A "completely defensible" gallbladder case the defense refused to settle became the second-largest verdict in Jefferson County in 222 years. Returning guest Victor Pribanic explains how he won $1.5 million in all non-economic damages for Sandra Whisman, a 47-year-old whose surgeon transected her common hepatic duct. With host Brendan Lupetin, Pribanic breaks down the tools behind the win: one voir dire question that surfaced jurors' expectations of a surgeon, custom surgical animations tied to the medical record, an opening that teaches rather than argues, a cross that trapped the defense expert, and a "man in black" closing on damages. Tune in for a masterclass in surgical malpractice trial strategy, from voir dire to verdict.

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1. The defense called this gallbladder case "completely defensible" and made no offer; Pribanic took it to trial in Jefferson County, where defendants were counting on the local trend of low verdicts.
2. Dr. Denny Tang, the surgeon, insisted he had only cut the cystic duct and blamed "aberrant anatomy" — even though the common hepatic duct was transected and the common bile duct clipped.
3. One voir dire question — what do you expect of your surgeon? — drew out a juror's "magical answer" that Pribanic turned into a resonating theme for the whole case.
4. Custom courtroom animations, edited 15 times and tied to the medical record, showed jurors the “critical view of safety” and exactly how the surgery should have been done.
5. Following David Ball’s approach, Pribanic structured an opening focused on teaching rather than arguing and put his "cross-proof" client on the stand as the very first witness.
6. On cross, Pribanic had Dr. Tang write three undisputed facts in his own hand — including dissecting at least an inch of cystic duct — making the surgeon's story impossible.
7. The defense expert, sequestered and unaware of Dr. Tang's testimony, contradicted the defendant on the stand; the jury returned $1.5 million, 11–1 in favor of the plaintiff.

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The question was, would you please explain to us what your expectation would be of your surgeon before you're about to undergo an operation? One man gave us the magical answer and that was our case right there.

Welcome to Just Verdicts with your host, Brendan Lupetin, a podcast dedicated to the pursuit of JustVerdicts 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 powered by LawPods.

All right. Welcome back to JustVerdicts and joining me again today for a second time on the show is attorney Victor Pribanic. Vic, thanks for being here, man.

You bet, Brendan. Thank you.

And as I was saying, just before we jumped on here, I'm particularly interested in hearing how you put off this verdict because not to spoil surprise everybody, it's a gallbladder case or a cholecystectomy case, which is not always the sexiest of surgeries that would get a jury to care. And so the trial lawyer me is curious how you got a jury to care and that's a very rural jury that you managed to pull this off. So why don't you tell us a little bit about backstory of this case. It's Whisman versus Denny Tang et al. Yeah, tell us about what happened to your client and the outcome from a medical standpoint and then why you determined that there was a case here.

Okay. Sandra was 47 years old at the time of her gallbladder surgery, lives in New Bethlehem, Pennsylvania in a little rundown house on the main street with her stepdaughter. One room does known a car kind of family was such that we couldn't really use any witnesses but her. Two witnesses in our case, our expert and our client, Sandra Whisman. In any event, she has biliary colic or gallbladder's acting up in late 2018, 2019. She sees Dr. Tang. He does a HIDA scan and says your gallbladder's not functioning properly. Schedules her for surgery at Penn Highlands Brookville during the operation. It's a laparoscopic procedure. She has a lot of pain following it. The next day she has a lot of pain. She has symptoms that should have alerted him there's something amiss from the outset and long and short of it, a couple of weeks go by until finally she gets back to Brookville Hospital.

They do a CT scan and they find a lot of fluid in her abdomen ascites and they say, "Oh, this is concerning for a biliary leak." Ship her over to DuBois Hospital where they do one of those ERCP X-ray procedures where they inject dye into the ducts leading from the liver down into the duodenum. And sure enough, her common bile duct is clipped and there's an endoloop around the end of it coming out of the duodenum and it's pretty clear that there's bad problem. Over at DuBois, they remove four and a half liters of bile from our belly, which is a lot. I always say it's two of those big Pepsi bottles,

Soda bottles. Yeah.

And of course explain to the jurors how caustic that stuff is. But in any event, she's shipped down to Presby, light flighted down to Presby because she's in trouble by then and sees Dr. Lee down there, great guy who did a great job for her. And he drained it, figured out what was going on and did another test where they tried to probe through the clips and the endolope to see if maybe it was just clipped and not actually transected. And then they go above the clip area to see if they could stick the catheter into the duct up above and they couldn't find anything. So they're pretty sure it's cut. Put a drain in, send her to a nursing home to recover for about six weeks following that, or actually home with the drain. And then she's scheduled for a surgery about six weeks later.

