Using an analogy to paint your opponent’s case in simple, stark contrast to your own can serve as a powerful introduction to a closing argument. In closings of a malpractice trial against a physician accused of negligence during a vacuum-assisted childbirth, Robert Monyak cleared his client by vividly detailing two conflicting “worlds” he believed the jurors saw. Cantrell v. Moore, 13-A-49232.
Emma Cantrell suffered a brachial plexus injury during her vacuum-assisted birth in 2006 that has left her without the use of her arm. Cantrell’s parents, Elaine and Charles Cantrell, claim Dr. Bradley Moore caused the injury by inappropriately using the vacuum device and failing to properly free Emma’s shoulder when it became stuck during delivery, a complication known as shoulder dystocia.
The defense contended Moore acted appropriately in using the vacuum and in working to free the baby’s shoulder in time to save her from catastrophic brain damage or death.
The trial centered on guidelines concerning the use of vacuum devices, as well as appropriate delivery techniques and maneuvers when complications arose.
But, in beginning his closing on behalf of Moore, Monyak, of Peters & Monyak, told jurors they had spent the week-long trial seeing two “completely different worlds.”
Monyak said the plaintiff’s theory of the case lived in a world where vacuum devices are dangerous, Moore abandoned all of his training to tug the baby during delivery, and then falsified records to cover up any mistakes, ultimately joining a grand, alleged conspiracy with the American College of Obstetrics and Gynecology to churn “junk science” and fool juries. “How do we know on this world that this is what goes on?” Monyak asked. “Because on this planet, if something bad happens, if there’s a poor result, if someone is injured, there is one and only one reason why, and that’s malpractice.”
Monyak contrasted the world on which he said plaintiff’s theory of the case lived with a second world, where he said Moore, a well-trained, experienced obstetrician, properly used a vacuum device and prudently reacted to an emergency condition to save the baby’s life. “Here, medical emergencies are called emergencies for a reason. Emergencies are dangerous. They have risk. They have hazards,” Monyak said. “And, the shoulder dystocia emergency here had a risk of brain damage, had a risk of death, and had a risk of a shoulder nerve injury. Happily, the first two did not happen. But, although it is unusual, the third one did. In this place, injuries can happen because of emergencies—things like shoulder dystocia—without there being malpractice.
“The question, really, is simple,” Monyak said, as he launched into the details of his closing, “Which world is real?”
Jurors ultimately cleared Moore of negligence in a trial where plaintiffs sought more than $3.3 million.
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