Surgeon Helps Win Med Mal Case by Demonstrating Procedure Causing Death of His Patient: GA Trial Highlight

Posted by Steve Silver on Jul 7, 2015 5:01:29 PM


 

A well-planned and well-executed demonstration of a surgical procedure by the defendant surgeon in a recent med mal case, assisted by his attorney, may have been a key factor in the jury’s verdict. The surgeon, Dr. J. Eduardo Corso, had been sued in DeKalb County State Court by the family of Arlene Bailey after Bailey’s death resulting from complications arising during a catheterization procedure performed by Dr. Corso. Larry Bailey et al. v. J. Eduardo Corso, MD et al. (12A45372).

On August 12, 2011, Dr. Corso performed a procedure to insert a catheter in Arlene Bailey to enable her to receive dialysis treatments. This type of catheter placement is routinely used with dialysis patients, and Dr. Corso had successfully performed the operation several hundred times previously. In fact, he had inserted another catheter in Bailey three days earlier on August 9, but the earlier catheter did not function properly and needed to be replaced.

Click Here FREE Georgia Trial Video Samples As part of the operation, Dr. Corso inserted a wire in Bailey’s neck and into her jugular vein, then advanced the wire through her circulatory system so it could help guide the end of the catheter to its permanent location in the heart area. However, during the operation, Bailey’s heart was punctured and she bled internally, resulting in a loss of oxygen to the brain. As a result, Bailey went into a vegetative state and died a few days later.

Although the parties agreed that Bailey’s ventricle had been perforated during the 30-minute procedure, they differed sharply as to the timing of the fatal injury. Plaintiff’s expert witness, Dr. Russell Samson, believed the the puncture occurred while the wire was being advanced through Bailey’s veins and that Dr. Corso was not sufficiently careful while advancing the wire. In his view, Dr. Corso should have monitored what he was doing with a fluoroscope at all times while the wire was being inserted.

Dr. Corso testified that he had indeed been watching the wire with a fluoroscope and that the wire did not enter her heart while he was advancing it. Instead, in the opinion of Dr. Corso and the two expert witnesses called by the defense, the injury occurred while the wire was being removed at a time when accidental random movement of the wire might have occurred that Dr. Corso could not control.

During the trial, both Dr. Samson and Dr. Corso showed the jury the various devices used in the operation and demonstrated how the procedure is performed. However, Dr. Samson’s demonstration consisted of his holding the catheter and wire in front of one of plaintiff’s attorneys who was standing before the jury and describing how the wire and catheter were moved inside a patient’s body.

During his testimony, Dr. Corso, with the assistance of his attorney Daniel Huff, used various visual aids to assist his demonstration. He first demonstrated how the operation is normally performed, using a diagram showing the anatomy of a patient’s upper torso and circulatory system. Dr. Corso showed where the wire is inserted in the body and the path through which it advances towards the heart. During this demonstration, Huff helped Dr. Corso manipulate the catheter and wire to show the jury how they moved. Huff also pointed out for the jury the areas on the diagram that Dr. Corso was describing.

Once Dr. Corso finished describing how he normally performed the procedure, he testified that he had discovered during the earlier August 9 catheterization that Bailey had a somewhat unusual physical condition in which the vein through which the wire was advanced was abnormally curved. He described Bailey’s case as “more extreme” than most patients but noted that about three percent of patients had similar anatomies. Huff then removed the first anatomical diagram and replaced it with a second diagram showing Bailey’s actual anatomy and vein curvature. Dr. Corso then described and demonstrated how he performed the operation somewhat differently to account for Bailey’s condition.

With Huff’s assistance, Dr. Corso spent about 20 minutes describing the entire procedure at length to the jury. During his testimony, he disagreed several times with specific statements made by Dr. Samson regarding the standard of care for these operations and how the operation should be conducted and explained in detail why he performed the procedure differently than the method recommended by Dr. Samson.

Dr. Corso’s detailed demonstration gave the jury an opportunity to judge his credibility and competence both as a subject matter expert and as an actual witness to the operation. After hearing from all four expert medical witnesses in the case, the jury found in favor of Dr. Corso.

Courtroom View Network’s earlier reports on this case can be found here and here. Steve Silver can be reached at ssilver@cvn.com.

 

Not a Subscriber?

 

Learn more about CVN's unparalleled coverage of top Georgia trials.

