An unwitnessed fall, a client with prior back problems, 10 years of unemployment, and over $5 million in disability benefits already paid – this case had every reason to fail. Yet trial partners Brendan Lupetin and Greg Unatin secured a record-setting $7.25 million verdict for the former chief of pain management at UPMC Hamot. In this case breakdown, Brendan and Greg reveal the strategies that shaped their victory: exposing UPMC's betrayal of their client through a series of emails, levering focus group insights to develop their winning liability theory, and highlighting their client’s loss of his passion in life: being a doctor.

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1. Their client fell on snow-covered ice while exiting a UPMC surgery center through a required after-hours door, suffering severe back and shoulder injuries that ended his career as chief of pain management at UPMC Hamot.
2. The team strategically navigated the issue of their client’s prior back problems by explaining to the jury that he’d recovered from a spine surgery; the issue at trial was his shoulder injury: “I think that that ultimately played just fine, and we really made it all about the shoulder,” Brendan says.
3. The attorneys dropped their theory about a code violation relating to a defective step after focus groups showed that jurors cared more about the snow and ice issue.
4. Their winning liability theory became simple: When UPMC directed staff to exit a specific door, they had a duty to ensure that door was safely maintained.
5. A trail of emails revealed UPMC's corporate betrayal: praising their client as their "golden boy" when he was profitable, then ghosting him after his injuries when he desperately sought ways to return to work.
6. The decision to bring in their client’s disability benefits ($22,000 monthly for a decade) actually helped the case by showing that he was legitimately disabled.

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 powered by LawPods.

Greg, my man. Hello Brendan. Hello, Greg. It is always nice to get to do a podcast with my brother from another mother, similar last named friend and trial partner, Greg Unatin. Thanks for being with me always. And today.

Well, thank you man, that's special and very happy to be here.

Yeah. And we're here to talk about a nice verdict that we were able to obtain about, I don't know what month or so ago now in Erie County. And I was thinking before we get into it that you and I have been trying cases together for 12 years now. Wow. Go back to 2013. It was the first case we ever tried together.

Brand case. Yeah. How could we ever forget that one

Brand v Intertech? And it's been all, what is that? Uphill, downhill since whatever the good one is.

I know, I get that confused.

No, it's always a lot of fun to try cases with you just because we have such a backstory and experience together and I can trust you entirely to, we just have that working flow. It just makes life so much easier and trial so much more enjoyable. So just want you to know that I appreciate you a lot and you're always having been alongside with me on these cases means a ton. So anyway, enough with the gushy stuff.

Amen. You're the Y to my yang. Come on. Really? It means much to me a lot.

So this case, the nutshell summary of it seems like a relatively straightforward case. It's a doctor is in Erie County, is exiting a surgery center that he was performing procedures at to walk back across the street to a hospital to perform another procedure. And when he exits the door to go outside, unbeknownst to him there's snow and ice on the landing. He steps down, he slips, he falls, he injures his back and he injures his shoulder and has to have surgeries. And according to us, it essentially costs him really promising career. I get about right.

Yeah.

But it wasn't that straightforward and any case there was a lot of hurdles. This one seemed to have a particularly large number of hurdles starting with what I was somewhat worried initially. So we got brought into this case way late on in the game. So we tried this case in September of 25, but the fall in question happened when was it Greg? 2013, 14,

I think it was 13. Yeah.

Yeah. So it happened 11, 12 years before the trial. And the reasons for why it took so long to get to a trial are manyfold and probably kind of boring and irrelevant to get into. But the fact of the matter is we were here trying a case from that occurred and the events happened over a decade earlier. And I remember running this case by my wife Lacey, and she just hated that fact. How can there be a, but I'll tell you that through focus groups, but also just that you have to kind of understand whenever somebody has a negative reaction about something, you've got to kind of explore why did they have that reaction? What was going on in their mind? Some of the focus group people brought it up, they didn't have as visceral reaction as Lacey did, but people were questioning in focus groups, why is this case so old?

And what happened was there was a misunderstanding in a lot of people's minds of why did he wait so long to file suit. And so people were sort of thinking in their heads that he didn't file a timely suit and he waited until many years later to finally sue. And that kind of created a lot of suspicion. But when it was explained, well no, he filed within two years and in fact the reason that the timing of it was because he had no other options given what happened between him and his employer, UPMC providing that context totally changed. And not only neutralized, but I think maybe somewhat dramatic but weaponized that aspect of it. So before we go on to some of the hurdles, I kind of got brought into the case first, and as you know, because I just get obsessed with cases sometimes I was spending an inordinate amount of time on this case while you're crushing through everything else in the firm and crushing cases all about. And then I'm like, Greg, now we're literally going to trial. This case is not settling. When you first started looking at this case, what struck you about it good and bad?

Well, I was sort of enticed about it because I saw how much time you were putting into the case in effort and I know you would not put that much time and effort into a case if you didn't think that it was worthwhile. And I had heard you passingly say that this was a great client, a serious injury, it could be a really big case. Initially I had a very favorable view of it. And I think as you got deeper into it, you started to identify some of the weaknesses. And that tended to sway my mind a little bit as well. And I think one of the major weaknesses was just the, that this case had been going on for so long and the plaintiff, our client really had not been doing anything in terms of a career or a job. And the suggestion was really that, well, despite the injuries that he suffered, which in this case where a lumbar spinal herniation and also a rotator cuff tear, the insinuation was that he could get over those injuries or he had gotten over those injuries and he could go back to work.

So that was the major weakness. And I guess the strength still remained that this is a, seems like a really good client. He had a great job, huge earnings loss on paper to the extent anything is still on paper, but there's a huge earnings loss on the board that we could put up there. But when you put it in context of what has this guy been doing and why isn't he trying to go back to work to do something with his life, the case sort of hung in the balance. Is it a strong case? Is it a weak case? I don't know.

And I think we've got to add a little bit more to the timeline so listeners kind of understand. They can kind of put what happened in context. Dave falls in March of 2013, it's an unwitnessed fall. At least there's no record of him telling anybody about it immediately. There's no photographs. There's no video. According to Dave, he's sort of stunned, does not realize he's really injured. He gets right up, he walks over, he performs his last procedure and sees at least one patient that evening. Again, this is more from the suspicious vantage point of UPMC. And by the way, the case was David Irwin do and Monica Irwin, his wife, both doctors versus UPMC and UPMC, Hamit Surgery Center. And one thing before I continue on with the timeline that some people might be scratching their head about, which was unusual and there was a lot of really good lawyering by Tibor Soli who had been the lawyer on the case from the beginning, who then brought us in to try the case.

