A Channeling in Billings

In 2008, I was trying a medical malpractice case in my hometown of Billings. My client, a 40-year-old widow and mother of four young children, was suing for the untimely death of her husband, whom we claimed ought to have been referred for heart surgery for a known murmur. The autopsy revealed a grossly enlarged heart in the late stages of heart failure.

During jury selection, the judge refused to excuse three nurses, who were less than receptive to our case against a local physician and the clinic which employed her.

The trial was not going well for us. In a desperate effort to salvage the case, I employed a technique I had heard about from Gerry Spence. In closing argument, I channeled the decedent by assuming his persona. I described in the first person how as a youth, my heart murmur was discovered during a sports physical; how I routinely went to the doctor to monitor it; how I was told I would need a new heart valve “when the time came”; how, “when the time came,” the doctor dropped the ball by not referring me for a surgical consultation; and how my wife found me dead in my chair.

The jury was enrapt. Caught up in the moment, I decided to channel the autopsy, too, and described how the pathologist who removed my heart blamed my death on the failure to get surgery earlier. The description, I admit, got a bit morbid.

Suddenly, a juror—a young lady who told us in voir dire that her husband had a heart murmur—announced that she was “not okay” and proceeded to stumble from the jury box. The defendant doctor, and my co-counsel—who was also a physician—rushed to her aid. They carried her into the jury room and laid her on the floor. The three nurses on the jury asked the judge if they could help. His Honor encouraged them to assist; 911 was called and the stricken juror was hauled out by the EMTs on a gurney. She recovered. I’ll never forget her standing up and saying, “I don’t think I’m going to make it.” It was a real circus.

After the dust settled, I moved for a mistrial. The judge let the jury decide the case. It was a defense verdict.

I appealed. The Montana Supreme Court held that even though no one was to blame for the events, and the response of the healthcare personnel was commendable, the “extraordinary events” witnessed by the jury compelled a retrial.

This time I avoided any theatrics.

Defense counsel, emboldened by the results of the first trial, offered nothing. I obtained two new experts and reformatted my case. The defense essentially tried the same case with the same experts, and I had anticipated that and we just sort of cut them off at the pass with these new experts. The jury awarded over $1 million. The case then settled. It’s one of very few cases which resulted in a defense verdict, was appealed, a new trial was granted, a trial ensued and the plaintiff won.

The lesson to be learned here, besides not channeling—for me, anyway—is that those are the vicissitudes of trial. Anything can happen at any time, and to try to predict what a jury will do with a case is somewhat of a guessing game.

That’s why I advise clients to try to resolve their cases. Here we could not, because there was no offer. You never know what kind of jury you’re going to get. We didn’t know we were going to end up with three nurses, so it’s a risky business trying cases. And this is the only verdict that has been awarded in Yellowstone County against a physician for, gosh, I’ve got to say 20 years. 

The experience inspired Harman to write this limerick:

A Wyoming lawyer named Spence

Channeled in the first-person tense

 When I took that route

A juror passed out

Which resulted in considerable expense!