that I live in. I was highly compensated. I had complete job security since I was an owner and manager of the firm. It was relatively easy because I had the power and authority to take whatever case I want. I had lots of resources. Now we probably had 40 staff, plenty of people to assign work to all the back office functions that you know you have to deal with when you run a firm.

They were all dealt with for me. I didn't need to worry and deal with any of them. And then I left and went to a position where I had to figure out where my malpractice coverage was coming from and who was going to answer the telephones and give up my guaranteed income. So it was a big move for me, but it has been honestly one of the best decisions I've ever made.

And how long ago has that been that you did that?

It's about five years now.

I kind of describe it as holding your nose and jumping off the cliff and just thinking, oh my gosh, I'll be honest with you, that's one thing I don't enjoy is worrying about the insurance and the malpractice insurance, payroll, all of that kind of stuff. But that pals to me in comparison with the benefits of being able to set your own destiny, do what you want to do, have the firm's soul be what you want it to be. That's what I enjoy, and I assume that's kind of how you feel about it as well.

I do. And it's been another added a dimension that I was missing. I mean, I loved my career as a trial lawyer. I love the challenge of building cases and representing clients But building an institution has been a different and very interesting challenge. I've really gotten into it. And so yeah, I've really enjoyed that. I didn't think I would actually. I didn't think I was either cut out that much or would enjoy the business side of it, but I actually have enjoyed that a lot.

Well, let's move to some trials that I know, cases that you've been involved in. I know there was an October of 2025, you tried a big med mal case. And I think Beau Frazier, the great jury consultant, helped you on that case, didn't he?

Well, first of all, thank you for introducing me to Beau and his mom. Wonderful. And I've loved working with them. That was the second case I tried where Beau came up to me and helped me pick the jury. And in fact, Beau just came onto my podcast. So if you want it from Beau, you can-

Oh, did he really? Oh, I'm going to send him a text and tell him that I got to see you today. Bo and Jane Frazier. Jane has been picking juries with me for 20 years, probably. They're wonderful. So tell us about that case.

Yeah. So this was a case that involved, we represented a mom who lost her 15-year-old daughter who was a really beautiful, sweet young girl, high school student, cheerleader, living basically a normal life until she started to develop some medical problems, went to her pediatrician. And essentially what she was complaining of, it was kind of flu-like combined with some chest symptoms. And after multiple visits to her primary care, they diagnosed her with atypical pneumonia. Of course, they did that without taking a chest x-ray or really confirming that that's what she actually had. She then went on and developed some very abnormal additional symptoms, which included engorged and discolored, badly engorged and discolored breasts and a bulging vein running from her chest or breast up through the side of her neck. Her mom was really concerned and called the pediatrician. They suggested she go see her OB/GYN.

So they made an appointment, went in to see the OBGYN. The OBGYN diagnosed her with a condition called gynochamastia, sent her back to her to follow up again with her pediatrician. About five days later, she developed much more progressively worsening symptoms, ended up going to the emergency department, and 24 hours later she was dead. And she died from essentially fluid buildup around her lungs and her heart, which unbeknownst to anybody was caused by a acute lymphocytic lymphoma that was in her chest and resulted in the swelling. And then because that constricted her heart and lung flunction, she ended up dying as a result. So the case was litigated by my partner mostly and my colleague, Meryl, who you'll meet in a couple days. There were two defendants. One was the pediatrician's office and one was the OB- GYN. Before the trial, we settled the case with the pediatrician's office and we couldn't settle the case.

There was really no meaningful offer from the OB- GYN office. We had done a big data study in the case, and at that time, both of the defendants were part of it. And the data jurors put the lion's share of the liability on primary care because they had multiple opportunities to see and treat. They diagnosed a pneumonia without confirming that that was the case.

When you say primary care, you're talking about the pediatrician?

The pediatrician.

Okay.

