Did the primary care physician cause his patient’s death from an undiagnosed pulmonary embolism? A trial court said no, on summary judgment. In representing the patient’s widow on appeal, Patrick Sullivan realized that he had to “scrap everything and start from square one.” In this case breakdown with host Brendan Lupetin, Patrick describes how he reframed the case even as he faced hurdles: The patient never complained of chest pain (pulmonary embolism's key symptom) and the defense characterized him as an alcoholic. Patrick reveals how he exposed the PCP’s behavior – putting business interests above his patient’s care – and how he strategically ordered his witnesses for maximum impact. The jury responded, awarding $3.5 million.

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1. Patrick Sullivan represented a widow whose husband died from a pulmonary embolism after his primary care physician cleared him for surgery without discussing or noting his history of blood clots on the surgical clearance form.
2. The trial court let the primary care physician out on causation at summary judgment; Patrick got that decision overturned on appeal and then sued the PCP again.
3. The jury found the PCP negligent, awarding $3.5 million in wrongful death damages and assigning zero comparative negligence to the patient.
4. Patrick emphasizes constant learning through reading trial strategy books, getting in the arena early and often, and maintaining genuine passion for clients.

Ready to refer or collaborate on med mal, medical negligence, and catastrophic injury cases? Visit our attorney referral page at PAMedMal.com/Refer. We handle cases in Pennsylvania and across the United States.

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Welcome to Just Verdicts with your host, Brendan Lupetin, a podcast dedicated to the pursuit of just verdicts for just cases. Join us for in-depth interviews and discussions of cutting edge trial strategies that will give you the keys to conquering the courtroom produced and empowered by law pods.

Welcome back to just verdicts. And today I'm psyched to be joined by Patrick Sullivan, a partner at Dallas Hartman's office. Patrick, thanks for being here today, man. Of

Course. Happy to be here.

Yeah, so I knew of you, but Dallas Hartman's, you guys are a little up north from where I am and I don't leave the confines of my office or a courtroom if I don't have to. So I don't think that we've crossed paths too many times, but I was in trial recently and my trial operator was the oughta go

Good guy.

And Dego is the best, and we of course were talking trial stuff and I'm always picking his brain about what different cases has he sat through and he was telling me about your recent verdict in the Malvar case, which I had read about on the Listservs and had been meaning to reach out to you anyway. But Matt was just telling me what a kick butt job you did on a really tough case, which we're going to hear the needle that you had to thread to pull off this terrific verdict today. But I was looking for the intro and Matt gave me your number and I texted you and you're probably like, who the hell is this dude? But I appreciate you being here to talk about this case and how you accomplish this verdict.

Well, I appreciate it. Appreciate the oughta go telling you some lies about how I threaded the needle to get this verdict, but no, he's active an operator. He is. So appreciate him every time I have him on a case.

And for those who don't know who we're talking about, it's Matt Dego who is for guys like me and Patrick, our go-to trial operator to do everything from calling our exhibits up, to arranging our evidence and giving us insights at trial and being an all around Good dude. Patrick, I was curious a little bit about your background. So I know you're a partner at Dallas Hartman's office, but tell me a little bit about your sort of path to becoming a trial lawyer. You obviously have a love of it. What was your journey from law school to getting to where you are today?

Well, I was actually pretty simple because when I went to law school, I have no family members that are lawyers, anything like that. So in my picture, a lawyer was a litigator, so I just always wanted to be a litigator, do litigation. So I did a bunch of that when I was in law school, the trial advocacy program and teams and whatnot and those competitions. And then when I started looking for jobs, I was just looking for litigation jobs. But back then all I knew about was criminal work. So I worked for a bunch of different criminal firms. When I was in law school, when I was applying for jobs, I saw a civil litigation firm that was hiring. I had no idea what civil litigation was. I just knew that it was litigation. So I applied for it, got the job, and then that's what I've been doing ever since. I mean, fortunately by the graces of God, I got hired by a plaintiff's firm. So I've been doing plaintiff's work my entire career, wouldn't have it any other way. I know a lot of people start on the defense and they say, Hey, it's important to get some defense work, work for the defense insurance industry. I'm sure it's advantageous for some people and some people need that experience, but in my experience, it hasn't been necessary and it's worked out well for me.

Yeah, I'm in the same boat as you.

Okay. A

Hundred percent pure plaintiff lawyer

Since day one.

Yeah, I mean there's definitely that sort of curiosity of pulling back the curtain. Had I worked on the insurance defense side at one point just to get the lay of the land, but then I think to myself, no, I'm good. I don't think I need that experience. But over the years, I mean now you're pulling off some really tremendous verdicts. And in my experience, usually people are not just out of the box hitting those kind of verdicts. So what did you do over the years to educate you and what do you look back and feel like these were the people or the seminars, the trialers or the books that kind of influenced you a lot?

Well, like you said, you don't just come out of the box and you're a good trial attorney. I think anybody that acts like that is full of bs. But the one thing that's great about this is you continually learn. If you think you got it figured out, you think you know everything, I think that's when you're going to lose a case that you should win. So just continuing to learn, I mean, even up to this point. So with that, I think the big thing is jumping in and doing trials, which is hard to come by now, you know that as well as I do. So you don't just walk in and get a great verdict. Your first trial, I mean, look, some people have, but I think that's few and far between. There are a lot of losses along the way and developing your trial skills, I mean trying everything, garbage cases, people refer to 'em as dog shit cases, the motor vehicle crash, rear ender with no property damage and four prior crashes.

Hey, raised my hand in my first firm. I'll take that one to trial, not knowing any better, but I did my first trial probably couple months after I got my law license, which I mean as well as I do a lot of attorneys at my age and your age, I know some that haven't even been in trial yet, call themselves trial attorneys. So I don't know how that works. You might do a thousand depositions, but it's a lot different than getting in court and doing a trial. So there are a lot of losses along the way, but number one, you got to get in the arena any way you can. And even doing arbitrations or doing administrative hearings, whether it's workers' comp, social security, those things, they give you an opportunity to do a direct exam, cross exam, but nothing's like a jury trial. I mean, you know that.

So you got to get in and do jury trials. So that's a big part of it. I try to do as many of those as I can through my career, but a lot of times the insurance industry is dictating when you can and can't. But sometimes you got to turn down a good offer and take it to trial if you've got the right client to do it, the right case to do it. The other thing is just constantly trying to learn. So as you said, seminars, things of that nature. So all the greats out there, I mean, everything I do in trial, I'm sure with you and other attorneys, we don't create it all. We don't make it up. I mean, you put your own touch on it, your own little twist on it. You got to be yourself and authentic when you're in trial.

And I think, look, I'm myself and I can't do what you do. I can't do what the Nick Rileys of the world do, the Keith Mitnicks. I don't talk like them, so I got to keep it to my own style, my own flavor, whatever it may be. But a lot of the strategies, the tips that you can learn from reading their books, I mean, I'm still reading their books and when I go to trial, I got a stack of books in my war room and all the books, all the same books. I got 'em all sitting there. I got up here, look. Yep, where is it?

Wow, there you go.

I recognize a lot of those. Oh yeah. And I haven't even been through all of them yet, which is great. So I'm still reading, still learning, but those are the biggest influences, figuring out how these other guys are getting these great verdicts. And again, it all doesn't apply to me or it all doesn't apply to every case, but if I can take a little bit out of trial by human, take a little bit out of don't eat the bruises, different things like that, and applying to my case, my trial, my style. Hey, that's great. So those two things, being willing to learn, don't stop learning. Number two, get in the arena. You got to get in the arena. I mean, there's nothing like the pressure of being in trial. And number three, and I think most trial attorneys have it you to got to care about your clients.

