Medical Malpractice Motion 18 - Motion for New Trial
Peter F. Geraci, Geraci, Arreola and Hernandez, LLC, 55 E Monroe St. #3400, Chicago IL 60603, 312-139-2169 fax 312-739-2940.
Attorney no. 39929
Now come Plaintiffs, by their attorney Geraci, Arreola and Hernandez, L.L.C., and move for an Order granting a new trial. In support hereof, Plaintiff's state:
1. The trial court committed numerous errors which, taken together, deprived Plaintiffs of a fair trial, and due process of law. The trial court ignored the plain testimony of plaintiff experts that Giselle Lopez was subjected to deprivation of oxygen over a 2 hour period when defendants should have advocated for or performed a cesarian section, which would have resulted in no injury to mother or baby. The trial court held the defense motion for directed verdict until just before closing arguments, after the court met with defense counsel privately, and then granted it in most parts 10 minutes before closing argument. The court allowed the defense to change its whole theory of the case, in violation of Rule 213, and claim the time of birth was 7:00 instead of 7:08, and committed numerous other errors which deprived plaintiffs of a fair trial.
2. Attorney for Defendant Socol's attorney Larry Helms made deliberate and calculated false statements of fact in his opening statement on October 7, which misled and confused the jury. Inter alia, he falsely and deliberately claimed:
a. Mrs. Lopez suffered a placenta] abruption. P. 3 In fact no such thing ever occurred.
b. The placenta sheared off from the wall of the uterus so that its “life system was gone.” P. 4 p. 14
c. That was “a rare nasty complication.. .simply an organ failure of Ms. Lopez, and her baby was doomed because of that”
d. “You've just heard Mr. Geraci give a different account. P. 5 Implying that plaintiff's counsel was lying to the jury.
e. Mr. Helms and Mr. Quandt stated the time of delivery was 7:08 in their opening statements,. p. 11, 14 but presented evidence never before seen in the case or disclosed in the 213's that the real time of delivery was 7:00. p. 1439-41 direct by Mr. Helms.
f. The purpose of these false statements was their trial theory was that “it doesn't take but a very few minutes for a baby to be deprived of blood and oxygen and its brain to be basically ruined” p. 15 and “there were 4 minutes or so when she wasn't getting oxygen”. “Giselle was injured and died because of the sudden collapse of the placenta. That's what you're gong to hear from all of our witnesses. On the other hand, as you heard from Mr. Geraci, you're going to hear about this litany of horrific mismanagement.”
3. Defendant attorneys Larry Helms and Eric Quandt followed a strategy of personalizing the evidence to Plaintiff's counsel Mr. Geraci. Mr. Helms and Mr. Quandt used Mr. Geraci's name numerous times in his 30 minute opening statement, and in his 40 minute closing argument, in an effort to make it seem as if the evidence was coming from Plaintiff's counsel's imagination, instead of from the witnesses and evidence.
Both defense counsel improperly used this technique to make it seem as if plaintiff's counsel was lying and fabricating evidence. Both defense counsel attributed differences in the evidence to the placental abruption that never happened, and made it seem like Plaintiffs' evidence was false, and fabricated by Plaintiffs' attorneys.
Statements such as
a. “This is not going to be something, as Mr. Geraci suggested, you can just look at and say, “Oh, yeah, there is a deceleration.” P. 16
b. “You're going to hear these wildly disparate accounts of what they show.”
c. “Mr. Geraci, as the representative for the plaintiff, has the burden of proving the case:...he has to show that he's entitled to what he claims he's entitled to.” P. 7
e. “Well, you heard Mr. Geraci tell you that Dr. Gatewood will testify that this so-called fundal pressure caused the rupture. You will hear Dr. Gatewood say he can't even say there was fundal pressure.” P. 26. This implies that Plaintiffs' counsel is lying and misrepresenting evidence.