Yeah. And then mom had called almost every day after they left the OB- GYN practice for the next five days before she took her daughter to the emergency room, reporting an escalation of symptoms, and they never asked her to come back in or saw her again until the very last day. So that part of the case was settled. And so when I got involved in the case, which is about a month out from trial, we were faced with the challenge of how do we present a case against the one remaining defendant and the one that, at least in our data study, it didn't seem like the focus group jurors were putting the lion's share of the blame on. There's a lot about this case. I think I learned that I think may be valuable to people that are doing this kind of work. One thing is that it's so valuable, I think, to have a fresh set of eyes on a case later in the day.

We all get very wedded to our work product or our preexisting views about a case, and I have a hard time letting go of that. And if you come in fresh with a fresh perspective and you're not responsible for anything that's happened beforehand, it can be so liberating. And I found that to be the case here.

So let me ask you something about that real quick. So before you got involved right before the trial started, you had not taken any of the depositions or worked on any of the discovery?

Not a single one.

Wow. Okay. So you came in cold.

Yeah. I mean, we have a collaborative environment in our firm where we constantly discuss cases. So I was aware of it. I'd been involved in some of the strategy and decision making and tactics, but no, not any firsthand involvement in actually working up or litigating the case up until trial. So just as a backdrop, I mean, in the states where I tend to try cases Maine, New Hampshire, Vermont, I think jurors are different everywhere in the country. I've never tried a case in Texas. I don't know what they're like. What I can tell you is New England people are stodgy. They are very judgmental. They're very opinionated. In a medical malpractice case, I feel like the jurors perceive their role as being the gatekeeper to protect the medical establishment. And so they're not looking for ways to get to yes, they're looking for ways to get to know.

We all go to a lot of seminars and hear a lot of speeches about how do you position a medical mal case for success at trial? And I'm a big believer that every case needs to be evaluated uniquely. There's no paint by numbers or one size fits all approach. And I've heard you talk about enough cases, trial, that every one of your cases, you have some very unique and often very creative take. I think that's required in every case, but a lot of times you go to these meetings and people will talk about, well, you've got to turn every case into a system failure, or you've got to take every case and you've got to polarize it. You've got to demonstrate where the lie is or the betrayal or the arrogance on the part of the medical provider or their lack of time or caring for the patient.

And I've been to all those seminars. I've actually given those speeches. I don't think that's correct. I think that there are cases where authentically those issues come into play and that's the right way to try the case. But I think sometimes what we do kind of unmistakenly is we actually raise the burdens for ourselves in medical cases by making the burden too high requires us to prove more than we need to prove to win the case. And this was a case where I felt like, I mean, we did- How

Did you do

That? A lot of those kind of tactics. But I actually took a different approach, which was to lower the stakes for the case. So we started in voir dire and it actually came out of talking to Brad Cosgrove a little bit and how he does this shtick in his closing where he talks a lot about the burden of proof. And I've moved away for a number of years of talking about burden of proof because some people say, "Well, if you're talking about the burden of proof too much, it just means you don't have a strong case and people view that as weakness." Well, you're just saying, "Well, we just have to prove it more likely than not, like the name of your podcast. And that means, well, you're playing from a place of weakness and really you should be trying a punitive case in every case." But look, every case isn't a punitive case and our burden of proof is only more likely than not.

And a juror's willing to understand and follow that, then you're going to have a bigger chance of winning, particularly in the kind of jurors I'm dealing with in a state like Maine, if they really understand that. So that's part of it. The idea that doctors, the irony of med mal is, and this is part of the thing, Stick, I worked on for voir dire working with Beau and then also in my closing is that I feel like jurors hold doctors to the lowest standards. I did a little thing where, and when we did in the voir dire, we did, in this case, you're not going to hear any evidence of intent. There will be no evidence that the medical providers here intended to harm anybody or that they had a bad motive. And some people just have a hard time finding for a plaintiff and awarding lots of money at a medical malpractice case without that.