And a lot of that comes with passion, be passionate about what you do. But I think even more so than that, it's being passionate about your clients title of your podcast here. Just verdicts, right? You're doing just verdicts for just people and you got to know some cases. You get to come in the door. Not good cases, they're not the right cases. Don't try those cases. But other ones need to be heard in this particular trial, needed to be heard, even with all the complications of it against this particular defendant that we ultimately took it to trial against. My client wanted to be heard. She needed to be heard. And I think it did her a lot of good that we took it to trial. Even if we didn't win, it would've done her some good. Thank God we did win though. But all those things. And my boss, former boss Dallas, right? I'm sure you're a little familiar with Dallas.

Everybody knows Dallas.

He's a different guy, extremely successful attorney, very tough boss, very tough mentor. But one of the things that kind of drew me to him, and I think while we get along is regardless, he's very different from me, but nevertheless, he cared a lot about his clients and that was a big thing. I remember little thing conversations of, Hey, this person doesn't have income right now. Do you know what that's like? Have you experienced that? Most attorneys I have, I'm familiar with that. So that's a little different, but when you think about it that way, or here, my client a widow, she was essentially a homemaker her whole life. She had to go back to work. She was working in the school district maybe making like 10 bucks an hour, working a few hours a week, but her husband was the breadwinner. Their entire lives. This guy dies unexpectedly and suddenly her world is upside down. She doesn't know how she's going to pay the mortgage, doesn't know how she's going to pay for the kids going to college, how she's going to pay for groceries, et cetera. So any attorneys out there, especially young ones, I tell 'em, keep that in mind. It's easy. We get so deep in what we're doing and our strategy, our presentation, our depositions, the case itself, you can't forget about who you're doing it for, and that's extremely important.

Patrick, you just dropped so much good stuff right there as you were saying it. I'm like, oh, I want to ask him about this. I want to ask him about that. And I'm not going to remember everything that you just covered, but I want to hit a couple of things before we pivot into the case that you've already begun to tee up. You talked a little bit ago about those dog type cases, those rough cases far from perfect when you're first starting out to get into the arena as you put it, to get into court. And you said, Hey, that case, no property damage, tons of P priors, minimal injuries, and you're putting your hand up in the air to try that. My question, I think a lot of attorneys people talk about there's not the opportunities to try cases. Maybe there was in the past, and that is true, but I also believe that if you are dead set on finding a way into court, you can get there. And so my question to you is what do you think it is about you that you were willing to put your hand up? And I want to try that case right off the bat, a couple months out. I don't know what the hell I'm doing, but I'm willing to try it out.

Well talk about you don't know what the hell you're doing. I'll never forget picking that first jury. It was up in Erie County. I know you got your recent verdict up in Erie County, and the judge was Judge Dunlevy. I don't know if you ever tried a case in front of him, but he's,

I've not tried, but I've been motions in front of Dunlevy.

Yeah, well, you probably saw the stars hanging in the corner of his courtroom since he's, I can't remember if he was a two or three star general in the army. So no nonsense kind of guy. Yeah, I didn't know what the hell I was doing. I certainly thought I did, but he let me know multiple times through the trial that I didn't know what the hell I was doing. But look, it made me a better trial attorney in the long run forward. So I don't know. I can't sit here and psychoanalyze myself and say what inside of me made me want to do it. But a lot of them, number one is first, sometimes you don't have the choice, and then you just got to be willing to get in there and do it and figure it out. But after you do it a couple times, or even that first time in my first one, I got a verdict, I won, but it was for 50 cents. I mean, it was literally nothing. But all it did was make me want to get back in there and do better the next time. Then if you suffer a couple losses, it's like, man, I'm just waiting to get a good case, good facts so I can actually get a win and get a verdict.

Yeah, I can remember I tried tons of dog cases and I did not even get the 50 cent verdict for a long time, but I remember I got to a point where I was trying to case up in Mercer and it was a med mal and it was a very, very difficult case, and I got negligence, which was a shock, and I think we lost on comparative in a med mal case, which is unusual. But I remember the judge Dobson afterwards telling me, you need to tell your bosses to start giving you the gravy rather than all, he had some other terms instead of the turkeys or something, because I think that was the second or third case I'd randomly tried in front of Dobson and he was basically paying me a compliment. You're improving, you're doing well, and you're ready for better cases. And I think there's a lot to be said for that is kind of all the beatings and everything. I always think sort of prepared me for when I do get the just case, the righteous case, the people that really need to have their story told, now you're ready for it, which I think is all part of the process, and people kind of lose sight of it. I think they get worried about losing or embarrassing themselves or something at trial, and it's like that just comes with the territory.

It does. And I mean Mercer County, I do a ton of work up in Mercer County, as you know. We're north of the city, about an hour. I sit here and say the city for us in western Pennsylvania, that's Pittsburgh, not New York City or Philly. So we're really out in the country out here, which we enjoy and we do good work and we get good results out here. But Mercer's a tough venue, so I know how you feel. I've done a handful of trials up in Mercer and taken my lumps, and similarly, I tried one up there. It was a trip fall case, and in hindsight, looking back, I can't believe I tried this thing. I mean, they had rugs from door to door, wall to wall. They had wet floor signs. I had a clerk that was wiping the floor with a rag on video, but needless to say, the jury deliberated on a Friday night for six hours, six, seven hours.

So you get your hopes up, you think you're going to win. And it came back as a defense verdict, unfortunately. But similar thing, the judge made a similar comment like that. It wasn't Dobson, it was one of the other ones up there, which was good. And it encourages you to keep going and keep doing. It was funny to bring up my boss when I told him about that he didn't care too much what the judge had to say. He only cared what the jury had to say. That's a tough lesson, but that's the truth. He was right. He was a hundred percent right. And I think that for young lawyers, young trial lawyers, you got to remember that you got to give respect to the judge and understand they're like the ref in the game, but your audience is that jury. I try to tell some of the young lawyers in my office that you're presenting this case to 12 jurors. That's where your focus needs to be, not what the judge thinks about this piece of evidence, as long as you can get it in, right, but you got to think whether it's going to land with the jury or not.

Yeah, I mean, I was just teaching a trial strategy class at Pitt, and yesterday's topic with the class was jury selection. And I do not claim to be a great selector of juries, but to the point you just made, I say the starting point I think should be looking at it from the point of view of the people that are in that veneer, looking at it from their perspective. What do they need? What do they want? What are they thinking and experiencing as you're selecting that jury beyond just what answers are they going to give you? It's sort of like the more you can see things from their perspective, the most important people in the courtroom, arguably, the better you will be at potentially picking a jury and certainly trying a case for your client. So you've teed up the fact that your client widow, she loses her husband due to a confluence of medical negligence from what I am reading, and she is somebody that needs to have her story told. And you, Patrick, were the fortunate one to get to tell at least a portion of it because I think other portions I understand resolved, but lay this case out to us sort of when it first comes to you, what is it, and then how does it change over time to the point of the case that you ultimately try and get this verdict on?

Yeah, that's a pretty long story actually, and I'll try to give the CliffNotes version of it, but the case didn't become mine individually until the very end for this trial against the PCP. Prior to that, my partner Dallas had worked it up and he did a great job working it up. He gave me all the ingredients to put it together and do a good trial against the PCP. But as you know before it was a trial against the PCP. We also had an ortho involved in a hospital involved. So the framing of the case changed dramatically. What had happened here with the case was the trial court let the PCP out on causation at summary judgment. So we didn't appeal it at that time. We ended up getting right up to trial against the ortho in the hospital, and you know how it goes. We ended up resolving the case on Friday at 7:00 PM in trial starting on Monday.