The thought being that all that bowel in there has messed everything up so bad and inflamed everything so bad it would be reckless to do surgery before that. So she comes back in and has a Roux-en-Y hepaticojejunostomy where they have to reroute her entire biliary system and effect create a new biliary system, which is a big operation as you know. She then goes to a nursing home for six weeks, even though she's only 47, gets out of there, heels up pretty good. But then by that autumn, she starts to see a bump in her belly at the incision site. Saundra was heavy at the time this happened. I think she weighed 268 at the time of the operation. So she had some body habitus issues that can promote postoperative problems with hernias. So she develops a big, huge hernia that looked like somebody's head sticking out of her belly eventually.

So it was pretty bad. It had to be fixed, obviously. Because she's overweight, they won't do it until she loses so much weight. This is 2019 now and it took her five whole years to get down to the correct body mass index to have her hernia repaired done again by Dr. Lee and a plastic surgeon. That was done in late 2024, good result, big incision, cut her belly button out, which is really of no moment, but she thinks it's kind of odd. And that was the long and short of no work loss. We didn't put in any medical expenses. And when Sherie Cannin and I went up to meet her at her home in New Bethlehem the first time we went up, knocked on the door and said, "Can we come in and talk?" We always like to spend a day or two with our clients in their homes, see what's on the wall, see what they do.

Just really important, I think. And she said, "You're not allowed in. My stepdaughter won't let me bring anybody in the house." So we had to go to the little park in New Bethlehem. Thankfully it wasn't wintertime and meet with her. But I asked her, I said, "Would you mind showing me your scar?" And she pulled her sweater up and showed this big incision and very nice job, nice, clean scar looks really good. She's lost a lot of weight, obviously, but she had to. And she said something that resonated with me. She said, "This is like a badge of honor for me because it's the end of my journey here and the start of a new one." And I tucked that away for future reference. And then Sherie went back up and spent another day with her. Sherie presented her at trial. She's a lot softer and nicer and kinder than I am, I think.

She did a great job with Saundra. But anyhow, that's the case and no offer from the defense. They said, "Absolutely not. This case is completely defensible." Dr. Tang roundly denied cutting the wrong duct during the operation. I said, "Look, the cystic duct, that's all there is to it. " And stuck with that kind of story. So now we're queued up for trial in Jefferson County.

Beautiful. Now let me take you on a little side trip, something you said. So there's always sort of like attorney lore out there and you go to your different pretrial conferences and judges will regal you with war stories from the bench. There's one that I've heard many times and I think it's attributable to you and your leader of COLA reference got me thinking about it. But I've heard a story where there was a lawyer, I think it was you and was trying to demonstrate patient who had exanguinated and the amount of blood that they lost and poured out into a bowl, whether it was soda or was read something and then one of the jurors passed out.

Yes, that was indeed me.

Okay.

It was a case involving a poor woman who had a mishap during an obstetrical operation down at McGee Hospital and it was in Judge McCarthy's courtroom and his great tipstab, Mike, I remembered him saying, he told me afterwards, he told the jurors, he said, "I hope none of you guys have weak stomachs or anything because this lawyer's been in here before and this is a medical malpractice case and they can get pretty dramatic and pretty graphic." There was a big Greek boy on the jury who said to Mike, he told me later, he said, "All that stuff doesn't bother me at all. " So sure enough, opening statement comes and I'm describing how this poor woman is leading to death with this cancer surgeon racing down Route 79 to try and save her life. And by the time he got there, I did just what I did in this case with the bile.

I just held my hands up. By the time the surgeon got there, she'd lost two of those big giant Pepsi bottles full of blood and bam. This poor boy went right out of the chair, stone cold, completely out. His glasses went flying up and the paramedics came and defense is screaming for a mistrial and whatnot, of course. They have them come to me and they said, "Were you taking drugs?" "No. ""Are you diabetic?" "No. "He goes," No. "He's laying back in his juror chair. He goes," No, it was the remarks.

"Amazing.

Well, it's funny. They settled the case after that.

Yeah. How could you not with something so dramatic, but all right, great. Now that I know definitively that was in fact your trial story, I can permanently lodge that away and the questions have been answered. So back to this case, okay and just anatomically you've got the gallbladder and it's always drawn green. I don't think it's actually green necessarily when they get in there. I thought it's always kind of blue.

Blue, green?

Yeah. So the pictures, and I don't know if that's just to show the distinction with the liver that's always brown, but it's always a green gallbladder. So the gallbladder connects to the biliary system by the cystic duct and that's essentially where the bile exits into the common bile duct. And so to remove this gallbladder out there when the person develops cholecystitis for one reason or another, the doctor has to clip and cut that tube, the cystic duct running from the gallbladder to the common bile duct. Now sounds simple and we're going to take a look at a really cool demonstrative that you had created for this case, which I think is so cool. But the reality is, and I wanted to guess at a couple of the defenses is most of the times when you look at the actual surgeries, it's somewhat messy in there.