We were able to exclude multiple people who said, honestly, they just couldn't find against a doctor without evidence of intent. But one of the jurors volunteered and he ended up being on our actual jury. He said, "Well, isn't it like a car accident where, I mean, if somebody just runs a red light or a stop sign, I mean, they're negligent, you don't have to look at intent." And that led to, in closing, I referenced that juror's comments and said, "In this case, the case is about whether the doctors met their standards or they didn't. If they met them, then you find for the doctor. If they didn't, you find for the patient." But I want you to imagine that this wasn't the medical malpractice case. I want you to imagine that this doctor just on his way home ran through a stop sign and killed this 15-year-old girl in a car crash.

Would anybody here be saying, "Well, I'm not going to find for the plaintiff because that doctor's a really nice guy, or he went to a really good medical school, or generally he was a really caring person. Look at all the other patients over his or her career that this doctor cared for. " And so why should we hold doctors to a lower standard? Doctors are professionals. They get paid handsomely. They have lots of privileges in our society. With that privilege comes from responsibility. We're not saying you have to hold doctors to a higher standard, but you certainly shouldn't be holding them to a lower standard than the person who runs the stop sign, like this juror said.

I love that, Ben. I have never heard that

Before.

That is absolutely great. And you got it from the person on the panel.

Got it from the person on the panel and he was sitting right in front of me when I made the argument. And so that's what I mean about lowering the stakes. And I feel like so many times we raised the stakes. Well, this doctor is evil. This doctor doesn't care. I mean, this doctor in our case was a wonderfully caring, nice person. No one was going to believe that about her. She's given her career to care for women in obstetrics and gynecology. She delivers babies for a living, right? She's a nice person. Why am I trying to hold myself to that higher burden of some major system failure or polarization or something else? Believe me, there was a lot of evidence that we could show, but I didn't need to raise the temperature anymore than that. And so that's kind of an insight I had in this case.

You just taught me something. That is great. The reason the case didn't settle is that because the doctor didn't consent or the insurance carrier just wouldn't pay the money.

The latter. They did make an offer, so there was consent, but it was a very low offer.

And then your verdict, I think, was it 25 million?

Yes.

And as I understand it, Ben, that is the biggest med malverdict in the history of Maine.

It's actually the biggest med mal or PI verdict in the history of Maine, which says more about-

Are you kidding me? Of both?

It says more about how sad Maine is as a venue than about the size of the verdict.

Sometimes when I look at it like in Philadelphia or some of these other cities, they have no med malcaps. It's just, let's go. I mean, I think, oh my gosh, that would be so nice. But you live in a state like in Texas, we have the caps, excuse me, on medical malpractice cases that it's something we have to deal with. And in Maine, you have to deal with conservative juries. 25 million, we sometimes as trial lawyers lose sight of what is a lot of money. That is a big verdict. About how long did the jury deliberate before they return that verdict?

They had only one question, which was, is there any precedent for damages? So that was a good question to receive.

That's a good question. That's when you can kind of take a deep breath and relax a little bit. I often want parents who lose a child and they come to us for representation. And it is always, even when you win, somewhat bittersweet, because I'm sure you do as well, Ben, I always tell them, "You're not going to get a lot of joy in this because your child's not going to come back." But I have seen the results of that kind of closure and accountability help people heal. Did you see that in this particular mother? A

Little bit. I mean, she's still very angry and she did not derive joy from the verdict. I think she felt vindicated to some extent because I think there's always a huge sense of guilt.This is one of the things we focus grouped and voir dire on, but my feeling is that there's almost a strict liability standard for moms because every mom thinks-

I love that. I agree.

Yeah. Every mom thinks, "Well, if that were my daughter, I would have fill in the blank. Anything that could have been done to change something, they would have done that thing." And one of the best parts, the greatest evidence we had in the trial was that there were all these contemporaneous phone calls between mom and the pediatrician's office over those days after she left the gynecology practice. And mom came across in those calls as so knowledgeable, so caring, so persistent on top of every detail and issue, and also betraying her full confidence in the diagnosis that the gynecologist gave so that she didn't feel that she was worried about anything more. And it was great because all of that was recorded in real time. And so we didn't have to ... And we played basically the full audio of all of those phone calls, which honestly the defense probably could have objected to because they were hearsay.

