Attorneys in their closing statements often call into question the testimony of key opposing witnesses. In a recent DeKalb County State Court case, however, the plaintiff’s attorney instead went after a number of specific statements made by the defense attorney in his opening statement, which plaintiff’s counsel painted as part of the “bullying” tactics adopted by the defense in the case. Stephanie Nelson v. Ryan Beiner and Rural/Metro Corporation (13-A-47097-2).
The case arose out of a May 10, 2011, auto accident on Columbia Drive in DeKalb County, in which a Rural/Metro ambulance driven by Ryan Beiner rear ended Stephanie Nelson’s car. Ironically, the accident occurred because Nelson had slowed due to the ambulance approaching with its flashing lights turned on. Beiner then became momentarily distracted while trying to turn on his siren and was unable to avoid colliding with Nelson’s car.
After the accident, Nelson received extensive medical treatment for her injuries, including, eventually, a cervical fusion in her neck, an operation in which two spinal discs were removed as well as some bone material and a plastic cage inserted and bone graft inserted in their place to support the neck vertebrae. The operation was performed approximately six months after the accident by Dr. Erik Bendiks, an Atlanta orthopedic surgeon. Nelson continued to complain of extensive pain and, and had received various types of pain management therapy until the time of the trial. She also had not returned to work since the accident.
The defense admitted liability in the case prior to trial, so the case revolved around the extent of Nelson’s injuries and whether they were caused by the accident or by either a pre-existing bony growth in Nelson’s spine or a 2007 accident in which she was also injured. To prove her case, Nelson introduced video deposition testimony from Dr. Bendiks and Dr. Armin Oskouei, a pain management specialist who also treated her. Dr Bendiks agreed that Nelson had an existing calcium deposit in her neck, but that she had been healthy and pain free for years despite that condition. However, in his opinion, she likely suffered herniated discs as a result of the 2011 accident. The herniated discs placed more pressure on the spinal cord, in addition to the existing calcium deposit, and that additional pressure resulted in considerable pain.
In Dr. Bendiks’ opinion, Nelson did not need surgery prior to the auto accident and would not have required surgery in the absence of the accident. However, at the time he performed the surgery, Dr. Bendiks believed the operation was necessary to relieve Nelson’s pain. Despite the surgery, Nelson remained in pain, which Dr. Bendiks said sometimes occurred following this type of surgery. Dr. Oskouei also testified by video deposition and also believed that Nelson’s pain was caused by the 2011 accident. In his view, she would likely continue to suffer significant pain for the rest of her life.
As might be expected, the defense introduced the testimony of its own expert witness, Dr. Keith Osborn, to rebut the contention that Nelson’s injuries resulted from the 2011 accident rather than the pre-existing calcium deposit. However, defense attorney Reginald Clyne went on the offensive in his opening statement, harshly criticizing Nelson, her doctors and her attorneys. He claimed that Dr. Bendiks had a financial motive in the trial, “He did the surgery and the money that you [the jury] pay will pay him… He also recommends future surgery that he hopes will result in him getting paid again… Dr. Bendiks says, ‘oh, you need surgery’ and he does a very radical and drastic surgery. He takes out two of her vertebrae. Why do [a preliminary surgery] and the cervical fusion? Because it costs more money. You do two surgeries, you get double the money.”
Clyne later told the jury, “What this case is about is fairness. … Before you take money from Ryan Beiner and from Rural/Metro, I want you to make sure that the injury and the complaints were caused by the accident and not this – okay, let’s have huge medical bills that we’re going to try to make someone else pay… That’s not fair, and in a way, I blame lawyers. If someone comes to a jury with $10,000 in medical bills, you guys … say it’s not a big injury, but if they come with $350,000 in medical bills, oh, they’ve got huge medical bills, and therefore, we’ve got to award a huge amount of money. … Is it because the lawyer’s driving everything? Is the lawyer driving the surgery? Is the lawyer driving the pain management? Is the lawyer driving the – don’t work, because if you work then you’re okay and you get less money?”
Nelson’s attorney, Michael Goldberg, had the opportunity to respond to Clyne’s allegations two days later in his closing statement. In response to Clyne’s statement that the case was about “fairness,” Goldberg told the jury, “When a wrong is committed and the defendant will not make it right, you have no choice but [to go to court]. It’s not really fair to say, ‘we’re 100% at fault for the injuries we caused you, but you’ve got no injuries because you’re a liar.’ ... Why are you here? Because Rural/Metro will do anything, anything to get a discount off the injury they’ve caused in this case. … It is no holds barred, win at all costs, run them over, tight defense, and Stephanie Nelson is the person that’s in the way. So the defense is, destroy her, crush her… And the truth just doesn’t matter…. It’s no longer about the truth, and when you don’t care about the truth, sometimes it just gets lost, because there’s so much going on, so much bullying and intimidation.”
Goldberg went on to show the jury a prepared list of what he said were “all the misstatements and lies that went on in this Court.” Goldberg included a number of Clyne’s actual quotes as evidenced in the trial transcript. Goldberg discussed some of these statements in depth, “She had surgery to make money? Ladies and gentlemen, … this is the surgery, they cut open your neck and they take out the disc. They tell you there’s a chance you might die, you might get paralyzed, … and she did it for money? Is that Stephanie Nelson?”
Goldberg went on to address another one of Clyne’s claims, “Her doctors are running up the bills. They’re trying to do a bigger surgery than she really needed. That is preposterous. What did Dr. Osborn say? … What I would do, I’d offer them a choice, a laminectomy or the fusion. But if you do the laminectomy and it doesn’t work, you’ve got to do another surgery. … Ladies and gentlemen, nobody’s running up the bills. … The surgery was done because the doctor knew what needed to be done.”
Then, Goldberg addressed the claim that Nelson’s former lawyer “made it up.” As he described this claim to the jury, “If you can’t figure anything else out, go after the lawyers because they’re easy to go after. You know why, because they CC’d the lawyer on the records. … If your lawyer’s good, that’s what he’s doing, he’s keeping up with what’s happening. There’s no conspiracy… This isn’t something a lawyer made up. The lawyer’s involved, if you get hit by an ambulance company like Rural/Metro, you’d better get a lawyer involved because it’s not going to go easy.”
After describing other alleged misstatements by the defense, Goldberg summed up what he believed to be the defense’s tactics in the case. “What you have seen in this trial is the extent to which a company will go, what they will do to try to save money. It is bullying; it is nothing different than being a bully. It is pushing people around, pushing them as far as they can, forcing them down, beating them down, running them over, and hoping they get away with it. And if you don’t stop them, no one will.”
With an opportunity to respond in his own closing statement, Clyne essentially repeated his earlier allegations, at different times referring to Nelson’s physicians as “doctors that are there for litigation” and “lawyer doctors.” At the end of the trial, however, the jury apparently chose to believe Nelson’s physicians as they awarded her $3.5 million in damages.
Contact Steve Silver at firstname.lastname@example.org.
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