and cerebral palsy

[Guest guest]

From

http://www.nytimes.com/2004/01/31/politics/campaign/31EDWA.html?ex=1077253200 & en

=08fcb57f5e4d2435 & ei=5070

In Trial Work, Left a Trademark

By ADAM LIPTAKand MICHAEL MOSS

Published: January 31, 2004

In 1985, a 31-year-old North Carolina lawyer named stood

before a jury and channeled the words of an unborn baby girl.

Referring to an hour-by-hour record of a fetal heartbeat monitor, Mr.

told the jury: " She said at 3, `I'm fine.' She said at 4, `I'm

having a little trouble, but I'm doing O.K.' Five, she said, `I'm having

problems.' At 5:30, she said, `I need out.' "

But the obstetrician, he argued in an artful blend of science and passion,

failed to heed the call. By waiting 90 more minutes to perform a breech

delivery, rather than immediately performing a Caesarean section, Mr.

said, the doctor permanently damaged the girl's brain.

" She speaks to you through me, " the lawyer went on in his closing argument.

" And I have to tell you right now, I didn't plan to talk about this, right

now I feel her. I feel her presence. She's inside me, and she's talking to

you. "

The jury came back with a $6.5 million verdict in the cerebral palsy case,

and Mr. established his reputation as the state's most feared

plaintiff's lawyer.

In the decade that followed, Mr. filed at least 20 similar lawsuits

against doctors and hospitals in deliveries gone wrong, winning verdicts

and settlements of more than $60 million, typically keeping about a third.

As a politician he has spoken of these lawsuits with pride.

" I was more than just their lawyer, " Mr. said of his clients in a

recent essay in Newsweek. " I cared about them. Their cause was my cause. "

The effect of his work has reached beyond those cases, and beyond his own

income. Other lawyers have filed countless similar cases; just this week, a

jury on Long Island returned a $112 million award. And doctors have

responded by changing the way they deliver babies, often seeing a

relatively minor anomaly on a fetal heart monitor as justification for an

immediate Caesarean.

On the other side, insurance companies, business groups that support what

they call tort reform and conservative commentators have accused Mr.

of relying on questionable science in his trial work. Indeed, there

is a growing medical debate over whether the changes have done more harm

than good. Studies have found that the electronic fetal monitors now widely

used during delivery often incorrectly signal distress, prompting many

needless Caesarean deliveries, which carry the risks of major surgery.

The rise in such deliveries, to about 26 percent today from 6 percent in

1970, has failed to decrease the rate of cerebral palsy, scientists say.

Studies indicate that in most cases, the disorder is caused by fetal brain

injury long before labor begins.

An examination of Mr. 's legal career also opens a window onto the

world of personal injury litigation. In building his career, Mr.

underbid other lawyers to win promising clients, sifted through several

dozen expert witnesses to find one who would attest to his claims, and

opposed state legislation that would have helped all families with

brain-damaged children and not just those few who win big malpractice

awards.

In an interview on yesterday, Mr. did not dispute the contention

that the use of fetal heart rate monitors leads to many unneeded Caesarean

deliveries or that few cases of cerebral palsy are caused by mishandled

deliveries. But he said his cases, selected from hundreds of potential

clients with the disorder, were exceptions.

" I took very seriously our responsibility to determine if our cases were

merited, " Mr. said. " Before I ever accepted a brain-injured child

case, we would spend months investigating it. "

As for the unneeded Caesareans, he said, " The question is, would you rather

have cases where that happens instead of having cases where you don't

intervene and a child either becomes disabled for life or dies in utero? "

A Talent for Trials

Lawyers in North Carolina agree that Mr. was an exceptionally

talented lawyer, endowed with a prodigious work ethic, native

self-confidence, good looks, charisma and an ability to talk about

complicated subjects in accessible language.

That, said his former partner Wade M. , is a lethal combination in a

trial lawyer. " People don't see him coming until it's too late, " Mr.

said. " It's true in politics and it was true in the law. "

Even Mr. 's former adversaries give him grudging praise. " He has an

ingratiating way, " said Dewey W. Wells, a former state court judge in North

Carolina who litigated against Mr. as a defense lawyer,

" particularly with jurors and particularly with women on juries. "

Mr. tried his first big personal injury case in 1984, seven years

after graduating from the University of North Carolina law school. He had

clerked for a federal judge, worked briefly for a firm in Nashville and

then joined Tharrington, & Hargrove, a small firm in Raleigh, N.C.,

with only a limited litigation practice.

