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The crime that triggered this civil suit was as horrific as they come: A 15-year-old freshman on her way to school was gunned down by a stalker convinced she’d spurned his love. As Penny Chang walked with friends in Shaker Heights, Ohio, Scott Strothers, 21, repeatedly fired a 9-millimeter pistol into her back and head. Stunned bystanders watched as Strothers calmly put the gun into his pocket and attempted to stroll away. He eventually pleaded guilty to murder and is serving 23-years-to-life in prison. Penny’s parents filed a $20 million wrongful-death suit against the Cleveland Clinic, where Strothers had been a psychiatric patient, and against Raina Krell, the therapist who had counseled him as recently as four days before the fatal shooting. Defense attorneys knew they faced a formidable task. The prestigious clinic — Cleveland’s largest employer — and the therapist each appeared to have been in a position to prevent the slaying. Strothers had spent five weeks receiving inpatient treatment after vandalizing the Chang family’s property. After he was released for outpatient therapy in late November, Strothers met with Krell 16 times during the four months preceding the murder. Krell, a 28-year-old doctoral student working under the guidance of a licensed psychologist, surely should have been able to see that Strothers was brewing a murderous plot. Or was she too inexperienced to recognize the warning signs? Compounding these defense challenges was the jury’s tendency to empathize with the plaintiffs. The Changs were Chinese immigrants raising three bright children, the youngest of whom was slain by a man they once considered a friend. The family had depended on mental-health experts to keep their daughter safe, their attorney argued, but their trust was betrayed. Despite the odds the defense faced, a Cleveland jury on Oct. 10, 2002, found for the clinic and Krell. The victory tops The National Law Journal‘s 13th annual list of the year’s most impressive defense verdicts in civil litigation. Nine additional cases round out the year’s top 10 defense wins. A ‘HIGH-WIRE ACT’ The defense win in the nine-day trial was all the more remarkable because the two defense teams dared to suggest that the plaintiffs themselves were not blameless in their daughter’s tragic death. Had the Chang family reported to the authorities that Strothers had e-mailed threats against Penny in the weeks before her murder, he likely would have been arrested then. “You had to do it very delicately,” said Joseph W. Ryan Jr., one of Krell’s attorneys. “The last thing you want to do as defense counsel is to blame the father of the dead girl. I think he did bear some responsibility.” James L. Malone of Reminger & Reminger of Cleveland, who, with Alan B. Parker, represented the Cleveland Clinic, described the defense’s cautious references to the Changs’ responsibility for their daughter’s safety as “a high-wire act. I was concerned it would be [bullying] … to blame this poor … man for the violent, unspeakable death of his daughter.” Parker put it this way: “I say the family wasn’t in a position to cast blame on others.” Ryan and Malone did not coordinate their defense strategies. But they realized early on that both defendants would benefit by emphasizing that Strothers had consistently received appropriate psychiatric care. Malone, who represented the clinic, decided before the trial that it was “just plain wrong” to attempt to push liability for the murder on to Krell. That was a tremendous relief to Ryan and his co-counsel, Patty A. Screen, both of Columbus, Ohio-based Porter, Wright, Morris & Arthur. They initially feared that the Cleveland Clinic defense team would target their client. “I was concerned for the clinic to say, ‘No, he was fine when we discharged him, and if anything changed, it happened on her watch,’” Ryan said. Instead, Malone’s defense encompassed Krell, though she was not affiliated with the clinic and he had no obligation to make her case. “I ultimately concluded from a tactical standpoint,” Malone said, “that it was not only the practical thing to do, but also the right thing to do.” Penny Chang had known Strothers for years. He and her brother Sean were school friends and had briefly roomed together at Ohio State University. Despite their six-year age difference, Penny and Scott apparently had a brief, flirtatious summer relationship in 1998 when she was 14. Devastated when she lost interest, Strothers started a fire in the Changs’ garage, made crank calls to their home and shot metal balls through their window. Those incidents led to misdemeanor charges, probation and an order to receive psychiatric counseling. Strothers’ family became concerned when he said he wanted to hurt Penny and had asked his stepfather to help him buy a gun. In the fall of 1998, he was admitted to the Cleveland Clinic as a voluntary inpatient. He was evaluated as anxious and depressed with an adjustment disorder and a personality disorder, but at the time of his release was not considered to be a risk to the Changs or Penny. A clinic employee informed the Changs when he was released, and a Shaker Heights police sergeant told the Changs to call if they were harassed. Strothers’ outpatient therapy included regular meetings with Krell, a psychology assistant at a Cleveland practice. Never in their 16 sessions between December 1998 and March 1999 did Strothers express any intent to harm Penny, Ryan said. Rather, he regretted causing trouble and appeared to be focusing on his future and finding a job. What Krell did not know was that in the month before Penny’s murder, Strothers was sending the Changs profanity-laced, threatening e-mails such as this one: “I would like to take a hammer and repeatedly smash her f–ing face with it until her face is a soupy bloody pulp and then rip off her t–s and see how she enjoys going through life being unattractive.” The Changs later claimed they had not read the e-mails though they were aware of them. A week after Strothers sent his last diatribe, Penny was dead. The Changs’ attorney, Cleveland solo practitioner Paul M. Kaufman, built his case with expert testimony critical of Strothers’ inpatient and outpatient care. Thomas Garrick, a University of California at Los Angeles forensic psychologist, testified that he should have been committed for long-term care and that he received inadequate outpatient treatment from a novice. Kaufman said his biggest challenge was linking the Cleveland Clinic to the murder when more than four months had passed between Strothers’ discharge and the slaying. Krell was an easier target, especially after Strothers admitted to a forensic psychologist after the murder that he’d thought daily about harming Penny. Ryan, Krell’s lawyer, used her extensive notes to show she had meticulously documented her sessions with Strothers and consulted regularly with her supervisor. If she had been conned into believing Strothers had moved past his rage, he said, then she had plenty of company on the clinic’s staff. Ryan’s strongest witness — and in Malone’s opinion, the trial’s most compelling defense witness — was John Monahan, a psychologist who teaches at the University of Virginia School of Law. He testified about the impossibility of predicting long-range violent behavior. That testimony supported what Ryan told the jury about Krell: “She’s a wonderful and capable psychologist but she is not a mind reader. The plaintiff wanted her to read his [Strothers'] mind.” In closing arguments, Kaufman did not ask jurors for a specific award, but mentioned $10 million and $20 million. The panel deliberated for 45 minutes before returning to ask whether it could find against Strothers only. Yes, said Cuyahoga County Common Pleas Judge John Angelotta. The jury found for the defense less than three hours later. Angelotta directed the panel to return a verdict against Strothers, an unrepresented defendant. He was found liable for $3 million in damages, but the plaintiffs had agreed not to attempt to collect in exchange for his waiver of the confidentiality of his psychiatric records. Kaufman said he plans to appeal.

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