4. Larry Helms falsely claimed that the jury could not read or understand fetal monitor strips, and that he was unable to read them: “...there ain't no way you can read these. I've been doing this for years. I still can't read these” This is a deliberate falsehood. No malpractice defense attorney is unable to tell a line that looks like a W and when a line goes up and down. This is simply a deliberate falsehood to make the jury ignore the evidence and encourage the jury to ignore the testimony of plaintiff experts and rely on defense testimony.
5. The trial court improperly overruled Plaintiffs' objection to Mr. Helms attacking the credibility of witness in his opening statement, and making argument instead of stating what his evidence would show. P. 22
Emboldened by this, Mr. Helms then proceeded to argue throughout the remained of his opening statement, such as his long argument that Plaintiffs' expert obstetrician Dr. Gatewood will testify “oddly” p. 26 “that fundal pressure is like applying leaches” and so on. When the trial court finally sustained another objection, the trial court failed to cure the error by instructing the jury to disregard these improper arguments.
However, Mr. Helms continued to argue that “over these next few days we're going to be doing this reality sorting” and closed with his theme that the non-existent placental abruption was the cause of injury: “one account will tell you this was a natural but tragic occurrence of childbirth. The other will you that it was a case of enormous neglect by a whole team of professionals.”
6. Eric Quandt deliberately made arguments and introduced hearsay into his opening statement. Although objections were sustained, he mischaracterized the evidence, anticipated the evidence of the plaintiff instead of stating his own evidence, and argued the law. P. 39-42. The trial court failed to instruct the jury to disregard it, and made light of Mr. Quandt's statements, saying, “all right, let's move on.” instead of curing the error. Quandt was encouraged by this. P. 46-47, and continued to argue and attack the credibility of Plaintiffs' witnesses. After another objection, the trial court even made a joke about it: “Mr. Quandt is good at recovering, Mr. Geraci. So let's see if he can do it here.” P. 47 This is error.
7. Both defense counsel engaged in shouting at witnesses, pointing at witnesses, feigning outrage, and sarcasm, in violation of the motion in limine prohibiting such histrionics. P. 950 The trial court refused to sustain Plaintiffs' objection and instruct counsel.
8. Both defense counsel repeatedly violated the motion in limine prohibiting leading questions of each other's witnesses.
9. The court improperly denied plaintiff's motion to non-suit Roberto DeLeon's case for loss of consortium.
10. The trial court improperly denied PI. motion in limine no. 2 to prohibit evidence or argument that fetal monitoring has not reduced bad outcomes.
11. The trial court improperly reserved PI. MIL no. 7 and allowed defense counsel to attack credibility of plaintiff witnesses in opening statement by argument.
12. The trial court improperly denied PI. MIL no. 8 and allowed defense counsel to repeatedly argue the number of experts as probative.
13. The trial court improperly denied PI. MIL no. 9 and allowed argument on opening statement regarding jurors paying particular attention to cross-examination.
14. The trial court improperly granted Def. NWMH MIL no. 6 regarding limiting Plaintiffs' cross examination on Spanish-speaking ability of defendants, which turned out to be a huge issue in the case when the main nurse Elisa Torres was shown to be speaking English at 280-300 words per minute p. 1121 and admitted she spoke Puerto-Rican Spanish at that rate, when the Plaintiffs speak Mexican Spanish. Plaintiff was prohibited by this motion from rebuttal evidence that would have supported the testimony of Plaintiffs that they could not understand the nurses. The trial court allowed defense to attack the veracity of Plaintiffs in argument by touting the Spanish speaking ability of nurses who could not be understand on trial in English, but prohibited cross and rebuttal by Plaintiff on this issue. P. 121. p. 1054-5 7 p. 1326-8
15. The trial court improperly granted Def. MIL NWMH no. 9 and prohibited Plaintiff from arguing that a course of conduct of ignoring a worsening fetal condition led up to the ultimate injuries. The trial court also wrongly ruled that a number of deviations were not proximate causes of injury, when that was the exact testimony of Plaintiffs' experts.
