Thomas Aubin tells jurors that surveillance photos show Daniel Crowe using his left arm in ways that run contrary to Crowe’s complaint of an arm injury. Aubin’s clients, Drs. Steven Wexner and Jeffrey Jacobs, prevailed in Crowe’s suit claiming he suffered nerve damage to his arm during colon surgery performed the physicians. Click here to watch the closings.
Fort Lauderdale, FL—After more than two weeks of testimony ranging from expert medical opinions to surveillance footage, a jury Tuesday afternoon took less than two hours to find physicians at The Cleveland Clinic Florida were not responsible for nerve damage that a former commercial airline pilot claimed ended his career. Crowe v. Cleveland Clinic, et al., CACE1120220.
Jurors found Drs. Steven Wexner and Jeffrey Jacobs were not negligent during an April 2010 colon surgery on Daniel Crowe, a former American Airlines pilot. Crowe sued Wexner, the procedure’s surgeon; Jacobs, its anesthesiologist, and The Cleveland Clinic Florida for $6.5 million.
Crowe contended that being placed upside down with his shoulders resting on a combination of rigid supportive bean bags and a layer of protective padding during surgery injured the his brachial plexus, the network of nerves runnin from the spine to each arm. Though Crowe claimed his right arm largely recovered, he alleged that the nerve damage to his left arm left him in severe pain and without full use of his arm or hand, grounding him as a pilot.
In closing arguments Tuesday, Searcy Denney’s John Shipley III, representing Crowe, reminded jurors that Dr. Brian McAlary, an anesthesiologist and plaintiff’s expert, testified that he believed “suboptimal” positioning on the hard bean bag pads damaged the nerves in Crowe’s arm.
Shipley acknowledged that a softer foam pad was placed between Crowe’s shoulders and the bean bags that supported Crowe’s weight, but he claimed it was insufficient to prevent nerve damage. “You’re going to have (the foam pads) with you back there (in the jury room),” Shipley told jurors Tuesday. “You can feel them. They look like a kitchen sponge. You can decide whether they’re enough protection for Dan Crowe to prevent these brachial plexus injuries that he had."
However, Stearns Weaver’s Thomas Aubin, representing the defense, told jurors that expert testimony established that Crowe’s positioning met acceptable standards of care. During closings, Aubin read testimony of Dr. Paul Kovalcik, a surgeon and plaintiff’s expert, who agreed that Crowe’s arms had been properly placed for the colon surgery. “This is their expert surgeon telling you, in this court, on this stand, that the defendants met the standard of care as it relates to the first aspect of positioning,” Aubin said.
During trial, the defense also challenged Crowe’s credibility, highlighting the absence of nerve damage complaints in post-operative medical records and offering surveillance footage of the former pilot performing daily tasks with his left hand.
During closings, Shipley told jurors the surveillance footage actually bolstered Crowe’s claim because it showed him using his right hand to start a car whose ignition switch was on the left hand side of the steering column. “All that surveillance for all that time… doesn’t prove anything other than the fact that he does have this injury and can’t start his car with his left hand,” Shipley said. “There’s no testimony in this case that what Dan Crowe wants to do is take narcotic medications and sit home and watch CSI on TV. He wanted to fly.”
Aubin countered that the surveillance images stood in stark contrast to Crowe’s injury claims. During closings, Aubin highlighted surveillance shots of Crowe driving, carrying a bag over his shoulder, and performing other daily tasks with his left hand. “You folks have to decide the credibility of every witness,” Aubin told jurors. “You folks have to decide if what’s being shown to you in this staged courtroom is what’s happening outside this staged courtroom.”
Attorneys include Searcy Denney's John Shipley and Darryl Lewis, representing Daniel Crowe, and Stearns Weaver's Thomas Aubin and Matthew Podolnick, representing the defense.
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