Paula Slaughter gathered a polished, prepared team – starting with co-counsel Sandra Hagen – to represent a 74-year-old man who suffered a stroke seven months after his vehicle was rear-ended. Unpacking the case with host Keith Fuicelli, the team reveal their surgical approach to trial teamwork, including Paula's voir dire method that doesn’t involve questionnaires and Sandra’s meticulous research into the defense expert’s past. After they exposed an unprepared defense and a “Parade of Horribles,” the jury responded with a verdict of $3.2 million.

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Episode Snapshot

1. The team’s client suffered a triple cardioembolic stroke seven months after his vehicle was rear-ended. The crux of the case became whether the crash caused the stroke.
2. Sandra showed that the defense neurologist's opinions were "historically absurd" by walking the jury through his prior cases — including one where he found no concussion after a warehouse dock door fell on a man's head.
3. Sandra and Paula revealed that every single ER systems check — including elder abuse and fall risk — was completed in four minutes.
4. Paula used Expert Radar to pull prior reports, depositions, pharmaceutical payouts, and a letter in which the defense neurologist himself complained about the bias of defense doctors.
5. Barred from asking a specific non-economic dollar amount by a motion in limine, Paula closed with: "This is his final chapter. This is his only chance. This has to be enough" — and the jury came back saying she hadn't asked for enough.

The information contained in this podcast is not intended to be taken as legal advice. The information provided by Fuicelli & Lee is intended to provide general information regarding comprehensive injury and accident attorney services for clients in the state of Colorado.

Welcome to the Colorado

Trial Lawyer Connection,

where Colorado trial lawyers share

insights from their latest cases. Join me,

Keith Fuicelli, as we uncover

the stories, strategies,

and lessons from recent Colorado trials

to help you and your clients achieve

justice in the courtroom. The

pursuit of justice starts now.

Welcome back everyone to another episode

of the Colorado Trial Lawyer Connection

Podcast.

Amazing episode up ahead where we are

thrilled to have Sandra Hagen and Paula

Slaughter on to talk

about just an amazing $3

million plus verdict

in El Paso County on a

fascinating medical causation case.

So we are thrilled to have first time

attendees, Paula and Sandra on the show.

Welcome to the podcast.

Thank you, Keith. Thanks for having

us, Keith. Excited to be here.

I'm so excited.

And the one thing that I learned before

you all jumped on is both of you have

tried between you each

between like 35 and 40

civil trials.

I just want to say that is

amazing and kudos to you.

How is it that you both

are obviously very young.

How in your short years of practice

were you able to try so many cases?

That is phenomenal.

I had my own law firm for over a decade,

and so I was front row

to all of those trials.

So that part made it really exciting

to try cases from intake all

the way to verdict. I was really

young when I started my law firm.

I think I was like 29 or 30

and had nothing to lose and

everything to gain. And

so that's how I started.

And now I'm at Wilhite Law Firm

with Sandy and we are high volume.

So we get a lot of opportunity to try

really interesting cases with interesting

fact patterns around the state.

It's cool to get in there and do it.

Yeah. And the cool thing about

Wilhite is yeah, you're high volume,

but you're also trying a lot of

cases. So sometimes I feel like, oh,

high volume means no trials. And I

think oftentimes the opposite is true.

Sandra, has that been your

experience at Wilhite,

that you're just trying cases

left and right? Seems like it.

It is.

I initially started as Rob Wilhite's

paralegal way back in the day.

He's always been very supportive of,

if the insurance company isn't going

to play, let's just go try the thing.

As long as our clients are on board

with it and the way our firm is

structured, we have litigation team. Our

litigation team is very trial focused.

When you pick up that

case from pre-litigation,

you're planning for trial from day one.

So it's a very encouraged thing

that we do in our lit department.

Yeah. And I just think when you try a

lot of cases and your results speak for

themselves, which they do,

then it just trickles down.

And then you're getting better offers

in pre-lit and everything just moves

better. So what a great world that

you have grown up in, if you will,

as attorneys to get to try so many cases.

And let me start with you, Sandra.

Did you always know that you wanted

to be a trial lawyer? I mean,

I'm guessing that you're

working in the trenches,

then all of a sudden you're like, wait

a minute, I'm going to become a lawyer.

How'd that come about?

Actually, law was my second career.

My first part of my adult life,

I was in restaurant management.

Then I had my daughter and

decided to go back to school.

I initially went back to become a

teacher. And then somewhere along the way,

I was like, "Maybe I want to be a lawyer."

And so I figured we're already broke,

so let's just go for it. And so I

did. And when I started law school,

I actually went in thinking I just

want to be in house somewhere and write

contracts. That was my goal.

And I ended up interning with

a criminal defense attorney.

My very first foray into the courtroom was

arguing a case in front of the

North Dakota Supreme Court as a 3L.

Wow. So what was that experience like?

Terrifying. Absolutely terrifying.

I think there's an audio of it out

there somewhere and I'm just afraid to

listen. I don't want

to know. I didn't win.

But you still argued in front of the

North Dakota Supreme Court. I mean,

there is something to be said for

that. So congratulations there.

And then how did you end up doing

plaintiff's side trial work?

Well, when I moved

here, I wasn't licensed.

And so I was looking for paralegal work

and I had applied a bunch of different

places. And this is back

in the time of Craigslist.

And so I had an ad out and Rob

Wilhite was in his, I think,

second year of practice. So

he reached out, interviewed,

and the rest is history.

So you started as Rob's paralegal?

Yes. Yeah. And then about two

or three years later, he said,

"You got to go take the bar." He's like,

"You're just wasting your time here."

So he encouraged me to take the bar.

I did. And here we are.

Wow. That is so fantastic. I think that

you mentioned that you had a daughter,

I guess not too long ago,

part of this process.

