Little Moisie was born with irreparable brain damage. He has cerebral palsy. Although he has normal intelligence, his body doesn't work. He will probably never walk or talk. He will communicate through machines. Brain injury was caused during the birth by a negligent nurse overdosing the unborn child causing it to go into fetal distress.
The $18.6 Million Verdict - Mr. Baizer's Closing Argument
Kim Bolduan was two weeks late with her fourth child. She was admitted to a local hospital for induction of labor. She was at risk, since she was intending to deliver her baby vaginally after having had a Caesarean section with one of her prior deliveries. Her labor was normal until about 5:50 a.m. At that time she started pushing. Then everything went wrong. The obstetrician left the room to attend to another birth. She wasn't to return for almost another hour. She could have if she was called, but the nurse never called her. Instead, the nurse sat idly by as the fetal monitor figuratively cried out for help. As the fetal distress grew and grew, the nurse did business as usual. She even increased the labor inducing drug, Pitocin, not only beyond what the doctor had ordered, but beyond hospital policy.
When the doctor finally returned, she immediately ordered an emergency C-section. But it was too late. By the time the operation could be performed, Kim's uterus had burst. Little Moisie was born with irreparable brain damage. He has cerebral palsy. Although he has normal intelligence, his body doesn't work. He will probably never walk or talk. He will communicate through machines. But now he has all the therapy he needs. His family has a handicapped van. They are about to build a handicapped accessible home. Moisie has a chance.
As Bob says: "Seeing clients like Moisie move into suitable housing,receive necessary therapies, get proper vans, seeing them and their families finally get some time to breathe, bringing a smile to their faces--that's what being a lawyer is all about."
In his closing argument, which follows, Bob demonstrates why the jury awarded little Moisie $18.6 million.
MR. BAIZER'S CLOSING ARGUMENT:
May it please the Court, Dr. Perlis, Nurse Schmidt, Counsel, Ladies and Gentlemen of the Jury. Two weeks ago Judge Hoogasian told you when there was about a hundred of you in here that jury duty at this time in your life was the greatest service you could give to your country.
And I'm sure you remember that about 40 people said that they were too busy, that they had more important things to do these last two weeks.
And I think now you know that you had more important things to do than they did. What you have done is far more important than anything that they could have done.
You have served in a very important trial. You know this is not an ordinary trial and you know that Moisie is not an ordinary child. You have a special opportunity here to do justice for a very special little boy.
You have the power to change his life. You can only do that with money, I understand that. But that money will give him hope. That money will give him a chance. Perhaps one day he will do things that we don't expect. Perhaps he will travel. He could be a poet. He could be a stock analyst. We don't know what he is going to be. But you have the power to give him a chance.
You aren't an ordinary jury and the reason is because this was not an ordinary trial. You won't forget this trial. You will always remember Moisie. When you see people in wheelchairs you're going to think of him. When you see handicapped vans you're going to think of him. When you see someone using augmentive equipment you're going to think of him.
When you see anybody with cerebral palsy you're going to think of him. And when you do you're going to wonder what he's doing that very minute.
You also may think of Moisie when you look at your own children or grandchildren and think how lucky you are that they're doing whatever they're doing, whether it's washing dishes or emptying the dishwasher or mowing the lawn.
You may think of him at those times. You may think of him when you see little boys out on the playground or riding a bike or rollerblading or playing catch.
He is now a part of your lives just as he is mine. And truthfully all of our lives are going to be a little better for that. And those 40 people who walked out on jury duty, their lives will be a little emptier.
So you know that you have an awesome responsibility here and you have an awesome power. And you have been up to the task. You have paid incredible attention. I have never seen anybody write as many notes. We could have done it without a court reporter, no offense.
You paid attention to everything whether it was boring or fascinating. And for that and for what you are about to do Kim and Moises, thank you, Joe thanks you, and I thank you.
I want to start now by talking about some non-issues in the case that I talked about in my opening statement. Things that are givens.
Moisie suffered his brain injury because of an oxygen deprivation at birth. No issue. Nobody said anything but that. The oxygen deprivation was caused by somebody's negligence. No issue. Nobody said anything to the contrary. Moisie would be normal. He would be a normal little boy today if no one was negligent. No one testified otherwise. It's not an issue.
I want to discuss first the question of responsibility. Who is responsible for what happened to Moisie? Why did this happen? I will not go through all the facts. You have heard the facts. You have written down the facts. When you go to the Jury room one or the other of you is going to have everything that was said in your note pads.
I just want to highlight a few of the facts. You are going to be given four verdict forms. Verdict Form D is in favor of the Defendants and against Moisie. There is not one iota of evidence in this case that would support that verdict form.
Verdict Form C. Verdict Form C is in favor of Moisie and against Dr. Perlis and her corporation but in favor of the hospital and Nurse Schmidt. And throughout this argument or this discussion when I talk about the hospital, the hospital is responsible for Nurse Schmidt. That's not an issue in this case. If I talk about one, the other one is included.