That had to be powerful, God. So the jury's sitting there hearing this mom on the phone and knowing in retrospect, her daughter was dying.

Right. And the dramatic effect of that, a day before her daughter would die, she's on the phone just, "She has this issue. I'm concerned about this. " And just had clearly no understanding of the gravity of that situation.

Let me ask you this, Ben, what did you ask the jury to award in that case?

25 million.

Are you kidding me?

Well, see, in that piece, when you mentioned caps, we have a cap on wrongful death claims. So the wrongful death, there were two claims that existed at the time of verdict. One was the death claim, which is mom's claim for the loss of her daughter. In Maine at that time, for this case, it was capped at $750,000. The pre-death conscious suffering claim has no cap, but in our case, there was a limited period of demonstrable suffering at a high level of suffering of give or take. I mean, you could say five days, but really the acute suffering occurred over probably more like a 12-hour period. We asked the jury to award 10 million for the death claim and 15 million for the pre-death conscious suffering claim. One reason for the low offer pretrial is that defendants always place very little value on pre-death conscious suffering claims in our experience.

And that's what the jury awarded. They awarded 10 million for the death and 15 million for the pre-death conscious suffering. Sue.

And how did you deal with the empty chair, the pediatrician who was not there?

So a big part of the defense was to blame the pediatrician. The way we dealt with that was to say ... I mean, it's tough because you're preparing your case for trial against both. And so our experts were all on record as having opinions that the pediatrician was negligent. The way we did that was primarily to focus every issue and all of the attention in our case on only the OB/GYN visit and the care provided there. And the only time we ever mentioned the primary care was as an ancillary point to support a point we were making about the OB- GYN. So I mean, the original version of the opening that my colleague Meryl drafted started with a timeline that went through all the primary care, the pediatrician visits, said, "No, I don't want to talk about any of that. Start the case on the day she goes to the OB- GYN and then point out there were things about pediatrician visits that were relevant.

For instance, the OB-GYN had requested records from the OB- GYN be faxed over stats so she could have them in connection with her evaluation of her patient. They faxed them over, but then lost the records and the OB- GYN did not review or have them. So that was one way the pediatrician came into the case. Then after she left the OB- GYN, from the phone calls, we know that the pediatrician was relying on the OB- GYN for assessment of the breast-related symptoms, which were really the one neon sign and red flag issue that made this a very unique and different case. You had the low-level pneumonia symptoms, which are routine. The engorged breasts, discolored black and blue breasts with large vein running up to the neck. That's something that the OB/GYN had said she had never once seen in her entire career practicing medicine. So they treat it like it's a routine thing without any curiosity or real medical decision making, but it's a rare and potentially very concerning symptom.

But the pediatrician was relying on the diagnosis made by the OB- GYN for that issue, which was the key to the whole case.

Was the pediatrician's negligence submitted to the jury? In Texas, a settling tortfeasor.

Yeah. We filed a motion in limine to preclude them from arguing that they were negligent, and we won that motion in limine because they did not have an expert on ... And then they tried to commandeer our expert and we said, sorry, our expert's not coming to trial. She lives in Chicago and you can't use our expert. And then the judge said, "Well, in Maine, you either get an offset against the settled amount or you get to apportion fault to the non-settled party and portion on the verdict form." The judge said, "Well, you decide, are you going to apportion fault or are you going to take the offset? If you're apportioning, then I'll decide whether you get to use the plaintiff's expert or not and present that issue. But if you're not apportioning, then that issue is not front and center in this trial and I'm not going to allow you to do it.

" They decided to take the offset because their thinking was the offset was multiples of the wrongful death cap, so they're going to get a full offset of that.

So is that case on appeal or has it settled?

No, it's on post-trial motions, and I expect that following that there'll probably be an appeal. Well,

Good luck on that. All right. I want to move to the Lewiston Mass ... Did I say that right? Lewiston?

Yeah, Lewiston.

