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CHILD Injury and Wrongful Death CD - Daniel B. Cullan Page 1of1 ^ Daniel B. Cullan Click here for Daniel B. Cullan's Biography FACTS - Infant suffered permanent brain damage due to a pre-birth reduction of oxygen to the brain. The injury was caused by twin-twin transfusion syndrome that went undetected due to the defendant medical personnePs failure to monitor. This case was tried in Douglas County, Nebraska (2000) Gourlev v. Knolla. M.D. ($5.6 million verdict) Back file://D;\arguments\Cullan.htm 4/16/2001

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CHILD Injury and Wrongful Death CD - Daniel B. Cullan Page 1of1

^ Daniel B. Cullan

Click here for Daniel B. Cullan's Biography

FACTS

- Infant suffered permanent brain damage due to a pre-birth reduction ofoxygen to thebrain. The injury was caused by twin-twin transfusion syndrome that went undetected due

to the defendant medical personnePs failure to monitor.

This case was tried in Douglas County, Nebraska (2000)

Gourlev v. Knolla. M.D. ($5.6 million verdict)

Back

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Omaha, Nebraska 68102

On one hotand dusty July afternoon ona farm near a tiny one-room country school inthepanhandle ofNebraska, slender little blue-eyed Dan CuUan, age 11, announced to his parents withextreme confidence what he wanted to do with his life. Dan wanted to becomeboth a Doctor of

Medicine and a Lawyer. What he didn't know was that his dream would come true, but not withoutgreat sacrifice and assistance from his parents and faimly.

With the exception ofhis parents the dream was kept secret afler a rather severe rebuke by ateacher. "Daniel," she said. "That's the stupidest thing I've ever heard.. .your people are poor dirtfarmers.. .and your grades are not good enough to go to college. You're stupid, very stupid! Afterthe rebuke, Dan was the very shyest of theshy. Hewas thefifth oftwelve children raised by Harryand Lorene CuUan ofHemingford, Nebraska. Each year, the so-called "poor dirt farmers" put a littlemoney aside to beused only for each ofthe 12 kids' college tuition.

Despite the discouraging words, Dan went to college. At Regis College, in Denver, under theJesuits, a combined load ofboth pre-law and pre-med courses was never discouraged as too hard orimpossible. The resolve to become both aPhysician and Lawyer suffered its greatest test, however,during the Vietnam War, after Dan was drafted into the Army to be afoot soldier. On his experiencehe observed that, "War is the hardest, crudest, ugliest and most selfish form ofcommunication. It isthe greedy and powerful versus the poor and weak."

During Vietnam Dan made the decision todedicate his life's work to helping the weak, thewrongfully accused, the severely injured, those with no voice or strength to be heard - the poorest ofthe poor, the kids of the world.

After law school Dan spent his early years as aPublic Defender. He gained a reputation forhis powerful courtroom victories, including his defenses ofthe Hell's Angels. In private practice hegained national recognition for his numerous record-breaking verdicts for medical malpracticevictims.

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Formany years Dan Cullan has lectured to lawyers and doctors around thecountry topromote justice. Inrecent years he has formed the Cullan Kids Foundation to promote justice for kidsand to help kids with cancer.

Back

Back to Index

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Daniel B. Cuiian

Click here for Daniel B. Cullan's Biography

Click here to go back

Back to Index

Gourley v. Knolla. M.D. ($5.6 million verdict)

To search within this argument, press CTRL-F.

If it please the Court, Your Honor, counsel, the parties, doctors, my clients, and ladies and

gentlemen of thejury, here are my two final arguments (indicating). Which one shouldI use?

I've been working on this case for about four years now, and I've been working on the final

arguments since the period of timethat we prepared thecase. During the trial youtendto addsome

things, and facts change, and you watch for things to see what's going to happen.

And, quite frankly, my greatest fearwhen I get up here is that I won'tknowwhat to say and

nothing will comeout. It reminds me that probably the funniest partof the trial, that I saw,remindsme ofwhen I was in acting class in third grade, my last actingclass. I went out at the school play and

myparents are there, and they're so happyto see me withmybrothers and sisters in a littleone-room

country schoolhouse in Western Nebraska.