And the same with Dr. Perlis. Her corporation is liable for her action and the hospital is responsible for its nurses.
Verdict Form C, which would be in favor of Moisie, against Dr. Perlis, and in favor of the hospital is not supported by any credible evidence. If Dr. Perlis actually delivered this other child and was out of the room for that half hour -- and I don't think there's any credible evidence to the contrary and I am certainly not suggesting that she didn't deliver this other child -- then Verdict Form C can't be used.
The other two verdict forms are Verdict Forms I guess A and B. Verdict Form B is against the hospital and in favor of Dr. Perlis and obviously in favor of us.
Verdict Form A is in favor of us and against everybody. And I suggest to you that the evidence is pretty clear that the right verdict form is Verdict Form A, but the only possible other verdict form that you could consider based on the evidence is Verdict Form B.
As Judge Hoogasian indicated, we have the burden of proof. We have to prove that something is more likely true than not true. So I think at the beginning of the trial he put his arms out like the scales of justice and once we tip it that much we win on that issue. That's our burden of proof.
We have to prove that these violations of the standard of care that you heard -- and there were many -- proximately caused Moisie's brain injury. If they had nothing to do with the injury they don't count.
And Judge Hoogasian is going to instruct you regarding proximate cause. Proximate cause means any cause. It means a cause. It need not be the only cause nor the last cause nor the nearest cause. It is sufficient if it concurs with some other cause acting at the same time which in combination with it causes the injury.
So anything that Nurse Schmidt did or Dr. Perlis did which was a cause, not the last cause, not the nearest cause, that's proximate cause.
I want to talk for a minute, we showed you a time line at the beginning of the case. And this is the second half of the time line with the critical hours. You have heard from some experts.
You heard from Dr. Giles. Dr. Giles says that Dr. Perlis violated the standard of care at 5:50 when she did not call for a backup.
Why did she need to call for a backup? She needed to call for a backup because there were variable decelerations with late components prior to the time she was there. There were ominous signs.
Why else? We have a high risk pregnancy. At least as high risk as they do at Highland Park Hospital. We have evidence of thick meconium. It turned out to be nothing, but you don't know it at that time. We have a minus two station, an unengaged head as you remember Dr. Giles referred.
And most significantly Dr. Perlis, we have now found out during this trial, has another patient who started pushing at 5:35 and who Dr. Perlis knew was about to deliver. Dr. Socol even admitted that the second stage of Kim's -- of Kim that she should be pushing would be reasonable to expect 20 to 30 minutes. So knowing that the other patient was about to deliver there was virtually no way that Dr. Perlis could have made it back to attend to Kim. She should have called for a backup.
Nurse Schmidt breached the standard of care in multiple ways. She started by breaching the standard of care by not being able to recognize evidence of fetal distress. Even her own expert told you that. She did not know how to read a fetal monitor strip so she couldn't do what a reasonably qualified nurse should have done.
And a reasonably qualified nurse should have discontinued the Pitocin and should have notified Dr. Perlis. If the Pitocin had been discontinued when it should have been or if Dr. Perlis had been notified Moisie would be normal today.
At 6:20 when the Pitocin was increased to 22 every expert you talked -- you heard from said that a vaginal exam was required before the Pitocin would be increased. And of course the Pitocin shouldn't have been increased anyway just based on the strip. But a vaginal exam should have been required. The station was minus two at 5:50, minus three at 6:50. It would have been somewhere between minus two and minus three and that in and of itself would have required an immediate Cesarean section.
She didn't do a vaginal exam. She -- the standard of care also required Dr. Perlis to get back immediately. And if it didn't require her to call for a backup, everything I just talked about as reasons for calling for a backup were magnified ten-fold for not getting back to her promptly. If she had gotten back to her promptly Moisie would be normal.
Nurse Hall, Sharon Hall came in and told you that Nurse Schmidt breached the standard of care by failing to discontinue the Pitocin and failing to summon Dr. Perlis by 6:10. She also obviously if she failed to do it by 6:10 she failed to do it by 6:20.
She also violated the standard of care by failing to do a vaginal exam and an assessment of the patient. And she failed to do assessments. We heard enough about the blood pressure to know that she was not tending to this patient.
She then breached it again by increasing the Pitocin to 24. She failed to recognize progressively severe variable decelerations.
Dr. Socol says that Nurse Schmidt was required to do a vaginal exam. Dr. Socol also says, agreeing with Dr. Giles, that -- and I will go to his notes in a little while -- that the decelerations were normal until 5:45. They were abnormal after 5:45. He agrees with Dr. Giles.
Dr. Ullman. Dr. Ullman said a number of things about his nurse. Among them he said that prior to increasing the Pitocin the standard of care required a vaginal exam and that would have required an immediate Cesarean section and Moisie would be normal. Dr. Socol said Moisie would be normal.
Dr. Ullman also said that his nurse didn't know how to read the fetal monitor strip essentially.