 

Topics: Georgia, Bailey v. Corso

Start of Hulk Hogan Sex Tape Trial Body Slammed by Appeals Court

Posted by Arlin Crisco on Jul 2, 2015 7:05:00 PM

GaveltoGavel


A Florida appeals court today directed a circuit judge to rescind her order scheduling July 6 as the start date for wrestler Hulk Hogan’s trial against Gawker Media over the company’s publication of a sex tape involving Hogan. Bollea v. Gawker Media, 2012 CA 1244.

The state's Second District Court of Appeal found the July date set by Sixth Circuit Judge Pamela Campbell violated Fla. R. Civ. P. 1.440, which details when an action may go to trial. In an opinion written by Judge Stevan Northcutt, the court found that the rule prohibits commencement of trial within 50 days of the last pleading in a case. The court noted that on June 18, Hogan, whose legal name is Terry Bollea, voluntarily dismissed his claims against the Hungary-based parent company of website Blogwire and amended his complaint against Gawker to request punitive damages. Under the timeline of Rule 1.440, the court held that the earliest Hogan’s suit could be tried is August 7.

In 2012 Hogan filed a $100 million suit against several defendants, including Gawker, after the company's gossip website published clips of a sex video involving Hogan and Heather Clem, one-time wife of national radio personality “Bubba the Love Sponge.” Clem, who was also a defendant in the lawsuit, settled Hogan’s claims against her Wednesday night.

In its opinion Thursday, the appeals court noted the strict enforcement of Rule 1.440. “For many years, the appellate courts of this state have emphasized that the rule’s specifications are mandatory and they have admonished trial courts to strictly adhere to them,” the order said.

The appellate opinion acknowledged instances in which parties have been found to have waived their objection to trial dates in violation of the rule. However, it determined the narrow range of circumstances allowing waiver didn’t apply in Gawker’s case because the entertainment company challenged the July 6 trial date from the outset and ultimately sought mandamus relief of the order.

The appeals court’s opinion pushes a trial date into August at the earliest. As of this article's publication, no new trial date has been set.

Prior to Thursday's ruling, CVN had been approved to live stream gavel-to-gavel coverage of the trial and serve as media pool provider. CVN will continue to track the case.

The parties’ attorneys could not immediately be reached for comment.


Related Information

Read the Appeals Court's Opinion.

Learn how you can watch CVN Florida's unparalleled coverage of the state's key trials.

 

 

Topics: Florida, Hogan v. Gawker Media

Fraud Claim Adds $350K to Plaintiff's Recovery in Major Commercial Breach-of-Contract Case

Posted by Steve Silver on Jul 1, 2015 6:51:00 PM


A plaintiff normally cannot recover damages for fraud in a breach of contract action, but, in a recent major commercial case, a successful plaintiff was able to add nearly $350,000 to its eventual recovery by successfully adding and proving a fraud count to its original complaint, based on information the defendant revealed for the first time during discovery. Nebo Ventures, LLC v. NovaPro Risk Solutions, LP (Fulton County Sup. Ct., (2012CV202767).

The litigation in this case arose out of a contract the City of Atlanta awarded to NovaPro’s predecessor, Ward North America, to administer the City’s workers compensation and other benefit claims. Nebo’s owner, Kevin Miles, aided Ward in preparing its successful bid to the City, and, under the terms of its own contract with Ward, Nebo was then entitled to receive 5% of the adjusted gross revenue Ward received from the City.

Click Here FREE Georgia Trial Video Samples Nebo’s fraud claim was based on a $1+ million performance bonus Ward received from the City in 2005 and 2006. Under the terms of its contract, Nebo should have entitled to receive 5% of those payments, but Ward officials never disclosed the payments to Miles. In 2011, Nebo filed a breach of contract action in Fulton County Superior Court against NovaPro for its alleged failure to pay other monies owed. During the course of discovery, NovaPro revealed to Nebo for the first time its receipt of the performance bonus. Nebo then amended its complaint to add a fraud count based on the concealment of the performance bonus.

The trial court granted summary judgment to NovaPro on the fraud claim, because Nebo had a right under the contract to conduct an audit of NovaPro’s records and failed to do so. Assuming that NovaPro had misrepresented to Nebo that no bonus had been paid, the trial court held as a matter of law that Nebo’s reliance on the misrepresentation was not justifiable.