There's all kinds of stuff all over kind of covering the gallbladder and covering the cystic duct and the bile duct and everything. So typically that becomes part of the defense or they're scarring or they always like to go with the aberrant anatomy. They had unusual anatomy that created an illusion of where the cystic duct was versus the bile duct. But I think it's interesting here that when you knew definitively that the common bile duct had been cut ... Oh wait, was it the common bile duct or was it the common hepatic duct?

Well, the common hepatic duct was cut and the common bile duct was clipped. At least it appeared to be the common bile duct was clipped and had an endo loop around. And I'll explain that when we get to the trial pace real.

Yeah. But I'm interested in, I guess it kind of sets up a good credibility battle when the surgeon refuses to accept that they cut something other than the cystic duct when you know definitively that they did. So not to spoil things, but I mean, what was his rationale for how that could have happened?

He said aberrant anatomy at the outset before the cross-examination was through, which I'll explain in a moment, but ultimately that, and his expert was prepared to say that she had the common variant of an absent or so short cystic duct that it was so anomalous that it tricked the doctor into cutting the wrong duct.

Right. And I think one of the sort of interesting parts about it is I haven't had a chole case in a while, but I feel like it's something like 33 to 40% of people have what they would consider aberrant anatomy. So aberrant anatomy is almost normal anatomy. It's to be expected that it's not going to just look like the photographs or the photos we see on Google images.

Not by a long shot.

On its face, 47 years old is a young person. So that's a significant damages case, but why was the defense so adamant on not offering to settle this case? Was it the county? Was it that your client was overweight? Was it just nobody ever settles gallbladder cases? What was going on?

I don't really know for sure, but I suspect that it was the venue as Judge John Foradora, a great judge up there said after the verdict, he said, "Oh my goodness, this is the second largest verdict. We've had 222 years in this county." So I think they were counting on the trend up there for verdicts being low, even if you lose. So it was like a no risk proposition for them. Our client was overweight. They look askance at people like her, they always do. And our client was not a country club person. She was kind of down and out and had troubles, wonderful woman, but life had not been as kind to her as it's been to some others.

So that overall presentation the defense is just banking on that this is going to just be another defense verdict and we'll let it roll. So let's talk about, because I think that this ... I mean, do you want to get into this image at this point?

One second. I want to tell you a couple of things that I think are important for you and all of our colleagues that do surgical cases. Judge Foradora allowed us to submit some voir dire questions. He did the usual routine things about the common questions and then we were permitted to get up, stand in front of the whole panel in the courtroom and ask our questions. One of the questions that I used, and I can thank Alicia Campbell and my brother Ernest for this, he was talking with her about another case at the time and she volunteered this, but she experienced to be a great question in surgical cases for voir dire. The question was, "Would you please explain to us what your expectation would be of your surgeon before you're about to undergo an operation?" So I asked that question, one fell in the back says, "I'd want him to get in there, cut me open, get in there, fix me and get out.

" A couple of other people said various things, but one man gave us the magical answer. He was in the back, didn't end up getting on the jury, but exposing the whole panel to it was just as good. He said, "I would want them to meticulously follow the exact procedure that's required to do the operation, do the dissection, adhere to the standards for going that operation from the start to the finish." And that was our case right there. And all the jurors heard that and it was wonderful, one of those things where I sat down and I thought, "Boy, I bet I could pick any 12 of these people and this is going to go great for us."

Could you have any group discussion like, "Hey, Mr. Smith, thanks for sharing that. Does anybody else feel that way or feel differently about that? "

Yeah, I mean, I bandied that question back and forth all over the place, of course, once I heard it, I asked the fellow at the back who said they wanted to cut me open, fix me up and stitch me up. I said, "Do you agree that they should do it with the procedures like Mr. So- and-so over here said?" He said, "Oh, absolutely." So it was really, really good that one question and you could use it in any surgical case and it does the important thing. It gets people talking about the facts in your case that you're going to have to deal with.

Yeah. And I was just having this conversation with a buddy Andy of mine about, you hear through the different CLEs and seminars and books about different approaches to voir dire. And some people talk about, they try to find out people's passions and what I sort of perceive to be these irrelevant issues. And then there's a different school of thought talking about issue specific voir dire and I just think that that's so much more sensical. And if you frame it the right way like you did, you really can get some great gold that then people start talking about. And then you can almost work that directly into your case, your opening statement, you're framing around what everybody's thinking.