We don't have to prove that they did all of these things because any one of these things -- and Dr. Socol -- Dr. Ullman also said that the standard of care would have required his nurse to turn and everybody said that the standard of care required Nurse Schmidt to turn Kim on her side.
We don't have to prove all of these things because any one of these things had they been done would have saved Moisie, any one of them.
We're never going to know how it was that Nurse Schmidt didn't call Dr. Perlis, didn't scream for help, didn't get some other doctor in there and didn't turn off the Pitocin and instead increased it. We're never going to know what the real reasons were, but it doesn't matter what they were. She violated the standard of care and she caused Moisie's brain injury.
I want to talk for one second about what Dr. Socol says. Dr. Socol had his notes. And remember we went through Dr. Socol's notes about 5:45. And he had talked for awhile about in explaining fetal monitor strips what was normal and what was abnormal. Those were the words he used. He didn't use anything in between.
Well, here is his notes regarding the tracing. FHR tracing begins with baseline around 1:30, remains normal until about 5:45. That is Dr. Perlis' expert who says that.
You may remember that Dr. Ullman was asked on cross-examination about the fetal monitor strips having to do with Dr. Perlis not recognizing fetal distress. And he said, quote, unquote, neither of them saw it. Condemning his own -- his own person.
We heard everybody talk about team. It takes a team. They need to communicate. They need -- they have shared responsibilities. They need to communicate both ways. Why didn't Dr. Perlis tell Nurse Schmidt that she was about to deliver another baby. Maybe that would have awakened Nurse Schmidt, who knows.
But if they're a team they rise together and they fall together. A baseball team loses a game, the pitcher can't win and the catcher lose. The team loses, the team loses. And in this case Dr. Perlis was the captain of the team.
We talked about Nurse Schmidt's inactivity quite a bit. And we do have a time line regarding Nurse Schmidt. At 2:15 she put on oxygen per mask as required by the standard of care and then cut the Pitocin as required by the standard of care. And guess what? It worked. Moisie's heart rate became normal.
She then started increasing the Pitocin. And these are all things Nurse Schmidt marked on the chart. She did a vaginal exam at 3:40. She did it. She marked it on the chart. She did it at 4:05. She marked it on the chart. She increased the Pitocin. She marked it on the chart.
She at 4:30 turned Kim to her left side. She marked it on the chart. From 5:50 to 6:50 she did nothing except she increased the Pitocin to 22 and increased it to 24.
Now, I want to talk a little bit about credibility and how it affects Nurse Schmidt's testimony. We all remember the Pitocin protocol that I showed Nurse Schmidt, the one that requires a written order to increase the Pitocin. But it also sets forth the standard of care for an untoward effect.
Untoward effect shall be treated by lower or discontinue oxytocin infusion. Oxytocin is Pitocin. That's number one. And then oxygen. Then notify the attending physician. Turn the patient. Prepare for Cesarean section.
Untoward effects. We had some trouble getting to that point if you remember because we got lost for awhile about fetal distress and fetal intolerance to labor.
But you remember we put this -- this on the -- I want to open it up. This is the long one. I don't need to open it up for this. We put this on the stand and I asked Nurse Schmidt to tell me when she saw an untoward effect. And Nurse Schmidt had conceded, as everybody did, that those things that the Pitocin protocol requires are the standard of care. No different here than anywhere else.
And I said now stop me and I said okay, Nurse Schmidt, I am going to start at 5:50, let's just see the times. 5:50, 6:00, let me know, tell me when to stop if you see an untoward effect. I am now at 6:10. I am now at 6:20. I am now at six -- you might remember that. And she said started to see a baby having more difficulty recovering.
You are starting to see an untoward effect. We are starting to see where the Pitocin is increased, yes, at about that time that the baby is having more difficulty recovering. At six, whatever that time is where the arrow said Pitocin increased to 22 you are seeing an untoward effect, yes? Correct, yes.
Then I asked her without going into the reasons did you discontinue the Pitocin at the time that this record says you increased it to 22 yes or no. I did not decrease where my record says that I increased. You did not decrease it or discontinue it; is that correct? That's correct, I increased it per the record.
Now, the strip is getting worse at that point, right? Correct. Later did you, Nurse Schmidt, decrease the Pitocin at any time in the face of untoward effects from around 6:26, 6:27, whatever that is, until the Pitocin was turned off? No.
What you saw there, Ladies and Gentlemen, you saw an admission by Nurse Schmidt of a violation of the standard of care. No question about it, she did not do what the standard of care at Highland Park's own policy required. She did not turn off the Pitocin, she did not turn her to her side, and she did not notify the doctor.
In considering Nurse Schmidt's testimony, there's various things that you could look at to determine credibility. One is the reasonableness of her testimony. Judge Hoogasian will instruct you on that.
Another is you can look at your own observations and experiences in life. Another is that you can look at the number of times she was impeached by her prior inconsistent testimony. You can look at her manner of testifying. There's lots of things you can look at to determine that Nurse Schmidt was not credible.