And your daughter now, I think you

told me off air, is 30 years old.

You must be very proud knowing

that she must be so proud of you

to have done all that you have

done with a young child. I mean,

just tell our listeners a little

bit about what inside of you

kept you going.

Once I got fixated on the idea,

it was more about taking

it one day at a time,

sometimes one minute at a time,

because if you back up and you look,

it's too much and it's too

overwhelming. So you just say, "Okay,

what do I have to do to get through the

next hour the next day?" 10,000 hours

later, I got a few trials under my belt.

Wow. That is fantastic. And

kudos to you. Kudos. Paula,

tell us a little bit about yourself.

How did you come to be a rockstar

plaintiff's trial lawyer?

I just wanted to go snowboarding.

I got out of college and was a real

estate broker for a little bit.

Didn't really want to stay in that

lane and came out to Denver to visit a

friend, got some snowboarding in,

visited DU law, and I was like,

"I think I could do this. " So

applied to a few law schools.

DU gave me a lot of money to go there.

I got out and still didn't know

I wanted to be a trial attorney.

Did some tax work. And

then in my late 20s,

started a law firm and got into

the courtroom and loved it.

I remember waiting for one of my

first verdicts and it felt like

b know it inches up and I'm

a first row rollercoaster

person and you know you're inching up

and then your feet start to dangle cause

you're about to drop. That is the feeling

right there of being at that table is

the few seconds right before you go.

When you get that phone call and the

clerk says the verdict is in, I mean,

I'm getting goosebumps just telling

you the story right now that you go and

you're sitting there and you're waiting

and it's just this buildup and this

buildup and you are watching

the judge get the envelope and

read the verdict and

there's nothing like it.

There's absolutely nothing like

that feeling. Win or lose, honestly.

That is a very good analogy.

Now I see why you have done so well in

trial because your analogy skills are

second to none.

They are on point for sure. I'll.

Tell you what, I am a little bit

nauseous hearing you describe it because

what I have experienced, I don't

know if you all disagree. For me,

sort of one of the best feelings is

when you're just waiting on the verdict

because you're like, "You know what?

I'm done. I can finally relax. Candidly,

I like to go find a place and have a

beer because I don't drink like a week

before. I don't drink during trial,

so I need a beer when I'm waiting

for that verdict." I got to ask you,

you are wearing a sweatshirt

that says Clever Bully.

That is an awesome sweatshirt. Tell

me a little bit about Clever Bully.

What's that?

Oh, thanks. So Clever Bully is a

brand that I came up with my husband.

I had gone through a few

years where it was a rough ...

I had come out of a really

big divorce and it was a lot.

And so I was feeling a little

beat down by the system.

Family law can be really hard.

Shout out to the family lawyers out

there because I could never do that.

I learned that you have to be clever and

sometimes outsmart the problem and come

out on the other side on top of the

things that were like really burying you.

And so we kind of came up with this

like, you can be a clever bully.

You don't have to be a bully. You

can be somebody that's clever.

And then I thought about that and it

kind of bled into how we deal with

insurance companies is you

just, you have to be clever.

Yeah.

I almost feel like I want a clever bully

t-shirt to wear underneath a suit when

I'm in trial. Sort of like that

armor to go into battle. I.

Will get you one because it feels.

Good to wear this. Offer

accepted. Offer accepted.

So let's talk about this amazing result,

three plus million dollars

in Colorado Springs.

Just absolutely amazing.

And before we do that,

I know in speaking off air that you

both said that you try a lot of cases

together. So tell us a

little bit about that.

And specifically for this case,

how do you as a trial team go

about dividing up responsibilities?

With any case, when you're assigned a

case at our firm, you're the lead counsel,

it's your case. And we

work pretty independently,

except for in rare occasions we'll double

up early on. But for the most part,

you get the case, it's your

baby. And if it goes to trial,

then you start wandering around the

hallways looking for who wants to

co-counsel with me on this trial. This

was actually Paula's case. She took lead.

And so she asked me about a

month out, I think. She said,

"This one's going to go. " And I'd

had a case recently settled, so I did.

Yeah, that was going to be my question.

So you start to sort of figure out who's

going to do the case with you about a

month or so out. Is that true for you,

Paula and Sandra, about a month out?

You have a feeling at that

point, mediation's done,

you know the case is going,

that's when you go get

second chair, if you will.

Yeah.

And the other thing that's neat about

our firm is we have enough litigators who

are pretty seasoned.

So if there's a particular

area of damages,

say TBI or something like that,

some of our attorneys are

really great at certain things.

And so you look at it and say, "Oh, okay,

this is a case maybe where I want Zack

Elsner on because he's great with the

neuropsych stuff." Or in this case,

and what I do when I'm lead is we

usually divide up the case by issue.

So if there's engineering, if there's

medical, if there's lay witnesses,

depending on how many counsel we have,

we kind of put everybody in the same box.

That's what Paula did

in this case as well.

Yep. And we had tried a TBI case together

like four years ago- It was before.

COVID.

It was right.

After COVID.

Yeah, we tried it four years ago

together and we got a wonderful result.

I think you got a $990,000

or something like that.

And we just worked really well together.

I think when you have a trial partner

that you've worked with before,

you have a lot of faith in each other

that they're going to get their part done

and they have faith in you that you've

done that work to get it to verdict and

that they can sort of drop in where

they're asked to be dropped in. Yeah.

And we just naturally

work really well together.

Who did what in the trial?

So how did you divide up voir dire opening

and those various parts of the trial?

So for this trial, optics

were really important to me.

I really wanted us to look like a very

well prepared, female driven team.

I also really wanted to make sure that

we were kind of in and out surgically

with the jury. So we had two experts.

We had our plaintiff and we had one

lay witness, our plaintiff's brother.

