Shane Read analyzes how the use of a deposition clip in openings led to a $495 million verdict in a bellwether baby formula case.
Sometimes the most compelling testimony at trial can come from a deposition. And turning a spotlight on that testimony during openings helps lay the critical early groundwork for a winning verdict. In the latest episode of Trial Technique Spotlight, Shane Read, one of the nation’s foremost trial and jury consultants, analyzes how Jake Plattenberger's opening in a bellwether baby formula trial masterfully highlighted a researcher’s pushback to deposition questions, setting up a blockbuster verdict.
Plattenberger, of TorHoerman Law, represents the mother of a child who developed a severe intestinal disease called necrotizing enterocolitis. The mother contends the child, who was born prematurely, developed the condition because she was fed Abbott’s specialized cows-milk formula. The case is one of thousands that claim Abbott failed to warn of the formula’s risks. Abbott, for its part, contends plaintiffs’ claims are based on flawed science and the formula provides needed nourishment to preemies.
In his opening, Plattenberger used video of a deposition his partner, Tor Hoerman, took of a long-time Abbott researcher in order to bolster his contention that the company hadn't been forthcoming with the formula's risks.
During the clip, jurors saw the witness spar with Hoerman over whether it would be inappropriate to intentionally mislead consumers about the risks associated with the company’s products.
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“Mislead can mean a lot of different things,” the research said, when asking Hoerman to use a different term. “We all know that.”
How about ‘lie’?” Hoerman offered. “You would agree that it would be inappropriate for Abbott Laboratories to lie to the public about the risks associated with its products?”
“I can’t answer that, sir.” The researcher said. “I don’t know in what context you’re asking me [the question], so no, I cannot answer it.”
“These are usually not difficult questions for people or corporations to answer,” Plattenberger told jurors when the clip ended. “And the answers speak for themselves.”
Shane Read said the deposition clip vividly illustrated Plattenberger’s claims surrounding the company’s alleged behavior.
And its use in openings grabbed jurors in the trial’s earliest moments.
“[It’s] beautifully done. The jury is immediately on his side, he’s connecting with them,” Read said, noting that jurors handed down a $495 million verdict including $400 million in punitives.
“That two-minute video clip was the key.”
And Read said the back-and-forth between Hoerman and the researcher shows just how important the right deposition questions can be.
“When I’m working with lawyers, I’m always working with them on how to ask that one question that will win a deposition, that will help you win at trial,” Read said.
“And we’ve got a great example here.”
Read’s analysis is the latest in CVN’s ongoing series, Trial Technique Spotlight, with Shane Read. Read is a nationally recognized trial consultant and award-winning author who has helped thousands of lawyers transform their deposition, trial, and oral advocacy skills through in-house training programs, one-on-one coaching, and keynote speeches. And in each episode of Trial Technique Spotlight, he uses CVN’s courtroom video to detail the techniques the nation’s top attorneys use, and how to best use them in your own cases. You can learn more about Shane and sign up for his newsletter at ShaneRead.com.
Email Arlin Crisco at acrisco@cvn.com.
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