Del Campo, who handles routine family and small-business legal matters, didn`t feel prepared to take on a company as large as Jewel. So he referred the case to Holstein, whose firm already was handling dozens of lawsuits arising from the Jewel salmonella episode.
At first Holstein added the Affatato case to his pile of pending Jewel suits. But on June 10, 1985, Mrs. Affatato called to say her husband had died. Mrs. Affatato was also distraught because the city ambulance crew summoned to her home apparently got lost. After searching vainly, the crew had to stop to radio for directions and arrived 35 minutes after being dispatched.
Holstein added the city to the defendant list and began committing more money and resources to the case.
Short and stocky, Holstein, 54, has a rolling sort of gait and the suggestion of a bantam fighter about him. He is a former high school and college running back and an active handball player who is, he says,
”extremely competitive.”
That competitiveness spills into his lawyering. As soon as he heard Affatato had died, he hired Dr. Merle Haber, a renowned pathologist at Presbyterian-St. Luke`s Hospital, and dispatched him to Affatato`s autopsy the following day.
More Top Picks Best Amazon Prime Day Bone Conduction Headphone Deals 2026
”Usually,” Holstein says, ”a lawyer gets a case too late to hire a pathologist to attend an autopsy and, as a result, you can lose out on a lot of valuable evidence. In this case, we were already representing the client and we moved quickly.”
Haber`s review of the autopsy and examination of tissue from Affatato`s heart became central to the case Holstein began building. For instance, the heart tissue confirmed Affatato had suffered a severe heart attack several days before his death, a factor that would be crucial to the malpractice portion of the case.
The autopsy report, written by Cook County medical examiner Dr. Michael Chambliss, also became important. Chambliss listed the cause of death as
”myocardial infarction,” a heart attack, but appended the conclusion to include: ”Salmonella gastroenteritis due to ingestion of contaminated milk was felt to be a significant contributing factor to his death.”
That simple sentence, Holstein figured, was extremely damaging, and one which a jury could use to hold Jewel responsible for Affatato`s death. Affatato become so dehydrated by the illness, the case would claim, that it caused his blood volume to drop, ultimately making his heart fail.
Jewel, at the outset, admitted responsibility for Affatato`s salmonella poisoning but denied that it contributed to his death.
After examining the paper trail of medical records generated by Affatato`s illness, Holstein added three more defendants to the case-Dr. Oscar Osimani, Resurrection Hospital and one of its emergency room physicians, Dr. Tighe Zimmers. (Before the trial began Judge Kelly dropped the city from the lawsuit, ruling there was insufficient evidence.)
”Once you looked at the paper trail,” Holstein says, ”the gross negligence that occurred during this man`s care and treatment just leaps out at you.”
In preparation for the trial, Holstein hired two more doctors to testify as expert witnesses. It would be their job to sort out for a jury the technical side of the case and testify against the physicians. But the emotional side of the case was important too, and Holstein was banking on Affatato`s survivors to provide powerful testimony.
All three had compelling stories of loss. Mrs. Affatato is a working widow struggling to keep a household together since her husband`s death.
Anthony Jr., 15, a high school athlete, misses a father who instilled in him his enthusiasm for sports and cheered him from the sidelines.
Gina, 10, has been deaf since infancy. The Affatatos fought with public school officials to allow Gina to enter school as a regular student. Her father, to prepare her, coached her several hours a week on lip reading and pronunciation.
The Affatato case also had another highly unusual aspect, and to Holstein it appeared of incalculable value.
Six days after he became ill, Tony Affatato began a written record of his fatal illness. He started the diary at the suggestion of his father, who spoke to him by phone in Florida.
Years later, Mrs. Affatato would insist that the idea for the diary was simply to keep track of her husband`s symptoms in case a doctor asked about his history. But an attorney defending Resurrection Hospital insisted the diary was part of a cynical plan by Affatato ”to get rich” by suing.
Whatever the reason, Affatato followed his father`s advice. He began by post-dating it to the day he first felt ill and faithfully recorded all 58 days of his sickness. He wrote in longhand or dictated to his wife when he felt too weak.
What evolved was a terse, chilling record of a man`s unknowing descent into death.
Tuesday, April 16, 1985
Diarrhea 10 times an hour. Wife called family physician. He was not in, so she talked to his associate. Doctor said take (Affatato) to Resurrection Emergency. No way am I going. Never make it. Too sick, just too weak. Wife yelling. Can`t stand it. Finally, wife took me to hospital. Temperature 103 degrees, body fluids low, needed intravenous feeding, took blood test, urine, stool culture. Thought it was Salmonella but would be confirmed for sure on Friday. Call doctor for results.
Told me to go home, drink plenty of Gatorade or any kind of liquid and try to eat 4 to 5 potato chips every couple of hours.
Friday, April 19, 1985
Got results from doctor-Salmonella for sure. So infected doctor says colon was like mush. Doctor says wait about 3 weeks and go for another test. Diarrhea 10 times an hour again. No let up.
Thursday, April 25, 1985
Same as yesterday. No improvement.
Lost 22 pounds so far.
Saturday, April 27, 1985
Sister called and talked to wife. Mother died in Florida about 1:30 a.m. Couldn`t fall back to sleep. Won`t be able to go to Florida for funeral. Too sick. Diarrhea still has not let up. At least 10 times an hour.