And so the way that I divided

it, and they had two experts.

We had a neurologist, they

had a neurologist. We had

like a musculoskeletal MD.

They had the same thing,

an orthopedics guy.

And so basically we divided it

between neuro. Sandy did the neuro,

and then I did the

musculoskeletal witnesses.

That played out really great in terms of

preparation because Sandy could really

focus on just the neuro. She did the

lay witness, our plaintiff's brother,

and then I took everything else.

I was really excited about this case.

I really was.

The defense team wasn't paying attention.

They weren't taking it seriously.

And so I knew Sandy had been

really busy. And so I said, look,

let me do voir dire, opening, closing.

I've really doubled down

on voir dire lately.

It's something for the past two years

that I've focused on pretty heavily is

voir dire. And so I just

wanted to keep going with that.

So Paula, you were sort of,

I guess this was your case,

your baby from the get-

go. How did you divide up?

How did you and Sandra decide

who's doing what during trial?

So this case for me, I really

wanted us to look really prepared,

really ready and to really tighten up

our story and be surgical about how we

presented it to the jury.

Sandy and I had done a TBI trial

together before a couple of years ago.

And so I really wanted her to

take the neuro on this one.

She's just really gifted at getting

really beautiful pieces of testimony out

from direct examination of our doctors

and then her cross-examination. I mean,

to watch Sandy cross any expert, but

to cross a neuro is like a masterclass.

And I had seen her do it in

Arapahoe County when we did

a TBI case together four

years ago. And when I asked

her to do this trial, I said,

"You have to cross their neuro.

You have got to be that guy that's going

to go in and bruise them up." And she

did exactly that.

And I knew she had been really busy.

So one of the things that we try to do

that I've kind of said before is you want

your second chair to really drop in really

easily and without too much pressure.

And so I told her, "Look,

I'll do the rest of the trial.

If you can do the neuro portion,

do our neuro, cross their neuro,

and then take a lay witness,

I'll do everything else.".

Okay. So did you do voir dire in opening?

I did. I've really been

focusing on voir dire.

I've kind of doubled down on voir dire

in the past two years. I've gotten into,

sorry, Delamot, I don't know if you're

familiar with her, Hostage to Hero,

12 Heroes, One Voice,

and that's kind of where I've been

putting the focus of my trial work.

Everybody does things

differently, but honestly for me,

doubling down on voir dire

is what's worked for me.

I've noticed that my verdicts have gotten

bigger and bigger and bigger as I've

started to really double down on

voir dire and employ what I've been

learning through these books and podcasts.

I went from smaller

verdicts to like 750,000,

600,000 and now 3.2 million

from really focusing.

On it. It's marvelous. And I will

give a plug to sorry de Lamont.

I went out and spent three days doing

her trial lab on a big case that I had

where three days on the opening, it was

very, very useful. I'm sort of with you.

I feel like for me, voir dire

is always an evolving process,

but one of our core values is

better tomorrow than today.

And I do feel like as long as we're

better tomorrow than we are today,

then life's moving in the right direction.

Sounds like you're emboldening that

and embodying that. Amazing. Love it.

I have to interject

something because she and I,

while we're both pretty chill and

that's why we work pretty well together,

she didn't want to look at any

of the juror questionnaires.

And I just couldn't even wrap

my head around doing a voir dire

without having looked at

that. And she's like, "Nope,

I don't want to look at it. " She doesn't.

She goes in cold and builds

her tribe and I love it.

Oh, that's amazing. So Paula, tell us a

little bit about the facts of this case.

And then I want to get into the cross

of the neuro and some of the sort of

fascinating medical issues

that arose in this case.

Absolutely. So our

plaintiff is Anthony Carter.

This crash happened on December 7th

of 2021. He was about 74 at the time.

He had been a tile master for his life,

had done a lot of like hands-on work

and he was fishing down at the reservoir

with a friend of his.

He's coming back up on I- 25 northbound

and there's all that construction right

around Colorado Springs. And

so he comes to a dead stop.

He's driving like a 1990, 1991 Mercedes,

the kind that used to be made out of

metal. The bumper was fully metal.

Everything in the car is metal.

And then defendant Matthew Monday is

driving this Ford Transit van and he's

driving it for this weed

farm called Montefiore.

And he's going about 65 miles

an hour. He'll never admit it.

He said he looked down for a second,

but I have my suspicions about what he

was looking down at. He hit Mr. Carter at

65 miles an hour.

Wow. And you said weed farm,

like marijuana farm or?

Yeah. So the van was just full of weed

products that he was delivering to these

various dispensaries.

The property damage was

significant. I mean, the collision,

the forces of the collision were enough

that the metal bolts of the driver's

seat in Mr. Carter's car broke and

came undone. His headrest broke.

He was dazed at the scene,

but obviously concerned about anybody

else that was involved in the wreck.

And so he was transported by

ambulance, so was Mr. Monday.

And basically what that

led to is at 74 years old,

he started having some

AFib, atrial fibrillation.

And then after about seven months,

he suffered like a triple

cardioembolic stroke,

which I'm going to let Sandy talk to you

about because she's got it dialed in on

the neuro. But the crux of the case was,

did this crash cause these strokes or not?

And he had some significant

musculoskeletal injuries

as well. He had a T2,

T3 compression fracture, but I

really think that the case was,

is this person significantly

and permanently injured.

So client gets AFib that

then eventually leads to the

stroke. So help me understand how,

what did your neurologist, I

understand it was Dr. Gray.

What did she tell the jury

how one thing led to another?

Honestly, I had never heard

of this before either.

So I got a big education in

a very quick period of time

on this.

So how she explained it

was obviously this crash

is hard enough and the forces are hard

enough for whether he hits his head on

the headrest or it's a whiplash.