And there's like twelve kids in our family, and I'm like the fifth, and everybody else has gone

before me anddonegood. So it's my turn, andI'm in the thirdgrade, and I'msupposed to dosomething. And this is my greatest fear: I openmy mouth andnothing comes out. I wet my pants.

That's what I did. So mygreatest fear is that thatwould happen again. It keeps coming backto me.

And so when they were speaking of acting classes, it wasn't me. And it was kind of funny to

find out thatone of our friends heredid go into acting. It wasn't acting; it was a fine job, TomShoemaker. He's not here now. And I thought it was the funniest thing that I've ever seen in the

courtroom when we started talking about that.

And at first-I was kind ofembarrassed because I thought somebody was making fun of me

because I had gotten emotional. My heart and soul is into this case right now, and they're sayingsomething, and it ain't right, and I've got toset it right. And I raise my voice and I talk too much, andlike he said, I threw my arms around. I was out of control. If I was, I apologize. I don't mean to belike this, I don't. I don't ever mean to be like that.

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Now, I'm sorry, I've already missed myfirst point. The first thing that I wanted to dohere wasI wanted to thank Judge Michael McGill for a good trial. I'veknown Judge McGill fora long time.He used to be a county attorney. My first job after -1 never intended to be a trial lawyer, I justcouldn't geta job anyplace, and so a judgehired meas a bailiff, like Rosie Jenkins. And I want tothank Rosie Jenkins for everything that she's done for us because she's really beengood. Thatwas

my first job. And I was soafraid my jobwould beto introduce the jurors, I couldn't sleep atnight. Iwas so-1 was the shyest kid in my grade school, theshyest kidinmy college, the shyest kid inmylaw school.

And so when I gotout, I couldn't geta job, butJudge John Murphy hired me. And then,unbeknownst to me.JudgeMurphy helpedme get on with the Public Defender's Office and Frank

Morrison who was a public defender at that time.

And Judge McGill at that time was a very fine prosecutor, and hebeat meevery time. Andhe's never held it against me for all thecrazy stuffI probably didor didn't doduring those cases, and Ireally thank him for the trial because I think we've gotone- he'sdone a wonderful job.

And I wantto thankour courtreporter because I would be remiss not to thankher because she

has put up with my fast-talking, my nervous talking, my mispronunciation ofthings and my slurring^ things. SoI want to thank her, too, and theparties.

And, of course, I want to thank myclients for trusting us, and for trusting thesystem ofjustice. They don't have a clue what I'm going to say up here, probably because I wasn't sure. I wrotetwo arguments, and I'm not sure what I'm going to say. So I want to thank them for trusting us, andfor trusting the system ofjustice here.

Well, this case, when I look at it, I felt like what we need is I need you to understand some

things to understand our case ifColin Gourley is towin his verdict, his justice inthis courtroom. ButI can't do that; I need your help to understand. So it has to come from everyone that's participating inthis case, that was on the witness stand and so forth.

And I've had fears and I've had times during the trial when I couldn't sleep at night when

things would happen on the witness stand, and I would go, that ain't right, that's got to be set right. Idon't know how I can get up and get it to the right place.

And I worried about all the jurors, and I think the first - the first few days, I don't know if^ people noticed, but Iwas not feeling too good. We've been working on this case like they say for^ about four years now, and intensively for several months now and into this long trial. And I know it's

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been a hardship for you, too, and I'dwatch and I'd look up and I was worried that somebody didn'tr'^v feel good today.

And then I'd be afraid if I looked at you, you might think it was offensive, and I didn't want to

invade your space or your privacy because that's not right either. ButI'd kind of watch, andkind of

look for howeverybody's doing. Is everybody getting through thecaseokay? Arewe going too fast,likewe were doing? Arewe traveling too slowly? Which is sometimes veryaggravating to people,

too, because I knowyou've left yourhomes and you've spent- we're in our thirdweekhere. It could

be four, or five, or six if we were to call the hundreddoctors that took care ofColin duringthe course

of the thing and then it would never go on.

