Robert C. Lamar (Alison Church/Freelance)
A trial that featured video surveillance of the plaintiff and a controversial witness from the defendant dentist’s past has ended in an $875,000 settlement.
Atlanta lawyer Robert Lamar of Lamar, Archer & Cofrin secured the settlement for a woman who claimed her dentist’s negligence has caused her lifelong pain. The parties agreed to a resolution during a weekend break in jury deliberations in the late September trial after jurors indicated they had reached agreement on liability but were having trouble on damages.
The dentist’s attorney, Terrell “Chip” Benton III of Hall Booth Smith, said in an interview that a video showing the plaintiff doing yardwork created a “credibility issue” over the extent of the plaintiff’s pain. But the plaintiff’s team fought back with a tough tactic of its own, calling as a witness one of the defendant’s dental school instructors—an action that, according to Lamar, prompted a flurry of objections from the defense and a shouted expletive across the courtroom from the defendant dentist during a recess.
Lamar’s clients, Roswell residents Kerry Stolte and her husband, Scott Ross, sued Stolte’s dentist, M. James Fagan III, and his Dunwoody practice in 2005. After severing the lingual nerve of his then 28-year-old patient during a wisdom tooth extraction, Fagan referred Stolte to an oral surgeon for a repair. But, according to Lamar, who recounted the events of the case in an email and phone interviews, Stolte’s condition became even worse after three surgeries, with what he described as “lifelong simultaneous numbness, tingling and excruciating pain in her lower left mouth and face.”
Lamar said Stolte was an insurance underwriter who lost her job because she couldn’t perform her duties.
“She can’t talk more than two hours a day without really being in a lot of pain,” Lamar said.
The case was tried to a defense verdict in 2009 after two days of deliberations and at least one note from jurors saying they were at an impasse. The state’s appellate courts tossed the verdict, however, based on a remark made by Benton in his closing argument, that Fagan’s “reputation” had been called into question during the trial. Lamar explained that was improper because it was an appeal to sympathy, not based on evidence in the case.
A retrial before Fulton County State Court Judge Fred Eady began on Sept. 22. Lamar was joined at trial by Keith Pittman of his firm, and Benton was joined by his associate Dean Cleaveland.
According to Lamar, the plaintiffs’ expert witnesses, who included John Gregg of Virginia and Atlanta-area oral surgeon Tom Osborne, testified that Fagan had been negligent in using a surgical technique that invaded one of the normal locations of the lingual nerve. Lamar said all of the expert witnesses testified that they had never utilized Fagan’s technique and were unaware of any dental schools that taught it.
Defense expert Joel Rosenlicht, an oral surgeon in Connecticut, testified that technique used by Fagan was appropriate and the incisions made by Fagan on the side of Stolte’s tooth adjacent to her tongue could not have severed the nerve in the way the plaintiffs contended because they would not have been deep enough, according to Benton. The defense lawyer said the defense theorized alternative reasons for Stolte’s injuries, such as the use of an elevator to extract the tooth, something he said the plaintiffs hadn’t complained about as a violation of the standard of care.
In what Lamar called a “high-risk, scorched-earth” tactic, the defense showed surveillance video of Stolte working in her yard. Lamar said the plaintiffs never claimed Stolte was incapacitated from activities such as yardwork. He said the surgeon who treated Stolte said that in his years of practice, Stolte’s was the worst pain he had encountered.
Benton said Stolte testified that she could not exercise or do yardwork. “I think he thinks that’s scorched earth because it was a pretty dramatic moment for his client,” said Benton. “One person’s scorched earth is another person’s aggressive defense.”
“I don’t know if that hurt me with the jury,” Benton continued, adding the jury’s first question was whether it could look at the video again. The jury was not allowed to review the tape, he explained, as it was used for impeachment purposes only and was not entered into evidence.
Lamar said he had noticed that at the first trial and a subsequent follow-up deposition this year, Fagan had testified that he had been taught the procedure he used on Stolte while a student at the Medical College of Georgia, specifically referencing in his deposition Ed Joy, whom he said was at the time head of the oral surgery department there but might no longer be alive. According to Lamar, Fagan repeated this testimony at the recent trial.
When the defendants rested their case and their lawyers began making a motion for a directed verdict, Lamar interrupted to say he had a rebuttal witness. “We had located Dr. Joy alive and well in Augusta and met with him the month before trial,” Lamar said.
“When I announced Dr. Joy, all heck broke loose at defendants’ table,” Lamar continued. Among other things, Benton protested that Joy had not been identified as a witness. Lamar said he explained that Joy was a rebuttal witness, one who at any rate had been listed by the plaintiffs as a potential witness in the pretrial order.
While Eady took a recess to consider the defendants’ objections, said Lamar, “Dr. Fagan shouted an obscenity at me from defendants’ table.” Benton said he didn’t hear that.
Eady allowed Joy to take the stand. According to Lamar, Joy testified that Fagan wasn’t taught at MCG the surgical method he said he used on Stolte. When Benton pressed Joy as to whether another instructor at MCG might have taught the technique, Joy said he set up the curriculum for all the instructors and none of them would have taught that method because it would have improperly invaded the area of the lingual nerve.
After Joy was excused, Lamar said, one of Lamar’s partners walked him to his car. Fagan’s sister followed them, Lamar said, confronting Joy at his car and yelling at him for testifying against her brother.
Benton said he didn’t view Joy as a surprise or a problem for the defense, noting Joy was not allowed to give testimony on the standard of care and had to admit that Fagan received an A in his class. “We didn’t view Dr. Joy as overly concerning,” Benton said.
The plaintiffs claimed lost wages of $500,000, up to the point Stolte gave birth to a child about three-and-a-half years ago, as well as past and future medical expenses of $700,000. Lamar didn’t propose the jury make a specific award, instead suggesting they award Stolte three to five times her actual damages.
The jury included seven women and five men and included one attorney from the Southern Environmental Law Center, according to Lamar, who said jurors began deliberating at 3 p.m. on the fifth day of trial, working for nearly three hours before sending the trial judge a note saying they had decided liability but were having difficulty reaching agreement on a damages award. The judge sent them home for the weekend at about 10 p.m..
Benton said the parties had a high-low agreement in place prior to trial; Lamar confirmed the range was for $195,000 to $875,000. Both lawyers confirmed the settlement amount of $875,000, reached over the weekend break. According to Lamar, the dentist was insured by The Medical Protective Co.
Lamar said he was contacted after the trial by two jurors, including the attorney, learning the “crowning blow” to the defense was the testimony by Joy.
“All in all, it was as close to a real ‘Perry Mason’ ending of a trial as I have experienced and one which brought a good, deserved resolution for our client after such a long process,” Lamar said.
Benton said he did not speak to any of the jurors after the trial, noting they were not called back to court due to the settlement but heard through a mutual friend of one juror that the jury would have had a hard time reaching unanimity on damages. Benton disputed Lamar’s characterization of Joy’s testimony as a “Perry Mason” moment.
As to why his client settled for the top of the agreed-upon damages range, Benton said he would rather have a settlement than an adverse jury verdict. “No one wants to have a high-dollar judgment,” he said.