The discovery process was not always so all-encompassing. But over the last 30 years, it has been expanded in an effort to streamline the system.
Instead, it may have contributed to a horrendously backlogged court system. In O`Connell`s division, there are 45,000 lawsuits in some stage of discovery awaiting jury trial and 10,000 more non-jury suits. That works out to nearly 1,400 lawsuits for each of 40 trial judges.
Critics say the discovery process has turned the courts` task from weighing justice to brokering settlements, mainly for insurance companies. That is because most defendants in high-stakes cases carry liability insurance, which means they don`t risk their own money. So it`s the insurance company`s money paying for the defense lawyers and, if the suit is lost, the damages.
People who don`t have money or big-time liability coverage usually don`t get sued, or at least don`t get sued in high-stakes cases. It is simply not worth the time, effort and money of a personal-injury lawyer, almost all of whom work on a contingency-fee basis.
With their money at stake, the insurance companies closely monitor the plaintiff`s case as it unfolds during the discovery process.
If evidence of liability is weak, the insurance company pressures the plaintiff to drop the suit. If it is strong, the company must decide whether it is cheaper to continue paying hourly fees to a defense lawyer or to raise an out-of-court settlement offer to the plaintiff.
Shirley Affatato`s lawsuit charging the wrongful death of her husband, however, didn`t elicit much of the haggling that often gives liability courts a countinghouse aroma.
Affatato and her attorneys refused to negotiate, partly because her lawyers had accumulated some powerful bargaining chips during discovery:
– An autopsy report and death certificate that linked Tony Affatato`s heart attack with salmonella poisoning and suggested he was dehydrated at death.
– Doctors who would testify that the autopsy was accurate and that the doctors who treated Affatato were negligent.
– Survivors, including a widow and two young children, struggling financially and emotionally.
– Affatato`s vivid description of his agonizing illness and physical deterioration in the diary.
The defendants, however, did try to settle. They offered $900,000, but her attorneys were demanding ”in excess of $10 million,” Poindexter says.
”Judge (William A.) Kelly asked us early on if there was any point in talking about a settlement,” Poindexter recalls. ”We told him if a settlement offer went to several million dollars that we could not advise
(Mrs. Affatato) against accepting it, but that at that point we (the opposing attorneys) were too far apart (to negotiate).”
The Affatato case also held special significance for Jewel because it could set a precedent for hundreds of other salmonella claims it still faces. The Affatato case was the first large individual claim resulting from the 1985 salmonella outbreak.
Richard Devine, the lead attorney for Jewel, insists Mrs. Affatato was seeking $29 million from the outset. As the defendant with the ”deepest pocket” in the suit, Jewel could have been forced to pay a large part or all of the award.
”They made a demand so very high,” Devine says, ”that I never did understand it. It was so high that we never had to agonize if we wanted to go to trial.
”From the outset, we (Jewel) acknowledged our liability for the salmonella, and we wanted to be fair to the Affatato family. But our part of their claim came to $12 million.
”We never came even close to that in our evaluation of the case. In that kind of situation, we simply couldn`t pay those kind of dollars.”
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Rasor was the lead defense attorney for Resurrection Hospital and for one of its emergency room physicians, Dr. Tighe Zimmers. He says someone on the Affatato side, either Mrs. Affatato or one of the attorneys, wanted a public trial from the start, making a settlement impossible.
”For my part of the suit,” Rasor says, ”if you boil it down . . . an emergency room doctor misread an EKG and sent the patient home. That`s the mountain I had to climb. This is a lawsuit that didn`t need to be tried, but there was no effort to negotiate. Holstein represents a lot of members of the (Jewel salmonella) class-action suit. Maybe he hoped to ring the bell on this case and inflate settlements of other clients.
”If negotiations had gotten serious, it (an out-of-court settlement)
would have gotten close to $2 million. It probably would have been worth more had we not used (Affatato`s) contributory negligence.” That meant the jury could decide that Affatato was partially responsible for his injury and reduce the award accordingly.
With a strong case against several defendants, Holstein hoped that the defendants would accuse each other in the trial in an effort to deflect blame. Divide and conquer. It happens often in multiple-defendant suits, with each defendant accusing the others.
”One thing plaintiffs hope for is that defense teams will throw darts at each other, beat each other up,” Devine says. ”In this case, we each separately came to the same conclusion, and we never did try to lay the blame off each other.”
As the three teams of defense lawyers surveyed the case after discovery, they each discerned the elements of a plausible defense:
– In three physical exams after Affatato was stricken, doctors did not find him dehydrated.
– Though Shirley Affatato said her husband lost nearly 40 pounds in his debilitating illness, there was no reliable medical record to confirm that.
– No person other than family members could confirm that Affatato suffered intense, continuous bouts of diarrhea, vomiting and fever as he described in the diary.
– Results of the autopsy showed Affatato suffered from pre-existing, potentially life-threatening ailments such as emphysema and a heart condition that could have contributed to his death.
– The medical literature on salmonella provides no clear evidence that the disease can cause death.
Beyond the money, the defendants also knew something of perhaps greater value was at risk: their reputations. That was particularly true of the two accused doctors: Oscar Osimani, Tony Affatato`s personal physician, and Zimmers, who treated Affatato for chest pains in Resurrection Hospital`s emergency room eight days before Affatato died.
The case Shirley Affatato`s lawyers prepared against the four defendants relied heavily on the medical records generated by Osimani and Zimmers. The Affatato lawyers wanted to prove that he died with the salmonella bacteria still infecting his body and that he was so severely dehydrated by the illness that it caused his heart to fail.
Even before jury selection began last September, the defense scored a significant tactical victory.
Kelly dashed Poindexter and Holstein`s hope of putting Affatato`s diary in the hands of the jury or of even allowing Shirley Affatato to read aloud some of its wrenching passages in her testimony.
Jewel argued that the diary entries were only hearsay, that Affatato`s own descriptions of his deteriorating physical condition were medically unfounded and inadmissible.
Kelly not only embraced that view, but he was also adamant about it. He ruled before the trial that the diary could only be mentioned by expert witnesses if they relied on it in forming their opinions of what happened to Affatato.
”But fundamentally,” Kelly told all the attorneys in the case, ”that diary has no place in this case. If nobody had ever relied on it, out she goes.”
The decision by the judge was the first serious blow to the plaintiff`s battle plan.
”We knew the diary was going to be an issue in the trial, if not the issue,” Poindexter says.
But the defense attorneys had their own issue on which they hoped to focus the jury`s attention. After scrutinizing the Affatatos in the discovery process, they were going to attack Tony Affatato`s lifestyle.
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Next: The clash of experts.