I don't think it really mattered because

there was certainly enough force there

to give him a TBI. When

he's taken to the ambulance,

and an interesting fact is that

he doesn't really talk to anybody

super early on because there's

three cars involved in this.

And one of the cars, that guy

had a warrant out for his arrest.

And so there was like a whole thing.

By the time he's actually

talking to someone,

there's plenty of time that has passed,

probably close to a half an hour,

I think. Whatever he's feeling,

he's feeling a little dazed and

confused right after it happens,

but doesn't report it to anybody. And so

he goes to the hospital and because of

his age, they did a head CT, but

didn't diagnose him with a concussion,

didn't diagnose him with

a TBI. But interestingly,

they didn't find the compression

fracture either. So there was a lot of,

not necessarily missteps, but a

lot of things missed at the ER.

And I'm assuming the

head CT scan was normal?

Correct. Okay. Yeah, it was.

All right.

Which is important because we're not

seeing any of the indications for the

ischemic strokes that he

has then down the road.

So he has a TBI.

He gets his treatment and he's

reporting headaches and some

irritability and the usual

cognitive type stuff.

But he lives with his brother.

They're both in their late 70s and

nobody's really thinking about this.

They're treating the physical

side of it. And like Paula said,

about seven months later,

he has this stroke.

So Dr. Gray explained it to

the jury that he has this TBI,

which starts sort of this

cascade. He's put into,

for lack of a better

term, fight or flight.

So he's operating at this sort

of high level called sympathetic

overdrive.

So your parasympathetic system

is just idling really high.

And then that is creating

these heart palpitations

and leading to the AFib.

Then the AFib starts running

its course through the heart.

Those little clots are making

their way to his brain.

So he ends up having,

I want to say it was five areas of

ischemic stroke, seven months later.

Okay. So it's making a little more sense

to me because I'll sort of confess my

ignorance when you're talking

about an ischemic stroke,

that these are micro strokes, if you will.

So this isn't one big blood

clot going to the brain.

These are small little blood

clots over time. Is that right?

Yeah. They don't happen. And

the way Dr. Gray explained it,

these don't happen overnight. That was

another piece of the causation was, well,

if this was going to happen, it should

have happened more immediate. Well,

it didn't because it's a whole

cascade of symptoms that lead to this

ultimate result.

And so the defense doctor blamed it on

Imbruvica because he had-.

Cancer.

Yeah, he had leukemia and

so he was on Imbruvica,

but we were able to show the

studies he'd been on this for years.

And so with Imbruvica,

yes, it can cause AFib,

but it typically causes the AFib within

four months of starting the medication.

So you usually know pretty early on if

the Imbruvica is going to be an issue.

All right.

I want to do a little more of a deep

dive into this medical issue for the

education of our listeners and

strategically ... And first of all,

tell us a little bit about the defense

neurologist, Bruce Morganstern.

I think you can look at it two ways.

You can either look at as a

curse or a gift because he's

going to stick to his guns.

He has testified far more times

than I've ever been in trial.

And he's got his script and

he's very polished when he's

talking to the jury. He also,

what I found was kind of aware of the

traps that he could be walked into.

So he wasn't fighting me on things because

I think he realized I had the goods.

So he knew to just sort of caught

to things, if that makes sense.

So it was kind of more like,

I have to show the jury

basically that your

opinions are sort of absurd and

that they are historically absurd.

We had audio taped his Rule 35 exam,

and so there were inconsistencies between

the tape and what was in his report.

So we highlighted those.

We had the tape ready to roll

if he were going to try and work

around it, but he knew.

He did this comprehensive cognitive test

and the three words and you wait five

minutes. And I'm like, "You didn't wait

five minutes, did you? " He's like, "No,

it's probably a little less." Half.

It was two and a half minutes.

And two of the words he'd

actually repeated in another test.

So you're dropping the

hints along the way.

So he was interesting. He was tough.

He wouldn't keep himself contained

to a yes or no and things like that.

But I think after a period of time, I

think the jury just kind of realized,

this is insane,

he had found no concussion

in some pretty clear

cases,

a warehouse doc door falling on

someone's head and a pretty significant

electric shock. My own

colleague, Anastasia Evans,

had a client and she had a big hematoba

on her head and he had done that report

saying no concussion. So I think it

was just showing the jury absurdity.

Jerry didn't.

Like him.

Yeah.

I was going to ask sort of how you went

about finding these prior examples of

absurdities.

Were those just in office cases or did

you reach out to the Listserv or other

ways to get those examples?

So I did pull a fair amount

of stuff off of the Listserv,

but Paula had also been working

with Expert Institute and

they had done a trial.

And so she said, "Hey,

look up what you can find on Dr.

Morganstern through here." And it was

crazy the amount of

information that was available,

not just prior reports, prior depositions,

but things that his messages on

different message boards throughout

the medical community,

there was a listing of all of the

pharmaceutical payouts he had taken,

letters that he'd written back in

Ohio regarding malpractice claims,

including there was one that had

just this absolute piece of gold

saying- Yeah, that's a good one.

The problem with these malpractice

cases is the bias of defense doctors.

I mean, you can't make it up, right? It's

little drops of gold. So.

Paula,

tell us a little bit about the service

with the Expert Institute that you use

and we've heard some of the amazing

information. Was it easy to use?

Is that something you do a

lot of cases going forward?

So I had never done it before. I said,

"All right, let's give it a shot.

It's called Expert Radar and it's like

ops." They get all the ops on the other

guy and it was incredibly

easy to use. I mean,

they did a really quick turnaround

for me. It was like 24, 48 hours.

They kind of walk you through it. It looks

kind of like a Filevine system maybe,

and you can click through

all the different tabs.