So then at that point, once that all wrapped up, we ended up appealing it, getting the summary judgment ruling by the trial court overturned, and this was a causation issue, which was a huge issue through the trial, one of the main defenses, and then it comes back down and it lands in my lap to take it to trial against the PCP. So as you know, you'd sit here and think, well, okay, you got two days out from trial previously, so you have a lot of stuff prepped. It was more of a hindrance than anything, right? The case was completely different the first time versus the second time. So kind of had to throw everything away and scrap everything and kind of start from square one on this. So that's why I took a number of years to ultimately get to trial. Essentially what happened with the case is my client, Mr.

Gon, he ends up falling in 2019. He was taking his daughter, big volleyball player out to the tournament in New Jersey. He falls down the steps and he ultimately tore his quadricep, but when he falls, doesn't know what he does, he goes to the local hospital. Ultimately he goes there and he says he's worried that he might have a DVT, okay? He has a history of DBTs. So as you can imagine, defense counsel was all over that. His knowledge of his history, et cetera, comparative fault, they do a doppler, it's negative. He's told you don't have a DVT. And what him and his wife were thinking, Hey, why did I fall? Was it because of this? They don't have any medical training or medical background, but he's told, Hey, you did injure your knee. You need to go see an,

Could I jump in real quick? Why did he have this history? Did he have a coagulopathy or something?

Well, we're going to get to that.

Okay. Okay.

Right. So what happens is just to finish the part of the story in 2019, he goes and sees the ortho. Ortho says, yep, you got to tear. We got to have surgery. Go to your PCP, get preoperative clearance, which he does five days later. Then he's in surgery three days after that, they repair his quadricep tendon surgery goes perfectly fine. The ortho tells his wife, everything you need is in the discharge papers when you're discharged. She says, great. He gets discharged. There's only a prescription for pain medication. Oxy in there. There's no anticoagulant in there. Okay? So as you said, it was a confluence of everybody dropping the ball. But the reason why he needed the anticoagulant takes us back to 2017 treatment that he had with this PCP. He had an unprovoked DVT back in 2017, and it was actually a DVT and a pe.

So he goes and sees the PCP because he has some shortness of breath classic symptoms of having a pe. Ultimately, the PCP is trying to tell him, no, don't come here. Go to the hospital. My guy wouldn't go to the hospital, went to the PCP instead. And this was part of a non-compliance defense as well, on the comparative at every turn of this treatment between 2017 and 2019 was a big team for the defense. But he comes in the PCP ultimately does the right testing, confirms that he has a DVT and a pe. This is back in 2017, puts him on Eliquis for three months and it resolves it. But what he also did was a coagulation panel to determine if he had any acquired or hereditary thrombophilia. So he does that, comes back, the testing, comes back, and he tells a guy that it's negative, everything's negative.

So my guy moves forward in life thinking, Hey, I'm good. This was a one-off. He's not on anticoagulant going forward and not told he has any hereditary thrombophilia. So when he falls a year and a half later in 2019, he says, Hey, I had this once before. And he tells the hospital, he tells the ortho that he had this once before, and that goes to causation here for the case against the PCP. But what the PCP did back in 2017, he ordered an incomplete panel. So not all of the acquired and hereditary thrombophilia were on this panel. So he left out key ones. He left out prothrombin gene mutation, which is the second leading cause he left out antithrombin three. He left out a few others. Okay.

Why did he do that?

Well, that was a big question going into trial. And when he finally got on the stand in trial, lo andhold come to find out he's just too damn busy. It ultimately became a theme in my close that he was putting his business interest, not just his primary care practice, but other businesses that he had over the success of his patients. So I'm sure we'll get there, but ultimately on cross examination, he tried to blame the lab, et cetera, but ultimately it got him to admit on cross that it's his responsibility to order it. It's his responsibility to order the correct panel, not an incomplete panel, which when you think about the language of the case, trying to keep it simple for the jury, it's like, Hey, whenever you send out blood work in a panel, it needs to be a complete panel, not an incomplete panel. Just you do your job, you do the complete job, you don't do an incomplete job. I don't care what your line of work is. So different things like that. So through my partner Dallas, Jr who worked this up, he's actually the one that dove into this and found this that it was an incomplete panel. So ultimately the wife and the kids get tested and the wife's negative and the kids are positive for the proform gene mutation. So you know what that means, right?

Oh, wow.

He had the profiling gene mutation. If a correct panel would've been tested for back in 2017, most likely he would've been on an anticoagulant given his age going forward for the rest of his life.

But that's really interesting though. No one ever diagnosed him with his clotting disorder. It was put together posthumously by getting the kids tested and the wife tested, and then it had to be, he had to have had it by the fact that the mom doesn't and the kids have it.

Correct.

Interesting. That's fascinating.

And so nobody disputed that in trial naturally, my PCP expert. So this is completely unacceptable. You need to do a whole panel, and in particular, you need to do these couple, the PMG prothombin gene mutation and the antithrombin. You got to do 'em. That's no question about it. And they weren't done here.

Did the defendant concede that?

No, no. It was interesting. It was another defense that came up was number one, that he didn't have to do this panel with the first unprovoked DVT. Okay. Which again, contradicted what he said in his deposition. So there was a lot of impeachment and cross-examination on that. And what part of the defense they came up with was, and you tell me, I wonder if you've seen this before because I've seen it in a couple of medical malpractice cases now, is, hey, this was above the standard of care. He didn't have to do this. The standard of care and the literature supports, and he had some support there is that he just has to put on the anticoagulant. He doesn't have to do this coagulation workup.

Yeah. I mean, I think if that is told persuasively, that can make your job more difficult because I think you've read the same books and things I have, we want to show the most minimum, the bare minimum that they didn't do, and those aspirational standards that can be difficult sometimes. But it sounds like you carry the day, at least in part because of that theme of too focused on the success of his businesses and not on the success of his patients. Probably helps you beat that.

Certainly. I mean, that theme didn't come out until, I guess I'll call it because picking the jury was day one, so I'll call it day four trial, right up to that point. It was kind of, Hey, if you do a job, you do it. We all know that. We all have been taught that all our lives.

And I think that's a great way to counter it too.

Yeah, and he clearly didn't, undisputed that he didn't, but they were pretty persuasive. He testified that he had a PCP expert naturally come in from Philadelphia, and I start crossing him a little bit in my opening statement, okay, try to attack a little bit of their credibility early on. I know some people say don't do it. Some people say, do it, but I didn't have a lot to work with against this guy, so I wanted to hit his credibility a little bit early on. But he was good. He was smooth. He was good. He was a challenge.

It wasn't Hanes, was it?

No, it was Perl.