The firm took the case that resulted in Mr. 's first big jury

verdict as a favor to a state senator and lawyer who had let it languish.

Mr. , then a young associate, got the assignment because it was

considered a loser.

" I said, `Let's dump the file on 's desk,' " said Wade H. Hargrove, a

former partner at the firm.

The plaintiff in the case, E. G. Sawyer, was disabled as a result of

what Mr. said was an overdose of a drug used in alcohol aversion

therapy. O. E. Starnes, who represented the hospital, had never heard of

Mr. .

" He came over here and ate our lunch, " Mr. Starnes said.

The jury awarded Mr. Sawyer $3.7 million.

" That created a buzz, " Mr. Hargrove said. " The revenue that he was

producing was an out-of-body experience. would pick up an $800,000 fee

for making a few phone calls. "

In the years that followed, Mr. handled all sorts of cases. He

litigated contract and insurance disputes. He sued the American National

Red Cross three times, claiming that the AIDS virus was transmitted

through tainted blood products, and obtained a confidential settlement in

each case. He defended a Wilmington, N.C., newspaper owned by The New York

Times Company in a libel suit.

In 1993 Mr. founded his own firm with an old friend, F.

Kirby. Now known as Kirby & Holt, the firm boasts on its Web site that it

still holds the record for the largest birth-injury settlement in North

Carolina.

J. Dayton, editor of The North Carolina Lawyers Weekly, which

frequently published summaries of Mr. 's trial victories and

settlements, based on information his firms provided, said his stature was

uncontested.

" On the plaintiffs' side, he was absolutely the top one, " Mr. Dayton said.

Parents Felt He Cared

Something more than Mr. 's reputation attracted and Sandy

Lakey of Raleigh, N.C., the parents of a young girl injured in a swimming

pool. The Lakeys say all the lawyers they interviewed except Mr.

wanted one-third of any award, which one of them predicted would not exceed

$1.5 million. Mr. offered to take a smaller percentage, unless the

award reached unexpected heights.

In 1997, it did. A jury awarded the Lakeys $25 million, of which Mr.

got one-third plus expenses.

He so impressed the Lakeys that they worked as volunteers in his Senate

campaign the next year.

" I know how intelligent he is, how capable and how deeply he cares, " Ms.

Lakey said.

In some ways, he might even have been too successful. In response to a

large punitive award against a trucking company whose driver was involved

in a fatal accident, the North Carolina Legislature passed a law that

barred such awards unless the employee's actions had been specifically

approved by company officials.

Over time, Mr. became quite selective about cases. Liability had to

be clear, his competitors and opponents say, and the potential award had to

be large.

" He took only those cases that were catastrophic, that would really capture

a jury's imagination, " Mr. Wells, a defense lawyer, said. " He paints

himself as a person who was serving the interests of the downtrodden, the

widows and the little children. Actually, he was after the cases with the

highest verdict potential. would probably admit that on

cross-examination. "

The cerebral palsy cases fit that pattern. Mr. did accept the

occasional case in which a baby died during delivery; The North Carolina

Lawyers Weekly reported such cases as yielding settlements in the

neighborhood of $500,000. But cases involving children who faced a

lifetime of expensive care and emotional trauma could yield much more.

In 1985 he handled his first cerebral palsy case, for ,

the girl whose voice he recreated at trial. In his book " Four Trials, " Mr.

described the case as an uphill battle. The doctor was esteemed and

worked at a prestigious teaching hospital. Mr. 's associate

interviewed 41 obstetricians before finding one local doctor who would make

a good witness.

It was clear which evidence would be crucial: " I had to become an overnight

expert in fetal monitor readings, " Mr. wrote.

In other cases, too, his colleagues say, the fetal monitor readings would

constitute the key evidence.

" It's just like a black box in a car, " said B. Abrams, Mr.

's co-counsel in a cerebral palsy case settled for $1 million in

1995. " You know when a truck driver was driving too fast. "

Doctors say that is an oversimplification.