Lewiston Mass shooting case filed last year.This case just fascinates me, Ben, I'm sure it will, our audience as well. This involves a 2023 shooting, as I understand it, from a 40-year-old named Robert Card, who attacked some youth at a bowling alley. And I think there were 18 people that died and 13 wounded. And you are involved in this case. Can you tell us a little bit about it?

Yeah, sure. So Robert Card was a longtime member of the Army Reserves. Part of his job with the Army Reserves was to train cadets at West Point in firearms and grenades. So he was an expert on the use of firearms. Over a period of many months going on the better part of a year, he started to demonstrate evidence of progressively worsening psychosis, which started out with very odd behavior where he would threaten coworkers. He was making wild accusations about other people in the community to the point where his child and ex- wife and other family members were reporting this to his Army Reserve Unit and saying, "You guys really need to look into this and do something about it. " And they promised that they would. That came to a head when they had an army training down in West Point, New York. So the whole unit from Maine went to West Point as they did every year to train the cadets.

And during that excursion to New York, this reservist, Robert Card, physically assaulted and threatened one of his fellow reservists, then barricaded himself in the room and was making fairly extreme threats to the point where his commanding officer and first officer in his reserve unit ended up calling the state police. It wasn't military police because they weren't at a military location when this was happening. They were at a private hotel, but they called the state police, escorted him with the state police to the Army hospital. They evaluated him there and determined he was beyond what they could handle. He had homicidal ideations, severe psychosis, and they transferred him to a private psychiatric hospital in the state of New York where he remained for 19 days as an inpatient. They then discharged him from the hospital on a bunch of conditions and promises from his unit, his reserve unit, which included things like they will make sure ... He had a whole cache of firearms, private firearms, which he said he would voluntarily relinquish if they let him go home.

His reserve unit promised that they would take steps to remove his private firearms. He was supposed to follow up with mental health care after discharge. He was on a number of medications. They said they would follow up, make sure he kept taking his medications, closely monitor him. Well, they discharged him back to Maine into the community. They didn't follow up on his medications. He didn't go to any of his follow-up psychiatric visits. They didn't take any of his firearms. They outsourced that job to one of his family members who was afraid of him and had no capability or real ability to make sure that that happened and didn't ever do it. And they never confirmed that that was done. And then after that, this reservist was hanging out with one of his fellow reservists and told his fellow reservist that he was going to commit a mass shooting.

He was going to attack the military base and commit a mass shooting. The fellow reservist immediately reported that to the commanding officer of the reserve unit. There's a text message that literally says, Sergeant Card is acting erratically and is threatened to ... You should change the locks, notify the local police. He has threatened to commit a mass shooting. Lo and behold, not long after that, Sergeant Card went to a local bowling alley first and then left the bowling alley and went to a local bar where he massacred 18 men, women and children who were either out bowling in bowling leagues or for fun or cornhole tournament at a local bar, which Card was a part of a coronal league he was a part of in the past. So the claim we've brought is against the US Army and the Army Reserve for failing to take appropriate steps in light of the risks of which they were well aware and their undertaking and duties to follow through with what their commitments to take reasonable steps that could have and would've prevented this mass

Shooting.That is just horrific. Just listening to that, what were they thinking?

No, it's a factually extremely compelling ... I mean, we hear about mass shootings all the time. Obviously you're in Texas, which is obviously ground zero for mass shootings, I think, sadly, but there aren't that many mass shootings where there is actual knowledge ahead of time from the mass shooter where they're actually telling people in writing threats that they're going to commit a mass shooting. And so part of our thinking in this case and our presentation is, if we can't stop this, we're hopeless. We can't stop any mass shooting.

Yeah, absolutely. There is no hope. So what type of immunity applies in the case?