Okay, okay. Gotcha. But I just want to put some of this in context because again, your case is particularly challenging for a variety of reasons, because arguably, the best claims settled and after those settle, and the case is most likely, typically you have your targets, and then there's kind of the second or third or fourth kind of down the list, and they don't oftentimes get worked up and focused maybe the way you would like, although sometimes that can weirdly work out to your benefit. Sometimes when it looks like you're not focused on someone, because some good stuff can come up there. But anyway, so now you settle those other cases, you take the appeal up. And by the way, I mean, what was the big causation hurdle here? Understanding PCP doesn't order all the coagulopathy tests, and he would've identified your client's clotting disorder. And I mean, why is that not directly causative if he dies ultimately from a PE DVT, and nobody treated him properly

Post-surgery, right? And to add to that, this PCP did the preoperative clearance, didn't put anything in the clearance about his clotting history, didn't warn him, didn't educate him, et cetera, about the clotting history. Essentially, part of their argument was, that's not my job. That's the ortho's job. My job is to make sure he's healthy enough for surgery. Is his heart good? Is his ticker good? Can he undergo anesthesia? And there's a ton of literature that supports that aspect of it, but you still need to do a risk assessment. And again, that was one of the big fights in the case saying he needed to them saying he didn't need to. It was the ortho. So to get to the causation point, why it doesn't go to causation, essentially how they framed it, how the court initially agreed with it was that the PCP didn't have any privileges at the hospital. PCP wasn't their day of surgery. The PCP wasn't responsible for postoperative care. It wasn't his job to write the prescription after surgery. All of that laid with the orthopedic surgeon. And that's true. I mean, that was undisputed. So essentially, and a big part of their closing argument through the entire case was, Hey, all this stuff that attorney Sullivan's about, doesn't matter if the ortho would've given Mr. Nigel on his script for anticoagulant, for Xarelto, he'd still be here.

Yeah, that is a problem. So how did you overcome that?

Yes, yes. Look, it was kind of coming into it, and that was the big thing. How are we going to overcome that? So how do I frame the case?

Yeah, how do you frame the case when you've got obvious empty chair defense,

Right? Right. Well, you got the empty chair defense. You have comparative fault because tonk clearly knows that he has this history. And then you have the causation, which was a big one. And then a few other defenses came up throughout trial. One of 'em was they were arguing that he would not have been on an anticoagulant from 2017 up through the surgery because you got to balance bleeding risk versus clotting risk. Given his age. Some other things that we can get into later, he wouldn't have been on it anyway, is what they were arguing. Okay, nevertheless. So how do you frame that? Look, I figured the best thing to do was be as honest and in credible with the jury as possible. Come in and tell 'em, Hey, PCP is not the only one who fucked up here. Part of my language, naturally, I didn't use that with the jury, but PCPs not the only one who messed up here.

Ladies and gentlemen, I'm going to tell you this right now. Day one in my opening statement, the ortho failed Mr. Gon as well too. So framed it that way, wrapped my arms around it. But again, as we know, language of the case, two wrongs don't make a right. So just because Party B failed this man that does not absolve party A for his failures. And then we talk about all the failures for the PCP and kind of in closing arguments. One of the things that we did, and I know you do things like this, I'm sure you do, and most other trial attorneys, I'm not creating anything special here, but part of my slideshow, because apportionment was a big part of this, and the comparative fault was let's look at what the PCP did, all the opportunities he had to save Tom's life compared to the opportunities that the ortho had.

And really, the ortho just had the one visit before surgery and then the day of surgery where the PCP, who is his medical home, had all these opportunities, failed 'em back from 2017 all the way up through 2019. So I told the jury in close, I know we're getting ahead of it, but make your own list. Don't take my list. Now, you're sure. I put a list up there on a slide of, Hey, PCP, boom, boom, boom, boom, boom, boom, boom. As big as I could fill on that. And then the ortho was two bullet points, but told them, don't accept my list. Go back there, discuss, make your own list. I mean, those are a couple of different ways we handled it.

I'm trying to remember the psychological term for it. I was trying to search, I read this cool article. It's like you always read, you learn these different things in the trial books or trial blogs or articles and stuff, and you can't use all of 'em. In every case it's like

It'd just be a mess.

But as you start to collect things that sort of sit in your brain and then you're like, oh, I can use that thing in this particular fact pattern. And I was reading this article and they were talking about basically exactly what you did, comparing the PCP to the ortho, which is ortho had, there was one inflection point where things could have gone different, but with the PCP, there was this one, and then there was this one, and there was this, and there was all these different little points, any of which would've drastically changed the future. Whatever the article I read said, that's a super compelling argument if you have the right facts. But that's a perfect example of it right there to kind of make that point, especially comparatively between the two.

Well, and then take it another step. We had the comparative fault of my client as well, which was a big concern because he knew his history. And literally every doctor he went to, he said, Hey, I got this history. And there was some information in the PCPs medical records that he did his own research, diagnosing himself, Google, all that. So that was a big thing, but we had to put that into context in that every doctor he saw along the way, no one told him he needed this after surgery. In fact, it was completely silent. Records are silent. They're silent now. Naturally compare their testimony to the records, all that good stuff, et cetera. But going back to he's literally told he doesn't have a thrombophilia, right? A genetic or an acquired thrombophilia. And then when he falls, he gets a doppler and he's told he doesn't have a clot. So what's in his mind as a non-medical person? So trying to put it into context with it, like you're saying, all those inflection points, it worked that way too. A normal individual compared to the doctors,

To counterbalance, to comparative as well.

It did. And that was a big thing is we did, and it was funny, you talk about predict focus groups, et cetera. Now we did 'em, but we did 'em when everybody was in the case.

And then it's like, well, what can you take from that when you now just have this case? I know they've been down that road.

You got it. So I pulled it up. I pulled up the stuff I had, and I'm like, yeah, this isn't helpful at all. But two of the things that jump out were comparative fault of Tom, and not just him, but his wife. So there was a lot of negative attribution in regards to spouses like, Hey, I'd never let my husband walk out of that surgery without a prescription for blood thinner. There was a lot of that. So we had motion to eliminate fighting on that, and quite frankly, the best way that was handled, she was amazing. It was some of the best testimony I've ever been part of.

That's what Matt had said, that she was an amazing client, amazing testimony. It sounded like the daughter was great too.

Yeah. Yeah. Such a good job. Well, so much so in my clothes. And again, it's about to get a verdict, not just about the facts, but they got to feel, the jury has to get emotionally vested in it that, so one of the little lines in my clothes was something about, because the PCP essentially called my client a liar in so many words. So I addressed that in my clothes, and after I addressed it credibility wise between the two, I kind of pause, turn to her and look at her and I say, Hey, ladies and gentlemen, talk about insult to injury. Him coming in here and saying some shit like that.

Yeah, yeah, absolutely. That's great. Well, tell us a little bit about the family, the client that passed, wife, daughter. That was one of the things I remember in talking with Matt was like, this family was just great family, great family to represent.

Yeah, they were really good people. The father who passed away was originally from Pittsburgh, met his wife where she was working down in Pittsburgh, and then she dragged them back up to Hornes County in Newcastle. So we had some jokes about that in front of the jury, think everybody appreciated that. And then they had two kids, just classic American family. They had a son and a daughter. Daughter was weeks away from graduating high school when this happened. So it just destroyed her senior year. And then the son Max had just, he was in his second year at Penn State up at Penn State Barron, so classic family daughter was a big volleyball player, ended up playing volleyball in college. Dad was highly invested in the kids and all their activities and whatnot, type of guy that would drive down to Pittsburgh. He worked at a bank, bounce around his branches and whatnot. And then he'd drive up, pick her up, turn around and drive her right back down to Pittsburgh for the travel volleyball team. I mean, this guy was an absolutely just dedicated husband, dedicated father, and that's the story in the picture and how we painted it.

That's great. And as you think back on it, was it just their overall vibe of high quality or were there some particularly poignant anecdotes you can recall from their testimony that connected with the jury?