And yethere we are, almost six years afterthebirth, four years since I've beeninvolved in the

case, three weeks since you've been involved in this case, and yet for Colin it's 70 more years. And

so when we were takingyour time- and I thankyou, thejury, forgiving us your time to seekjustice

in this case. I thankyou for it because it's theonly way thatwe can take a lookat what's happened in

thepastand evaluate those facts to see if we're on the right track and to seewhat should happen toColin for the next 70; and I think Dr. Winkler said, 70 plus years. 70 plus years. So when we're

taking this time, and it seems like an awfully long time, sometimes I worry thatwe're notdoing_ enoughbecause we do have such a great burden, such a great responsibility for that next 70 years.

Now, I think I'm going to be okay here. I'm still worried about what I'm going to do, but I had

fears whenwe were pickingthejury. I was scared to deaththat what if I pick somebody who had too

close a relationship to the medical profession or something and they would, eveiytime when thedefense makes a point, chalk it up, butevery time when wemake an important, honest point, nobodyremembers. I worried about that, and then I felt like that's why when we were done I said I trust you

that you arehonest and that you would set asideany of our relationships.

When I'm here, and I look at the doctors over here, I want to tell you I love the medical

profession. I have a son that's over rotating onorthopedics atNebraska right now. He's a Creightonstudent. And I have two brothers. I have a brother that's an obstetrician just like these folks. I have

another brother that's in medicine also. My mother-in-law is a nurse.

I mean, you just, you have these connections and you say, buthow canyou do somethingbecause it's right? I love the medical profession. I think we all do. Butwe also wantat that sametime to love people as human beings at that very same time, and wewant that counter-balancingwhen we're looking at the facts of a case, andwe want to look and say: We all can make mistakes.

Doctorsare human, too, and they can make mistakes, and people can get hurt by it. And if

they do, that's when we stand up tall and we saythat we're responsible for those mistakes. And it isn't

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Just a mistake, though, that you have to worry about, it's whether it's reasonable care ornot under thecircumstancesof an individual case. Was this the type ofcare that we think is reasonable? And then

I worried about, another fear was, I don't have, on thestandard of care, a local physician testifying.

One doctor 1think is an incredible, incredible man, and his credentials speak for themselves.

Dr. Elliott, saving liveseveryday with twin-twin transfusion syndrome.

And then the doctor from Ohio, the same thing. Dr. Cardwell,he was someplace, and then

there someplace, and then someplace. But they're doing acertain type ofpractice and saving livesthat 1think is the reasonable standard ofcare. I've already gotten the wrong thing. Never mind.

Theburden of proofin a case-1 was going to go to oneof the instructions thatI hadblown

up, and 1can't find it now, butthat's all right. The Instruction No. 4 talks about what we do, and theseare what theJudge is going to give youat the end of the case. They talkabout how a physician hasthe duty topossess and to use the care, skill and knowledge ordinarily possessed and used under lifecircumstances by otherphysicians engaged in obstetrical practice.

Okay. Sowhat was I concerned about? My concem was that if we travel someplace else forobstetrical care is it going to be thesame care that we're going to be getting here? Thedoctors said,and 1think it's undisputed, and I didn't hear any testimony contrary to this, that it'sa national standardofcare. We aspeople have a right to expect the same standard ofcare in Phoenix, Arizona; Omaha,Nebraska; Des Moines, Iowa; Kansas City. It's the same for everyone.

And because in this case my first thought aswe were working through thecase is-1 thoughtit's basically they didn't take the pictures, they didn't do the job. How can there bea defense? Howcan anyone say that it's reasonable when you have monochorionic identical twins tonot doultrasounds, to notdo thepictures, to not look? To not look. How cananyone do that?

How can anyone - how can anyone concerned - how can anyone not think in terms of- ifyouare going to bepracticing safe medicine, how can anyone dispute, and what are the possiblearguments against a standard that requires after 32 weeks, which starts here, starting there and after -how can anyone dispute that the only possible way, the real way to see if there's a change in theamniotic fluid without taking the ultrasound pictures?

And Dr. Elliott came in and he testified, and 1thought this was important, he testified mostly

for the defense. However, I thought this was important because it kind of showed where everybodywas coming from all sides. When he's inhis local community because ofhard feelings orperhapsother referral reasons and so forth, he was concerned that he doesn't testify against other doctors.

He'll give opinions informally, consult with people, tell them about what's going on, but he wouldn't

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do that.