I am going to take one minute to talk about some of her testimony. You might remember when she said she doesn't remember her testimony from 10 minutes ago. She -- the best explanation of why she did nothing with Kim would be if you were to believe all the testimony of the conversations that she was having with Dr. Perlis, if you were to believe everything that she said, she was spending more time during that half hour with Dr. Perlis than she was with Kim.
And we know she was spending no time with Dr. Perlis because Dr. Perlis was in that other delivery. She didn't call Dr. Perlis on the phone and talk to the nurse. She didn't do any of that. She has no recollection of when or where she actually did any of the things that she thinks she did.
Remember when I asked her what time she did something and she asked me what clock I was referring to. Remember when I asked her if this was a high risk pregnancy and she asked me to define high risk. You remember when I asked her if there were any signs of fetal distress. Fetal distress is a word that every witness on this stand used except for Nurse Schmidt.
I asked her if she saw indications of fetal distress on this strip and she asked me to define fetal distress. And how did I define fetal distress? I took out the policy from Highland Park Hospital called the fetal distress. But Nurse Schmidt doesn't use that term and didn't understand what I meant by it. That is her manner of testifying.
She couldn't give a straight answer to an easy question repeatedly. And you can take that into consideration in determining her credibility.
Now, she said that she wouldn't have done this and she wouldn't have done that and she thinks she did this and she thinks she did this because it's her custom and practice. She doesn't have a recollection of this night. And I asked her. And I think that you probably recall that, but I asked her.
Nurse Schmidt, I asked her, I said isn't it true that you would have a very difficult time recalling that specific night unless it was very different from another night? Answer, yes.
Now, come on. You are the judges of the credibility. Consider the reasonableness of that statement in light of what you would have done that night.
Ask yourselves, how can she not remember what happened? How can she say it was no different than any other night? It was different. It was the night that ruined Moisie's life. Every person in that operating room when he was born knew it.
Now, what would a reasonable person have done who was on Moisie's watch that whole night? This happened on her watch. She would have gone back and looked at the chart and said did I do something wrong. Any of us would have done it. How did something catastrophic like this happen on my watch. And no, she tells us she didn't do it.
She talks about her custom and practice. She couldn't be negligent because it's her custom and practice not to be negligent. Well, let me tell you, it's my custom and practice and probably all of yours to drive carefully.
Try that excuse if you bump into somebody when you're backing up or rear end them at a stop sign or something, try going to traffic court and telling the Judge that it couldn't have happened, judge, because I'm a careful driver. It doesn't make sense.
Nurse Schmidt is telling you I am a careful nurse, it is my custom and practice to do things that reasonably qualified nurses would do, therefore I couldn't possibly do anything that violates the standard of care because it's not my custom and practice.
That is preposterous. It is not a defense worthy of your consideration. And she doesn't recall one specific fact in this night.
Blood pressure. We now know that there's some machine that takes blood pressure continuously. And my only question to that is why do we know it and Nurse Schmidt doesn't? I asked her about why she wasn't taking blood pressure. Is it your answer you didn't take her blood pressure during the second stage? Answer, I don't know. You didn't note it on the record? It's not noted on the record. You didn't take her pulse during the second stage? It's not noted on the record.
You said if her condition warranted it you would have taken it. Yes. When you increased the Pitocin in the first stage you take a blood pressure. When you increased it in the second stage it's not necessary; is that correct? Answer, it's not recorded, I don't know. I think I probably took it, but I don't know because I don't have it recorded.
Now, is somebody playing games? Was there a machine hooked up? Obviously not. That didn't happen.
How about the conversation with Dr. Perlis one month later where she says -- the question, do you remember telling Dr. Perlis about a month after this delivery that you increased the Pitocin to help bring the head down. I remember having a conversation with her. All right. Do you remember her asking you why you increased the Pitocin and you told her to help bring the baby's head down. Answer, I remember her asking me if I remember why she ordered it to be increased and that I said to bring the head down.
Question, oh, I see. So she was asking you why she did something a month earlier. Dr. Perlis didn't go up to Nurse Schmidt a month later and say why did I do this a month ago. She didn't need Nurse Schmidt to tell her why.
They are both liable. The hospital is liable and Dr. Perlis is liable. And for that you should use Verdict Form A. Now we talked about earlier importance of this trial and the trial really isn't about money even though that's all you can award. It's about Moisie. And you have, as I suggested earlier, the awesome power to make his life better.
And from this point on let's not look at this case as what went wrong with Moisie. Let's look at it as what you can make right with Moisie.
I am sure you all remember during Jury selection that I asked each and every one of you, every one of you if the facts were there and the law were there would you be able to award -- would you be able to sign a verdict form for 20 million dollars. And each one of you, each and every one of you said that you would. And the facts of this case I suggest justify that. The verdict forms that I talked about, here is Verdict Form A. These are the elements and I will point in on them.