Absolutely. It becomes a resonating theme for the case. It just worked great. Judge Foradora, I said was a great, great judge. He shared with us his philosophy about what a trial judge should be during a trial and he said they should be like a stump, i.e., Not interfere with the lawyers. And he lived that credo during the trial. So we picked the jury good opening, I think a really good opening where we've taken stills from the video we're about to see and explain the anatomy. I think like you probably are as well, I think I'm pretty good at teaching anatomy and medicine to jurors in opening statements. And I always feel comfortable doing it, but I am daunted, so daunted by endoscopic and laparoscopic operations because it's not simple. It's complicated. There's all this stuff going on and to try to explain that to a jury with still images really, really hard.

I decided very early on to use animations in this case and relying on that Commonwealth versus Surge case, I always say to Brother Ernest, the best evidence cases for us are always criminal cases because they bend over backwards to help prosecutors and it redounds to our benefit. But in search that the court basically said that these animations are nothing more than moving pictures that could have been drawn by an expert on a board or whatever during trial. And you pitched that to even the most obtuse judge, not that John Ford door is far from that. He's a brilliant guy. They get the picture so to speak and that's how we portrayed that. So I with my usual reckless abandon when it comes to our clients spend a lot of money and got a couple of animations, one to show how it should be done. And then we did a second that I haven't sent to you that was linked to certain facts that we could prove conclusively from the medical record about how it was done wrong and why it was done wrong by the defendant.

The judge would not let us play the narrative to that. And I agree he did that right away because they just thought it would work better, but he'd let us play the narrative, which we're not going to hear in the first video based on the representation that they were the expert's words put into this computer voice that narrates the movie and it sounds pretty damned authoritative whenever you watch that video and you hear that voice like you're hearing David Attenborough who had just turned 100 narrate this movie. So I thought it was going to work great. It didn't work great. It cost a good bit of money. But as my brothers always tell me, I'm utterly reckless when it comes to trying to do the right thing for our clients, I don't care what it costs if we can help.

I assume you had to rely on that case, the Commonwealth case, because you've got this great demonstrative look at it in a minute. The defense is going to jump up and down objecting that this doesn't accurately portray things. It's X, Y, and Z, right? Why you shouldn't be able to show this?

They did. And it's imparative, of course, that you filed a motion in limine in advance of the trial to explain to the court and the defense that, "Look, we're going to use this video Here's the link to it. You watch it and if you have any beef with it, you better present it. " We had argument well in advance of trial and it said, "Oh, no, no, that's fine. That's going to come in. " So we knew going into it, I was not presenting with my heart and my throat worrying about objections and whatnot.

From a foundational perspective, I mean, I assume you had to have your expert to some extent work with the visual artist that created the demonstrative.

Oh yeah, he was intricately involved with the whole thing from start to finish. We edited it 15 times. I kept going through it looking at the operative report, especially the version that the defendant did wrong and I said, "We can't put anything in here that's not linked to a medical record, an image, an ERCP, CAT scan, whatever that you could point to and say, this is why this is here." The defendant used three trocars instead of four, which is done, but it could complicate these.

Hey, you're impassioned, right? So on the imaging, on this demonstrative, there was a narrating voice and were you indicating that the narration was essentially verbatim of your expert narrating what we see on the demonstrative?

Yes, exactly. So it was certainly less objectionable, but I liked it because it has the patina of authority when they hear not our expert's voice but some TV voice talking about all these things they're going to see.

So let's take a look at the video here. I will start playing it and then why don't you sort of narrate what we're looking at for people that are listening and then sort of how this unfolds.

So this is a overview of the anatomy liver up above the green gallbladder, blue-green gallbladder and the omentum, that kind of fatty stuff laying up against the abdominal wall. And these are trocars going in four trocars. We had one on the courtroom for the jurors to feel and see and touch. These are called graspers that they go in and they grab the organs with after they blow the belly up with the CO2. Hard concept to talk about without this video and that's grasper A, grasper B. And we're going to se that these graspers are used to do two things, lift the liver up in a moment. Grasper A is used to lift the liver and the gallbladder and grasper B is used to pull the tissue to the left so the dissection can occur with another of the trocars. That is the hepatic triangle or the hetocystic triangle that's called various things and that depicts the anatomy.

That shows the clips going on and the correct duct and correct artery being cut and the gallbladder removed from the liver bed with electrocautery valve duct remains intact, everybody's happy and the patient is healthy. Now the video's going to go on that says that that's not what's supposed to happen right there, that would be the common hepatic duct above the takeoff of the cystic. Here's the explanation of how the surgeon can avoid doing that every time critical view of safety.

Great term for plaintiff trial lawyers.