What he figured out was that he could get around the immunity workers' compensation because Dave, our client, was actually employed by a separate UPMC entity called Regional Health Services RHS, which is sort of their employment arm. And that allowed him to be able to sue different UPMC entities, the surgery center and Hamot for his fall. So that's how we were able to proceed on a civil claim despite there being an obvious work component to this. So Dave does not get any medical care the night of the fall and in fact he doesn't get any medical care for these injuries for I think at least three weeks. And he actually wasn't even planning to get any medical care at that point, but as he described it kind of his back and his shoulder kept kind of getting worse day by day he went right back to work.

He was basically working a full schedule after this fall, but according to him, every day it was getting worse and it culminated with a coworker just randomly kind of slapping his shoulder jokingly like, oh, stop about whatever that was. And he yelps in pain. And again, according to him, his coworkers are like, Dave, this is enough. You've got to go get checked out. You're clearly hurt. He goes to the medical services at UPMC and they send him for imaging and then that's when his lumbar spine instability. And mind you, he had very significant low back medical history prior to the fall. But then his shoulder, it was discovered, was very badly injured. His left rotator cuff and labrum were very badly torn, other aspects of it. And when you go into trials sometimes you can't help but be worried about, well, how's this going to come off?

How's that going to come off? And there was a debate about when he actually even submitted the incident report about the fall. There was an incident report and he said he filled it out. I believe this happened on a Wednesday night. And he said he filled it out on Friday, which was the next time he was back at the surgery center because his main home base was at Hamot, which is the main hospital. And then periodically, depending on his schedule, he would go across the street and do procedures at the surgery center. And so he said the next time that he was back at the surgery center, that's when he filled it out. However, representatives of UPMC said, oh no, he didn't fill this incident report out until three weeks later. And that turned out not to be really much of an issue whatsoever, but going into trial I was worried about that because just from the credibility factor and I guess that race is sort of a positive of something that we had going for us was a really good client.

And when I say a really good client, this is the second time that I've gone to verdict and gotten a good verdict where my client was a doctor and there's clearly, if you can get a doctor as your plaintiff client, you're in a good position. I think because people generally, they like doctors, they generally trust doctors. They may not trust the medical system so much, but generally they trust doctors, they like doctors, they respect doctors for how hard they've worked and the training they've undergone. And they're smart people, obviously they're intelligent people and they not always, but usually have some degree of bedside manner. They know how to work with people. And so Dave himself, as I was saying to you yesterday, Greg, I think he was a very formidable plaintiff to the other side. Do you agree with that?

Yeah, I mean I think there were a couple things that we worried about going into trial, like the incident report not really being, the incident itself not being reported until three weeks later. I know I worried a lot about claiming damages for the back surgery because he did have a significant prior back injury about four years before this incident in question and he really didn't have any residual throughout these 10 years since the injury after his fusion, his lumbar fusion, it was a successful surgery. I had some qualms about bringing those in there, those injuries, but with the worries about the incident report as it might affect his credibility. But I think as you just insinuated, if you have a great client who just comes off very credible and it doesn't hurt to be a doctor, but certainly doctors are not the only people who could seem very credible, those concerns about bringing in maybe borderline injuries or maybe something about a delay in reporting an incident, they sort of just dissipate to me. I mean it's like it was a complete afterthought. Now both of those issues were non-issue.

Yeah, which I think in most premises cases they're always such a, I mean every trial is a huge credibility issue, but certainly an unwitnessed fall where you're claiming money that is in most instances, you're very, very worried that a jury's just not even going to believe this person. Some percentage of people out there are going to suspect that this person is making this up or looking to gain the system for money. But I think when your client's a doctor, that really alleviates that concern. At least now I can see it in hindsight because people just, a doctor, he would, this guy's not lying. This happened even from focus groups, it became very much like people just were like, well, no, I have no question this happened, but I want to know more about how this injury impacted him. And then it really became, like you said, establishing and how do we go about establishing this claim for his lost income?

We're going to get into that in a moment because that presented us, I think with a lot of unique issues that I've never had to address and tough decisions that you have to just hope you're making the best decision for trial. But I can remember you and I going back and forth about do we drop the back? We do. We bring it in and you understandably were like, I think we should just outright drop it because they've got us on that. They've got him with lots of bad prior and there was some really bad stuff in his priors like he was being recommended surgery, he had horrible stenosis of the lumbar spine to the point that he was, I think it was documented he had foot drop at times. It was so bad. And so that was an issue. I ultimately felt that by dropping it though, it created a lot of problems because if you it, then they could point to that still and say it wasn't just his shoulder, it's also his back. And they're saying that's not even related. And so I ultimately convinced you that we should say the back is related, but point out very blatantly to them that he had a good recovery from the back. His spine surgery went just great, and if it was just his back, we wouldn't be here. He would've been right back to work. And I think that that ultimately played just fine and we really made it. It was all about the shoulder. The shoulder was the problem, but the back was related. He had a great recovery from that.

It's worth noting as well that you were just very concise and you're presentation of the evidence on the back with his treating surgeon. Your deposition for use of trial was maybe 35 minutes tops. And you were able to get in a little bit of testimony from that surgeon about his work with David because they worked together in area as well. He wasn't just a treating surgeon, he was a colleague. That's a credit to you and how you were able to identify an issue that wasn't the biggest part of the case, sneak it into the case in a concise way that kept it relevant but didn't bore the jury and didn't make them resent you for presenting evidence about something that really isn't a permanent problem for David.

Yeah, and I forgot about that. That was another factor in my mind for keeping that testimony in because again, you look at the unique context of this case, and I think it's worth kind of pausing and talking about Dave's backstory because not only was he was very sort of understated in his testimony, he was almost stoic, but I mean he emoted enough during his testimony, but his story was a really good one, which was essentially that he grew up on a farm in Evans City. And mind you, I mean I can't even remember because he lives in North Carolina now. I can't even remember the number of Zoom conversations that I had with him trying to learn about his background and understand how do we put this story together so that it's most compelling. And I think he really just had a compelling story. So he grows up on a farm.