Yeah, a hundred percent. So what I try to do, and again, I don't know where I picked this up in reading one of these books, is I wanted the mother, the daughter, and the son to talk about each other's relationship with dad, not their own. So Max, his whole direct was about Abby, his sister's relationship with her dad and how he was a girl dad through and through, and how that relationship really blossomed as she got into sports, he played college football. So we had some stories and anecdotes about that, about how he was never missed a game, never missed a tournament. It was at that. That was at every single one. And then we tied that to what he missed. So Abby then testifying about seeing her mom sitting in the stands at college by herself without her dad. So I think that hit pretty well.

And then this guy was such a good guy that his daughter was a lifeguard at a local township pool where he would go when she worked and he would swim in the old man's swim league, or even when it wasn't just to be around his daughter and hang out with his daughter. So the supervisors of the pool actually sent her a picture of him teaching some little kid that he didn't know at all how to swim, and I thought it was a little kid when she told me, and she sends us over, kids got to be a teenager like 13. And so clearly they're not related, don't look alike, and it's this picture, and they put a quote on it from Mr. Rogers, and it was the quote, and I'm sure you're familiar with it. A lot of people say, not my kid, not my community, not my problem. Don't care. Then other men step up, take action. So that was one of the things that I put up during her examination, and I had her read that quote and it was really funny. Then I say, how was it signed? It was signed Fred Rogers underneath it. And I just had a feeling I could just tell that Abby didn't know who Fred Rogers was. So I made a comment about Mr. Rogers, and she was like, who's that? Who's Mr. Rogers?

So naturally all the jurors are our age or older. I think I had one or two younger ones. So I kind of stopped and I'm like, you're telling me you don't know who Mr. Rogers is? And just kind of shake my head. We laughed. The jury was laughing and whatnot. So we had a number of little stories like that. Mom told a story about, which I thought was very touching when they moved Max into college, which was just about a year before this, how Tom had a backpack. She's like, why do you have a backpack? We're moving him in and driving home. Tom's like, well, I thought he might want to go to the gym with me. His first day up on campus, Leslie was like, he's not going to want to go to the gym with you. So little things like that I think really affected the jury. And then Max talked about the relationship with their mom and how after Tom died, I mean, she's an empty nester within a couple months. Abby goes off to college, he's back at college and how she would call Max all the time, lonely, scared by herself. So we were able to capture a lot of that good testimony with the family members.

So you talked earlier that it sounded like you guys had done a predict, but you'd done it earlier with everybody involved and maybe some other focus groups when it's now you win the appeal, you're coming back, you're going to try the case against the PCP with empty chairs and so forth. Did you do any more small focus group yourself, or did you just try to take what you knew were going to be the significant problems from what you learned before and then kind of repurpose address it to get ready for this case?

Yeah, that's a good question. It was majority taking what I had, repurposing it. Like I said, the prior focus groups and the predict were pretty much useless at that point. It was a totally different case at that point, but I always try to, and I'm sure you do too, and a lot of other attorneys, I talk to people about my cases all the time,

A hundred percent. Yeah,

Probably a problem. And people probably find it very annoying.

I have nothing else to talk about.

Right, right, exactly. But you know how it goes, Hey, what do you think about this? Hey, what do you think about that? I mean, that was about it, but you're constantly batting it around, whether it's in the office or with my wife, et cetera. Get some of my best ideas from her.

Yeah, me too.

Yep.

Not your wife, my wife.

Right, right, right. We're not going to cross that line, Brendan. I'll have to drive down to Pittsburgh, and we don't want that.

So mechanically in opening, do you follow a typical format or is it depend on the case that you're trying? And how did you present this case sort of structurally to open to this jury?

Yeah, with the open, I think the ball method is great. That's a great method. That's one way skin the cat, it's kind of like we talked about before, it's multiple different ways to skin the cat. If you listen to Raleigh, he does it very different

Totally

Than ball does,

And seems to mix it up a lot too, which I'm like, this is crazy, but yeah.

Yeah, which is good though, which is good. But it depends on your audience, depends on the case, the facts, et cetera. So in this particular one, I thought framing what the rules were for the PCP and I had to have at least two, and that's what I did, one for the 2017, then one for the 2019, and that was a big part of the trouble framing it to combine it down, just the two. And then telling the story as we're taught from all our books in a very non argumentative flat way, just, Hey, here are the facts. Boom, boom, boom. And I framed it going all the way back to 2017. Okay. Thought through the time he died. And then typically I told the jury, well, I didn't tell the jury I thought about this, how I wanted to do it after he dies and he had this massive saddle pulmonary embolism to blocked the flow of blood to both of his lungs.

Typically the story stops there. But in this case, and I don't know if Dego told you about this, the story didn't stop there because the next day, and so I went back and forth, do I want to give this segue into this? Right. You could word it nicely as we are here or just do it factually. So I just did it factually, right. So May 14th, he dies. This is what he dies from. I pause, give it a few minutes. On May 15th, the PCP goes into his medical records for this guy, starts adding information that wasn't there before he died. He went into the preoperative clearance note, added information, and then he went into the 2017 note when you did the coagulation panel and added information into there. So naturally it goes try the lie. So that became a part of the case. I had a electronic medical records expert testify. It was her very first time testifying in court. You've never seen anybody more nervous in your entire life. And it showed, but it played. It played compared to all the hired guns that were coming in through this trial. So they had pretty good response to that saying, Hey, he was just closing out his medical file. He knew his notes were incomplete, and they did say incomplete and then complete, but he needed to close 'em out. I don't think the jury bought it clearly based on the verdict.

Yeah. It's like, well, why wasn't that information there to begin with then?

Right. Well look because he's so busy.

Exactly. Right. Kind of feeds right into that theme too.

Yes, it did.

So is that where the story ends or did you incorporate into, I guess there wasn't a lot of fight over it, but did you incorporate, because I think it's just so fascinating what you guys did to have the testing to confirm that he had this clotting issue from testing on the family.

And I did touch on that in my open, right, because part where you talk about how do we know this guy violated these rules? How do we know he did wrong, et cetera. And that was it. And again, I got to give all credit to my partner on that one who handled this case, Dallas Jr. The workup of it and seeing that and checking into all that, that was huge. But yeah, I touched on that naturally to establish what he did was wrong in 2017 and here's how we know all that, and then what they're going to hear from and then addressing some of the defenses. And it was one of those things where we knew what a handful of the defenses were, but some came up as trial went on that I didn't address.

Who was your first witness?

My PCP expert. And I actually very good question because it was going to be the defendant doctor, and I know there's a lot of people that are like, Hey, start there. And I have before.

Yeah, it goes back. I mean

It does. It does. I didn't want to start with my family and my client. I wanted to save that until a little later because this was such a highly contested liability case with all the defenses, said, Hey, I got to win on this front end before we start talking about how this affected this family. So the deposition wasn't quite as tight as I would want it to be for the PCP, and I didn't do that deposition. I had a lot of gold in there, which worked out well as you kind of hit on it. When the case was really focused on other people, some of the things maybe weren't caught that we were able to use in the trial, but I just knew that it wasn't going to go as smoothly as I wanted to call him first because the first way I laid out my witnesses, he was going to be first. So I changed that week or two before trial, and I called my PCP expert first, which I'm a big believer in alignment. Some of these guys talk about it. I think, Hey, if I tell this story in the beginning, because it's all about our credibility, it needs to align those first couple witnesses,

Order of proof, kind of following in the same order, focus on the defense liability, transition through causation and so forth, if that was the way that you did it.

Yeah. Well, and aligning with supporting what I said in open, those first couple witnesses have to confirm my story, right. My version of the case

Number one in particular. But yeah, then that's why I was curious about your first one. And so were you happy with, because it's, Greg and I tried to trial in March and we had a great expert and I felt really good with Greg's direct of our expert, but then on cross, he got riled up and I wasn't feeling as good about it afterwards. How were you feeling overall after the PCP expert, both direct and cross?