So you can go into a tab that gives you

the general overview of how many times

he's testified for the defense

versus plaintiff's work.

It'll give you where he's

testified in the country.

And then you can go on a tab and

it'll have all of his employment.

They have a miscellaneous tab where I

think it's where Sandy found that he had

written this letter to this

newspaper while he was being sued for

malpractice about the bias of

these defense experts. And so what

an awesome tool. I am going to use it.

I'm going to trial again in June and

I plan to use it on all three experts.

I have Allison Fall, Dr.

Chen and Peter Himpsel.

Oh my gosh. Yeah, the big three.

Yeah, I was going to say the trifecta.

God. So Sandra, how did you,

this nugget, this golden nugget you

have, did you lead your cross with this,

the concern about the bias of defense

doctors or where did you place that in

your cross?

Honestly, Keith, I have to

be honest, I didn't use it.

Wow.

I didn't use it. I had planned

to and sort of the way,

the trajectory of how the cross went,

I ended up pulling back on some of it.

I thought that we had already gotten

there and I don't think it would have

mattered at that point.

I want to dive a little bit into that

because I'm hearing you say that,

and I know from talking

a little bit offline,

is it you got to a spot where you felt

like the jurors were on your side,

you had accomplished what you wanted to,

and you didn't want to like beat

them up anymore and like go too far.

Is that kind of how that

went down in your mind?

Yeah.

I think at one point the cross examination

got a little bit heated to the point

where the judge had to intervene,

he called a break and at that

point I just felt like, "Okay,

let's recalibrate." Actually, honestly,

I can't remember if I brought out the

Parade of Horribles before or after the

break, but once I had done that,

I think out of the corner of my eye I

could kind of see the jurors kind of doing

that like, "Yeah,

we're done here." And I try and as much

as I can take my cues from where the

jury is done with it, so we wrapped

it up pretty quickly after that.

With the Parade of Horribles,

is that the prior cases where there was

an obvious concussion and he was saying

no concussion?

Yeah, multiple of those, but yeah.

Walk the listeners through sort of

how that played out practically.

Do you remember this case

and would he admit, "Yes,

I do remember that case." Would he fight

you on the individual facts of those

cases or give us a little bit more

about how that particular strategy of

showing absurdities in other

cases, absurd opinions,

how you practically

put that into practice?

So, and this is where I'm saying he

seasoned enough to know what I was doing.

I would say, we would switch gears.

We were talking about something where he

hadn't found a concussion in our case.

And I said, "Well,

I want to switch gears a little bit and

ask you about a few other cases you've

testified in.

Do you recall testifying in a trial

called whatever the name of the trial?"

And he's like, "Oh, I'm

not sure." And I'm like,

"Let me give you a few facts." And then

this was a case where this gentleman was

delivering candy to a Walgreens and the

warehouse dock door fell on his head.

Do you recall that? And then he

was like, "Oh yeah, I think so.

" He didn't fight me on it

because I think he realized

I was going to be ready

with the testimony.

I guess that's my question is because my

mind is spinning about how we're going

to do this in the trial we have next week.

Did you have the report ready to go to

refresh his memory if he waffled at all

or the deposition? What did you have?

Absolutely. I had the deposition.

I had copies ready for defense

counsel and the judge if he were going

to ... So I walked in

the binder about this big of

his cross But like I said,

this is where you can tell probably

more of the seasoned experts,

he didn't fight me

because I think he knew.

And it was easier for him to

sort of downplay. He's like,

"Yeah, yeah, I think I might. Yeah. Well,

there was other things going on. " And

he would be very wishy-washy about it.

But again, what I wanted for

my purposes was to just ...

I didn't want to get into

the whole situation of it.

I wanted the optic of garage door

falls on somebody's head and you're not

finding a concussion. Okay, next.

And so his excuse was, "Well,

there's other facts that you're not

covering." And you're just like, "Okay,

let's move on to the next case."

Is that kind of how it went down?

Right, right. And I think with

the electric shock, he's like,

"That's a good one. Well,

how many volts or whatever?"

And I think it was 120 volts.

What does he say? A hairdryer

or an outlet or something?

I can't remember what it was.

It was like that was sort

of his back and forth to it.

Do you believe that, because

as you're explaining this,

I'm thinking on the one hand,

it sounds a little bit of a difficult

causation of tying the strokes

to this crash.

And you have Dr. Gray explaining

physiologically how that occurs.

And then on the other hand,

you have the defense doctor

going almost too far.

And so I almost wonder if the

fact that that doctor took such an

extreme position of no concussion then

resulted in your verdict. Do you have

an opinion on if that's what happened?

I think it very well could

have. Again, with Morganstern,

we spent so much time on the TBI itself

versus the stroke because he wasn't

finding the TBI in the first place.

So that I had to show the jury

that his opinion on the TBI

seemed to lack credibility.

And then they can pick up where

Alison Gray was and then run the

ball to the end zone on.

That. Talk to us a little

bit about the difficulties,

how difficult it was to establish the

existence of a concussion given the 30

minute delay, the negative CT scan.

I'm assuming that the

neurologic examination in

the emergency room was fine,

totally intact, no issues whatsoever.

So how did you overcome that piece to

establish the concussion occurred here?

A couple of things. First

of all, there is nobody,

he's not speaking to anybody

in the first nearly half hour.

And so it kind of came down to a, "Well,

if a tree falls in the forest," and

I think those words actually came out

of my mouth during my

cross. Second of all,

we went through very

meticulously the ER records.

There was a timeline in the

nursing notes of when all of

these evaluations were to have occurred.

The neurologic exam

was ... Well, actually,

I think every single systems check,

including the neurological exam,

was four minutes fine.

Four minutes.

Something like that.