You are going to be given a verdict form that looks just like this. And there is -- there are various elements and I will go through them one by one.
Let's start with the first element. Present cash value of the reasonable expenses of medical care, treatment, and services and caretaking help reasonably certain to be received in the future as a result of the injury.
THE JURY: Could you take that down?
MR. BAIZER: Sorry. Sorry. You go through each element. You reach your decision. You decide on the amount of damages and then -- and then you put that one on the shelf and move to the next element.
First is medical and caretaking. The present value of Dr. Eilers' plan is approximately 8 million to approximately 11 million dollars. That would be including the things that doctor -- that Professor Linke didn't use in his analysis which would be the modifications to the home and augmentive equipment and possible surgery. It was just under 8 million so maybe would be 8.1 million. Let's say 8 million to 11 million.
Doctor Linke's testimony -- Professor Linke from the University of Illinois regarding present value is uncontested, uncontroverted, and pure solid economic theory.
There is no question that is the present value. He gave you a range, an upper bound and a lower bound because that's economic theory. That is what every major pension plan in the world uses. State of Illinois uses it. Everybody uses it. And no one told you differently.
So the question then is do you agree with Dr. Eilers. And I want to talk a little about some of the things that are most prominent in Dr. Eilers' recommendations.
Let's talk about physical therapy first. Physical therapy, occupational therapy, and speech therapy. He says five days a week of each. Mary Kay, the occupational therapist, five days a week. Carrie, the physical therapist, five days a week. Dr. Lorber, five days a week. Bethany Deiner, five days a week. Everybody says five days a week.
You are going to be also instructed that in deciding whether any facts have been proved it is proper to consider the number of witnesses testifying on one side or the other as to that fact but the number of witnesses alone is not conclusive if the testimony of the lesser number is more convincing.
Well, there was zero on the lesser number and five that testified he needs it every day.
Everybody who has touched Moisie says that he will benefit from all this therapy. How do you go five days a week when you're in school, when you're in junior high school? Very easy. Dr. Eilers used a number of $90 an hour for all the therapy when he's actually getting it at $119 an hour now. Why? Because he suggested it would be better, it would be less expensive to do at home and in his life care plan he has modifications to the home to have some equipment there.
So you have the physical therapist come in in the morning before school and you have the occupational therapist and the speech therapist come in the afternoon.
It would be very easy. Modifications to the house. Is it unreasonable to request $110,000 to modify the home for Moisie for handicap access, to widen the doorways for a wheelchair, to put things in the bathroom so that he might be able to function in the bathroom, to get some equipment in there for him or a room big enough for equipment? $110,000.
Attendant care. Kim and Moises work full time. Doesn't Moisie deserve to have somebody with him to help him so that he can go places and that he can do things? And that's now. He is going to outlive his parents by 40 years. What about then? What about those 40 years or so? Doesn't Moisie -- won't he deserve an attendant then? And don't Kim and Moises deserve to have qualified help in their house?
They didn't do this. This didn't just happen. This happened because somebody failed to do what they were supposed to do and they should be responsible for making sure that Moisie is taken care of and Kim and Moisie deserve to have qualified help.
Now, this is Moisie's only day in court. It would be real nice if 20 years from now or 10 years from now or 30 years from now we could all get back together and see how he's doing, see how his money is holding out, see if there's anything left, give him more if he needs more. It would be terrific, but it isn't going to happen.
Today is it. It's your only opportunity to provide for Moisie's whole life. And his whole life is 69 years. That is his life expectancy. That is his life. That is the life expectancy of every four year old little boy, 69 years. They are expected to live to the age of 73 years old.
Dr. McRae and Dr. Eilers both told you that there is no reason why he doesn't have a normal life expectancy and nobody told you anything to the contrary.
Sixty-nine years from now is the year 2066. Your award has to be around to cover his expenses until then and maybe longer because he might live more than 69 years more and he might live less. And your money has to be there for that.
Sixty-nine years. None of you have been on this earth I think for 69 years. Let's just look back 69 years and see what's happened in history to see how long 69 years actually is. Calvin Coolidge was the president of this country 69 years ago. Herbert Hoover would be elected in a couple of months and FDR wouldn't be elected into his first term for four years.
The stock market had not yet crashed. The Depression hadn't started. Mickey Mantle and Willie Mays weren't even gleams in their parents' eyes yet. They weren't going to be born for three years.
In 1928, 69 years ago, President Bush was four years old. He was Moisie's age. Pearl Harbor wouldn't begin for 13 years. This is ancient history.
And Moisie is going to live for 69 years. When Moisie is 73 years old the president of the United States at that time probably will not have been born for another 20 years from today. And you've got to set aside money to cover all that time.
I suggest to you that Dr. Eilers is reasonable in his life care plan. He doesn't provide for luxuries and he is reasonable and I suggest to you that it is reasonable to give Moisie his life care plan.
For present cash value of the reasonable expenses of medical and caretaking care the range based on present value was 8 million to 11 million dollars. I am going to suggest that you award 9.5 -- the middle -- million dollars for that element.