" It seems to me that only trial lawyers are experienced at reading fetal

monitor strips and are able to tell me exactly when infants became

asphyxic, " or deprived of oxygen, said Dr. J. West Jr., an

obstetrician and the president of First MSA Inc., which administers health

care savings accounts.

In any event, Mr. 's closing argument in the case still

resonates in North Carolina.

" It would have been a very, very cold heart that was not reached by that,

because Senator lived in that case, " the judge who presided over

the trial, Herbert O. , said in a recent interview. " That was

, and was that case. He projected that oneness with his

client and carried that to the jury, and he did it well. "

The lawyer on the other side, Clay, agreed.

" I was thinking that is really a bold thing to do, " Mr. Clay said. " There

is not really one lawyer in a thousand who could do that without having it

turn against him because he is being hokey. It's just such a blatant appeal

to emotions, like putting up a sign: `I'm appealing to your emotions.' But

could get away with it. "

Not entirely. Five weeks after the verdict, Judge ruled it

" excessive " and said it appeared " to have been given under the influence of

passion and prejudice, " adding that " the evidence was insufficient to

support the verdict. " He gave the s a choice: They could accept

half of the $6.5 million the jury awarded or face a new trial. They

declined to take half, appealed the case and eventually settled for $4.25

million.

Next weekend, members of the Birth Trauma Injury Litigation Group of the

Association of Trial Lawyers of America will gather in Atlanta for a

two-day conference. On the agenda the first morning: " Electronic Fetal

Monitoring: Understanding How the Strips Can Help or Hurt Your Case. "

A Medical Advance Is Rethought

Electronic fetal heart monitoring was introduced in the 1960's to great

fanfare. Advocates thought it would prevent most cerebral palsy by

providing continuous immediate data on how babies were weathering labor and

delivery.

But in the 1980's, scientists began to challenge the premise that medical

care during delivery had much to do with cerebral palsy. Studies concluded

that 10 percent or fewer of cases could be traced to an oxygen shortage at

birth. The vast majority of children who developed cerebral palsy were

damaged long before labor, the studies found.

Then a series of randomized trials challenged the notion that faster

delivery could prevent cerebral palsy. Reviewing data from nine countries,

two researchers reported last year that the rate of the disorder had

remained stable despite a fivefold increase in Caesarean deliveries.

Dr. Karin B. , a child neurologist with the National Institutes of

Health, says the notion that paying greater heed to electronic monitoring

will prevent brain injuries remains just that, a notion. " Evidence of high

medical quality contradicts the assumption that the use of electronic fetal

monitoring during labor can prevent brain damage, " Dr. said.

Mr. 's colleagues in the plaintiffs' bar do not accept that

analysis. " You find me a low C-section rate, " said B. Cullan, a

doctor, lawyer and co-chairman of the trial lawyer association's birth

trauma group, " and I'll show you children in wheelchairs. "

Mr. 's former colleagues in the plaintiffs' bar certainly support

his candidacy. His campaign is disproportionately financed by lawyers and

people associated with them, according to the Center for Responsive

Politics, which calculates that about half of the $15 million he has raised

comes from lawyers. People associated with Baron & Budd, a Dallas law firm

noted for its work on behalf of plaintiffs in asbestos cases, contributed

$77,250, the largest amount, the center found.

Mr. has declined to discuss his fees as a lawyer or the size of his

personal fortune. Senate disclosure forms suggest that he is worth anywhere

from $12 million to $60 million.

Some say that the biggest losers in litigation over brain-damaged babies

are the parents of children whose cases are rejected by lawyers.

" For the one or two who got a substantial jury verdict, " said W.

Jr., a former state representative in North Carolina who practices

law in Durham, " there were 99 that did not get anything, either because

they were not able to finance litigation or their claim was questionable. "

" The real issue, " Mr. added, " is who knows what causes these kinds

of medical problems? "

He said he planned to bring up the issue of compensation with a state

commission that is studying medical malpractice. One approach would be to

limit awards and create a fund to be shared by all families with similarly

afflicted children.

This is not the first time Mr. has championed the idea. In 1991, his

legislation to create such a fund was defeated, in large part by the

state's trial lawyers. Among those who spoke out against the bill was Mr.

, who called it a baby tax.

But Mr. says he had lined up another financial source. Insurance

companies hard hit by malpractice suits had agreed to subsidize the fund.

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