So you have Dr. Elliott saying this is thestandard of care, andyou would hopethat if a personhas a standard of care and you would know and you would trust that that's the standardof care that is

required. Not because it's hispersonal standard of care, butbecause it's a national standard of care forthe safety of the mother and the babies. Particularly andespecially in an identical twinsituation.

Why? I couldn't -1 kept asking myselfwhy didn't they do more ultrasounds? Why weren't they moreconcerned about the problems thatexisted andthateveryone knew thatexisted? There could be atwin-twin transfusion, although small, which would gradually lead to this imbalance in amniotic

fluid, which would then allow the baby with the large amountof amniotic fluid to squeeze out the

placenta and theumbilical cord of theother baby and kill him or cause himbrain damage? Whywouldn't anyreasonable doctorwhoknows aboutthat and knows that it can occurover a three- to

four-day period, whywouldn't any reasonable doctor want to do what in this casehasbeensevenextra looks? Seven extra looks in order to discover the problem timely.

And they're not expensive looks. We'veseen whathappens if you don't look. If you don't

look, we have Dr. Winkler's life care plan that shows what the moneycost of it is, but that's not the

cost. That's money that goes to others whocare for Colin or care for the injured baby. That isn'this

money really. Sure, theycanput it intoa court trustandthe court supervises it, but the money then ispaid out to people who take care of him over his whole life.

The cost of unsafe medical care is much greaterthan the cost of safe medical care. And this is

the expensive one. This is thehundred-dollar shot sort of scenario. Although, 1suppose if they justwere looking for fluid, do the inexpensive onewith thelittle window thatyoucan'tseevery much on,or something like that, something just in-office. At least that would be better thandoing nothing.

Nothing wasdone here. They admitted it. We didn't do it - wedidn't do that. And 1couldn't

figure outwhy. And we've been going for four years, and 1couldn't figure outwhy until Dr. Sledergot on the stand, and 1finally understood for the very first time during her testimony. And 1felt sorryfor her. 1felt bad for her, because she didn't even - because1was trying to say, why didn't you make

thisdiagnosis, and, of course, why didn't they -1 was concemed. Why didn't they give Dr. Sleder achance to make the diagnosis ecirlier evenwhen it was more diagnosable? 1brought up the fact that

it's most diagnosable earlier in pregnancy, nooneelse did. I'm the one that brought thatup. And 1was wondering why they didn't send her to Dr. Sleder back in June when Dr. Knolla was doing thatpicture herself in heroffice that shedidn't write down and was kind enough not to charge for andwouldn't even have known happened.

But that was a better time, in June, when Dr. Knolla did that little brief one, you know, with

the little thing, you know where you can't see very well but you can see there's some babies in there.

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When shedid thatone, thatwas theopportune time to find outwhether it was identical twins or notand to watch out for this particular danger. It wasopportune. And I couldn't —I couldn't figure outwhy they didn't send for the better one at that time if they were concerned about one machine beingolder andnot as goodof quality andjust for the briefscan. I couldn't understand that until Dr. Slederhonestly told us on thestand: Wedon't look for chorionicity. It's really notourconcern. It'snot ourconcern. And that was the first mistake, and that was the first big mistake. Because if you're

concerned about something thatcan occur in a three- to four-day period, especially lateron when youhave a perfectly normally formed baby when youget later in thepregnancy.

Now, if the babydies earlier, before it's survivable andwhenthe risks are high forpre-term

delivery, you know, if the baby is going todie then and the risks are high for cerebral palsy early andyou have a real bad anastomosis going on, that's one thing. But when we get down to the 32-weekarea, now we're talking about babies thatarevery viable. We're talking about babies like overin DesMoines with a huge group of - overin Iowa, maybe notDes Moines, but where they have thishugegroup of babies that are okay, andthey're little, andthey weigh a pound or two.

Here, we're talking aboutduringa periodof timewhen thebabies are big and they're growing

good andthey're looking beautiful andthey're so precious. Seven more scans. And if they didn'twant to do that, if they didn't wantto do that, if theywanted to - to notevendo that, although that isthe standard of care, that's what's required for safe medical care.