Then we move on to the next one, present cash value of earnings reasonably lost. We don't know what is going to happen with Moisie. Maybe he is going to be a poet or an author or something. It just isn't likely. You know he's not going to work in the construction trades.
The range for high school graduates in the country was a million to about a million and a half. For college graduates was about a little under two million to a little under three million.
What you have to determine first is would it have been likely if this catastrophe wouldn't happen that Moisie would have gone to college. Is it likely his sisters are going to go to college. You've observed Moisie and you observed Kim and you have seen pictures of the girls. They live in Highland Park, they live in an area where most people go to college. You decide.
And what I'm going to suggest is that -- well, the second element is whether he will work. Everyone said more likely than not he is not going to be competitively employed. So you'll decide the damages.
I'm going to suggest that you take a middle ground on that. Again, between the lower bound of high school and the upper bound in college and I am going to suggest 1.9 million dollars. That's right in the middle.
The next element is loss of a normal life. That's what this case is about. Moisie by all rights should have been a normal four year old little boy now. He should be doing what little boys do. Kim and Moises should be looking forward to Moisie doing whatever children do. They're good, they're bad, they get in trouble, they cry, they smile, they walk, they run, they fall. They live normal lives. Moisie won't.
Right now he is as cute as a little kid can be. But it won't always be that way. Right now he is not frustrated living in a world of yes's and no's but he will be. Right now Moisie doesn't mind when the whole world stares at him as he passes by. He will. He is not normal and he won't be.
I want to take a few minutes to talk about some of the things that we can expect in Moisie's life as they compare to what we would expect if someone wasn't negligent on August 7, 1993.
A normal baby crawls at six months old and walks at a year. Moisie still can't crawl in a normal way. A normal little first grade boy raises his hand when he needs to go to the bathroom. Moisie will raise his hand when he needs the teacher to change his diaper.
A normal fifth grade boy raises his hand when he needs to go to the bathroom. Moisie will raise his hand in fifth grade so that the teacher or an aide can go take him to the bathroom, put him on a toilet and help him afterwards.
A normal little boy skins his knee sliding into a base. Moisie will never play baseball or any other sport. A normal little boy has sleepovers at his friend's houses. Moisie won't have sleepovers and he probably won't have friends.
A normal little boy tells the girl in front of him in school that he loves her. Moisie won't talk.
A normal teenager celebrates the day he gets his driver's license. Moisie will never drive. His 16th birthday will be just another birthday. A normal teenager goes to the homecoming dance and the prom. Moisie will stay home with his parents.
A normal teenager goes to Washington, D.C. or Springfield with his class. If Moisie goes it will be with his attendant with him at all times.
A normal boy prances across the stage at his high school graduation, grabs his diploma, and goes out and parties all night. Moisie may at best struggle across the stage with braces on his legs, crutches on his arms, and Kim and Moisie will be out there watching with immense pride as he does that. And they will be doing that again when he does that for college.
A normal young man gets his first job, leaves home, and moves into his own apartment. Moisie will never live alone. A normal 35 or 40 year old goes fishing or bike riding with his children. Moisie will never fish or bike ride and he probably won't have children.
A normal 40 or 50 or 60 year old goes bowling and plays golf with his friend. Moisie will never bowl and play golf and when he is 40, 50, or 60 he probably won't have friends.
A normal 30, 40, 50 year old is there to help his parents in their old age. Moisie will be no help and one day his parents won't be there for him.
He is not going to have a normal life. And for that -- for that I recommend six million dollars. And I assure you folks that Moises and Kim would give you back every penny, every penny that I'm talking about to have that normal little boy in their house.
The next category is pain and suffering. Every day when his teeth are brushed, when they do the oral motor stimulation, he has pain. He will have plenty of emotional pain as he grows up. For that, for that pain I recommend two million dollars.
Moisie is disfigured. That's the next element. His hands don't work, his arms don't work, his legs don't work, his feet don't work, his tongue doesn't work. Nothing works like it should and nothing looks like it should. Every day, every week, every month for the rest of his life Moisie is going to look in the mirror and see his disfigurement. And for that also I recommend two million dollars. 21.4 million dollars, Ladies and Gentlemen, is a lot of money. I understand that. I wasn't born yesterday. But the money is going to do something. It's going to save this little boy's life. It is going to make him something.
And it's not like paying six million dollars for a utility infielder or 30 or 50 million dollars for some boxer to go stand in a ring and bite off somebody's ear. This is money that is meaningful. It's the money that will give him a chance to have a higher quality life, a more enjoyable life, and definitely a more productive life.
Your verdict will give Moisie and his parents hope. Your verdict will give them a chance. Nothing you do could be worthier.
I want to go back one second again to Jury selection. I asked each of you about 20 million dollars or more and you each said yes. At that point you knew something about the case. You had seen that day in the life film. You knew that it involved medical negligence with a little boy. You all said yes you could give 20 million or more if the facts and the law are there.
