Hepler Broom, LLC

Coordination of Defense Strategies at Trial: The Winning Solution

August 2, 2017

Three recent successful Cook County defense verdicts in medical and dental malpractice cases show that the age old theory of teamwork and a united defense go a long way to winning cases. In all three trials, there were potential issues that could have split the defense camps, and efforts by opposing counsel in each case to divide and conquer the defendants. Despite those efforts, all defense counsel and clients alike worked together in the discovery phase, and through the course of lengthy trials, to achieve excellent defense outcomes.

In the first case, plaintiff claimed dental malpractice against both an individual independent contractor dentist and the dental practice arising out of a tooth extraction. Shortly after the extractions, the plaintiff developed necrotizing fasciitis, resulting in extensive injuries and scarring. While there were similar issues as to both defendants, there were issues in communications between the practice and the dentist that could have placed them in opposing positions. Early recognition of these issues was key to a joint position which was to focus on the aligned defense theories, and minimize the focus on theories that would have put the defendants at odds. Yet another hurdle at trial involved claims of cumulative testimony by defense experts. Working together at trial to carefully determine the best experts for the defense as a whole, and carefully crafting questioning to maximize the impact of the remaining defense expert testimony bolstered a strong and unified defense position on both liability and causation. A final important issue at trial involved testimony of a key defense fact witness whose testimony presented some very real and sympathetic bias, which could have swung easily toward the dentist, the practice or the plaintiff. Defense counsel again worked together to strategize which lawyer was best suited to do the primary questioning, the questions that would be asked and how to ensure the strongest testimony with the best impact for both defendants. All of these strategies and hard work paid off. The result was a verdict for the defense in the face of a $1.7 million request.

In a second medical malpractice death case, plaintiff sued a long term care facility and the physician that treated the decedent at that facility. The decedent, a wage earner in his early 50’s, left behind a wife and three adult children. In response to multiple plaintiff retained experts, in differing specialties, defense counsel again worked hard behind the scenes to address multiple and very direct attempts by plaintiff counsel to have the defendants unabashedly point fingers at each other. Both defense counsel and their clients stood firm, rebuked those attempts and stood tall in their steadfast defense of the entirety of the care. Those efforts by defense counsel paid off in that the case before the jury was of a completely united front where both doctor and the facility successfully and jointly attacked plaintiff’s experts and thereafter relied upon all defense experts as a whole. The strategy culminated with a bold decision to withdraw a defense liability expert in order to keep the focus solely on the defense that was best for all defendants in the case, the causation defense. These factors, in this case, and the defense strategies employed, resulted in a defense verdict after a weeks’ long trial and a request to the jury for an award of $17 Million.

Finally, in a third case, a dentist filed a collection action against a patient, who in response sued him for malpractice. A consolidated trial of both cases, one for contract against an allegedly injured plaintiff, and one for negligence against the dentist, made strategic issues from the defense side challenging. Plaintiff’s case was based largely on alleged pain, suffering and emotional distress from the dentist’s care. Having the collection action at play with the negligence case created a situation where lawyers for the dentist had to be very cautious to persuade the jury to their point of view while not giving the appearance of kicking someone while they were down. Another factor at play was that there was a critical treater (always a problem for the defense) who testified against the dentist defendant, and the plaintiff had paid some monies to that treater for care. Those issues would not have been as prevalent had there not been both the collection action and the malpractice action tried in tandem. Despite these challenges, strategic work between defense counsel for the dentist in the malpractice case and collection counsel for the dentist was an important factor in a verdict against the dentist in tort for less than $10,000.