The trial courts' error in applying the law correctly is shown in its statement on p. 130 that a nurse can testify as to proximate cause of injury. That is exactly wrong. The trial court reads the Sullivan case backwards. Sullivan stated that a nurse expert, not an M.D., must give the opinion that a defendant nurse deviated from the standard of care. Sullivan did not hold that a nurse can give a medical proximate cause opinion. Again on p. 135 the trial court claims that a nurse can testify that a nursing deviation caused medical injury. The trial court even claims that he “has allowed a nurse to give proximate cause opinions because the nurse is a medical professional.” P. 135
The trial court has not had that issue come up on appeal and it would have had the court been ruling that no medical doctor need testify on proximate cause of an injury, that a nurse can do it.
The court was confused at this point, and it did not get better as the trial wore on. The court started making jokes about being Karnak the Magnificent, a character from Johnny Carson's show of 20 years ago, and granted Def. NWMH MIL 9 over plaintiffs objection.
It is this colloquy that shows the Court's erroneous reasoning in granting Defendant's motions for a directed verdict on many nursing and obstetrical deviations only 10 minutes before closing argument.
16. The trial court improperly granted Def. NWMH MIL no. 10. The trial court interrupted plaintiffs' counsel twice on p. 144, and began to argue about informed consent, which only was evidence that no cesarian was planned because no consent form was obtained. The court then introduces its theory that Plaintiff thinks there is something “nefarious” going on and characterizes legitimate objections to these motions as imagination. No trial court should react to legal arguments in that manner.
17. The trial court improperly granted Def. NWMH MIL no. 12.
18. The trial court erred by losing its temper over a motion while on the bench, and shouting at plaintiffs' counsel so the jury could hear. The jury could be heard laughing inside the jury room.
THE COURT: We've been sitting out here for about 15 minutes, and we didn't want to disrupt all the laughter that was -- we would have called you out much earlier, but you were having too much fun. And there isn't much fun in this sometimes so we decided to let you go.
19. The trial court improperly prohibited cross-examination of Dr. Socol on his expert testimony in prior lawsuits. The trial court specifically permitted this at p. 246, Oct 4 2005 10:44 transcript, during motions in limine, but then changed its ruling during Dr. Socol's cross-examination.
20. The trial court improperly interrupted direct examination of Plaintiff Hilaria Lopez, without any objection by any defendant, said in front of the jury “Okay. Ok. Let's go outside. Okay.” in a peevish manner, and spent 15 minutes pp. 19-24 berating plaintiff's counsel for asking Plaintiff what happened in the afternoon of Dec. 25 when she was in the care of defendant NWMH nurses and Dr. Chan.
This is the first instance of the trial court showing anger and berating Plaintiffs' counsel but not the last, as the trial court later admitted: the trial court was angry. There was no basis for it, no basis for showing it in front of the jury, and the trial court was wrongly confusing testimony about plaintiff Hilaria Lopez's treatment by the defendants, with what the court wrongly perceived was some other day and time.
All the court had to do if it wished to raise its own objection is say: “Counsel, please lay a foundation for this conversation.” This is the first instance of angrily calling plaintiffs' counsel in front of the jury in an abrupt manner. The trial court repeated this behavior many times. This repeated behavior on the part of the trial court deprived Plaintiffs of a fair trial.
21. The trial court improperly interposed and sustained its own objection, and defendant Socol's objection to Hilaria Lopez's description of non-hearsay statements of defendants. P. 123 Oct. 7 12.15 a.m. Here, unlike when sustaining plaintiffs' objections, the trial court instructed the jury to disregard.
22. Next, the trial court interrupted Hilaria Lopez in the middle of an answer, without waiting for her to finish, and instructed her to answer the question asked, which she was doing. P. 124 Oct. 7 12.15 p.m. Again, testimony about what defendants said and did in the presence of the witness and each other is admissible, not objectionable.
