Defense attorneys in personal injury cases often face the challenge of making sure that the natural jury sympathy for a badly injured plaintiff does not influence the jury’s determination of liability in a hard fought case. Merely informing the jurors that they shouldn’t let sympathy influence their decisions may not be enough, especially in situations in which the defense makes an issue of the plaintiff’s decisions leading up to the injury.
In the recent Chatham County State Court med mal case of Shane Berryhill and Pamela Berryhill v. Dale Daly MD et al. (STCV1102180), defense attorney Wiley Wasden knew when he made his opening statement that his case depended in part on the jury believing that the medical warnings his client gave to a paralyzed man regarding strenuous activities were adequate to meet the required standard of care.
The plaintiff in the case, Shane Berryhill, had a history of cardiac problems dating back to the early 1990’s. In early October, 2009, he was referred by his primary care physician to Dr. Dale Daly, a cardiologist, after Berryhill complained of having felt ill for about a month. After conducting a stress test on Berryhill, Dr. Daly admitted the patient to the hospital. There, he performed a catheterization on October 14 that revealed a 99% blockage in one artery. On the next day, Dr. Daly inserted a stent in Berryhill’s artery to relieve the blockage. The surgery was successful, and Berryhill was discharged on October 16.
Four days later, on October 20, Berryhill, a lifelong outdoorsman, went deer hunting with a friend in a remote hunting area in South Carolina approximately two hours drive from his home. After they arrived, the two men separated, and Berryhill climbed a 20-foot-tall deer stand from which he planned to hunt. Shortly after he reached the top of the deer stand, he became dizzy, passed out, and fell to the ground below. As a result of his fall, Berryhill broke his back and became paralyzed.
As his attorney Brent Savage described in his opening statement, Berryhill alleged two main grounds of malpractice by Dr. Daly. First, Savage claimed that the medications given Berryhill by Dr. Daly caused his dizziness and that Dr. Daly failed to warn him about the risk. Second, Savage claimed that the various warnings and directions that Dr. Daly did give Berryhill after what Savage termed “minimally invasive” surgery were inconsistent and failed to adequately warn Berryhill about engaging in strenuous activities so soon after the operation.
By the time he began his opening statement, Wiley Wasden knew that the jury might very well find Berryhill a very sympathetic plaintiff and that Savage would introduce emotional testimony from Berryhill and his family members about his condition. Wasden also knew that part of his defense was that the warnings given Berryhill about engaging in strenuous activity so soon after the operation were clear enough that Berryhill should have known not to go hunting and, especially, climb the deer stand, that day.
Wasden did not make any concessions regarding Berryhill’s condition at the beginning of his statement as some defense attorneys might do in similar circumstances. Instead of first expressing his sympathy for Berryhill, Wasden adopted an aggressive stance from the start, saying that his client took the plaintiff’s allegations of malpractice seriously and denied them completely. Then, Wasden characterized the facts leading up to Berryhill’s injury, “I’m not going to stand up here and give you a song and dance trying to convince you that Mr. Berryhill did not drive a truck one and one-half hours into the woods, get out, strap a rifle to his back, walk 200 yards through the woods—that’s two football fields—and then climb a monster, 20-foot-tall deer stand four days after he is discharged from the hospital after having life-saving heart surgery, because Mr. Berryhill did that. That’s the truth. But what I am going to tell you, and the reason that we’re here today, is that Dr. Daly played no role in Mr. Berryhill doing that, and Dr. Daly is not in any way responsible for Mr. Berryhill’s injury. And that’s the truth too.”
Before recounting the facts, Wasden told the jury that the case depended on medical facts, not sympathy. And those facts, as Wasden described them, supported his contentions. Throughout his discussion of the medical facts, however, Wasden took care to say that he was not blaming Berryhill for any of the decisions he made.
Wasden waited until the last moments of his opening statement to acknowledge Berryhill’s loss, but he did so in a highly effective manner, realizing that these words would carry more weight at the conclusion of the statement. After summing up his description of the evidence, Wasden continued, “Those are the medical facts… I know this does not make the Berryhills happy. I know that the evidence that we’re going to put up is not going to make them happy. And I’m sorry for that.”
Then, however, Wasden went on to talk about another aspect of the medical facts that highlighted the efforts Berryhill had made towards reclaiming a more normal life. He contrasted Berryhill with people who “lay on the couch, feel sorry for themselves, and do absolutely nothing for the rest of their lives. But that’s not Mr. Berryhill.” Wasden then praised Berryhill for doing an “amazing job” at maintaining a successful lifestyle for his family. Wasden next showed the jury a chart listing some of Berryhill’s accomplishments since his accident, including being able to play golf, using a specially adapted chair. Wasden concluded his praise, “[Berryhill’s] life is far from over, and that’s a good thing.”
Wasden’s effective opening statement, combining a vigorous, no-nonsense defense of his client with sincere praise and admiration for the injured plaintiff, set the stage for a hard fought trial on the liability issues. At the end of that trial, the jury issued a verdict for the defense.
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