I think his dad was a teacher, but they really were a very little means, and Dave, he had dyslexia was discovered at a pretty young age. He had real troubles in school. But despite that, and despite sort of that off the bat genetic obstacle that he was given, he talked about that he was very inspired as a kid that their quote next door neighbor who he said was basically like four or five miles away, they lived on a farm. But this gentleman down the road was both a farmer and the town doctor, and that just really connected with Dave as a kid. It just blew his mind that you could be both, you could be this kind of grassroots dirt under the fingernails farmer and also the person that takes care of people's health in the community and that people look to when they have health concerns.

And that became his sort of singular focus was to become a doctor. And he helped pay his way through college on a football scholarship and worked his butt off in spite of his dyslexia, he would get accommodations as necessary for testing and so forth. And obviously putting the dyslexia aside, a very, very bright guy and also very hardworking and driven. And he gets into, I think he was actually in a different, maybe he started at leak, then he goes to a different medical school to finish up and he does a series of residencies and fellowships to become his very, very specialized interventional pain medicine doctor. So he was both an anesthesiologist and he would do these interventional procedures, for example, like a kyphoplasty, which is, they inject essentially bone cement into collapsed vertebral bodies and there's not a lot of doctors in the country that really had his skillset was kind of my takeaway.

And then he moves back to, he meets his wife, they move back to Erie so that she can go to medical school and pursue her own medical dreams at lecom, starts doing anesthesia and then again, working with them. I'm like, did you get any awards? Like, oh yeah, we didn't tell you about that. And so he was working for a private practice group called napa, and he really just becomes this superstar within UPMC, Hamot's medical system because they have him working at him at doing both the interventional procedures and anesthesia and he's getting these, what was the things called? The what were the award? The Guardian Angel Awards where basically patients were so pleased with his care and the outcomes that he got, they would literally make donations to the hospital. I went down this path because it circles back to Ray the Kula, his spine surgeon and his testimony and how we were kind of weighing whether to bring them back in.

So UPMC then hires him away from his private practice group and they say, we want you to come and work with us because of they saw what this guy was providing them. He was going to create this whole pain program, which was going to be a huge profit center for UPMC Hamot. They made him the chief of pain medicine at Hamot. They were featuring Dave in these advertisements where he is looking great white coated with all the other neurosurgeons and high level doctors. Which brings me back to, in that ad for example, and by the way, this is just, all this stuff is just killer material. You are not creating the impression it's the truth, but creating that impression to the jury of this is a very worthy person, that they're going to be okay finding in this person's favor if you have the liability facts to back it up.

Because he just was an impressive guy and he was somebody who really had been providing a lot of value and benefit to the Erie community. And then you go full circle, he's in this great ad and who's one of his partners is Ray Akula. And Ray Akula winds up being the surgeon that does his spine surgery. And then in his deposition for use of trial, he just sort of on his own started talking about separate and apart from my care and treatment of Dave, he was an amazing doctor and he was basically the go-to guy. He was the only guy I would send my patients to. He worked like a demon, which was a huge part of the case was showing that this guy was not a lazy individual that was looking for an easy way out. So how did you feel from your perspective that Dave's testimony, I mean I think, I dunno we're probably jaded, but what did you think worked and what did you have questions about with Dave's testimony at trial?

Yeah. Well, in hindsight, everything worked based on the result, right? I mean, when it was going on, I almost felt like, I don't know, maybe David was a little bit too confident or maybe seemed a little conceited at times or just couldn't stop talking about himself and how great he was. But really that was probably just my cup is usually half empty pessimistic perspective about most things and concerned that the jury wouldn't like him, but in reality they loved him. And looking back, it really was great testimony. He held his own in so many ways, and I don't know if it was on cross or on direct. He had this one statement, a piece of his testimony that I always remember. He said, people told me, Dave, you'll never go to college and graduate college. I proved him wrong. People told me you'll never get through medical school. I proved them wrong. People told me you'll never actually become a doctor. I proved them all wrong in the timing of that, in the grand scheme of his entire testimony was so perfect. So you could tell that he put a ton of thought into it and I just thought it was great.

That was my impression. I mean, one thing I will note too about his testimony that I think is again worth noting is that it was like all day long he was on that witness stand including cross-examination, but even just his direct to get this whole story out about his origin story, which you just mentioned, and the next part that you haven't mentioned of what will be more relevant to the case. It took a long, long time and it sort of violated that role that I don't know where it came from of don't keep your client on the stand too long, get them on the stand and off the stand. You don't want them to look like they're whining or sound like they're whining or say something that could hurt their case. But he was the case and given all the hurdles we needed to get past, some of which we've talked about not working for such a long time, long-term disability, which we'll talk about in a little bit.

There was just so much we had to bring out, you had to bring out, right, good and bad to tell the story that you wanted to tell. And I'll go back just to mention in terms of our prep, what I've noticed is that you need to find a story that you like to tell, and I think that's good advice for anybody, but especially when you get that story that you believe in that you just become so laser focused. It's not the story you want to tell, it's the story that needs to be told. Okay? The fact that you want to tell it just proves that it's the one that needs to be told. I think in order to get that whole story out, he had to be up there a long time and do what he did on the witness stand. And your direct was really masterful. I thought.

Thanks. It did go way longer because I think you and I pride ourselves on trying to be as concise and to the point as we can. But as you mentioned, he was the case. He was the case so much that we were strongly considering at one point calling him as our first witness. Ultimately, we decided not to do that for some other strategic reasons. But I mean, it was kind of like they're going to get up and they did and say basically, this guy's full of it. He's not really hurt and he's just milking the system. He is looking for his jackpot justice from all of you. And they said that pretty much in no uncertain terms in opening. So we were literally like, maybe we should just call him first and look the they're going to like him or they're not. But I want to talk about something.