Nebo appealed the ruling, and the Court of Appeals reversed in Nebo Ventures, LLC v. NovaPro Risk Solutions, L.P., 324 Ga App. 836 (2013). The Court of Appeals held that the standard for justifiable reliance in a fraud case is whether a party exercises due diligence. However, the Court also said that the question of whether a party exercises due diligence is normally one for the jury’s determination.

The Court of Appeals noted that the case did not involve a real estate or similar transaction that required a higher level of diligence. The Court then reviewed Kevin Miles’s deposition in which he stated that he wanted to avoid being placed “in a combative relationship when you start basically not believing your client,” and that “once you start auditing, it's a big to-do. The Court continued that due diligence did not require Miles to “exhaust all means at his command to ascertain the truth.”

The Court of Appeals concluded, “We cannot say as a matter of law that reasonable diligence required that, in response to [NovaPro’s] representation as to the nonpayment of the performance bonuses, Nebo protect its interests by auditing NovaPro.” The Court went on to give Nebo some guidance for establishing due diligence at trial. “A jury might also conclude that NovaPro was actively attempting to conceal the payment of bonuses and that further inquiry by Nebo would not have provided information about their payment.”

During the trial, Nebo’s attorney Matt Martin adopted a somewhat unusual strategy by calling as a witness a former attorney with his law firm, Bruce Brown, who had conducted the discovery on the case. Brown testified as to the various interrogatories and document requests made by Nebo in the case and to NovaPro’s sworn responses that indicated that no bonus payments had been made by the City of Atlanta. Brown also testified that he received no information about bonuses in any depositions conducted before May 2012. Brown added that he had scheduled a deposition with NovaPro’s former controller, Antoinette Turbyfill, in early May, to discuss NovaPro’s financial records. Brown also stated that NovaPro’s attorney first told him about the performance bonus two days before Turbyfill’s deposition.

Antoinette Turbyfill testified for the defense by a subsequent video deposition (conducted in November 2012). She explained her reasons for not including any mention of the performance bonus in the documents provided to Nebo during discovery. She said that the initial request received was for “moneys received from the City and … I didn’t think that the performance bonus should be included, I didn’t think that it qualified. Kind of like when you get a salary … you get $50,000 a year, you don’t count the $5,000 bonus that you got.” She denied trying to conceal or lie about the bonus and added that when she learned that when the bonus should be included, she made the information available.

On cross examination, however, Turbyfill said that, prior to the lawsuit being filed, she saw an e-mail from NovaPro’s CFO Ken Perilli, in which he made an estimate of the amount of money owed Nebo under its contract and that the estimate did not include the performance bonus. Further, she admitted that she deleted the $1 million performance bonus line item from the discovery spreadsheets initially provided Nebo. She also said that Ken Perilli knew about the performance bonus.

In his closing statement, Matt Martin pointed out the various times that NovaPro’s officers, including Perilli, denied to Miles ever having received a bonus, including during the discovery process. He noted that it was only two days before Turbyfill’s first deposition that NovaPro reported receiving the bonuses. “Interestingly, [Bruce Brown] talked about the whole history of this litigation, he talked about the interrogatories that he served … and [the defense] didn’t ask him a single question. … [The interrogatories] are sworn testimony and look at those schedules … and there’s a line for performance bonus and guess what. Not a penny is reflected at any point from 2004 to 2011. You know why? Ms. Turbyfill told you. It was on there and she took it out.”

In his closing statement, NovaPro’s attorney James Standard never addressed the issue of NovaPro’s failure to reveal the performance bonus to Nebo. Instead, he noted that had Nebo requested an audit at any time, the audit would have revealed the omission of the performance bonus. “The unfortunate thing is how at any point in time, if Mr. Miles requested an audit before filing suit, none of us would be here. None of this would have happened… The parties could have figured it out and none of us would have been here. He had a contractual right to an audit, Ken Perilli invited him to do his audit… Mr. Miles didn’t do it… The parties avail themselves of their contractual rights under the contract, things get done and you don’t have these silly kind of lawsuits here.”

The jury found for Nebo on both its breach of contract and fraud claims. It awarded Nebo $492,104 on its breach of contract claim and an additional $102,224 in actual damages and $235,000 in general damages on its fraud claim.

CVN’s earlier reports on this case can be found here and here. Steve Silver can be reached at ssilver@cvn.com.