Absolutely. Ensures proper identification of the ducts before cutting. We'll see grasper A there. Grasper B is going to come in and grab the ... Well, that's the illustration of the target area, if you will. Grasper B pulls it to the left and this is all covered with fat as we see here, tissue. So you have to be very careful and meticulously dissect enough of the anatomy to clear the hepatocystic triangle so you can see what the cystic duct is and what the cystic artery is. That is a Maryland dissector coming in on the right that's used to clear the tissue. Now we see the artery in the duct clearly but cover with fat as they would be. You dissect the lower third of the gallbladder with electrocautery, which we see coming in here. So you can pull it even further to the left to make 100% sure that before you cut anything, there's only two structures going into the gallbladder, the cystic duct and the cystic artery.

And this video's great just for really making it so clear what's supposed to happen.

Yeah. I thought it was tremendous and a huge help.

So now we've identified the two critical structures that are pulled out there.

Right. And now we're going to see that you can safely clip the cystic duct with usually two clips on the lower end of one with the gallbladder that's going to be removed. Then you can cut them and you remove the gallbladder from the liver bed with electrocautery typically that's gone now. And we have an intact common hepatic duct, an intact common bowel duct below the takeoff of the cystic duct and the surgeon's happy and the patient is healthy and that's how it should go and that's how it should go every time in these operations.

Very cool. So you have your expert work with the animator. As an aside, was it a well-known group you worked with? How did you find this animator? Because I thought that's a really, really good demonstrative.

He is a solo guy. I think he's from Indiana and I asked our expert, Jimmy Franklin from Georgia, great guy, whether he'd worked with any animators previously. He gave us a couple and I talked to them and I interviewed this gentleman and actually saw some examples of his prior work and we went to work. Like I said, I think that cost some money, but so what? And then we had the second video where we illustrated what was done wrong, really took a lot of work to get where I was comfortable that I could defeat any kind of objection to not fairly and accurately depicting blah, blah, blah, usual things. Absolutely. Yeah. No narration in the second one, which I was squawking about that. I was thinking to myself, it's probably better if I let the doctor talk about it because there's more wiggle room there for him to get things accurate without being impeached.

And then who was controlling the animation if you wanted to stop it to point something out?

We had our great, great trial consultant, Matt Diaddigo that I've worked with many, many years. He's helped me through, I don't know how many opening statement PowerPoints and closing argument PowerPoints. And Matt is Johnny on the spot and he's as fluid and intuitive and smart as anybody I've ever met in the courtroom. And he did a really, really great job. His comment on the outcome of this case, by the way, that he thought it was a most satisfying result after watching the whole trial.

Awesome. Yeah, that's great. How did you, before we get into some of the testimony, specifically some of the turning points and the cross of the surgeon, how did you format your opening? Did you start by teaching about this the right way to do it or?

I'm an absolute, absolute devotee of the notion, I think first advanced by David Ball, probably others, but that you can't argue early in an opening. You have to teach the jurors, look, here's the anatomy, here's how it should be done. Here's the critical view of safety. So they know all that. You never say the defendant did the damn thing wrong until you get to the records and then meticulously go through the records and extract the things that are going to make it apparent to them that this guy really messed up. And if they come to that conclusion themselves, the light bulb goes off in their own minds, not some untrustworthy, slimy plaintiff's lawyer telling them the doctor did it wrong, way, way, way more powerful. So that's how I structured this case and I do in virtually every medical case because I just think it makes neuroscientific sense, it makes persuasive sense and I love teaching medicine to jurors.

It's kind of fun to teach them all about this stuff. And the great thing about having the video, I had stills that we could pull from the video all along and teach the whole thing beautifully and then whenever the video was shown, it really reinforced that. I got a lot of objections about, I got a pretrial motion from the defense that I should be prohibited from using medical records, images, anything in the opening statement. And the defense lawyer from near Philadelphia or whatever said, "I've been practicing for 38 years and I have never lost one of these motions." Well, he lost this one.

Those are first time for everything, right?

Yeah. Yeah.

Did you, in opening, did you show stills of the video that shows the wrong way or what the doctor did as well?

Yeah, absolutely. Yeah.

Yeah, that would make sense. Important to show right way, wrong way

And the outcome.

So how did you structure your order of proof? Who did you call first? How did that all play out? Did the question every med mal lawyer debates, did you call the defendant in your case in chief or did you wait to cross them in their case?

Well, I didn't call them. No, absolutely did not. I called defendants only if I'm in a desperate strait or I'm sure I could kill them in a question or two. Otherwise, me, it's a needless risk, but that's my feeling. Sometimes I think the trial lawyer ego gets in the way of efficiency. They think, "Well, I'm going to call that defense doctor up there and destroy him and I'm going to win my case with a first witness." And sure, that can happen. Sometimes you know it's going to happen. And if that's the case, you could do it. But otherwise I think if you have a good solid case, it's best avoided because it can be calamitous probably knock on wood. I haven't had that experience. But anyhow, here's how it went. Two witnesses for the defense, two witnesses for the plaintiff,

Two total Witnesses?