You and I were texting last night, and I thought this was a really interesting insight. It's making me think a lot, which was you talked about how another doctor had represented John Alan and Dave Irwin said they demonstrate how the inability to follow a career pursuit, which takes years of effort and speaks louder than the injuries themselves. And then you went on. We always tend to think about the severity of injury first when evaluating cases, when the aftermath is just as important as the severity of the injury, if not more. I think that's so spot on. Sometimes it's hard when you're first looking at a case to think of the impact that the injury, no matter how severe it was, turned their life into a direction that it was not otherwise headed. And it makes me think, I don't know if you've ever seen Mark Lanier has this thing in closing, he'll do where he'll put up this hand, this drawing, and it's basically the path life of a person and it's heading a certain direction and then they're detoured into this cesspool by the defendant's actions or inactions rather than allowing to proceed on the natural path of where they were supposed to be headed, which then ties into mitnicks, unnaturally thrust into their life type thing.

But I think that point you made, you've seen it in so many cases. Sometimes you're like, where did this verdict come from? And I think it has to do with more than just the injury itself. It's the interference with their life and certainly with doctors, if it impacted what their entire life's passion was and their identity, that clearly resonates with people that this is a very real injury worth a lot of money if you have to make up for it.

And I guess really relates back to case selection and how many times we focus on the severity and the permanence of the injury at issue before we decide whether to take on a case when we should really be starting not just with the severity of injury. Of course, it's always important, but what other person's major hobbies? What is their passion in life? For some it is their career doctors, maybe lawyers, other professionals, perhaps those types of advocations which require years and years of training and education tend to take over your passion in life, I suppose. But it doesn't have to just be about work. It could be about playing pool or hunting or surfing, whatever the hobby or sport recreation might be that is essentially robbed from the person due to their injuries.

So I think a takeaway for people listening out there is to, as part of that damages component, and it can honestly, I think almost make your damages testimony easier to conduct because it really then just goes back to storytelling and the history of the person. And you find out those things, obviously with doctors or specialized professionals in a sense, it's easier because it's so obvious what the thing is that was everything to them and then was impacted. But I think with anybody focusing and working hard to find what was that thing to them that was their main focus of life, whether it's their identity or the thing that they invested the most time or effort or got the most joy or satisfaction from and how their injury impacted that. Just showing that contrast between what it was and what it should have been versus what happened as a result of the defendant's inactions.

Now I want to talk about the moral story battle in the case and how we addressed the economic loss claim in a decision about collateral source issues. But first I want to talk further about you. Me in particular, I get obsessed with different things that resonate with me. One of them is what you had mentioned to me last night. I'm currently obsessed with this Joe free presentation and really trying to hone your case down to the light switch issue. There can be a few light switches I think on different levels, but really pairing out and cutting any arguments or liability claims that just aren't it so to speak. And I think also as a trial attorney wrestling with the fear of doing that. And so the concrete point in this case was that again, Tibor, the lawyer that had worked the case up, he had smartly pled two theories in the complaint of liability.

One was that they didn't maintain the snow and ice outside this door, and they were at fault for that, whether the snow plow people weren't doing their job or policies and procedures or whatever. So there shouldn't have been snow ice where he stepped and fell. And then secondarily, Tibor has a construction and building contracting background, and he knew that this door in question was almost certainly not code compliant. And that turned out to be true. We consulted with architect Bob Stevens, who's great, wrote a terrific report and explained exactly why this step because there was a step down out of this door. It's kind of a weird wonky door. It swings out. There's an abrupt step. And in fact, a funny little side story, I doubt she'll ever listen to this. Both the opposing attorneys were very good. Lisa Preston, Jamie Schumacher and Jamie had tried other cases before and she beat me on a case like a year and a half ago, very good trial attorney.

But on the site inspection, when she was opening the door for us to inspect it, she fell out of it right in front of our experts immediately. It was like half joking, half shock. You did not see that just happen. And of course people are thinking, oh, we've got to find a way to work that in that even the lawyer on a sunny day, she fell out of it. But we started to dig into it and there was even other really good stuff with this door. The building plans back in the day called for the door to be flushed without a step, and we kind of had 'em dead on the door, but then we found other stuff that they'd been approved by the county and the city as the building was permissible and code compliant. Now, I can remember you coming into my office when you first started looking at the case and you're like, I don't see the step argument.

It doesn't connect because he didn't fall. He slipped on ice. I'm going to take seriously how it first strikes you. We did a predict study on this case, which I would need, I think a whole other podcast to kind of unpackage. I think the fact pattern was highly imperfect that we submitted to that. We threw the whole kitchen sink in, and it was not nuanced at all. It helped us bigger the nuance out of the case. But again, in the predict study people, some people were, yeah, I can see that step that's kind of messed up if that was a code violation, but it wasn't like driving the case because at the end of the day, what caused the fall was a slip on ice basically. And not withstanding that, I still was like, no, but that code violation, we've got them on that. We can do it.

And there was a moment where I was thinking of going entirely on the code violation, dropping the ice component of it, but then I did another focus group and it just, people were like, why are you talking all about this step and these codes and these blueprints when the guy slipped on ice? And I finally convinced me, and I'll talk about what our ultimate theory was, but I can remember, and this is just again, part of, I think one of the many stress factors of being a trial lawyer is that you have to make decisions and you don't know if they're right or not. You're doing what you think is the best under the circumstances. But the quote safe thing where nobody could have faulted me or us would be bring 'em both in, make the stair claim and do the ice. There's a word that gets tossed around

In our office that's sort of like a dirty word. You started using it first. I think it's sponsorship. You know what I mean? Whenever I want to be vindictive to you because just you say that word when we're working up a case and I'm like, how could I be so stupid to want to bring in that evidence? What's the purpose of sponsoring evidence? Unless it's critical to your case, the jury's going to think, oh, that must be really important for them to say it. But in my mind, the jury, I don't think it's that important. So you don't want to sponsor something that you don't need to win the case. Do you know what I mean? So I think that's would've came down to in part. And then there was results of the fact that we talked about last night that they told David to go through this door. And I guess this kind of relates a little bit more to the storm. Maybe I'm getting ahead of myself, but do you want to talk a little bit about that concern?

Well, yeah, and I mean, just real quick, for any listeners not familiar with this concept of a sponsorship, I can't adequately summarize it, but the book on this issue is called Winning Jury Trials, trial Tactics and Sponsorship Strategies by Klonoff and Colby. I was turned onto that book because Rick Friedman in a footnote in becoming a trial lawyer, said that was a very important book to read, and I would highly recommend people read it. It has thoughts and advice that I don't agree with, but the sponsorship idea comes up so often in our office, and it is a little bit of a dirty word sometimes because if it comes up there, but why are you sponsoring that? If you can boil that down to why do you want to bring something other than your best evidence into the case is when you do that, you're bringing something extra that you have to prove, which is not what you want to do. And so if we bring both the step and the ice issue in, you want to think in your mind that jury will say, oh, it's either or, but they're more likely to think that we've got to prove both of those, or else why are we bringing them up?