Topics: Fraud, Commercial Law, Georgia, Nebo Ventures v. NovaPro Risk Solutions

Defense Expert's 43 Years of Experience Used By Plaintiff to Suggest Standard of Care in Legal Malpractice Case: GA Trial Highlight

Posted by Steve Silver on Jun 30, 2015 6:16:34 PM


A failed guarantee on a failed Costa Rican real estate venture was the key document for a Fulton County State Court jury’s consideration in a recent legal malpractice case; Eli Peretz and Dr. Nick Gabbay v. S. Alan Cohn et al. (12EV015232). In 2008, plaintiffs Peretz and Dr. Gabbay loaned $1.5 million to a company that planned to use the money to develop a resort in Costa Rica. However, following the economic downturn later that year, the development failed and the loan was never repaid.

The principals in the Costa Rican development were four California businessmen (referred to during the trial as the “California Group”) with whom Peretz, a long time Atlanta contractor, had previously partnered in a couple of successful real estate ventures. Peretz retained the services of his long time real estate attorney Cohn to review and advise him on the various legal documents involved in the transaction. Peretz and Dr. Gabbay testified at the trial that they informed Cohn they would require a guarantee before making the loan.

Click Here FREE Georgia Trial Video Samples Cohn and the California Group worked out the details of a guarantee issued by an LLC the group set up. The guarantee included a statement that the LLC had a net worth of $2.1 million. In reality, although the LLC’s assets consisted of several residential properties, those properties were subject to substantial liens. Further, according to testimony at the trial, one of the members of the California Group told Cohn about the liens prior to the transaction being finalized. Nevertheless, Cohn never reported this conversation to Peretz or Dr. Gabbay or made any attempt to verify the actual worth of the LLC. Instead, he advised the two investors that the documents were in order.

As often occurs in malpractice cases, both sides called expert witnesses to testify at the trial. Plaintiff’s expert, Atlanta real estate attorney Kurt Hilbert stated that if Cohn knew there were liens on the property and failed to inform his clients, then his actions would fall below the required standard of care. Further, in his experience, he had never seen a guarantee containing a net worth statement similar to the one in this case.

The defense called William Dodson, an Atlanta real estate attorney with over 40 years of experience. On direct examination, he testified that the language regarding the net worth of the LLC had no bearing on the validity or practical value of the guarantee and that it was up to the investors, not Cohn, to investigate the LLC’s actual net worth prior to making the investment.

Plaintiff’s attorney Stephen Katz’s strategy during his cross examination of Dodson was to focus on the contrast between what Dodson had done and witnessed in his own extensive real estate practice and the facts in the present case. Katz began by asking Dodson, “My understanding from this case is that you’re not a big fan of lawyers putting [statements regarding net worth] into guarantees, correct?” Dodson’s answer set the stage for the remainder of the cross examination, “I’ve looked at many, many, many, many guarantees, and I cannot recall any that had anything in them concerning estimated net worth.”

Katz then posed a series of hypothetical scenarios to Dodson and had Dodson explain how an attorney’s actions in such cases would not violate the standard of care. After Dodson’s replies, Katz brought the questioning back to Dodson’s own experience. He asked, “But a lawyer would avoid that problem if he followed your advice and [the net worth language] would never be in there to begin with because you’ve never seen one in all the years you’ve been practicing, right.”

Katz finished the line of questioning by getting Katz to confirm that the standard of care is what a reasonable lawyer in the State of Georgia would do under the same or similar circumstances. Katz then asked, “And you’ve never seen a lawyer in the … 43 years you’ve been practicing real estate law, you’ve never seen a lawyer do this in a guarantee, right?”

Katz made sure the jury remembered this exchange during his closing statement, when he reminded the jury that the defense attorney in her closing statement, “didn’t say one single word about Mr. Dodson. They paid him … to give you an expert opinion ... and for an hour she spoke and she didn’t mention one thing. … She did not talk to you about Mr. Dodson who said you don’t put the figure in. … Because lawyers shouldn’t be on the phone talking to the opposition about what the net worth of a company is. That’s why he’s never done it in 43 years and he’s never seen it in 43 years.”

Katz’s cross examination and final statement apparently had the desired effect. The jury returned a verdict for plaintiffs of slightly more than $1.5 million dollars.

CVN’s earlier articles about the case can be found here. Steve Silver can be contacted at ssilver@cvn.com.

Not a Subscriber?