23. The trial court improperly, over objection, allowed defense counsel to improperly, both in form and substance, question Hilaria Lopez by using deposition testimony which was not inconsistent, and did not impeach. P. 207 October 11, 2005.
24. The trial court erred by making jokes about rooting for the Cubs or Sox at the end of redirect exam of Plaintiff expert Laura Mahlmeister and at the start of evidence on another day. P. 435 ibid.
25. The trial court improperly sustained objections to the testimony of plaintiffs'. pediatric neurologist Steven Abern.
Q: Is loss of blood flow to the brain-in this case was it suffered by Giselle:
A: Yes, she--yes, she did suffer it.
Q: And when?
A: When she suffered? At least an hour prior to the emergency C Section when she was taken out.
Mr. Helm: Objection. That's a 213 problem.
Dr. Abern's deposition and report stated “She sustained an intrapartum injury that caused her condition.”
According to Mr. Quandt “He was asked on deposition:
Q: Are you offering any opinion about the hour or minute that the injury occurred.”
Mr. Quandt, however, left out a word when he read the deposition to the trial court. He left out the word exact. The question asked on deposition was “Are you offering any opinion about the exact hour or minute that the injury occurred.?” P. 548
This case never was about an instantaneous or exact injury. It was always clearly about a loss of fetal reserves, partial asphyxia and ischemia over time, that resulted in brain damage.
Of course, under Larry Helms' theory as announced in his opening statement, the defense wanted to show the brain injury occurred in 4 minutes or so because of placental abruption, which also never occurred. There never was any evidence that it occurred in 4 minutes, and the defense offered no pediatric neurology testimony that the brain injury occurred in 4 minutes.
The trial court committed error in limiting Dr. Abern's testimony as it did.
Dr. Abern also testified on deposition that “it takes time to get (a ph) that low, so there were some problems going backwards from there.
The trial court then makes the amazing statement that “the baby became disconnected with the umbilical cord” p. 555 “there's no connection to the umbilical cord: p. 558 Mr. Helms admits that he misled the court on p. 561. The placenta is always attached to the umbilical cord. The question is whether the placenta is attached to the wall of the uterus.”
The trial court seemed to be misled, but later in the trial sustained reference to abruption, which Mr. Helms persistently brought up even though he knew there was no such event in the case.
Redirect Examination by Mr. Helms In the event of an abruption of a placenta, what does that mean? What does that mean between the -- about the relationship between --
MR. GERACI: Object to “abruption.” There's no evidence. It's a 213 objection.
THE COURT: Okay. That's sustained as to abruption.
At no time did Mr. Helms or any defendant present any evidence of placental abruption, which is attachment of the placenta to the wall of the uterus becoming disturbed. Mr. Helms is entirely responsible for the court's error. If the trial court was misled, certainly the jury was misled and Plaintiffs were deprived of a fair trial by the false testimony given by Mr. Helms, and by his subsequent cross-examination of Dr. Abern, which compounded the error. Even at this stage of the trial, the evidence was that the placenta was attached to the uterus, and therefore Giselle was being oxygenated, at the time of delivery, 7:08 pm.
And as soon as that internal scalp electrode was inserted, you saw that the heart rate was flat; correct?
Q And then you say you “crashed” her, which is lingo for you did a crash C section?
Q “Flat line” means you were looking at a dying baby at that point, and you wanted to get it out quickly; correct?
A Most likely, yes.
Q Okay. And you said yesterday that the timing on the internal clock on the fetal monitor in the OR quits at 1858, 6:58 p.m.; correct?
A It -- I'm sorry? At what?
Q This exhibit, the last of this fetal scalp monitor --
Q -- is at what time?
Exhibit No. 6.
A I can't read that.
It starts at 1858 and stops at 1900.
Q And why does it stop at 1900 or seven o'clock?
A That was probably when the baby was delivered.
Q Were you there?