They kind of have to think what's the bare minimum that we need to prove to win the case on a particular issue?

And that for every plaintiff lawyer, I have to constantly remind myself of that. What is the simplest, easiest, and least full of obstacles path to winning on your given points, on the liability, on causation, on damages, and always coming back and thinking through that, and do we need this and do we need this? And so ultimately, despite the supposed code violation and our architect was all jazzed up to talk about it, we dropped it entirely and did not even make it part of the case. And instead over time from us just talking and thinking, which has always been very important part of trial, is just thinking, thinking through things, talking things out loud, running it by chat GPT as your thought partner doing focus groups. We eventually came to this realization about what happened. And so the policy at the time was that 5:00 PM the surgery center would lock its main doors because David testified that he comes over at noon that day to do his procedures at the surgery center, and he remembers the sidewalk and the entrance in the main area was pristinely maintained by the snow plow guys to the point that he was annoyed how much de-icer was getting into his boots.

So hyper safe, hyper taken care of, and he goes in those main entrances, but then they had a policy that around 5:00 PM they would lock those main entrances. The reasons were not entirely clear. Maybe they didn't want random people coming in after hours or just whatever it was. They locked those doors and then there was limited entrances for people to exit. And for a doctor to exit and go back across to the hospital as any doctor would need to do, there was only one door which was this rear exit door that Dave ultimately exited and slipped and fell at. And what we did was we just assumed, and this was another hard part, just you had to believe Dave, that there was snow and ice there, and if there was snow and ice, there shouldn't have been snow and ice there. Okay? I mean, aside from the fact there was an active snow storm going on, but that's another issue.

And so what we ultimately said is, look, we are not saying that UPMC and its grounds crew needed to take care of every square millimeter of this entire campus free of snowflakes and ice. All we're saying is that if you direct your staff and doctors to exit a particular door, you have to make sure that door is safely taken care of and safe to exit. That's all we're saying. Juxtapose that with, look how well they took care of the main entrances. They just didn't do this back door. And then you get into like, well, why? The thought process of focus groupers at the end of the day was they just kind of overlooked it. It wasn't a primary door. They're busy taking care of all these other areas. They just missed it. There was snow and ice there, and there shouldn't have been. It really came down to be that simple, but it was that control aspect that UPMC directed 'em out there. And if you're going to do that, then you got to make sure that door's safe.

But I will say that we believe that's the best theory, and it ultimately turned out it was the best theory. That was a winning trial theory, and we trusted ourselves and went forward with it. Very fond of our client, Dave, and we support him a hundred percent, but he was not happy with my opening statement when he realized that we were not proceeding with the defective step because he thought that was the best argument when I had to sit there and tell him like, look, I've done this before. We've done focus groups, we've tested all this different stuff. We're going with the theory that tested best, but that did not give me a warm and fuzzy feeling as the rest of the trial's going on that my client is quite displeased with our theory right off the bat and just added to that pressure. But that's just part of the process.

Everybody needs to stay in their own lanes when it comes to these trials. Right. And

He made up for it by giving great testimony. Do you want to talk a little bit about how this kind of moral battleground unfolded? Again, not particularly apparent going into this when you first hear about this case.

Yeah, sure. I mean, and you have the details down a lot better than I do, but I think what we were most concerned, or at least one of the things I was most concerned about going into the case was the fact that Dr. Irwin had not worked in over 10 years since this fall, his injuries when in reality his back was no longer an issue. His shoulder had healed to a certain extent, although I think he was underestimated how messed up it still was. It was constantly dislocating, and I think we underestimated how important that would be pretrial, but it was a big part of our permanent damages evidence. The fact that it would go to this would be evaluated for functional capacity and his shoulder would dislocate as soon as he tried to lift more than 30 pounds above his waist. He wanted to continue with the FCE because he wanted to work, but the examiner, a therapist, shut it down, popped his shoulder right back in.

Obviously you can't tell somebody to continue to do that type of an evaluation when their shoulder just popped out. But getting back to our initial concern, despite the fact that he still had a really bad shoulder, this guy had a significant experience in training in the medical profession. And I think our concern was that there has to be some job out there in the medical profession consulting expert work, low physical impact medical doctoring that he could have been doing over the last 10 years. And I think that was troubling because it didn't fit into that mold of the hero story. The persevering plaintiff who despite their injuries, finds a way to make it work, deals with their limitations and continues to be a meaningful member of society. So fortunately, you figured out that there was a way around this concern. It came in the form of a trail of emails between David and management of the RHS, his practice group in the period of time right after his initial surgery is not only for his back, but for his shoulder, where David was really interested in getting back to work, and he wanted to find a way to make it work despite the pain that he was certainly still experiencing at that time, despite the limitations.

And as these emails unfolded, as you showed the chronology, we saw essentially a distancing between the management of his practice group and David that was all brought about by the decision on the management group that he was no longer of use to their practice and to the patients of RI who needed pain management services, you could probably describe some of those emails better than I can. They really resonated and it became a huge part of the story. In this case, we didn't focus so much on the fact that he had no options about going back to work because his shoulder was so bad, it kept popping out. We just told the story of his desire to go back to work in the months after his injury and how he was shut down by UPMC, and essentially that was all we needed to show. It took care of 10 years of concern.

It did, because I thought the emails, and I will give myself a pat on the back for this because Tibor had essentially requested, or I may have Wal service open, but I wanted access to because I would ask Dave, do you have any emails supporting that? He would tell me about some of these interactions. Well, I think there was an email. They shut my account down, and so I insisted on getting all of his work emails. UPMC was able to dig them up as part of that discovery response. They turned over. It was like 10,000 emails, 99% of which are irrelevant. But what was in there was a very telling story. UPMC administration before he's getting these awards, you mean so much to us. Thank you for everything you do. Dr. Irwin, here's another satisfied patient president of HAMIT emails, the president of RHS. You mean so much to us, Dave.