Every single check, including

elder abuse and fall risk. I mean,

we walked them through in your

cross of Morgan Stern in Dr. Gray,

and then I did it with Hailey Burke,

that timeline of look at how many

tests they're doing and it's four

minutes. And that was

their complete assessment.

So the timeline,

was that on the actual records or did

you have to get the medical audit,

the medical metadata to find

those timelines of what occurred?

No, it was right in their medical

records. It was in the nursing notes.

So in the ER records,

they would put timestamps next to the

different things that were happening.

So I think when we were preparing, I

was like, "Paula, look at this. This is.

Ridiculous." Yeah. I

was just going to say,

it's one of the things I love about

doing this is I'm learning something new

myself because I recall

some of these ER records,

like I have seen those timestamps,

but not always for you to be able to

look at that and say, "Wait a minute,

to be able to prove

something that we all know,

which is that these ER examinations

are very quick, very cursory.

And so you're able to look at it and say,

look at all these things that they did

in four minutes and they want to have you

believe that this is some kind of

comprehensive neuropsychological or

neurological assessment."

That is brilliant.

Yeah.

And Hailey Burke was great at really sort

of digging in on what the point of the

emergency room is. It's not to do

all of these assessments. It's,

are you going to die? Yeah.

Quick practical question on that

because I love that testimony

and Dr. Burke testifies for the defense

often as well and can be devastating on

the defense side, as I think we all know.

Did you include in your expert disclosures

that Dr. Burke was going to talk

about what normally occurs in

the emergency room and that

it's designed to save your life,

but they're not doing sort

of a full blown assessment.

And the only reason why

I asked that question is,

is that something that our listeners

need to be aware of finding out if

a treating doctor is going to testify

about that and actually putting in the

body of our expert disclosures or A,

did the defense not object? And B,

if they did object, are

you sort of like, "Look,

this is just part and

parcel of the underlying.

Opinions." So it wasn't in our expert

disclosure and it wasn't in her report.

And I was really surprised at how much

we got in. Overall, broadly speaking,

I don't think, and the

defense team was very gifted.

It's Brandon Freedy and Jason Mellakar,

they're both gifted attorneys.

I just don't think they

took this case seriously.

And so there were some parts that they

weren't paying attention to. For example,

Sandy does this beautiful direct

of Allison Gray, and at the end,

she moves to admit Dr. Gray's records

because Dr. Gray was our hybrid

treater/retained. There was no

objection to those records coming in.

And so in my closing,

I urged the jury to read the

first eight pages because it

had a records review in there.

There had been some letters that Mr.

Carter's treating cardiologist had

written about the AFib and another

treating doc in there. And so Dr. Gray had

kind of gone through all of that.

And when there was no objection to

it coming in, and I told the jury,

"You should read it. " Our colleagues

on the other side after that said,

"Wait a second, that came

in. " And we were both like,

"You didn't object." And then

Judge Prince said, "Yeah,

you didn't object." And then you could

just sort of see the color on their face

was like,

"Uh-oh." So there were just some things

that trial kind of gives you as a gift

of them just not really taking this

case as seriously as I think we took it.

And in speaking to the jury

afterwards, that is what came through.

And the jury did tell our friends on the

other side that we were very much more

prepared and polished, not only ourselves,

but also our doctors and

that their team didn't have

that same presentation.

You mentioned at the beginning that you

really wanted the optics to be prepared

on the right side.

Tell us a little bit more about

your thinking and preparation of the

optics piece of this and

what our listeners can learn

as they're getting ready

to march into trial.

Absolutely. So anytime a

case is assigned to me,

the first thing I do is I think about

what am I going to tell a jury in my

closing argument? And then I

build backwards from there.

How do I want this to look?

As I was taking depositions

and kind of building this case,

I was realizing that what we really

needed was just a really prepared,

polished team because these were going

to be really complicated neurological

things that I don't think your average

juror was going to be able to understand.

And so I wanted,

we already had Allison Gray on the

case because she was already a treater,

but I brought Haley Burke in because

she absolutely demolished me in Adams

County a few years ago. And I was like,

"I'm never going to have that again.

I want her on my team." Because she can

explain things in this really beautiful,

polished way to the jury that

they really grab onto. I mean,

she was 80% of the reason that when

she demolished me in Adams County,

it was admitted liability and we got a

defense verdict because she just wiped

us. And so I wanted us to have

this team and Sandy comes with it.

She is so prepared. She's

so polished. She's so ready.

She knows every medical record in and

out because that's how she prepares for

trial. And I wanted that look. I

liked the look of having four women,

no offense to the men out

there, no offense to you, Keith.

But I wanted this look of this team

where we were really taking care of this

older gentleman who is

a cute little old man.

And he's got this team of like legal

folks and medical folks that are here to

be able to tell a story and take care

of him. And then on the other side,

we had these two defense attorneys

who weren't taking it seriously.

We had two male doctors who also

weren't taking it seriously.

In fact,

Philip Stull got on the stand and

said that he wasn't sure why he

was there because he was only supposed

to talk about the shoulder and didn't

know he was supposed

to talk about the back.

I just kind of rolled into that

and cross of him. I was like,

"You don't even know why you're

here." It was this whole other team.

The defendants never came, so they

also didn't show up for trial.

So it was this whole other team of

folks not taking our client and his

very, very serious injuries and

permanent injuries seriously.

Oh my gosh.

Did you know that Stoll was going to

say that he only thought it was the

shoulder before trial? I mean, that was

just like a gift that was given to you.

It was a gift. A gift. I think we looked

at each other and we're like, "What?".

His whole report was about

the compression fracture.

His report only had a little paragraph

about this big about the shoulder.

So when he said that, I thought,

"Gosh." And then you have these moments

after you've tried a bunch of cases,

you realize the jury doesn't

know what's in his report.