Yeah, so that's obviously one of the tricky elements of the case because if this were a case against any private non-governmental entity, the negligence is, this is like gross negligence, recklessness, and you'd win that. That's a slam dunk in my view. The challenge is, of course, the government has certain immunities, and this is a Federal Tort Claims Act case. So they have generally discretionary function immunity, which is an immunity that applies if they are fulfilling their official duties and a element of those duties that carrying out public interest in a manner that they're afforded discretion to carry out. And the two ways you overcome that are, number one, the breaches are not part of the governmental public interest element of your responsibilities. They're just garden variety negligence. You just did something that was boneheaded or silly but didn't involve a policy level decision, or you did something that you violated a mandatory obligation, rule, policy, or procedure that you don't have discretion to violate.

And we have both elements in this case. We have mandatory ... One good thing about the Army is they have a lot of rules. And so there's a rule, for instance, that if a service member is known to be at imminent risk of harm to themselves or others, the rule says that their unit commander shall order an immediate behavioral health examination. And so one of our arguments is that when he threatened to commit a mass shooting, they've already admitted that they understood that he presented a risk of harm to himself or others. And so that creates a mandatory responsibility at that point to order that kind of psychiatric evaluation. Had they ordered it, knowing what we know about him, he certainly would've failed that evaluation. It would've led to interventions. So that's just one example of a way around this, but they have filed, the government has now filed a motion to dismiss, so the next step for us will be briefing and filing our opposition to that motion.

Are you representing numerous families?

We have a hundred clients, so it includes all of the families of people that were killed, and then there were a number of people that were wounded, some seriously wounded with gunshot wounds, but survive. And then we have bystander claims for people who witnessed other people either getting shot or killed. And then we have claims for zone of danger, emotional distress who were there within the zone of danger and suffered emotional distress, but no physical. I should say physical injuries run the gamut because you have people that suffered severe gunshot wounds and then other people who just got ... And I say just, but they were trampled or suffered bruising or lacerations as they trampled or fell as they were trying to flee the scene or things like that. So there's a whole range of different plaintiff types.

Have you started depositions or just in the pleading space?

No. Well, in the tort claims world, you had to file our Form 95 notice, and then that triggered the six-month window. So the six months elapsed, we filed our complaint, they responded to that with their motion to dismiss. So we know we have not done any discovery. However, the Maine had a very involved commission. The governor appointed a commission to investigate the shootings. The commission had subpoena power, administered oaths. Many of the key government witnesses and many of the Army Reserve members were subpoenaed and testified under oath before the commission. So in a strange way, there are many questions we need to, and we'll still ask in our own discovery, but there's a much more robust record of sworn testimony than you would expect to have pre-discovery in this case compared to other cases.

That's amazing. Well, I can't wait to see how that plays out. I can't imagine all the trauma that your various clients have dealt with. It's going to be an interesting one to follow. Well, I think our time is about up, Ben. I have totally and completely enjoyed this time with you. Really have. Doesn't surprise me at all. I had a feeling that I would. And I appeared on your podcast, Alavate. Is that the name of it?

Did, yes. You were wonderful.

Elevate. Elevate

Trial Lawyer Podcast.

You and Raul Rabaputi have that podcast as I understand it. So now it's your turn to be on mine. And I've got to confess, I don't listen to podcasts, but I think I'm going to start. Caleb and Eleanor are the ones that talk me into doing this, and I have thoroughly enjoyed doing it, meeting people and seeing a side to them that I didn't know about. It's been quite fascinating. So thank you for being on here. And to our audience, if you have any questions, you can contact us at info@morelikelythanot.com. Thank you to Ben Gideon for being on our podcast today. We really appreciate it.

Thank you so much for having me, Charla. I look forward to seeing you in a few days.

I think you can tell, and we at all this law here, we actually kind of like each other and we absolutely love, love what we do. And we work a lot of our cases up from the get- go, but we're brought in on cases a lot. We try cases all across the nation. If you have a case that you're interested in talking to us about, we'd love to hear from you. We've tried everything from trucking, workplace injuries, explosions, and burn cases, dram shops, ride-share sexual assaults, birth injury, your personal injury cases. If you need a partner to help you with your case, please call us. We can be contacted at aldislaw.com. We'd love to hear from you.

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