They're bending over backwards to contract with him to bring him on, get him under contract. And there was another aspect of this we didn't even talk about was a very hot button topic was part of his contract. As part of the bylaws of UPMC, Hemet, Dave had to become board certified of some sort, anesthesia, pain medicine, whatever. And before this fall, he had taken the board exams on three separate occasions and failed every time they were saying he was not going to pass his board exams. Thus his time at UPMC was going to end by contract, by the bylaws of the hospital. He was literally not going to be permitted to work here. And that was a huge argument. At the time of his fall, he had maybe a year to a year and a half left to take and pass the board exams. And we countered that by talking about his dyslexia, but also really showing these emails that they knew when they contracted with him, they brought him on and they're paying him all this money with this huge upside bonus structure, and they're naming him chief and putting him in their advertisements.

They knew that he had failed his boards three times. They actually added additional time within which to take and pass the board exams. And so we argued that, look, this guy was so valuable to them. He was making them so much money. They were going to do whatever it took to keep him on board. They were not going to just oust this guy. It was such a stark contrast between Dave, you're amazing, Dave, you're the best. We love you, Dave, when he's making all this money for them, and he's their golden boy. And then he gets hurt. And then I think I said in closing, it was like when he's writing back to them, it was like Dave who, and there was these just brutal emails where it's like Dave writing to the head of RHS, like, Hey, I called you and this was this woman.

She's emailing him all the time. You're the best. You're awesome. Thanks for being here. You mean so much to us. And then after his injuries, he's emailing her and he's like, Hey, I called you three times and left voicemails. Oh my gosh, I'm so sorry. That must have slipped my mind. I must have forgotten. They were blowing 'em off, and they put 'em out to pasture. They're like, take your work comp benefits. Take your disability benefits, and just buzz off. It was just very, very obvious. That is what happened because he wasn't valuable to UPMC anymore. And so they cast him out and said, you're getting disability benefits. That's good enough. Leave us be, which created a big problem for them later because a big part of their defense was twofold. One, Dave made no attempts to, what's the term, Greg, for offsetting your damages.

Mitigate, yeah, you didn't mitigate your damages. You didn't go out and get a job. You could have done all these jobs. And then we turned around and said, look, who's the biggest employer, who's the biggest private employer in the commonwealth of Pennsylvania, who was the largest employer of doctors in the Commonwealth of Pennsylvania? It's UPMC. And this dude went and asked, what can I do? What are my options? And did they make any accommodation that brought him any jobs whatsoever? No. But then in the 11th hour before trial, they hired Dave Zack, who's a good guy, a good vocational guy. We've used him before and Dave has basically given marching orders to come up with all these fake jobs that Dave supposedly could do. And it's like, well, where were these for the past 10 years? And he literally writes, why, went and talked with the UPMC business recruiter, and they said, these jobs are there.

And it's like, well, did anybody go and tell Dave about this? Well, I don't know if they have to do that kind of stuff. And then we go down the list of jobs that they supposedly come up with, and meanwhile, they come up with him like three months before trial totally bogus, and we just go down. He can't do this one because of board certification. He can't do this one because of pass qualification, dah, dah, dah. Everyone just crossing off a very long examination. But I think it was necessary to show the hypocrisy of all that stuff. And so this ties into another part of it, but I think that really then showed, and I think sometimes you and I don't know, and sometimes it only kind of becomes apparent in trial, but that moral battleground, who has the moral high ground of the case, the plaintiff for the defense, we I think really got it.

We had them because ours was not only betrayal. As soon as you're not valuable to us, then basically buzz off, leave him out in the cold. Just an absolute betrayal of trust and love and caring for this guy. But then it also directly undermined their moral battleground, their moral argument, which was essentially laziness and greed. They're basically like, this guy's not working, holding out, waiting to get his big payday. And that our moral ground not only had the betrayal component, which is really powerful, but it really, really dented their argument that it was because of his laziness. We had them, he was trying to go back to work with and you did nothing, but now he's the one that's the

Problem. And our damages model for the economic damages, we incorporated what he could have earned if he was able to find employment in some lesser paying job. Not a real full-time doctor, but maybe. I think there was something along the lines of

Pharmaceutical sales or concierge doctor,

Insurance reviewer, right? A doctor who reviews claims for insurance companies. And so our economics expert offset his predictions of future economic losses, loss of earnings by what, $250,000 roughly, which was essentially right, the average or the bid point of what David Zack was saying, David could earn and could have been earning. We took that moral high ground in multiple ways, and that was just one more by assuming, all right, let's take what the defendant's experts say. We'll assume that's correct and incorporate that in our loss of earnings projections. That was great.

Within all of this, there's another lurking boogeyman in the case, which was that Dave for a decade basically had been receiving essentially $22,000 per month as part of his disability package, and our choice was going into this trial when we know the defense is basically like, what's this guy been doing for the last 10 years? That was it. What's he been doing? Oh, the big mystery. But we knew that was a problem. I did focus groups and I wouldn't tell them about the disability benefits, and people were like, well, what's he been doing? How is he living? How are they subsisting? And then, oh, maybe he's getting disability benefits. It's probably covering all of it. Or maybe he's working under the table. All this bad stuff was coming up in that black box of not telling them about disability benefits. Obviously the default is plaintiff lawyers is we keep collateral source out because generally speaking, it's inadmissible at trial after a lot of wringing of hands and worry.

We had to make another big decision and a decision at times during the trial is like, oh, I think maybe we made the wrong decision here of just bringing it all in. We brought in that he was on worker's comp we're brought in that he was on disability through Unum. Again, weighing the pros and cons of these things. The obvious con was they had that one really compelling slide with our economist showing how much money he'd already earned from his disability plus his big payout, and it was something like, I don't know what it was like five and a half million dollars or something crazy. The amount of money that he gotten in disability benefits, and I am thinking maybe this wasn't worth it. But on the flip side, it gave us a lot of very helpful stuff. It gave us that he was disabled.

We were basically like Unum's in the business of finding people not disabled. They couldn't find a job for this guy. They tried to do back to work, and then there was this great functional capacity exam where Dave goes to get graded for his level of disability to return to work through Unum, his shoulder dislocates picking up a 20 pound weight, his blood pressure spikes, his heart rate spikes. The physical therapist has to manually relocate his shoulder back into the socket during the exam. And then Dave's, I want to continue with the test in it, which great, it shows this guy was really motivated to get back to work.