Very good. Very good. He handled himself very, very well. He does litigation work, medical, legal work, but I'm trying to think. He's only testified, I can't remember if it was maybe three times in trial. I believe this was his third time testifying in trial. He was a cool operator. He handled, I mean, he followed me on direct, knew where I was going, did a great job. And then on cross, he stood up to it and he, what kills me, and it probably kills you too, is when you are experts, you love it when the other expert does it, the defense, but when your experts just don't answer the question on cross and just trying to be evasive, he was not that at all. It was wonderful.

That's great.

Yeah, he answered 'em very matter of factly. No, I don't agree with that. Here's why. One sentence,

And that's what you want. You don't want to just answer the question, whatever your answer is better than hemming and hawing and clearly trying to avoid the answering,

Right? I had another expert who was my hospital administration expert because they told you we framed the case, but showing the jury everything, essentially how this healthcare system works, the PCPs role, ortho's role, et cetera. Okay, again, two wrongs, don't make it right. And that was a judgment call, do I bring 'em or not? Because this guy naturally, when he originally wrote his report and there were a couple of reports, I mean, he puts liability on everybody. So that was a risk determining whether we were going to call him or not. But ultimately I felt it was necessary. So he did a very good job, very, very good job. But then on cross, he did kind of what we were just talking about where he gave very evasive, very long-winded, and I talked to him afterwards about it. You can't do that. Can't do that.

And that was the hospital admin expert?

Correct.

Do you call him right after your PCP? Those are your one and two?

Nope. I did a PCP expert, then I did my electronic medical records expert, and I kind of just set the table with each witness to get to the next witness. You've probably seen it. I've seen it when witnesses are redundant, juries hate it. Absolutely hate it. Right? So move the story along. So I did her and then I switched from expert witnesses to lay witnesses. So I like to kind of mix it up back and forth for the jury from expert to lay if I can. And it just depends on the case. And in this case, I was able to do that pretty well.

Was that the family members were the lay witnesses?

I had three other witnesses that were non-family members, and one of them was my client's secretary who actually talked to him the day he died. She was on the phone with him. He was working from home, laid up with his leg in the brace, was doing work with her on the phone when he starts having the pulmonary embolism. So she set the table for those damages and what occurred that day. So she was my next witness after that. I think we ended there that day. And then the next morning I started with the wife because she got off the phone with Tom and called the wife who worked at the local school a mile or two, and ran home and unfortunately witnessed everything that occurred.

So did you end up calling the defendant in your case in chief?

I did not.

Did you play any clips of anything that he had said in Depo or read any of his testimony?

No. Instead of reading it or playing it, I number one saved that for cross-examination over in their case, and a lot of it was played when we got to that point. I wouldn't say a lot, but some of it was, I'd frame the questions like this, and again, three different ways to skin a cat, right? Play that depo clip or because there were a lot of witnesses in this case. I mean, I think they came in around 13, 14, something like that, witness's total for the jury, and it spilled into the second week. Unfortunately. I try to avoid that at all costs. But that was defense counsel when they moved their case, and I'm getting on a tangent here, they spread their witnesses out like day by day. There was no reason this should have went into the second week and the jury was pissed on Friday.

Oh yeah. I had a couple people watching the jury in there from my office, and they were like, Patrick, this is a problem. So again, good. I had that because, got to address this in closing argument. So very suddenly I let them know that the reason we're here today is because of defense counsel. But going back to your question, I would, my witnesses, my experts, you read Dr. Mvars deposition, he testified to X, Y, Z. Do you agree with that? Why not? Whether it was something like that or anticipating what the defense experts are going to say. If somebody comes in here and testifies that this is all the orthopedic surgeon's responsibility and the PCP has no responsibility here, what say you whatever questions like that.

Every med mal seminar, they always have the who thinks you should call the defendant into your case in chief and nod and you get the two camps. But I mean, I just don't know how that mean. The answer is, it depends. I mean it just depends on the type of case. It depends on the fact. It depends on how the testimony came out. It can never just be, it's always this, it's always that. And your case proves that.

No, it can't be. It can't be. And I agree completely. And with this one, it came down to it, like you say, it depends what your other witnesses are. And this PCP was one of the most likable human beings in the world. Extremely, extremely likable. So that was another huge hurdle and concern. So putting him up first and putting his good face on there, and they had all the defenses that I was dealing with in this case, plus some we haven't talked about. I didn't think it was a good call and it's dependent case by case. And I told you some areas in the deposition weren't quite where I wanted them. And that happens with all of us when we take depos. So I felt the best course of action was to cross examinee him. And it actually worked out extremely well because I finished my case, we'll say trial time-wise in a little over two days.

Okay. Tried to put in a quick efficient case. They called the defendant Dr. PCP as their first witness. And he did not come off well at all. He came off, it was shocking. It was shocking because you always got to think about your presentation when you're crossing. People can't be a bully to a little old lady and told you in those dark shit cases that I lost, I learned that lesson the hard way. Me too. Not little old ladies, but I thought I was going to have to be very reserved, very kind to this guy or bring him along. But I just think after three days from picking the jury to when he got, so we started on Monday and Thursday when he gets on the stand to testify and I don't know, but I think sitting there listening to all that testimony that A, he was incompetent and B, he wast credible when it came to these medical records. He got up on the stand and was aggressive. He was aggressive like leaning into the microphone and almost yelling. So naturally I sat back and thought, oh, okay, we're going to change our tact here. This is going to be fun.

And probably it had that benefit that he's seeing all this compelling testimony from the family and he's just having to sit there. And it probably had you called him first, he probably would've come off a lot different than he did by that time. Now he's feeling agitated, maybe worried and concerned and feels like he's got to somehow save the day himself and it comes off poorly.

Yeah, very much. So much so that we ended that day. So that would've been Thursday. That was the end of the testimony for the day. And the judge brought us into chambers and had a little talk and in a very traditional manner let defense counsel know that it didn't go too well for his client. And we talking there been any discussion between the two of you?

Hint, hint. So were you feeling pretty good about the trial throughout? I mean, were there any moments where you're just not feeling so hot about it or getting concerned or were you feeling mostly like it was going Well?

My case in chief went in very cleanly, so I felt very good. But as I told everybody back at the office, let's not get ahead of ourselves, we still have all second half of the case to go. And I know they had very good experts coming in and I thought that he was going to come across the defendant doctor very well, but he didn't, fortunately for us. And I think that definitely helped with the result of the verdict,

Especially being their first witness. It's him coming off poorly is huge for you.

And then again, they just bring in some higher guns to support his testimony, which as I told you, I kind of started crossing a little bit in my opening statement very subtly, Hey, these guys are coming in from Philadelphia. You're going to know who they are when they get here, et cetera, that type of stuff. But no, I would say I felt pretty good all week. Their PCP expert did a very good job. He was a tough one. He was tough. So I felt good about my cross. I felt very good about my cross-examination of the defendant doctor. Very good about that. Did a lot of different things there that we've learned and they all went well. I mean, I started his cross-examination with multiple impeachments and getting to your point, that's when I played the videos. He said, Hey, I didn't say this. And I'm like, okay, let's do this efficiently. As he put it up there, it went through the rigmarole and then he was still trying to run away from

Me what he had previously testified to

What he previously. And this came down to about altering the records. So that was a good portion of the start of my cross-examination, hammering him very hard on that. So the only time was their PCP expert, he did a very good job. They called him an ortho also to put in a prima fascia case against that ortho. And by that time, the trial had run so long, my cross-examination to him was like, five questions, you got to know your audience. I said, I got to get in, get out. I could spend a week with this guy, but the jury's pissed off, they want this case over. So I think I might've asked him five total questions. And one of 'em was certainly to let the jury know that it's the defense's fault that the case is extended to this point in time. It was one of those questions, it was something like, Hey, are you aware that we all agree that we agreed that the ortho in this case messed up? No, I didn't know that. I said, so you drove all the way out here from Philadelphia to tell us something that's stipulated to in this case.