And now I ask you folks if not these facts, what facts? If not this case, what case? And if not now, when? The Bible teaches that justice is an inspired concept. On August 7th, 1993 there was a terrible injustice done to Moisie and his family. All I ask is that you don't compound that injustice by awarding anything less than a full, fair, and reasonable verdict. Man is the only of God's creatures that can identify wrongs and repair injustices.
You can repair this injustice and that's all we ask of you.
I want to close this first part of my summation by thanking Moises and Kim for bringing me into their lives for the last three years. It's been -- it's truly been my privilege. I truly have learned more about love and devotion and acceptance than through any other way in my life. I learned through them.
They will gladly accept your verdict, whatever it is. They know that their baby is as he is because someone was not careful. They know that someone's negligence has caused Moisie pain beyond comprehension.
They know that because someone failed to do what she was supposed to do their little boy will never be normal. They know you will do right by them. They know that you will be fair. I'll talk to you again in an hour and a half or so. And we all thank you. (END OF EXCERPT.)
REBUTTAL CLOSING STATEMENT BY MR. BAIZER:
Thank you. Ladies and gentlemen, half justice is not justice. Three-quarters justice, one-quarter justice is not justice.
Mr. Henrick picked a number out of the air for medical expenses and lost income. With no basis at all he said 2.75 million is fair.
We put on real evidence, lots of evidence showing medical needs and showing present value of them. We put on real evidence showing --showing lost income. The real numbers are 9 and a half million as an average and 1.9 million as an average. That is not 2.75 million. If this case involved an injury or a damage to a Picasso painting worth 20 million dollars or injury to a racehorse maybe worth 20 million dollars or even fire or something would it be right for Mr. Henrick to get up and say folks, 20 million dollars is an awful lot of money, let's just give 2.75 million dollars for those economic damages. Anything less than full justice is an injustice.
Mr. Henrick said that school therapy, he gets all kind of therapy at school.
Let's start by saying that he hasn't been to school since July 25th, '97. Let's talk about what he gets in school. We don't know what he's going to get in the future. Let's talk about what he getsnow.Bethany Diener and Christine Jasch, Rehabilitation Institute of Chicago, one of the premier or the premier rehabilitation institute in the world get on the video and they tell you that as of February 5th, 1997 Moisie Rojas Junior was able to use augmentive communication systems and form a four word sentence. That big blue macaw was just there waiting for him to use.
Well, the school system is so good that he still doesn't have it. That's what the school provides.
Now, when I was talking about pain and suffering I wasn't talking about the kind of suffering that Nurse Schmidt is going throughbecause of these supposedly desperate charges being leveled at her. No, I wasn't. I was talking about Moisie's pain and suffering. And I wasn't talking just about brushing his teeth. There are lots of things that are physically painful. But what I also said was the emotional pain he will suffer for his whole life once he knows he is different. The criticism or suggestion or whatever of Professor Linke, Professor Linke told you what the economic reality is and he used long-term numbers. I'm not sure if it was the century, it might have been since World War II, whether it's 50 years or 70 years or whatever, that's what economists use. To do what the hospital has asked you to do is what he referred to, you may remember, as data snipping. And you might remember about I then asked Professor Linke because we saw how medical expenses have increased so dramatically historically, I said well, you know, instead of using the growth in wages why can't we use this growth in medical expenses which have outpaced even that 16 year period that the hospital wants you to look at. If we were to instead of -- if we were to compare to -- to one year government securities growth and income versus growth and wages, which is what Mr. Henrick said for that 16 year period, it was three percent. If instead of using growth and wages and we were to use that 16 year period or better yet let's use 10 year period for healthcare costs versus growth in earnings on one year government securities, the numbers that Dr. Linke gave to you would have been 30, 40, 50 percent higher than the upper bound. But Dr. Linke told you, ProfessorLinke said that wouldn't be right, that's not science. That's data snipping. So three percent is silly. It means nothing. Economic theory is zero to one percent and nothing else.
It is at the lowest, the lower bound that Professor Linke said and at the highest, the higher bound. We are not basing that on any kind of junk science or anything like that. And let me assure you if Professor Linke were wrong he is not the only economist in this country. If it were really three percent or two percent someone would have been sitting on that witness stand explaining to you why Professor Linke was wrong. And they weren't.
And if Dr. Eilers was wrong someone would have been sitting on that witness stand telling you why this life care plan was wrong. But there wasn't.
And if he didn't need therapy five days a week, it's nice of the hospital to offer him two days a week or something like that; but if he didn't need it five days a week someone would have been there telling you he didn't need it rather than five people telling you he did and that he would benefit by it.
