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Attorney: Kathleen T. Zellner, 44 Firm: Naperville, Ill.’s Zellner & Associates Case: Martino v. Illinois Masonic Medical Center, No. 97 L 874 (Cir. Ct., Cook Co., Ill.) For Kathleen Zellner, the closing argument in a trial is much more than an afterthought. During the closing, she says, “I can be really impassioned, I can convey emotions — anger, outrage, sympathy. I’ve read recently that juries don’t react to emotional arguments. But that’s ridiculous. I don’t know any great attorneys who don’t have passion in their closing arguments.” This is of particular importance for plaintiffs’ attorneys, she believes. The jurors have often decided on liability by the close of evidence; the final argument is the money pitch. “You can know you’ve won it, but the closing drives the verdict higher.” In one trial last summer, Zellner’s impassioned argument in the closing was so effective that the jury awarded $13 million to the brothers and estate of an unemployed woman who killed herself — the largest ever nationally in a medical malpractice suicide case. This verdict was one of her five multimillion-dollar wins during the past 16 months. SHIFT IN EMPHASIS What makes this string of victories more noteworthy is that these were the only civil cases Zellner has taken to trial. She has long been regarded as one of the best criminal defense attorneys in Illinois. Overall, in her criminal defense work, Zellner has won half the cases that have gone to juries and 90 percent of her post-conviction appeals. In the medical malpractice trial that brought her biggest verdict to date, Zellner was representing the brothers and estate of Maryann Martino. Ms. Martino, 43, had gone to the emergency room of Illinois Masonic Medical Center on Jan. 30, 1995, seeking to be admitted to the hospital’s psychiatric unit. She had been previously diagnosed with bipolar disorder, was depressed, and told hospital personnel that she had been failing to take the lithium she had been prescribed, Zellner says. “She was asked if she was suicidal, but she said no. She said she was very depressed and needed to be hospitalized.” Martino was examined by emergency room doctors “for 20 minutes and was told she didn’t meet the criteria for admission,” Zellner says. One of these criteria, Zellner says Ms. Martino was told, “was that she didn’t have medical insurance.” They “offered to send her by cab to Chicago Read Mental Health Center, the state mental hospital.” But Martino, who had previously been admitted to Read, “said she didn’t want to go back to a state facility.” In the early morning of Jan. 31, Ms. Martino was released by Illinois Masonic without being admitted. On Feb. 1, Maryann Martino hanged herself in the garage of her family home. Her brother, Joseph Martino, found her body two days later. Mr. Martino, his brother Frank, and their sister’s estate sued Illinois Masonic, charging that the hospital was negligent in declining to admit her. There were obvious problems with the case, Zellner says. The possible damages were limited: “Maryann had no job, no children, no spouse.” The comparative negligence aspect was also bothersome, she adds. “She had killed herself. Most suicide cases are lost because the ultimate injury was caused by the plaintiff.” But the lawsuit had strengths as well. Chief among these were the tapes of telephone conversations between Maryann and her brothers in the weeks before her death. The tapes were made because Ms. Martino was being solicited to donate money, Zellner says, and the brothers suggested that they could better protect her if the calls were monitored. The tapes gave Zellner the opportunity to re-create Ms. Martino in the courtroom. “What was so striking was the quality of her voice. I never heard a tape of someone in that much pain before,” she says. “It was very disturbing, very haunting.” The tapes led to the development of the primary theme of the case. In most cases against hospitals or doctors involving suicides, says Zellner, the charge is that the victim was suicidal, but that the medical personnel didn’t recognize it. In this case, the plaintiffs here were charging that hospital personnel actually pushed Martino over the edge by denying her treatment. In the tapes of the conversations before the denial, Zellner says, “there was still a degree of hopefulness. She had actually been convinced by Joe that there was a chance to get better. She always got better after hospitalization.” When she came to Masonic in 1995, she expected that this would happen again. “She was not suicidal. But her mental state changed,” says Zellner, because of her rejection. To sell this theme, she says, she needed an unbiased jury. During voir dire, she says, “I’m very direct. I tell them up front that I’m going to ask for millions of dollars. Then I ask if anyone is against this, and people will raise their hands.” She also tries to determine which jurors are decision-makers in their jobs and their homes. Some leaders she will accept, but she says, “I always avoid teachers. Older teachers try to take over the jury. They often feel underappreciated. They feel that they’re very bright but underpaid. They try to dominate the group.” BATTLE LINES From the opening statement onward, Zellner drew battle lines. “My client was the victim, the good guy. We were up against corporate indifference, callousness, and sloppiness.” Proving this was not enough, however. The plaintiffs also had to establish the damage claim — that Ms. Martino was not a nonentity whose death made no ripples — and that her suicide was not an inevitable outcome of her mental illness. To this end, Zellner says, “The challenge was to re-create Maryann. I did this in meticulous detail through the brothers. They had been there almost every day of her life.” While Maryann Martino was dead, Zellner still commissioned production of a day-in-the-life video of her. “We gathered home movies, her wedding pictures, pictures of her nieces and nephews. As a young girl, she had been very beautiful, with a great deal of promise, until mental illness struck her when she was in her early 20s.” As the defense presented its case, she says, she was exceedingly aggressive with the defendant’s experts. Frequently, she says, “Experts don’t know the facts of a case; they haven’t read the records.” One expert, Dr. Guy Fawcett, a doctor from Rush Hospital in Chicago, Zellner says, “didn’t review the brothers’ depositions before determining his opinion of Ms. Martino’s mental state” and had mixed up the chronological order of the tapes of the conversations between Ms. Martino and her brothers. For her cross of Fawcett, Zellner had read several of his articles, which contradicted his testimony in this trial. She confronted him with his own words. After each question, she says, “Dr. Fawcett wanted to give me a lecture.” But she quickly reined him in. The closing was dramatic and emotional. She returned to her basic theme that Illinois Masonic had failed Ms. Martino and had pushed her over the edge. As she described Martino’s last hours, Zellner became more descriptive. “She died alone, hanging from a rope in a dark garage in February, because she thought that there was no hope for her. For her, think about those last hours. She cleans up the house, she gets her childhood doll, and she puts it on her mother’s bed. And she is saying good-bye,” Zellner told the jury. “She didn’t die instantly. She died by suffocation … and she died alone.” On July 26, 1999, a Chicago jury awarded the plaintiffs $13.05 million, including $5.62 million to Ms. Martino’s estate for her pain and suffering. The entire award was reduced to $6.52 million on the jury’s finding of 50 percent comparative negligence by Ms. Martino. The defense’s post-trial motions were denied in March. The verdict has been appealed. Tips: � Bring fire and emotion to your closing. � Keep teachers off your juries. � Attack the expert witnesses aggressively.

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