That's awesome.

So there were a couple questions like that.

That's freaking great. I don't know if you've listened to Joe Free's CLE on keeping trial short, and he had that same thing. So you just said all this different stuff and that's not what the issue is. The issue is this. So none of that stuff matters. And then you sit down and you're done. That's great.

Right? Joe Free's excellent, and I like his talks and all of his lectures on speed trial

And just light switch issues, finding the issue simplifying,

But you got to balance that because sometimes it doesn't work. And compare that with some of the stuff Riley talks about is really getting the jurors in that present tense of what's going on. Sometimes you can't do that too quickly

And that's why it's a mix and you're blending whatever the case needs, which you clearly did here. So feeling good throughout. I mean the only maybe semi blip is the pretty solid defense expert, but it sounds like still out in front of that point. So how did you approach closing? And I have to ask you because you made an argument. That's my favorite argument. And Dego said, yours was awesome. So I want to hear about your evil man or the man with the suitcase argument. But overall, tell me what you hit. How did you approach closing and what did you think worked well for you?

Well closing, and it's funny because we talk about all these different methods and strategies you can use. I tend to control myself, right? I get fired up, want to get aggressive, et cetera. I mean, I think that's hardest to do on cross-examination, to pull it back a bit. Fortunately I didn't have to with the PCP until eventually he laid down and then you change your tone and he's just agreeing with me. But in close, it's always one of those things. Do you want to be the one that's angry and emotional about what happened and lead them along or not? And allow them to get angry and emotional about it. And I think that's a very hard balance to do. And in this one, I tried to take that approach. I want them to have the emotion over this, not me. So the approach was going through the themes and the themes kind of changed like we talked about, because he talked about the defense doctor, about how busy he was, about how all his businesses, and he rounds at the hospital rounds, at the nursing homes, all his patients. He has this cryotherapy business on the side, which actually became a good fact for us because he had, I don't know if Dego told you this, after the preoperative clearance, he had our guy walk him down the hall into a cryotherapy chamber. What's one of the first contraindications for doing cryo therapy, history of blood clots, any vascular issues. It's all over the paperwork. So that goes to the incompetence and the selfishness of his business that he wanted this

Guy trying to now, now he's a multi customer of the different businesses.

You got it. You got it. I mean, it's a vasoconstrictor, right? And the jury had a visible reaction when I cross examined the defense doctor on that. They were all like, what? Once I explained what it was through questioning him. But so enclosed kind of did those themes, accountability, selfishness, business over patient success, running through all that and then hitting, Hey, how do we know he did that? Again, trying to work in a little bit of these themes about rushed medicine doctors not taking time with you. And that was part of what happened here every turn. And Leslie, the wife, did a very good job testifying about that, and she came across so credible. So hit that, hit the whole thing is all these books tell us about addressing the defenses responses to them. Whether you're sitting in a chair like Raleigh says, he does, not really my style, but I do like that.

Hey, if someone says this, you tell him this. Did all that with a lot of these defenses. But the other way was through story. So one of the things that came up in trial was my guy drinking, which just, I don't want to say it blindsided me, but they essentially took out a context that one of the notes as we all see them, two beers per day, righteous two beers slash day. So they tried to argue that he was drinking 14 beers a week, this extremely successful, good father, high earner, et cetera, that he was drinking 14 beers a week, therefore he was a bleeding risk. So that's one of the reasons you wouldn't give him an anticoagulant from 2017 to 2019. Okay? So that was a big part of the defense. So told a little story. I have a personal story on that and because it was one of those things where I didn't, he said it once and then it was like, okay, but defense came back to it like three times through the trial.

They came with their expert, they came with my wife, they came with Dr. Malvar, the PCP. And I'm like, you got to be kidding me. So it's one of those things, Hey, am I going to address this right now? Get up and ask Leslie, was your husband an alcoholic? Et cetera. Did he drink two beers a day? Didn't do it. Didn't do it. Save it for clothes, right? Can't fight every fight, which is one of those things. Get in trial on those dog shit cases, because those were mistakes I made when I was young. And all you're doing is you end up just trying the defendant's case. So I saved it for clothes and told a little story. And I knew my jurors and my jurors were very rural, very rural, very conservative, and a couple of 'em were vo-tech people. And I got a good friend who's a vo-tech teacher up in Erie, and his wife died in front of him similar to how Tom died in front of Leslie.

So I told a story about that and it tied into damages number one. But then I made the comment about how, well, number one, we need more good men like that, Mr. Gon, and this guy's name's Kaul, one of my best friends, Mr. Kaul, not less said, Hey, every time I go up to Erie, I said, me and Mr. Kaul meet after work and we have a couple beers. I go, let's not hold that against Tom and Mr. Kaul. They were like four jurors just nodding their head like you are right now. So different things like that. And then yes, as Dego said, when I got to damages, I think you call it evil man, I call it the Man in black. And that worked out nicely, I

Think. How did you do yours? Tell us how you set it up.

I set it up at the preoperative clearance visit because the testimony was that Tom went right from work and Leslie came home after school because she worked at the local school and then she was meeting Tom over there. So as she steps out of the front door, there's a man in black with three duffel bags, not two. He had Leslie Max and Abby. These are three separate wrongful death cases, not one. So when I got to that point after doing the Man in Black Story, you got to address each of these relationships and assess them and put a value on them each individually to come to your verdict. So that's how I set it up. That's how I framed it.

So you do, we have this money for you, but here's essentially what's going to happen by you getting this money. And you tell them about they lose their dad and their husband and so forth. And then do you then say they pose in the question?

Yep. Just like Riley says. So I did something like that throughout the stages of telling it in the whole, Hey, after this nightmare, right, going through this nightmare, but it's okay because I got these bags of money for you. Will you take it post it like that? Naturally? She says no. And the man in black sits there and says, you're not getting this. This is done. This happened

To your point at the beginning of we read and we learn all these different techniques and arguments and stuff from other amazing trial lawyers, but then you kind of have to make it your own and internalize it. And I think for me, why I like that argument so much is that at the end of the day, what it really is about is about choice and autonomy. And it's that I think it helps the jury understand money for the loss of what happened. You know what I mean? Because it's like, well, if you're not given the choice, and we all know how important choice is to us in United States and as in humanity, that if you're deprived that choice, well then it makes sense that the second best thing would be the money under the circumstances. And there's just something about that I think is really powerful.

It is. I agree with you. And I think two things that you do when you do that that I try to emphasize is that when you talk about choice, is letting the jury know that they didn't have a choice. This was thrust into their life. You got it. This was thrust into their life, A on the front side and then B, on the backside. What's the fair market value? But I do believe, and unfortunately here in the commonwealth of Pennsylvania, we don't get to do voir dire like they do in other states and have those open conversations. But you've got to talk about the money. I'm a firm believer in that. And again, that was something I've learned over time in reading and doing multiple trials. I talk about it when I'm picking the jury. Do you talk about it when you pick the jury?