Q Your testimony yesterday was that the time of delivery was seven o'clock and not 7:08; is that true?
A It's whatever time they put on the strip here.
Q The strip is accurate; correct?
A I'm sorry?
Q The strip is accurate? The time on the strip is accurate?
The wall clock was wrong?
A I don't know which one is the correct time.
Q You said yesterday that the record of 7:08 was incorrect.
A Compared to the strip. They were discrepant.
As will be seen later, Mr. Helms and Mr. Quandt abandoned that theory and came up with the new theory that the time of delivery was 7:00, that the records were wrong, that the clock on the wall of the operating room was 8 minutes fast, and that even a delay of 12 minutes, that everyone including the defendants testified to after decision to move to the operating room, could not have caused this extent of brain damage.
Now, with this objection, we see how the defendants were changing their theory of the case and the evidence they intended to present.
On top of all this, Dr. Abern stated on his deposition that he did not know when the baby was first floating in the abdomen. P. 564-5
The Court did say that Dr. Abern could testify that the injury occurred within the 40 minutes prior to delivery. P. 573 But then the Court fully grants the defendants' objection. P. 577 This is error.
26. Defense attorney Larry Helms caused reversible error by stating that his evidence would show placental abruption, and then cross-examining Dr. Abern about placental abruption “like if the placenta came loss from the wall of the uterus”.
Had he not misled the court, counsel and the jury in his opening statement, his 213 objection never would have been sustained, and plaintiff he would not have been able to embark on this line of questioning, which was about facts unsupported by the evidence, but only testified to by Mr. Helms in his opening statement.
Helms again states that the time of birth was 7:08 p. 595 On cross, he asks Dr. Abern
Q: you would say that she had hypoxic-ischemic encephalopathy from the rupture of the uterus , true?
A. From an intrapartum -- from an intrapartum event. I believe that the rupture of the uterus was the culmination .
Even Mr. Quandt knew that “intra partum” means from the start of labor to delivery p. 608, not as Mr. Helms stated, from conception to birth, another deliberate false statement by Mr. Helms.
There never was any 213 violation here, and the court's ruling was wrong and severly damaged the plaintiffs' case, and was part of the the court's further error in granting Defendants' motion for a directed verdict. Plaintiff was even prohibited from re-direct on that issue by the court's ruling.
On redirect, Dr. Abern did testify that a 4 minute delay did not cause this condition of brain damage, and Giselle was in a relatively hypoxic state in utero. P. 613
He also testified that it takes 30 min to an hour to get a pH as low as Giselle had. P. 614.
Mr. Helms then tried to get Dr. Abern to commit to a 6-9 minute time for the pH to drop that low, and even by the use of bizarre and wrong mathematics could not obtain that answer. .04 per minute means .4 in 10 minutes. P. 618 6.95 at 7:26, 20 minutes after birth and resuscitation would require a pH much lower than 6.95 at birth. If birth was 7:08, the baby could not possible have come up to 6.95 any faster than .4 in 10 minutes. The pH at birth must have been .8 lower than 6.95, or 6.15, at birth. This means that the hypoxic injury would have had to start occurring at least 20 minutes before birth at 7:08 if there was total occlusion of the cord, which is what .04 per minute drop in pH means.Mr. Helms' theory, therefore, depended on barring Dr. Abern's testimony that intrapartum events caused the hypoxic ischemic encephalopathy, not a sudden separate of the uterus from the placenta.
27. The court erred in permitting Mr. Helms to improperly as questions designed to impeach, without there being a contrary answer having been given. P. 597. The Court itself stated that this reversible method of false impeachment was proper, so no objection would have been sustained, and an objection would have been useless.
Defense counsel also did this in cross-examination of Dr. Gatewood without a contrary question asked and answered in court. P. 855
28. The trial court improperly overruled objections to Mr. Quandt's questions about whether or not Dr. Abern in his personal practice had suggested that other obstetricians failed to deliver babies properly. Pp. 606-607
29. Larry Helms further deprived plaintiff of a fair trial by stating on p. 618 “Assume we're going to learn that the (amount of ph) drop is approximately .04, some might say .03 to 4 per minute.” No where in the defense case did this evidence appear.