Wow, that's right.

Wow. Okay. Love it. Streamline. This is good.

I love quick trials. They're a lot less painful to us and I think the jurors appreciate it.

Totally agree.

They give you an idea of the tenor of this trial, Brendan, as a brother who struggles in the courtroom. I'm doing my opening statement. I'm clicking along feeling really great, thinking this is a damn good opening statement. I'm going to crush these guys. And I'm about 35 minutes into it and I hear the voice of doom behind me. Your Honor, objection. I'm like, "What could I have done?" I've had so many objections so many times in openings and closings over the years, Brendan. I almost relish them. I don't care. It doesn't phase me in the least, but I thought I was mystified. He said, "Mr. Probanik has been speaking for 35 minutes and the local rules of procedure prohibit a lawyer from using more than 30 minutes during an opening statement in a civil case." And I'm like, "Well, that is novel." And Judge Foradora just kind of laughed it off.

He said, "No, no, no. He's going to finish." And I hear him giving a side long glance to the clerk and he says, "Didn't I take that off the website?" Apparently it was some old rule that this guy thought he was going to torpedo me with in the middle of an opening statement. So that sets the tone for the trial.

Yeah, absolutely.

Our first witness was our client.

Okay.

Again, I don't know who I have to thank for this, but David Ball or somebody that I believe that if you can get a witness on the stand that's pretty much cross proof as our client was here, who can tell the whole story of the case as the first witness that that's what you should do. She got up there and Sherry presented her testimony, Sherie Cannin, did a tremendous job with her and you could tell that the jurors was having an impact on the jurors and Sherry and I were talking about her testimony beforehand. And I said, "You make sure at the end you have her pull her sweater up and show those jurors that scar." And Sherry's kind of a proper person, not maybe as say reckless or as bold as I could be in the courtroom. And she said, "Do you think that's okay to do in the court?" I said, "Absolutely." I said, "You do that.

It's going to work fine." She said, "Okay." And we asked our client if that was okay. And she stood up in the witness stand and lifted her sweater all the way up beneath her breast. And you could see this big scar here and you could see a couple of the jurors starting to weep a little bit and Saundra Whisman looked at them proudly and said exactly what she said in the park that day. "This is a badge of honor to me because it means all this is behind me and the rest of my story begins now.

"That's great.

Tremendous. And then our next witness the next morning was Dr. Franklin, our expert. This is a tale for the horrors of trial work. So poor Dr. Franklin's on vacation in Florida, he agrees to fly up in person to Brookville or to Pittsburgh, drive to Brookville and testify live because he was committed to doing the right thing. He's been an expert for a while, but has never testified in a case before li. So he was great guy, easy to work with, unbelievably cooperative, which you know means the world when we're trying to get one of these cases put together. He's coming up, I guess he's supposed to fly in Monday night and testify Tuesday morning. So the flights all rains and so forth He's supposed to be in Atlanta for a connection by 4:00 or whatever. I get a text from him in the courtroom, 3:00.

I'm still on the runway. The plane has a broken engine.

Uh-oh. Uh-oh is right. I'm a nervous wreck, of course. I finally get a call from 11 o'clock at night. Just got into Atlanta. Missed the connection. Might be able to get a flight in the morning, might be able to get to court. It's a mess. I got two witnesses. I got no filler. I can't swap anybody out. So I have to get an airplane to fly down to Georgia to pick Dr. Franklin up first thing in the morning, fly him into Dubois, have a lawyer friend of mine from Dubois, pick him up at the airport and get him to the courtroom. He arrives to the courtroom 10 o'clock in the morning just as we're finishing up with Saunder Whispen or the video or whatever it was and we're off to the races. But I had a horrible, horrible, horrible ... I felt like Paul Newman in the verdict friend.

I'm like, " Holy hell, this whole thing is going to fall apart.

"Unreal.

Yeah.

I mean, just logistically, how did you get a plane down to Georgia to get him?

I just hired an airplane from a leasing service. I said," I need somebody picked up at 5:30 AM first thing at minute. It was not easy, but it got done. "What are you going to do? Beg for mercy?

I mean, Vic, a lot of people wouldn't do that. So hats off to you, but he gets up there crazy night. You're on edge with the scheduling stuff, which I think that's the worst part of trial is scheduling and worrying about are people going to show up on time and all this kind of stuff.

I knew you would empathize with the horror of that situation. Well,

I was just talking with some attorneys yesterday, Dave Quass, and they had a case where they had lots of video and obviously everybody says," Oh, video is so deadly boring and blah, blah, blah, blah, blah. "I'm like, " Yeah, but you have to counter that with that. It's a known quantity. It's done. You can play it. You don't have to worry about it versus-

Filler. It's filler.