I'm going to capitalize

on this. "Hey, jurors,

you don't know that the report that I'm

holding in my hand is eight pages of

compression fracture. "So this

guy gets up there and says," Oh,

I don't even know why I'm here.

"He was very cutesy about it

and my cross was less than

maybe 10 minutes. I mean,

I didn't have a lot to say after he got

up there and said," I don't know why I'm

here.

"Does that come with experience when you

have accomplished what you need to and

then just do sit down?

Yes, absolutely.

Don't open the door to redirect.

You don't. And so you learn

that as you go along, right?

And the only way to learn

that is to actually be in

trial and have those moments

of, " I think I need to sit down now.

We've done the work here and we've left

the impression we want to leave with the

jury and in speaking with them afterwards,

it absolutely played out that way.

So I'm kind of glad that my trial

instinct was I want this trial to be about

optics.

And that's exactly what the jury told

me at the end was what did it for them

and why they awarded so much money.

And what foresight you

had about the optics,

not just of having the female team

against to help this older gentleman,

but of being super prepared,

having everything inside and out.

And then the defense walks in

and puts up a doctor that's like,

" I don't know why I'm here. "It just

makes the defense look incompetent.

And you couldn't have predicted that, but

it played out perfectly. Kudos to you.

Thank you. It was a fun trial.

I mean, admittedly, Keith,

in my closing, I only asked

for 900,000. I did not.

Ask. I was just about to ask

for the damage ask and how ...

So let's talk a little bit about your,

because you both have so much

experience trying so many cases. Sandra,

let's start with you.

Talk to us a little bit about

your philosophy on impairment,

non-economic damages,

and what sort of you have found works

and what doesn't work and what can we

learn from you?

Well, I actually was going to defer this

back to Paula because we did have an

interesting quirk with

non-economic damages in this case.

But in cases now,

I'm trying to do my best to get actual

impairment doctors because I think that's

historically for me been the hardest

category of damages to quantify to

a jury and explain. We've had it,

I think the last few trials I've

had, the impairment has come through.

The juries have really sort of

grasped onto what that's about,

but I'm going to defer to Paula

actually on the non-economics because,

like I said, they're a

little quirk in this case.

Well, and let's talk about that

because I know from your writeup,

it has to do with responding to written

discovery where they're asking you to

quantify impairment or

non-economic damages.

So give us the setup

and how that played out.

Sure. So in the CMO, we didn't

put a range. We just said TBD,

which under Rule 26, that's fine.

But then they propounded written

discovery and our answer in written

discovery to how much are

you going to ask for non-ec,

it's going to be determined by a

jury. I didn't put a range in there,

which now I have ... I'm not sure if I

learned was a mistake or not, honestly,

but that was what our response was.

And so they filed a motion in limine to

preclude us from asking for any specific

amount.

And so we duked it out in motions practice

and ultimately Judge Prince said,"

You can ask for non-act,

but you may not give them

any formula number nothing.

You can just say that non-ec exists. "Now,

most of my voir dire is based on damages.

So I like to talk to the jury really

early on about versus non-ec versus

impairment and kind of get their

feelings on as we're building that tribe,

what can you do with this squishy

concept of non-ec that you have to go in

and decide,

right? So I felt comfortable that we

had a jury pool that was going to work

together. I wasn't allowed

to ask for an amount.

I couldn't give any sort of formula.

I couldn't do anything. In fact,

Judge Prince interrupted me in my closing

without an objection from the other

side. He interrupted me

in my closing to say,

as I was starting to talk about

non-economic damages on the verdict form,

he said," You're not going to do what

I think you're going to do, are you?

"And I said," I'm not doing anything.

I'm just telling them that there's

a bucket here called non-neck.

"And then he told me to move on.

Well, before we talk about

their actual award, in response,

I just want to put out this,

this is what we're doing right now

and I want to get your thought on it.

When we are getting interrogatories

asking for specific amounts of

non-economics and impairment, what I did,

and I just did this I think last week,

so I haven't seen this play out, but we

responded with the typical objection,

the rule doesn't require

it. And then I put in there,

if counsel for defendant disagrees,

we ask that you please raise this with

the court now because I don't want to

come in. I want to have that as if you

don't raise it, I don't want to have ...

And I think maybe I read your ...

I think that actually I'm going to thank

you because I read your trial report on

the Listserv and saw that and I was

sort of concerned. I'm like, " Look,

if they're asking that question, I

don't want to just say objection.

I want to say objection and if you

disagree, raise it with the court.

So we'll see how that plays out. Now,

I guess based on what happened

to you before you heard that idea

from me,

are you now answering with a range when

those questions are coming in or what

are you all doing?

I'm giving a range and my range

typically is at least the underlying

economics up to double the cap.

That's kind of the range I live in.

And I usually note that it's too

early in discovery to determine a

precise number.

And we have a whole objection that

we use firm wide on that as well.

The other thing too, and I think

if you're going to do that range,

I think then it's incumbent upon

us as well to do motions in limine,

basically stating defense can't stand up

in their opening or voir dire and say,

they're going to ask you for $2 million in

non-economic, because I

think that's where it goes.

They want them to show this

absurdity right out of the gate,

and I think we need to temper that.

So if the court's on one hand

going to make us give a range,

they also kind of, I think,

need to protect the outcome

of how that range happens.

Wow, that's a really

good way to handle that.

So you sort of object saying the

rule doesn't require it, number one.

Number two, it's early in discovery.

Number three, this is for the jury.

And then without waiving said objection,

the range is between here and there.

And then if defense counsel believes

that we need to provide additional

information, raise it with the court,

and then eventually

file a motion in limine,

how have you seen that play

out during depositions?

Have you found defense attorneys

aggressively trying to get

testimony in depositions from your

clients about both non-economics and

impairment? And if so, what are you

doing to prepare your clients for that?