Well, I mean, it really depends. I mean, look, every judge, it seems, let alone county has a different way of conducting jury selection. And I will tell you, Erie is the way we read about in the books. It's 60 people in a room. No judge, talk as long as you want to. All of 'em, Hey, Mrs. Jones said this. Mr. Smith, what do you think about what Mr. Jones said? Hey Bill, back there. I saw you. So I think in there, in the trial I tried recently, I did talk about money. This case is about a very large amount of money that's being claimed for lost income related to a slip and fall. We're talking millions of dollars in gentlemen. What do people think about that? Does anybody have a problem with that?

Right? What do you think about lawsuits for slip and falls? What do you think about lawsuits for millions of dollars? Sure. Now think about you doing that now with all the experience you have and me being three months with my law license and the judge Don leave you walking out of the courtroom and saying, Hey, good luck. Go pick a jury. I'm sitting there with defense counseling.

What am I supposed to do? Right? That case. How do you feel about awarding $150?

I'll never forget the look of some of those prospective jurors, the looks on their face when I was picking the jury going through that process

Just to tie up the man in the black suit as you put it. The last. I think for me, I do think it's a really, really effective and it's fun to give. It's fun. You know what I mean? From

To get creative with

It and the performative component. As long as you and Greg, my partner can confirm that there have been times I've gotten way too carried away with it. So I dial it back. I think that's the better way to do it now. But I think a really kind of powerful ending to it is because it has to do with choice. And you point out that your clients never had a choice, but then you can pivot to the jury and say, but you do have a choice. And now you're kind of passing the baton, the ability to do stuff and agency to make a difference and a change to them. So I think for a lot of different reasons, it worked so well. My ears perked up when Dego told me. You did a great one. So

I try to bore the listeners, but we can talk more about it if you want another time. But I also, when you say the choice that the jury has the choice, they have the power get to do something that many people go through their entire lives and never get to do. I always try to make that part of my closing, whether it's on the front end of it. And I believe here in this one, I did it on the front end or on the back end. But going back to our conversation about, fortunately up in Erie County, how you get to do that open voir dire, Mercer County, you can't, Lawrence County, you can't. Allegheny Butler, you can't. I just picked a jury in Butler County a couple months ago, case ended up settling to get second day of trial. But nevertheless, you don't get to. But I make sure that the judge asks those questions and I'll fight for those questions. You just have to, and then ask individual follow up if I can on it as much as possible. But then in my open, I have kind of put together over the years a little something that I talk about in my open before I sit down, after I kind of go through everything about the American civil justice system.

Can you share with me how you say it?

Well, it's, I'm not going to remember verbatim, right? But it talks about, and essentially I think Mitnick does something like this, something in there essentially about how this lawsuit's about money. We talked about it in voir dire. You need to understand that and do the ball stuff about because of that. I got to show you this, I got to show you that. But trying to think of how I worded, it's something like, Hey, the gons would love to have Tom back, and if you guys could do that, this is what the case would be about. But you can't, just like anybody to get hurts gets hurt in a car crash case. They want their health back, but you can't do that. So the next best thing is, and it's not perfect ladies and gentlemen, it's not perfect at all, but the American civil justice system is giving compensation for what was taken from the family. That's it. It's not putting 'em ahead, it's not getting 'em in advance. It's not lottery, et cetera. It is valuing what was taken from them, and that's your job and appraising that, et cetera. Something like that. And I'll tie in that we don't do the biblical eye for eye justice. That's barbaric, ladies and gentlemen. We don't do that in this country. That's how I started. That was the segue.

You got it. And what we do in this country, the American civil justice system. So you got to make 'em comfortable and with it that hey, and you say it's like, Hey, you're allowed to do this because a lot of people don't like it.

Since you are obviously such a student and latch onto the same just great phraseology as and arguments that I do, I'm like, damn, how the hell do they come up with? Some of them are so good. You know what I mean? And I'm like, will I ever one day come up with something of my own? It's like my own creative thing.

Yeah, I love that. Because the comparison of we don't turn a blind eye, but we're not barbaric either. I mean, that's great. So right here's the middle, giving money for what was taken, and again, the phraseology of what was taken. Right. And God, who's it? Mike Leman, who's big on it, right? Familiar with Mike Leman. Words evoke emotions when you say, Hey, I lost my cell phone versus someone took my cell phone. Totally different response that the audience has, right? They lost Tom. They say that once during trial. Tom was taken from them every time it came up

Way different. Yeah. That's great. And speaking of taking, I've taken up a crap ton of your time already, but I want to wrap by, so was it a long deliberation? And then tell me how the verdict broke out.

It was maybe two hours, and I think it might've been shorter, but it was over lunch. You know how it goes. They get lunch and I'm like, man, if it comes back in one hour, that means it's a defense verdict telling my family. So it took about two hours and came back. And you know how it goes when you're sitting there. You're tight as could be. And it was first one huge fight. Was he negligent? Yes. Then the next one was even bigger causation, because I've been No cause before on cases. So when they mark yes, the causation, it's like, oh, all right.

Yeah, we're getting something.

No number three.

That's right. You have a lot of hurdles.

Was Tom right? A lot of hurdles. Was Tom negligent? No.

Oh, wow. Yeah. Zero. Zero. That's amazing.

Yeah. So at that point you're like, all right, great.

Did they have to decide on the slip if the ortho was negligent and factor his comparative in it?

No, they did, but that was decided for them.

Okay. So that part was stipulated ortho was,

That was stipulated, and then they just had to do the apportionment and it came back 60, 40, 60 for the ortho, 40 for the PCP.

Okay, gotcha.

Yeah.

And then how did the verdict break out?

The total verdict was 3.4 and change about 3.5.

Was there a wrongful death and a survival component to it?

There was, and one of the things I did in my close was with our economic, because we had the go's old partner. Hanock was my economist. He did a great job, by the way. I'll give him that plug. He did a very good job and had a very good rapport with the, I try to keep those guys as short as possible, right? I'm sure you do too. But he did an excellent job. I told the jury, I said, right, because you got the line for what he would've given to the family and wrongful death, and then what he would've earned over there and survival. Just do the easy thing, put it all in one line. And I said, but I do ask you give me the benefit of the doubt that they didn't give Tom and put it on the Wrongful Death Act. That's what they did. They put the total amount on the Wrongful Death Act.

So with that verdict, when there's no comparative on Tom, does Spencer apply joint several, or at least? Is that the argument you can make?

Yep.

Yeah, that's what I would've figured. That's amazing. Well, awesome. I'm sure the family obviously a horrible tragedy, but all Things Considered had to be thrilled with how that turned out and amazing lawyering crazy of a needle to thread, as I've heard in a while, as Matt had told me it was. So it's really impressive outcome. Great luring. I know Dallas Jr. Had a ton to do with it as well, but you obviously tried a hell of a case and kudos to you, and kudos to all the studying. I can tell you've put in over the years to do what you do.

Right, Lu, you know how it goes. It's team efforts. There's a lot of people back at the office that make something like this happen. I'm sure it's the same at your office,

And then you're the lucky one that gets to try it and get to do all this stuff afterwards. So Patrick, it was really great to talk with you. Patrick Sullivan from Dallas Hartman's office kicking Butt. I'm sure I'm going to hear a bunch more verdicts from you in the coming years, if not sooner, and I really appreciate you doing this today and sharing really a ton of great knowledge with everybody about how you did this, and just a lot of stuff that came together that I thought was really cool and resonated with me. So thanks so much for being here today, man.

Yeah, thanks for having me. I appreciate it, Brendan. Have a good one.

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