29. Helms also was permitted to cut off the witness's answers pp. 622-623, assisted by the Court, who followed a different procedure with Plaintiffs' questions.
30. On pp. 624-25 the trial court overruled Plaintiff's objection to the conduct of Mr. Helms in approaching the witness and pointing and yelling. The court refused to instruct Mr. Helms and instead “sustained to the extent it asks for personal practice”. Further histrionics on the part of Mr. Quandt are at 1445, although sustained, and in their closing arguments, as shown later.
31. The trial court error by refusing to permit redirect p. 627-640 after Mr. Quandt asked:
Q: Have you read any publications from the doctors at Northwestern, including Dr. Socol, dealing with pH as an outcome? P. 626
A. I.... Don't recall if I have or have not. I don ‘t recall who the authors were, sir .
Plaintiff should have been allowed to redirect Dr. Abern on pH as an outcome.
32. The trial court erred by failing to disclose that the court knew defense counsel, giving his opinion that they were truthful and experienced attorneys so as to imply that plaintiffs' attorneys were not, failing to disclose that the court had been in Eric Quandt's offices recently, and by allowing the recent reversal of the trial court in another case by Swanson Martin and Bell to influence the court's decisions.
The trial court may have failed to disclosed prior personal relationships with defense counsel Eric Quandt or his partner, which deprived Plaintiffs' of the opportunity to move for substitution of judge.
The trial court stated in denying plaintiffs' motion in limine to bar cross examination of plaintiffs' expert Dr. Gatewood on collateral matters p. 650 that
“more importantly, I know Mr. Quandt. Mr. Quandt has had a number of cases in here, and I have never known Mr. Quandt to attempt to do anything that would be that far afoul of the rules, and I can say that without fear of contradiction. Mr. Quandt is not going to do that because he's never comported himself that way in my courtroom, nor has from--based on what I know about the way he practices and the way his partner practices--that they would ever do something like that .
Plaintiff counsel has been unable to find any prior trial appearance of Eric Quandt in any of the trial court's law division cases. No record of any defense counsel trying a case before the trial court has been found by plaintiff. See Exhibit B. Plaintiff made such a search on July 25. If the search had reveal prior trials of any defense counsel before the trial court, Plaintiff may have taken a change of venue, depending on the facts.
Plaintiff is only aware of one prior birth injury case tried by any defense counsel, p. 08, but that case was before Hon. Daniel White. Interestingly, Dr. Socol was a defendant, defended by Eric Quandt and Mary Periolat, and the allegations were failing to promptly deliver baby by C-section after fetal heart rate and presentation abnormalities developed. Exhibit B. p. 8.
These unsubstantiated comments of the trial court about the prowess and reliability of defense counsel, who had no more experience in these cases than the trial judge, and who had never tried a case before him (unless the public records are wrong), indicate a bias in favor of defense, and prejudice against plaintiff, which may explain the rulings and directed verdict which are the claims of error. A new trial is warranted.
The trial court had made previous off the record statements about being in Mr. Quandt's office and seeing a USC trophy or memorabilia, on the day when the USC band was in town. If the trial judge had a prior personal or professional relationship with Mr. Quandt, the trial judge should have disclosed it before then so as to give opposing counsel the opportunity to change venue. A search of the Cook County jury verdict reporter shows that Mr. Quandt, nor his partner, have NEVER appeared on trial in the trial court's courtroom. See Exhibit B. It is possible that Mr. Quandt had settled numerous cases in front of the trial court, while representing Northwest Memorial Hospital, but plaintiff has been unable to find any evidence that Mr. Quandt ever appeared in the trial court's courtroom as an advocate at any time, except possibly in chambers to settle a case.