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Attorney: Judson Graves, 52 Firm: Atlanta’s Alston & Bird Case: Momani v. Kennedy, No. 97-VS-0131475-J (St. Ct., Fulton Co., Ga.) Defense lawyers can pay too much attention to mock trials, says attorney Judson Graves. “[They] are very superficial; they’re good for issue identification and reality checks, but the numbers don’t mean anything.” When he was defending an infectious-disease specialist in a recent medical malpractice case involving the death of a pregnant woman, the results in the mock trial sent several defendants scurrying into quick settlements. But Graves’ client did not want to settle and, he says, “I was convinced that her case was absolutely defensible.” The jurors in the mock trial had been swayed by sympathy and overwhelmed by the complexity of the case, but this did not mean the case was unwinnable, he says. “I knew we could do better than that.” This intransigence paid off when an Atlanta jury returned a complete defense win for those defendants who refused to settle, including Graves’ client, Dr. Eimear Kennedy. This was the most recent in a series of stunning jury trial victories for Graves, who represents only defendants, primarily in medical malpractice litigation, and who has won more than 90 percent of the trials. The wins include some of the most difficult medical malpractice defenses nationally, usually against the region’s toughest plaintiffs’ attorneys. A TRIPLE DEATH The case against Kennedy involved charges of malpractice arising out of the death of Maria Londono. Then 40, Londono was pregnant with twins when she was admitted to Atlanta’s Northside Hospital in June 1995 after suffering from severe nausea and vomiting, Graves reports. She had lost 14 pounds during the first 10 weeks of pregnancy, and to counter this, doctors at Northside placed a subclavian triple lumen catheter and began administering total perinatal nutrition through that line. She was discharged and began gaining weight, but two months later, she was readmitted to Northside, with nausea and abdominal pains. During the next few days, she was seen by a series of doctors and underwent two gallbladder ultrasounds, which indicated abnormalities. Five days after admission, her temperature spiked. Kennedy, an infectious-disease specialist, was consulted, and she suspected that the catheter was infecting Londono’s bloodstream. After the removal of the catheter, the fever decreased. But it returned, and Londono underwent surgery to remove her gallbladder, which was inflamed. She died 12 days later. Her husband, Hormoz Momani, filed a medical malpractice action against Northside Hospital, four obstetricians, two gastroenterologists, the general surgeon, two perinatalogists, an anesthesiologist, a nutrition nurse and Kennedy. Before trial, all but three defendants settled or otherwise resolved the claims. The case went to trial against the surgeon, Dr. Richard Cummings; the perinatalogist, Dr. Daniel Eller; and Kennedy. The plaintiffs dismissed the case against Eller during trial. The plaintiffs contended that the catheter had set off a deadly infection that was not diagnosed adequately or in time by the defendants, and that the gallbladder operation “was premature and ill-advised” because Londono had not been given time to respond to antibiotics, says Graves. MEDICAL COMPLEXITIES The defense was faced with several substantial obstacles, Graves notes. “There were horrible medical complexities that I knew would be difficult [for the jury] to understand.” And the plaintiff was represented by some of the most successful attorneys in the South. But the primary strength of the case, he says, was that this “was a pregnant woman with her first two babies.” During the mock trial, he says, the defense learned that “once some of the jurors heard that, school was out. I knew my response could only be good medicine.” He determined that he would concentrate on specific medical details and how they related to the doctors’ decisions. “We had to get the jury to understand life-and-death decision-making in intensive care units. We had to teach the jury about the anatomy of the gallbladder.” To teach the jury, Graves had to learn the medicine. In any complex medical malpractice trial, he says, learning the medicine is “the single most important piece of preparatory work. I can’t teach it unless I understand it.” He corralled representative specialists involved in Londono’s care, including obstetrics, radiology, and gastroenterology. These teachers used petri dishes, blood culture bottles, and slides of ultrasounds of bad gallbladders to teach Graves, and these aids were then used in the trial. “I get them to teach me and tell them what I want to teach the jury,” says Graves. The defense began this teaching process in the opening statement, although Graves notes that he did not spend much time initially on the medical details. Instead, “I spent a lot of time praising my doctor. I didn’t run away from the triple death. This was a 40-year-old woman who died. It shouldn’t have happened. But I accentuated the positive. She was real sick, and this was an excellent team effort.” The doctors treating Londono faced “an incredible dilemma — whether to operate or not,” says Graves. “They collaborated, talked, coordinated, and made a thoughtful decision. The decision was correct. And even if it was not correct, it was reasonable.” In most medical malpractice defenses, says Graves, the tide begins turning with the cross-examinations of the plaintiffs’ experts. “I try to find some area where the plaintiffs’ experts are vulnerable. Then I get my teeth in and hang on.” Before the trial, he investigated the plaintiff’s proposed experts. “This is very, very important. You look for flaws in their background; you look for bias. You just find something that can challenge the expert. One piece of investigative work can be crucial.” In this trial, for instance, the plaintiff’s lead expert on infectious diseases and medicine had co-authored an article in Trial magazine “on the care and feeding of expert witnesses,” says Graves. In the article, “[the author] made a number of glib and purportedly humorous comments,” he says. The author recommended, for example, that “when you finish testifying, don’t go over to kiss the plaintiff.” The article also advised against wearing fancy jewelry. “I spent more time on that article he had co-authored than any other parts of the case. This made him look extraordinarily glib. It undercut his credibility,” says Graves. With expert witnesses, he notes, “you take what you can get. You attack on the medicine, or on bias, or prejudice. You go after whatever their Achilles’ heel is. There were four experts. We found something with each.” But he says that he doesn’t believe in overkill in a cross-examination. “Some lawyers think you need to cover everything. You just need enough for the closing. You use in the closing what makes them unworthy of belief.” He called a representative sample of those who had been sued, but he saved the defendants for last. This is his usual practice, Graves says. “The defendants get to hear everything else, and they don’t have to do all the educating and explaining. And it builds up a sense of drama. By the time they testify, the jury is eager to hear them.” If possible, he says, he puts on much of the case with his own clients — assuming they are credible. “Let your client do whatever he or she can do.” His examination of Kennedy served to teach the jury about infectious diseases. But he began by showing Kennedy as a sensitive, caring person. To humanize her for the jury, he recounted her life story as an Irish immigrant who had lost her mother to cancer. He does this to convey that “she is as important a person as Ms. Londono. She deserves thoughtful consideration. She has suffered loss in her life too.” On Feb. 4, an Atlanta jury cleared Kennedy and her co-defendant. There was no appeal. Tips: � Don’t be inhibited by the results in mock trials. � In malpractice defense, focus on the medicine. � Humanize your client so the jury sees a person.

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