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Thomas M. Rockwell Rockwell & Kaufman, L.L.C.

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Presentation on theme: "Thomas M. Rockwell Rockwell & Kaufman, L.L.C."— Presentation transcript:

1 Thomas M. Rockwell Rockwell & Kaufman, L.L.C.

2 “The oldest and strongest emotion of mankind is fear.” -H.P. Lovercraft

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6  Medical Malpractice  Commercial vehicles  Products liability  Premises liability  General torts

7  “This case has heat!”  Instinct as to jury appeal  Some stereotypes work  Different ◦Based on direct research ◦Focused approach ◦Detailed ◦Numerous tools developed

8  David Ball & Don Keenan ◦Direct psychological approach ◦Jury research  Rifle shot strategy to appeal to base instincts  Reptile brain = primitive survival instincts  Focus on danger and safety

9 “When the Reptile sees a survival danger, even a small one, she protects her genes by impelling the juror to protect himself and the community.” - Reptile: The 2009 Manual of The Plaintiff’s Revolution, p. 17.

10  Not simply an appeal to emotion  Strategy to use fear for juror to find safety  Justice = community safety  Large verdicts = safety  By product is feeling of safety and well- being

11  Safety Rules  Policies  Order of society  Expanding case beyond facts  Ultimately make the case about the jurors

12  Rules determine safety  Rules keep the community and jurors safe  Rule concept is not only learned but intuitive  Best rules are simple and clear  Failure to follow rules causes danger / injury

13  Umbrella rule ◦Foundational rule ◦“A (medical provider) is not allowed to needlessly endanger the public.”  Specific rules ◦Each violation supports umbrella rule ◦Common sense – rules should be followed  Even basic rules can be problematic ◦Charting ◦Differential diagnoses

14  JCAHO  Medicare  Medicaid  Polices & procedures  Licensing & credentialing  State regulatory boards  COMMON SENSE

15  Discovery ◦Appears irrelevant ◦Expansive ◦Other acts or omissions ◦Policies ◦Inner working of institution

16  Depositions ◦General rules  ”…needlessly endanger…” ◦Specific rules  Policies  Regulations  Best practices ◦Hypothetical questions  Beyond facts of case  Sticky web

17  Trial ◦Opening statement  Start with general rules  “Every care provider should not needlessly put the patient at risk.”  Incorporate umbrella rule to specific rule  “Every care provider should not needlessly endanger patients by (insert specific rule)”.

18  Trial ◦Witnesses  Experts – general rules and common sense  Fact – general rules and hypocrisy ◦Closing  Essentially “Golden Rule” argument in disguise  “Without full compensation no one is safe.”  Dangers shown in the case effect the community and thus the jurors  Quotes and pontification

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20  Oden v. Springhill Memorial Hospital ◦Mobile County, Alabama ◦Following coronary bypass surgery, patient coded. Nursing staff delayed calling physician while responding to the code. Patient died. ◦Plaintiff focused on issues with electronic records and alleged they were altered. ◦Plaintiff successfully argued that a “bad” nurse caused the death as a result of improper training and supervision. ◦$15 million verdict

21  Douglas v. Heartland, HCR ManorCare ◦Kanawha County, West Virginia ◦An 87 year old nursing home resident died after suffering several falls, dehydration and head trauma ◦Plaintiff focused on multiple and repeated rule violations including lack of staff ◦Plaintiff painted the picture of a wealthy company endangering helpless residents for profit motives. ◦Safety rules were ignored because of greed ◦$90.5 million verdict

22  Juno v. Thomas Hospital ◦Baldwin County, Alabama ◦Patient died after receiving a lethal dose of insulin. Plaintiff alleged that an outsourced transcriptionist in India made an error in copying the prescribed dose. ◦Plaintiff showed the violation of a very basic safety rule. ◦Plaintiff argued a desire to save money by outsourcing caused the death and thus safety violation. ◦$140 million verdict

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24  Attack it where it lives ◦Restrict irrelevant or expansive discovery ◦Personalize the individual and institution ◦Motions in limine  “Golden Rule”  Irrelevant and prejudicial ◦Subtly de-personalize plaintiff ◦Focus on differences between plaintiff and jurors

25  Use its strategy against it ◦Show hypocrisy in plaintiff and counsel ◦Show danger of plaintiff’s actions ◦Reveal “true motive” – greed  Choose your environment ◦Don’t focus on the general rules but facts in the case ◦It is all about the medicine ◦Make defendant’s actions clear to jurors ◦Defendant can teach the jury

26  Preparation, preparation, preparation ◦Know the rules ◦Know the medicine ◦Know the policies and procedures ◦Know the defendant

27 ◦Prepare the witness  Witness must know all rules and procedures  Avoid hypothetical questions  Sincerity  Competency  Personalize

28  Illustrate standard of care ◦Via defendant ◦Use to gain credibility ◦Professorial role ◦Circle back in closing and jury instructions  Risk vs. benefit analysis ◦Medical providers use it ◦Everyone including jurors use it daily  Credibility ◦Attorney ◦Defendant ◦Witness’

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