Essentially, it's something that

as an attorney or as attorneys,

we need to have that

conversation with our clients.

That I believe enters into a

privileged conversation in a

deposition, particularly if we

haven't had that discussion.

And so my clients typically are saying,

"I need to talk to my lawyer about that.

" I don't know. That's

kind of where it's been.

I don't know if I've had any

clients who've actually spit out.

A number. Have you ever had to

instruct your client not to answer,

sort of aggressively asserting

attorney-client privilege on that?

I'm trying to think if I have

or not. I did have one counsel.

We ended up almost calling the court

on it because I must have said not to

answer, but I'm not recalling it

off the top of my head. But yeah,

I absolutely can see a scenario

where that happened. So.

All right, Paula, back to you're

not allowed to ask a number,

but I thought I heard you say earlier

that the jurors said you didn't ask for

enough.

So help me understand sort of how that

practically played out in terms of what

you asked for and what the jury awarded.

So I wasn't allowed to ask

for non-ec. For economics,

we asked for the meds, which

was a little over 186,000,

and then I asked for an extra 100,000

on top of that for future care because I

had a slide in my closing.

Allison Gray had given us monetary

values for her future care

recommendations. Hailey Burke did not.

So we had a slide where we had

Dr. Burke's recommendations with

no dollar figures and then Allison

Gray's with dollar figures.

And I figured $10,000 a year for 10 years.

So that's why I only asked for 100,000.

I was being really careful because El

Paso is a conservative jurisdiction.

You don't want to walk in there and just

start asking for all kinds of stuff.

And then for permanent

impairment, I asked for 650,000.

I had thought about more

the night before. In fact,

I had always valued this case at about

three million in my mind. We work a lot

with Steven Padway with

Elite Trial. He's awesome.

So I had been on the phone with

him for about an hour and he said,

"I think you should ask for 2.7 million

in permanency." And so I had that in my

closing and then I don't know, 20

minutes before I said, "I can't do it,

put in 650,000.

I have to be able to say a number that

I can get behind." So that's what we put

in and the jury decided otherwise

they thought that it wasn't

enough is what they told me.

They said that in my closing,

I had talked about how this is,

it was my rebuttal and I had talked

about how this is his last chance at

any sort of closure and any

sort of chance of having

an award to him to take care of him for

the rest of his life. This is his final

chapter because our friends on the

other side, their closing had been,

"When is it enough? When is it

enough?" And I said, "This is it.

This is his only chance.

This has to be enough." And I

talked about how the mortality table

says he has 10 years left

of his life and that's it.

And so they went back and one of the

jurors told me that it really made her,

what I had said,

think about her own mortality and her

families and what it would look like to

have to fund medical care in this economy

and with these soaring medical rates.

And so they all kind of thought

about themselves a little bit.

And then they said,

"What you asked for wasn't enough." And

then they came up with these numbers.

Yeah. And sorry, Delamot says that you

want your juries to come back and say,

"Can we give them more?" And that has

been a goal of mine for two years. And so

it was really exciting to have this

jury say, "You didn't ask for enough.

We needed to give him more." Yeah.

And I do have to shout out because when

Jason Mellicar did the closing and he

did, he sort of was like, "And this

and this, then when is it enough?

Ladies and gentlemen, when

is it enough?" And again,

because she's brilliant and experienced,

but she walked right into that

and just it was a brilliant

rebuttal. Absolutely brilliant.

Thank you.

Yeah. No, it was. Again, she just ...

I don't know if that's what she

was planning, but when she got up,

it was just raw and it

was beautiful. I never.

Know what I'm going to say

until I get up there sometimes.

I'm just so impressed that

you have accomplished all

these bucket list items for

me that I'm not sure will ever occur,

including can we award more than was

asked for and can we have a calculator?

None of those have ever. Maybe someday.

Last question before we wrap this up,

because I'm a little bit confused.

You weren't allowed to

ask for non-economics,

but you were allowed

to ask for impairment.

What was the reasoning

behind that difference?

It.

Was the interrogatory.

Yeah, it was the interrogatory. They

only asked for the non-act piece.

And the motion in limine also was only

about non-economics because they didn't

take this seriously.

They didn't even think that they had to

talk about permanent impairment, right?

Because they thought never in a million

years are they going to tie this

permanent stroke, this permanent

thoracic fracture to the crash.

So we're not even going to worry about it.

Well,

I'll tell you one thing that

I have learned after doing

a bunch of these podcast

episodes,

which I love because I learned so much

is that so many of these great results

are as a result of mistakes made by

the defense. And for whatever reason,

we live in this world where all

we do is catastrophize our own

cases, our own abilities, and we're

always thinking about what can go wrong.

And we don't spend enough time

thinking about, "Well, you know what?

What can go wrong with the other side?"

When they come walking in and their

doctor comes up and says, "What?

I'm here to talk about the shoulder.

What are you talking about? "

Compression fracture. And you're like,

"Okay." And to be present enough, Paula,

there's two of those in trial gifts that

were given to you that I'm hearing you

handle just masterfully.

This shoulder issue,

no talking about the compression fracture,

and then this when is enough enough so

that you are present probably as a result

of your experience or just

your brilliance to listen and

respond is just amazing.

Kudos to you and Sandra,

what an amazing result. So thank

you so much. And with that,

we'll wrap this up until the next

episode. I am just so inspired,

truly inspired by the amazing work

that you and your firm is doing.

So thank you both so much

for coming on the show.

Thanks, Keith. Thank you for.

Having.

Us. We loved it. Let's go get them.

Let's get them some more. Yeah.

Yeah.

Go get more and come back on and tell

us what we can do and what we can learn.

So thank you so much.

Thanks.

Keith.

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