Learn more about CVN's unparalleled coverage of top Georgia trials.

Topics: Georgia, Peretz v. Cohn

Investors Claw Back $3M From Escrow Co. At Trial Over Massive Ponzi Scheme

Posted by David Siegel on Jun 30, 2015 4:30:00 PM

Liddell

Former martial arts champion and "Dancing with the Stars" contestant Chuck Liddell testifies that he lost $2 million after an escrow company invested the money in a risky Ponzi scheme. Click here to see video from the trial. 

San Luis Obispo — A group of investors, including former martial arts fighting champion Chuck Liddell, was awarded nearly $3 million last week by a California jury that said an escrow company acted fraudulently when it sunk funds into a real estate Ponzi scheme run by a convicted felon.

The San Luis Obispo County jury reached their verdict on June 25 following a five-week trial, finding that Cuesta Title Company helped developer Kelly Gearhart, who is awaiting sentencing on federal wire fraud and money laundering charges, swindle investors.

Liddell was awarded $1,982,727, and the owners of a limited liability company that introduced Liddell to Gearhart were awarded $939,000. The jury rejected claims brought by another group of investors, according to a Courtroom View Network video recording of the proceedings. (Click here to see video from the trial.) 

The verdicts marked the first plaintiffs’ victories against Cuesta over its association with Gearhart, who was accused by prosecutors of raising funds for projects like golf courses and commercial buildings that were never actually built. Represented by Chicago-based litigation powerhouse Sidley Austin LLP, Cuesta beat back investors’ claims at two previous trials, including an initial bellwether trial in 2013.

Gearhart declared bankruptcy after the scheme collapsed, forcing nearly 1,200 investors to go after Stewart Title Company of California, which purchased Cuesta Title, to recoup their $100 million in losses. The majority of the investors settled with the company after it prevailed at the first two trials, and Liddell and other plaintiffs in the current case were among the last holdouts.

Liddell is the most high-profile investor to sue the company. He is largely credited with helping bring mixed martial arts fighting to a mainstream audience, and he has appeared on the popular television show “Dancing with the Stars.” In addition to his celebrity status, Liddell’s case differed from previous plaintiffs because he argued that he dealt directly with Cuesta instead of working through a loan broker.

According to Liddell’s attorneys, Cuesta forged his signature on key escrow documents. The trial featured testimony from former U.S. Secret Service employee Larry Stewart, a handwriting expert retained by the defense who testified the signatures on the documents matched Liddell’s writing style.

Liddell’s attorneys repeatedly tried to question Stewart about his role as a government witness in the high-profile insider trading prosecution of style icon Martha Stewart, in which he was charged with perjury over his testimony regarding an ink analysis he claimed to perform, but was allegedly carried out by a co-worker. Stewart was acquitted of perjury, and Cuesta’s attorneys repeatedly objected to the charges being raised by Liddell’s legal team.

Cuesta’s attorneys argued throughout the trial that the company had no knowledge of Gearhart’s activities, and that escrow companies are legally prohibited from giving financial advice to clients or warning them of making bad investments. Gearhart had delivered successful returns for investors in the past, they claimed, and Cuesta merely followed the instructions of Liddell and other investors.

However Liddell’s attorneys told jurors that Cuesta failed to disclose key conflicts of interest to Liddell, like the fact a company agent had flown on Gearhart’s private jet and was involved in a relationship with his brother.

Gearhart is scheduled to be sentenced in federal court on July 2. Prosecutors are asking the court to impose a prison term of up to 135 months, according to court records.

The civil trial took place before Judge Martin Tangeman and was recorded gavel-to-gavel by Courtroom View Network, which also recorded the first bellwether trial against Cuesta in 2013.

An attorney for Liddell declined to comment on the verdict, and attorneys for the other parties did not respond to CVN’s requests for comment.

Liddell is represented by Warren Paboojian of Baradat & Paboojian Inc., and other investors are represented by attorney Maria Hutkin.

Cuesta Title is represented by Gerard Kelly and Nicole Ryan of Sidley Austin LLP.

The case is Liddell, et al. v. Cuesta Title, case number CV09-0676, in San Luis Obispo County Superior Court.

E-mail David Siegel at dsiegel@cvn.com

Topics: Real Estate, California

Suggest a Case

Do you have a case you think we should be following? Let us know!

Subscribe to Email Updates

Posts by Topic

see all