Yeah. I mean, to just say never do video, only do live I think is missing a lot of the freakout factor that goes with the scheduling and people showing up and so forth. And that story right there, that's a prime example. So he gets up there. How does he do his first time testifying?

He did a great job. Direct was great. On cross, he was a little too apprehensive of the defense lawyer trying to dupe him, if you know what I mean. I told him that afterwards, but on balance, he did a tremendous job and obviously did a good enough job.

Yeah, sure. Yeah.

Then comes the defense case, of course. We have Dr. Tang first. So they put him on first and Dr. Tang's in kind of a spot because he wants to say there was no cystic duct and that's how he messed up because that's what his expert said. But on cross-examination, I had him draw on the computer screen there. I had him draw the liver, the common hepatic duct, the cystic duct, and the common bowel duct going into the duodenum in his own words. I said, "I want you to write down to the left here a few things that we know for sure in this case." One, Dr. Lee had found that the common hepatic duct was transected just below the joinder of the right and left hepatic ducts coming out of the liver. So write that down. You agree that's a fact in this case? Yes.

Number two, that there were lips and an endoloop across the common bile duct. Okay, number two. Now number three, you say that you identified before cutting the cystic duct, right? He said, "Yeah. How much of the cystic duct would you say that you dissected?" I said, "You would have to dissect a good bit of it to be confident it was the cystic duct, right?" And he said, "I did." And he's going back and forth. Didn't realize what kind of mess he was getting himself. So he eventually agrees that he had dissected at least one inch of the cystic duct, which makes it impossible to do what he said he did. And I had him write that down. Number three, dissected out at least one inch of cystic duct. And I have this nice diagram that Matt saved for us with these three things at Dr. Tang's own handwriting and let it go at that.

And I think it was clear to the jurors that it couldn't be true because if he'd done that, he never could have done what he did based on his explanation. The clever defense lawyer is hiding the defense expert in the lawyer conference room. He doesn't see Dr. Tang testify. He has no idea what Dr. Tang has said. He gets up on the witness stand, there's an expert from some fancy hospital in New York City, has testified all over the place, blah, blah, blah. He gets up there and says, "Ladies and gentlemen of the jury, this happened because Ms. Wissman had either no cystic duct at all or it was so short it was completely indiscernible."

Uh-oh. So I hear the guy who happened to end up being the jury foreman in the front row goes, "Oh." And he proceeds to testify and I put the drawing up that I just had Dr. Hang do, thinking I was going to use this with this character. And I said, "Did you know Dr. Tang testified to this? " And you see where it says right there, dissected out at least one inch of the cystic duct? He goes, "I see it. " He goes, "I don't know what Dr. Tang said." And it just was downhill from there, Brendan. He had testified for plaintiffs in the laparoscopic cholecystectomy cases previously and said that he could not envision a circumstance under which you could transect, not just injure, transect the common hepatic duct if you did an appropriate dissection without being negligent. And I've got 10 transcripts laying around.

I put them all around on the rail on the podium and I said, "Dr. Lightman," I said, "Isn't that true?" And he said, "I guess I did testify to that. " I said, "I have transcripts from all over the country where you've testified in cases like this. " I don't want to have to go through them all, but I got this far from recanting his whole testimony and the jurors knew he should have. The jurors knew he should have could never explain what it was. He just stuck, "Well, it's too short. The poor guy's all red and a mess." And one of the other things was they asked him about the fact that the operative report dictated by Dr. Tang didn't adhere to sequence, which would admit of obtaining the critical view. Safety cut the artery first and then the duct and so forth. And he said, "Well, yeah, you don't have to put everything you need to do in the operative report." And here I have a case where he testifies that the operative report is the very best record.

It gets to be reviewed by the surgeon afterwards and it's what every healthcare provider relies upon and it must be completely accurate, completely in sequence. He said, for goodness sake, that's why they get to review it and sign it and say, "This is my operative report, and this is just how it was done." And that was the end of the defense expert. And the closing with this revisited things and the challenges everywhere in Pennsylvania, of course, is how do we get a jury to properly compensate somebody for completely intangible pain and suffering harm that you can't put a number on? And again, I'm going to have to thank Alicia Campbell for reminding me of the old saw that I used in this case. I think lawyers think this is a new thing, but it's really a very old one and that is that man in black argument.

I love that.

Yeah. That you use at the end of the case. And that's not a new thing. It's a very old thing that ... And I was thinking, I mean, how do you make all these, not little things, but this sequence of a mess that this poor woman went through for five whole years of her life trying to get fixed from this mistake the doctor made. And I talked about the man in black coming to the door and whatnot and then explained in excruciating detail when he said, "Nobody in the world can do anything about this, but something's going to happen to you tomorrow. And this is what's going to happen." And I listened that whole catalog of things. "You're going to go to a nursing home even though you're 47, you're going to have this giant mask come out of your belly that it's so embarrassing you won't even go out public and blah, blah, you're going to have to lose all this weight, the whole thing.