Tuesday, April 30, 1985
All I can think about is not being able to attend my mother`s funeral. Started crying again. Did not feel well again at all. Just lie in bed all day thinking. Up all night as usual with diarrhea.
Thursday, May 2, 1985
Don`t answer phone. Can`t talk. Too sick. Don`t think I`ll ever get well. Started crying again. Yells and screams at kids and wife, can`t stand the noise.
There is little that modern medicine can do for salmonella, an infection that usually subsides without medical intervention. The best doctors can do is get the patient to drink fluid to ensure proper hydration and eat salty foods to replace salt depleted by vomiting and diarrhea.
In Affatato`s case, those remedies did not work. Still ill three weeks after his visit to the emergency room, Affatato went to see Dr. Osimani for a checkup.
During the 15-minute office visit, Osimani made a routine examination, checking his hydration with a standard ”eyeball” test of observing his skin, eyes and mouth for signs of dryness. He saw none and in fact noted a slight swelling of Affatato`s left leg, which might indicate overhydration.
After recommending what Affatato could do to combat the diarrhea, Osimani sent him home with instructions to return in four weeks.
Later, the swelling in Affatato`s legs increased alarmingly. Mrs. Affatato called Osimani on May 15-a conversation Osimani would testify he did not remember-and asked if her husband shouldn`t be hospitalized.
Osimani, she said, told her that he might become a long-term carrier of salmonella, a condition that could shorten his life, but one, nonetheless, that could not benefit from hospitalization. That information devastated Affatato, according to his diary entry of that day.
More Top Picks Best Watch Straps For Men Leather
Started crying when Shirley and the kids said I might be a carrier. Doctor says if you`re a carrier, you`ll go to the bathroom at least 5 to 10 times a day and the chances of living a long life are slimmer as it takes a toll on the body eventually.
By May 21, Affatato was back at Osimani`s office. This time he had developed such a severe hemorrhoid problem, according to his diary, that he spent much of each night standing against a sink or a dresser to avoid the pain of lying down.
This second visit with Osimani went much like the first, with the doctor concluding after a visual examination that Affatato was adequately hydrated. He sent him home with instructions on treating the hemorrhoids. It was the last time he saw Affatato.
Judging from the diary, Affatato was becoming despondent.
Wednesday, May 22, 1985
I did not talk to my wife or children the whole day and night. I just laid there.
I really don`t know how much more I can take. I really miss going to a store or seeing other things, I have only seen my bedroom and bathroom for the last month.
Monday, May 27, 1985
Kids and wife went out so I could rest. Too crabby with everyone . . . I have been having pains in my chest area, today they got real bad. The pains come and go, sometimes very strong pains, then sometimes not too strong.
The chest pains were a new development. A May 28 entry says he talked by telephone with Osimani, who suggested that the pains might be caused by indigestion. Osimani recommended Maalox.
Late on the morning of June 2, Affatato had violent chest pains and vomiting. Osimani told Mrs. Affatato by telephone to return her husband to Resurrection`s emergency room. The physician assigned to him was Dr. Tighe Zimmers, who took his history, examined him and sent him home.
Went to the emergency room . . . Felt better, but wife insisted to make sure everything is okay. Doctor checked me-said the chest pains were caused from gas pushing up into the chest cavity. Gave me some medicine for chest pains. Said if it persists, follow up with doctor. Started taking medicine right away. Hope it helps . . .
Zimmers later maintained he saw no overt signs of dehydration in his examination. He ordered an electrocardiogram (EKG) and concluded that the pain wasn`t heart-related.
Later in the day, however, a staff cardiologist reviewed the EKG and surmised Affatato might well have an ”abnormal” heart rhythm, suggesting more tests.
But the hospital never notified Affatato of the cardiologist`s opinion.
June 5
Now I really don`t think I ever will get well. Chest pains again. Don`t know how long I can take it.
On Saturday June 8, he had a severe bout of pain that, according to the diary, dissolved into an argument with his wife.
Shirley`s mad because I don`t complain how bad I feel, but every time I tell the doctor how I feel he says I know, I know. Never seems to do anything when I tell him how I feel.
Shirley Affatato says her husband by this time had almost completely withdrawn. If he spoke to his children, it was to yell at them to quiet down. June 9
Gina woke me up at about 8 o`clock p.m. They bought me a hammock for Father`s Day as one of my gifts and they wanted me to try it out. Laid on it, but started to feel nausea again.
It was Affatato`s final entry.
Twelve hours later he collapsed and died. Two months later, Shirley Affatato filed her lawsuit, one which she said her lawyers thought might result in a $10 million to $20 million award.
”She wanted,” Poindexter would say later in explaining why Mrs. Affatato turned down the $1.5 million offer, ”the big money to hurt these guys who killed her husband.”
”It is not hard to turn down $1.5 million,” said Mrs. Affatato shortly after she spurned the offer. ”What good is all that money if you don`t have anybody to share it with? If you take it, they don`t have to admit their liability, and that`s what I want the most.
”Believe me, I wouldn`t mind being rich, just like anybody else. But I blamed myself for weeks after my husband`s death, like it was something I should have seen and didn`t see. When I got my head together and heard about the EKG and started talking to other doctors, I finally felt I wasn`t at fault.”
The $1.5 million remained on the table for a couple of weeks. But once the defendants detected a change in the course of subsequent testimony, they withdrew it.
That withdrawal assured it was going to be a long, sometimes bitter trial.
———-
Next: The bruising spectacle of ”discovery.”