We are not the only ones allowed to retain experts and subpoena witnesses. It works both ways. Everybody is allowed to.Now, the hospital incredibly is asking you to gamble on Moisie's future. And thisis a question posed by the hospital's attorney to Dr. Eilers with respect to one of the items on the list: So we can also put in here rather than $13,807 a year we can just as easily gamble and guess we could put in half that amount and we may -- with probabilities we may well be right with regard to Moisie. That was their word, not myword. They want you -- the hospital who caused this problem wants you to gamble with his future. If he runs out of money, too bad. What right does the hospital have to suggest that you can gamble with Moisie's future? You saw some things when Dr. Eilers was on the stand -- and I know a lot of you were taking notes -- regarding things like attendant care. And I asked you just whose decision is it anyway. If it were your child would you want him to get what the doctor is recommending or would you want him to get what Highland Park Hospital recommends.
How dare the hospital presume to tell you that Moisie shouldn't receive everything, everything that his doctors and therapists say he should. They are telling you to save them money at Moisie's expense.
How dare the hospital take that red pen on Dr. Eilers' life care plan and put it on the screen so you can all see it and cross out everything that will make his life better. How cruel was that when they crossed out his therapy and when they crossed out his attendants and when they crossed out his van. How mean spirited can this hospital that ruined this little boy's life be? If you think Moisie doesn't need something on Dr. Eilers' list, if you think it then you take out your red pens, but don't let the hospital do it for you. If you think his doctors and therapists are wrong -- and I don't suggest for a minute that you do -- then take out your red pens and cross out what you think they're wrong about. The hospital says it's too much, you shouldn't give them what they need, don't give them what's optimal, don't give them what we would do for our own children, don't give them what they deserve. I don't think you're going to listen to the hospital -- I sure hope you don't -- when they tell you, try to persuade you that theyshouldn't widen their doorways, they don't need special vans, they don't need qualified help. They told you that he gets enough therapy, why give him more, why give him therapy that might allow him to do things that we all hope are in his future. They admit that somebody was negligent and Moisie should be normal but they ask you to deny Moisie and his family any hope. They ask you to deny Moisie a chance.
If you think Moisie shouldn't get attendant care, if you think Kim and Moises don't deserve it, take out your red pen, reduce it, cross it out. I don't think you will do that, but that's why you are the Jury and I'm the lawyer; you have the right to do whatever you want. If you think they don't need a van or they can convert that little car of theirs as the hospital wants, I want you to watch a minute -- a couple minutes of the day in the life video. You determine whether they should be entitled to a van or whether they can just take a couple of thousand dollars and convert what they already have.
(Video being played.)
MR. BAIZER: Let's try it again. Back up. Let's see if we think he needs the van. Sorry. They are leaving their house around 7:25 in the morning. Now they are here around 7:55. He is going to occupational therapy.
Now they are back home after therapy around 10:40. Now about 45 minutes later the school bus. The school bus has the lift that the van would have. That's his little sister's backpack, she just got home from kindergarten.
Folks, if you don't think they need a van or deserve a van, don't give them one. You should know that if you're not going to makeMoisie's life better you are going to make it worse. But I don't think you are going to do that.
We are asking you to give Moisie hope. We are asking you to give his family hope. I want to tell you a little brief story about something that I saw and that you will be observing things like this the rest of your life. I was skiing last year and I saw a young man, probably 18 years, old with cerebral palsy.
MR. HENRICK: Your Honor, may I approach?
THE COURT: Side bar. (Whereupon, the following proceedings were had outside the hearing of the Jury at the bench, to-wit:)
MR. HENRICK: This is not appropriate.
THE COURT: Yeah, sustained. (Whereupon, the following proceedings were had in the presence and hearing of the Jury, to-wit:)
MR. BAIZER: I want you to imagine you are skiing and you are out west and there is a boy Moisie's age maybe 18 years old and he is not able to really walk. He's got two ski attendants, ski instructors. As he is walking with his arms around them lifting his legs going towards the little bunny hill the little kids use, it's got a slope about that high, just imagine that. And they walk him and he struggles and he can't talk and they get him there. One of the instructors leaves and the other instructor I want you to imagine --
MR. HENRICK: Your Honor.
THE COURT: Side bar.
(Whereupon, the following proceedings were had outside the hearing of the Jury at the bench, to-wit:)
THE COURT: This is the what the evidence is and rebuttal. Objection sustained.
MR. HENRICK: Thank you.
(Whereupon, the following proceedings were had in the presence and hearing of the Jury in open court, to-wit:)
MR. BAIZER: I want you to look forward into Moisie's future and I want you to -- ask you to give him the opportunity if the occasion arises in his future to try to ski. I want you to give him the opportunity to go to the mountain with a little bunny hill and to imagine the look on his face when he is able to go down this little hill on two skis. I want to ask you to help Moisie to climb that mountain. This now is the end. For the last three years Moisie's future has been in my hands. I've tried my best, I'll find out. In a few minutes his future will be in your hands. On behalf of Moises and Kim and Moisie I ask you to please do whatever you can to help him have the healthiest life possible, the happiest life possible, and the most productive life possible.
You should know that your verdict will make a difference. Thank you.
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