We were really concerned about that slide that the defense should, and the whole introduction of long-term disability benefits. Jurors could look at that number and be like, why are we here about a slip and fall where this guy ended up getting $5 million? Anyways, long-term disability benefits, believe it or not, I think the jury did what we always hope they will do, and we worry sometimes that they won't, but they follow the law. Jim Fallon, our economists, he mentioned in his direct testimony that he did not offset the earnings projections by long-term disability benefits because it's a collateral source, and he explained to the jury what a collateral source is and why it's not admissible. Although it was admitted, that was the irony of it. It was all admitted into the case, but honestly, it still wasn't something that the jury could consider when awarding damages. There was no jury instruction on that for the judge, but Jim Fellon, our economics guy, brought that jury instruction out, so to speak. So I thought that was interesting, and I hope that's the reason why the disability benefits didn't really play a part because the jury was following the law per Mr. Fellon.

Yeah, and I mean, it's like history's written by the victors and we can say, oh, it seems so obvious and apparent what we did was the right decision. But it did not at all feel that way. It did not feel that way pretrial. There was lots of times during the trial I was like, I don't feel like this trial is going very well. I was regretting or questioning some of these big decisions that we had made. Maybe we should have done this. Maybe we should have done that.

I don't know. I always feel worse knowing that we're trying to put one past the jury because I feel jurors are too smart and they know that someone's getting disability payments and can't just not be working for 10 years and supporting a family while their wife isn't really working either. The jurors know. So putting it all out there and just being completely honest with the jury, brutally honest, I always think that is the best if you can do it. That's why I was so relieved when actually we were a little concerned because the defense had emotional to try to keep out all disability and workers' comp, right?

It's like Bizaro world. They didn't want the collateral source that we did want it

And we wanted it. Then eventually they just conceded and we're like, okay, great.

But no, I think your point is dead on that. It's like the truth has some way of always kind of seeping out, and there are certain motions in lemonade that you can make and that are legitimate, and it is just an issue that you can feel cleanly. It's not in the case and shouldn't be in the case a lot of times when there's just those big issues in the case, and we tried another case a few years ago and there was a big, and we won't go into it, but there was a big kind of moral issue in the case, and we eliminated out, but at the same time it just was. It was there. It was lurking around in this one a hundred percent. I was like, right or wrong, it's going to feel better and cleaner to just say what it is. This is reality.

Once you brought it out on the table, people were like, oh, okay, that makes sense. Now I can understand how they've been living so far, and it just kind of took out a lot of the power of that defense and the concern of, what's this guy been doing all this time? I was, what's he been doing? What's he been doing? But a few other, again, I think as trial lawyers, you always have to be a little bit suspicious looking out things, where is maybe the defense playing a little fast and loose with things that we can call to light? There was a cross exam of Dr. Irwin by defense counsel, and they were using these supposed guidelines of when Dr. Irwin could take the board exam because he had testified, look, because I could no longer physically practice medicine, that was no longer an act of practice.

That was one of the requirements to be able to sit for the board exam again. That's why I never sat and took it again. And apparently years later that changed and there was a later guideline without really disclosing to Dr. Irwin, which guideline they were cross-examining him. Well, I'm going to read to you what it says, and it says that you don't have to be in active practice. He's like, which one is that? That doesn't sound right. He was really incredulous on it, but it made him look a little bit bad. He didn't go and take that test again. It just felt like, why weren't they showing that to him that evening? I emailed defense counsel, said, I want to see the guideline that you were cross-examining, Hannah. I'm entitled to know what that was. And it was like crickets. And the next day I was like, look, I'm not letting this go.

I want to see which guideline. I want to know what guideline you use when you cross examined him. And then lo and behold, I get an email back, oh my gosh, I'm so sorry. One of our associates must have screwed up. And yeah, we thought it was the 2009 standard, but it turns out it was actually the 2022 standard. Oh, well, we have our one witness coming in about board credential at the hospital. We'll clarify this with him tomorrow. And I'm like, oh no. We're going to get an instruction from the judge to publicly declare what happened. Now the judge has to make a special announcement to the jury that defense counsel had used the wrong exam. And then I obviously went after their credentialing guy pointing out, well, you weren't here yesterday, but let me tell you about what happened. And just capitalize on that misrepresentation and perpetual credibility battle that's always there. The takeaway again, is nothing birth shattering. You've got to be looking for the things that you can capitalize on that are not, there may be a little bit outside of what the case is about, but that's also what the case is about.

And I think Dave was right, our client, to doubt the veracity of that handbook that they were using. Not that it wasn't an accurate handbook, it was just the wrong year and it didn't apply to the time period when he could have been taking his boards or couldn't be taking his boards trust. Nobody, I guess is what I want to say. When the defense inadvertently or not may represent things a certain way when in reality it's much different.

Well, the converse is true. You have to be Margaret near says Assiduously accurate with the truth of the case. If you don't prepare enough or you're sloppy in whatever guidelines or research that you do or the wording you use, and I've been a victim to this before, you say something that, or you take a point or take a stance that's not accurate or is not quite the truth, a good opposing lawyer is going to bring that to the jury's attention. They're going to rub your nose in it and it's going to impact your credibility. And so on the flip side, you've got to be really careful about taking a chance with this or I think this is it and they probably won't put it together or whatever. Don't do that because it's very, very likely to backfire. And even if it doesn't, it's probably morally, ethically not the right thing to do.

So just a couple wrap up points. I don't know if there's anything else that you really want to talk about in this case, but I thought, one thing I really enjoyed doing was that UPMC at the last minute proffers, this report from this orthopedic surgeon in Chicago, Steven Chu Dick, and he had never examined, never met. It was a records review only. It was one of the most vicious reports that I've ever seen just outright calling our client a ainger motivated by money, his injuries, none of the injuries are related. The surgeries performed by his surgeons were unrelated and even said the shoulder surgery was unnecessary. It was brutal, but it was just so off the reservation that, and we've tested this before, but we tested the focus group. This guy got hired to write this report. We got paid $21,000 just to write this report, by the way, without his testimony.