And then ask the jury at the end to imagine what he could offer her to trade money for what she was about to go through. Imagine the numbers that he would offer. Imagine what a fair trade would be for Sandra to endure all that willingly. What would it have to be?

Love it.

Yeah. Anything else? Don't worry about the closing. No, just the case went in really well. The jury deliberations were kind of interesting. After an hour, the jury came in. We had three questions. Was Dr. Tang negligent? Was it factual cause of harm? Three, what are the damages? After about an hour, they sent a note to the judge. God bless them for leaving the strain for me. They said," Your Honor, we've answered yes to questions one and two and we order our lunch so we have some food to talk about the damages. "The judge ordered pizza for everybody. And for the first time in my now long career, bought pizza for all the lawyers. So we had a pizza and a Coke and I even had an appetite because of the first two questions were favorable. So of course we're expecting we're going to win something but I don't know what.

And I approached the defense lawyer because I always try to see what's out there. I said," Why don't you guys settle this case, tender it to the MCARE fund or whatever. "He said," Well, I'll talk to the adjuster. "He comes to us after a little while and says," Last and final offer 375.

"Oh yeah, yay.

Yeah. And we talked to our client and she said," No, I would like to hear what the jury has to say. "Beknownst to me kept lobbying Sherry Cannon and the client outside my presence to take that because they would never get more than 250 in Jefferson County for a case like that ever. And they were buffed all that, but Sherry was a little bit annoyed that he was behaving in a way towards her that he never would've attempted towards me. And after a couple more hours, the jury came in, " Brandon, then you'll get a kick out of this. "The machinist I wanted to put on the jury because I was confident he could figure out the anatomy and I thought he was a good guy for that. He's the foreman. He stands up, hands the verdict slip to the clerk and the judge says," Well, read the verdict.

"And she says," This was a surprise. Shame on me. "First question," Do you find Dr. Tang was negligent? " 11 to one. 11 yes, one no. There was a blonde-haired woman in the front row that Cherry Cannon with her better women's intuition than mine. I said," Don't put her on the jury victor. "I said," Ah, she's all right. She was the one. Question number two was defendant's negligence a factual cause of harm to the plaintiff, yes, 11 to one. "Then she goes to read the damages and she's going, " Well, 1500, 150, 15, they'd written a bunch of zeros off the end of the line on the verdict slip.

The

Woman had never seen anything with so many zeros apparently in Jefferson County in her career. She couldn't figure out what the number was. And finally the judge became impatient. Hand me the burden.

"Give me that

Thing. Hands it up to the judge and Judge Forador said," You find in favor of the plaintiff in the amount of $1.5 million. "And they said," That's correct, Your Honor. 11 to one.

"Awesome. That's excellent. And that was all non-economic?

Yeah.

That's great. So how'd your client feel?

Oh, I can't even imagine how she felt. She was elated, relieved and happy and it was that best feeling for one of us who break our hearts in these courtrooms all the time. The best feeling for one of us to see somebody whose life had been changed dramatically for the better and the just cause.

Did they pull the jury?

They did. Yeah.

Just that one.

That Sherry Cannon said," Don't put her on the jury, but I overruled shame on me.

Oh man. I've never seen them put a number of for and against on the slip.

Meither, but why not?

Yeah, interesting. Because Greg and I tried a case that we won last March. Defense counsel pulled the jury and there was no indication that it wasn't unanimous. The second person was like, "I'm against it. " I'm like, "Oh my goodness, we've got to go this whole panel." And then with like six people left, another person was a no. I mean, and then you're like one more and we're cooked and it held out, but man, that was a sickening feeling. Well, that's a great story, Victor. Great outcome. Love that your client was able to stand up, make that declaration about her badge of honor and moving forward. I mean, that's what you hope and want your clients rather than the woe is me and this kind of thing.

She was a heroic woman, was going to put this mess behind her and get on with her life. And as you said, whiners and complainers are anathema in a courtroom. The jurors respect and love and admire the people who get up and get back at it.

Awesome. Well, man, kudos to you and Sherry. You guys put a great case on. You got the dream team there with Diadigo in the mix, got the crazy expert headache, but it all worked out and got an amazing verdict in a tough county. So that's awesome. And thanks so much for sharing your story and for letting us all check out that awesome demonstrative as well. So that's definitely food for thought for future surgery cases.

You bet. And don't forget that voir dire question. It's a great one, believe me.

I will not. And anything coming from the Campbells is always good stuff. So appreciate you, Victor.

You bet. Thanks a lot, Brendan.

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