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Fetus-channeling case overturned by Ohio supreme court

October 26, 2007, 4:08 PM UTC

A $30 million malpractice award won on behalf of a severely retarded cerebral palsy victim — the state’s highest malpractice verdict ever — was overturned by a 6-1 majority of the Ohio Supreme Court yesterday and sent back for retrial. The majority cited errors by the trial judge, evidence that the jury had been swayed by “passion and prejudice,” and “attorney misconduct” by the famously obnoxious trial lawyer Geoffrey Fieger. Here’s the ruling.

Fieger is best known nationally for his defense of assisted-suicide advocate Dr. Jack Kevorkian years ago, but he also attracted attention as Michigan’s Democratic gubernatorial candidate in 1998 — when he commented that the state’s potholes were “as big as [incumbent Governor John] Engler’s butt” (see here) — and he received still more this past August, when he was indicted for allegedly having funnelled $127,000 in illegal campaign contributions to presidential candidate John Edwards during the latter’s 2004 campaign. (Fieger has pleaded not guilty and has argued that his prosecution is politically motivated.)

The Ohio malpractice case had showcased a variety of push-the-envelope trial advocacy by Fieger, including a summation in which he purported to give voice to retarded plaintiff Walter Hollins’s thoughts when Hollins was still in the womb, awaiting a Cesarian birth and, Fieger theorized, struggling to obtain adequate oxygen: “Please, please nurses, I’m a little baby. I want to play baseball. I want to hug my mother. I want to tell her that I love her. Help me. Please help me to be born.”

Though these portions of Fieger’s summation had been highlighted among the many instances of alleged misconduct complained of by the defendants on appeal — and they had prompted a right-to-life group to file an amicus brief defending those portions of Fieger’s summation — the supreme court ended up not referring to them, focusing instead on other perceived irregularities in the trial. There was evidently much to chose from.

(Fieger has not yet responded to an email left with his office yesterday morning seeking comment on the ruling. If and when he does, I’ll post an update.) [COMMENT RECEIVED AND POSTED AT END]

In 1987, after the obstetrician noticed that Hollins’s fetus was abnormally underweight and nonreactive in certain routine tests, the doctor ordered an “emergency” C-section and performed it about 90 minutes later. Judging from Hollins’s fused joints, abnormally small brain, and the abnormally small placenta and umbilical cord, defense experts concluded that Hollins had suffered from many weeks of intrauterine growth retardation.

In a suit filed in 1998, however, Hollins’s guardian’s lawyer, Fieger, argued that all the key damage to Hollins had occurred during the 90-minute delay between the decision to perform the C-section and commencement of the procedure, and that this delay had constituted negligence on the part of the obstetrician and the non-profit health service that employed him.

The evidence at trial was that when doctors believed that a Cesarian had to be performed immediately they referred to it as a “stat C-section,” and that in less urgent situations the procedure was designated an “emergency C-section.” The supreme court found that Fieger “repeatedly blurred this distinction in order to manipulate the jury into believing that Walter’s ’emergency’ C-section was more urgent than that term actually implied.”

Fieger also argued without evidence, the court found, that the doctors had concocted a cover-up of their purported negligence, and he invoked race to further stir the jurors’ emotions. (In summation he had contrasted the “poor, terribly injured African American” plaintiff to “the powerful corporation defendants, doctors who did this to him,” and argued: “If you want to have biases … then you should have never been sitting in this jury to begin with.”)

Though Fieger’s expert had opined that a lifetime of appropriate care for Hollins would cost $6.5 million, Fieger also elicited from him, over objection, that 24-hour supervision by a registered nurse would run $13 to $14 million — even though the expert had never recommended such a regimen. In May 2004, a Cleveland jury awarded $15 million in economic damages, and then another $15 million in noneconomic damages — that county’s largest plaintiff’s verdict ever. (The plaintiff also sought about $50 million in prejudgment interest.)

The trial judge had ordered a new trial, finding that the jury had rendered an excessive verdict “under the influence of passion or prejudice,” and he also cited repeated misconduct by Fieger and certain mistaken rulings of his own.

In May 2006, an intermediate Ohio appeals court partially reversed, finding, by a 2-1 vote, that while “plaintiff’s attomey does not appear to be the most likeable person,” his conduct did not require a new trial, and that the trial judge should have just ordered a reduction in the size of the verdict. In a 45-page dissent, Judge Diane Karpinski closely analyzed Fieger’s behavior throughout the trial and then concluded: “Every good attomey walks a fine line between zealous advocacy and tainting a jury. Mr. Fieger pole vaulted over that line early in this case and never retreated.”

The Ohio Supreme Court’s ruling yesterday was more narrowly focused than Karpinski’s, but restore the trial judge’s new trial order. Justice Paul Pfeifer dissented, suggesting that after 10 years of litigation, it would make more sense to just order a reduction in the verdict to $10 million and have done with it. He also suggested that if a new trial did need to be held, “it would be wise for the trial judge to deny any motion for admission pro hac vice filed on behalf of Mr. Fieger.” (Motions for admission pro hac vice are the motions out-of-state lawyers must file to be permitted to try a case in a state in which they are not licensed to practice. Fieger is licensed in Michigan.)

The victorious appellate lawyers on the case include Mark Herrmann of the Chicago office of Jones Day, who represented the obstetrician and his employer, Northeast Ohio Neighborhood Health Services, and who also co-writes the Drug and Device Law blog. At trial, those defendants were represented by Joseph Farchione, Jr., of Cleveland’s Sutter O’Connor & Farchione. The hospital defendant, Mt. Sinai Medical Center, was represented on appeal by Irene Keyse-Walker of Cleveland’s Tucker Ellis & West. Walter Hollins’s appellate lawyer was Jack Beam of Lafayette, Colorado’s Beam & Raymond Associates.

Update, October 26, 2007, 9:32 p.m. ET: Geoff Fieger’s office referred my request for comment to the appellate attorney who handled Hollins’s appeal, Jack Beam. Beam writes: “Sitting in his wheel chair, Walter Hollins has waited nine years for the justice that the Cuyahoga County jury rendered in his favor. Now that verdict has been taken away by the Republican Ohio Supreme Court. As Justice O’Connor declared at her election celebration in November of 2002 the Republicans owed a ‘pay off’ to the medical and insurance industry. And indeed she and her fellow Republicans have paid off the rich and powerful. Every one who believes in the right to trial by jury should be outraged at this travesty of justice. If only The Buckeye State were as concerned about voting these brazen Republican operatives cloaked as ‘judges’ out of office as they are about beating the Wolverines every year, maybe then there would be equal justice for all in Columbus.”

Correction, October 26, 2007: An earlier version of this post misstated the vote tally of the Ohio Supreme Court.