The focus groupers are like, this guy's coming in and it hurt UPMC. I made a point in opening, let me go with all the doctors on our side, on their side. And oh, by the way, all of Dave's surgeons, they're all UPMC employees by the way, and they're going to tell you that these injuries happened in this fall. There's this other orthopedic spine surgeon from the UPMC hired. He agrees, Dave's shoulders from the fall. And I'm like, there's just one doctor who says, otherwise pull this slide up and have Steven Trudy's face up there with the key information. Never met her when paid 20,000 plus dollars, whatever. And then to our surprise, when we get towards the end of the trial, you're about to stand up and filet Dr. Ick on cross. They stand up and say, their case is over. We rest. And they're not even calling this guy, which I thought was kind of hilarious.

Wow. Believe me, I was looking in the back of the room waiting for him to walk in so I could size him up. And then I started thinking, oh wait, I don't see anybody. I might get a break here.

Maybe the last second the door pops open, like smoke, like billows in. And there is Dr. Trudy. But no, never happened. I think because they knew that he was going to look really bad and he was not going to help them, which just gave us another fun nugget in closing, go through the, I remember what I said in opening, oh, I was actually wrong about this. Sorry, everybody, Dr. Chuuk mysteriously never made an appearance at the trial. I wonder why. I wonder why. And that closing was fun, and the closing was fun because we just had good stuff to talk about. We had the morality play. I could now in closing, highlight the betrayal and what they did to this guy and that they loved him. He was a commodity to them. He was an asset to them, but when he became less valuable and he couldn't make them all that money, they kicked him to the curb. They ghosted him. And just telling his story again was very helpful.

It was enjoyable to sort of retell Erwin's origin and hero story in closing now in the new context of the jury, understands what happened to him, what UPMC did with him, and then rolled into a nice and comfortable evil man argument, which I always love to give, which I just think works very well. I'll just close by saying it was a relatively short deliberation. I think it was a couple hours, but I still didn't feel very confident at all. I thought there was a very good chance we'd still lose that case. At that point. I thought the interesting aspect of the case is that the jury was made up of probably nine people, mostly men, probably 55 or older. There was a younger guy, maybe two guys under 40. And then there were two women that were fairly young, late twenties. I know the one woman was 25 and she said she was a bartender or something like that.

And to my surprise, who does the foreperson turn out to be? But the 25-year-old bartender, which I thought was really interesting. I heard you never know. I mean, you and I don't really talk with jurors much anymore, but Tibor did and Dave did. They had been told that essentially that two younger women on the jury were the ones that advocated for more money on the lost economics, which I thought was really interesting. I don't know what can be necessarily drawn from that. Do we like younger people these days? Not sure. And then their liability, I guess there was a fair discussion on the liability and what they ultimately agreed on was not so much that these three snow removal guys were negligent themselves, but that UPMC was negligent for understaffing because we had shown this massive campus that three men were responsible for covering, pairing that with the weather data for the day, was able to tell a compelling story that if you only have three people doing this, you're going to have patches of snow and ice present.

Which is another example of something that came up through discussion, not only right on the EVA trial, but during trial. I remember when we were driving to the courthouse and you said, you know what? This case really comes down to three guys trying to handle the snow removal on all the sidewalks and two helipads for this gigantic campus because we had concerns going in that a jury was not going to blame three guys who have been working for Hamot for probably much of their lives. One of which came in, had recently retired, worked for what, like 35, 40 years as a snow removal person, was the nicest guy. You can imagine. He talked about his job and what he did, and you did a great job with cross-examination of this gentleman because you weren't evil with them, you weren't aggressive. You just brought out what you just said, that this was too much work for just three guys, two helipads, everything I mentioned, there was a funny exchange about how this particular witness hated shoveling the helipads because it took so much time. They couldn't use their tractor, they had to do it by hand with a shovel. There were two of them.

He had that line. I was like, is it was like, are those helipads easy to take care of? He is like, oh, no. It seems like the more we shovel, the bigger it gets. And everybody laughed about that. He was just like a super good guy. You know what I mean? And he was just, you could just tell he was a great dude who loved his job, but I could also sense he was a straight shooter. He was just going to talk about the reality of what that job was like. And he would talk about, it was way more cozy to stay in the plow than get out and hand shovel areas like where Dr. Irwin fell and that they were basically hauling ass to cover that entire campus. And we showed him those photos of these street views we took of, I mean, it was unbelievable the amount of area that these three guys are responsible for. And he was like, I love my job. And I worked really hard at it, and it was a hard job. And I was like, you guys were working basically round the clock 24 7 to try to take care of this place. But by your own testimony, you could only do basically a full sweep every three hours or so. I mean, it is the best you could do.

It would be easy for the jurors to forgive these three individuals, great guys, hard workers, and you recognize that and you, I got past that and the ultimate blame was placed on their employer, the hospital, for putting those three guys in the position of trying to make this entire campus safe during an eerie weather event when that's really just, it's not fair. Kudos to you. Again, kudos to

Us

Getting to the corporate player, corporate

Malfeasance, pulling the mask back on the corporate beast. So I'll just finish because people, not to toot horns, but people were always like, well, what the hell was the actual verdict? So the total verdict was 7.25 million and it broke down. Past economic loss was a million dollars. Future economic loss was $4 million. Past non-economic loss was a million dollars future. Future non-economic loss was 500,000 for Dave. They awarded Monica, his wife, $750,000 for a loss of consortium, which again, great outcome. Wish I could say that we absolutely knew that was going to happen. We did not, but it was good and super just verdict, but definitely righteous and appropriate. These two had been through a lot, and this guy really was cost a lot. So ultimately happy ending, tough slog of a trial. It was only a week long. It felt like three weeks, but at least I had you to try it along with Diogo, our go-to operator. So happy memories now.

Thank you for including me. It was exhilarating and fun as always to be with you and just put our minds together and do good things.

Definitely. And for anybody that's gotten this far into the podcast, I love sharing stuff. So if you want opening, closing, PowerPoint slides, anything else, have questions about the case, just shoot me an email or call me. And that's it. Well, Gregor, another one.

I'll see you on the other side of this door.

Yes, absolutely. Yeah, absolutely. All right, buddy. Thanks. Next time,

If you enjoy the show, please subscribe to the Just Verdicts podcast on your favorite platform and consider leaving a review. And if you're interested in co-counseling, local counseling, or referring a catastrophic injury case, we'd love to work with you. Call us at (412) 281-4100 or visit our attorney referral Page at pamedmal.com slash refer. Thanks for listening.