This isn't made up. This is what Dr. Elliott says is the standard of care for safe medicalpractice inthis kind ofthing. And ifyou didn't do that, you could do what Dr. Smith was incharge ofa study about, which we found in their book - counting movements of the baby ona daily basis,having them keep a record of it,checking the record each time. They didn't. So that that red flag,that five-bell alarm, or whatever they called it on thestand, somebody called it a five-somethingalarm, when there's no movement of thebabies, thealarm is there and it canbe picked up. And it'sasafety system, and it's the cheapest safety system around. But it's only a safety system if it's used. It'sonly a safety system if it's used. But it wasn't used.

And so the next thing is, and I appreciate Mr. Snowden saying the Gourleys are fine people. Iappreciate that, because they weren't always fine people on this case. They weren't always fine.They've become fine people. They've become fine people because they told the truth from the get-go,from the beginning. And the biggest thing we had to fight early onwhen we got into - when wegotinto what went wrong again; we had a couple different things to fight. But one of the very biggestthings we had to fight was the time line.

And that's why I put thedoctors on the stand. I didn't mean to torture the doctors. I wouldnever do that. But 1put the doctors on the stand in my case to get the time line becausewe weren't

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having an agreement about the time line. And you know we didn't have an agreement about the timeline. And how did we know? How did we know that we had a disagreement about the time line?

We had a disagreement about the time line until it turned out that wehad - that ourpeople, wedidn'tknow it when they first - until they found thephone records, wejust knew calls weremade. Butour

time linewascorrect because phonecall, phone call, phone call (pointing).

We alleged that there was a diversion - and I'llcome backinjust a minute - that there was adiversion when things went bad that day and the bradycardia occurred. And then instead of beingtaken - getting to labor and delivery, or being accompanied to the labor and delivery, what happenedwas the patient ended up ina different place todo the ultrasound that Dr. Robertson did.

Wehad a disagreement about that. And, in fact, it was sucha hot disagreement - and the

Gourleys weren't such good people then, until we found outtheywere telling the truth all thewayalong - that thesworn affidavits were filed in this case that we talked about during theevidence thathad a wrong time line.

Because originally, long before memories were sharpened by litigation, no onereally knew onthedefense sidewhathadhappened because they thought theyhadactually goneto the labor anddelivery area and performed theultrasounds there as they were rushing off to do theemergencyCesarean section.

Sothe defense says you guys are nuts, wedid this as quickly ascould possibly be. We filedaffidavits showing how quickly wecould do it. We filed sworn affidavits just likeanyothertestimony under oath, the type ofstuffthat we're supposed tobelieve saying 1went immediately tolabor and delivery, I did my evaluation after such and such a time. And, ofcourse, that time was afterthe hospital records started, not what no one knew at that time, and we didn't even know either, wasthateven thehospital record was made up after thedelivery, andrightly so.

Any good nurse will render, and any good doctor, will render the care inanemergencysituation and then chart after that. Or, you know, you take notes andthen they put together a chart asbest they can. Not a problem. We never, ever, criticized the nursing staffatMethodist Hospital forthecare that was rendered by Alice Nelson and theothers during thatperiod of time before thedelivery.

In fact, 1was the bearded nurse on the stand who read Alice Nelson's deposition, and 1feltkind ofuncomfortable doing that because 1don't -1 mean, 1don't look like Alice Nelson, 1mean, andit sounded strange, I'm sure. But Alice Nelson's deposition was so honest and so pure, and she talkedabout how they were waiting. You remember the testimony that 1read to you, they were waitingthere for Lisa to come with the twins and a baby was in trouble. And they were waiting there, and

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they were waiting there in the labor area right outside of theoperating room, andtheyhad theultrasound equipment all set up and waiting, theportable ultrasound equipment ready for Dr.Robertson, and they were ready, and they were waiting.

And Alice didn't know that the patientshad gotten diverted over to Dr. Robertson'soffice over

there where Dr. Robertson then discovered that indeed the babies were not doing so well. And there's

a dispute, what's interestingly a dispute on- thatgoes back a long ways again - Michael Gourleytestifieda long time ago that Dr. Robertsonsaid that Colin's heart rate was slow. Slow.

Now, I printed this up because this was from a longtimeago. And it's in evidence before you,

of course, but it's from a long time ago, a long time ago when the case was still being disputed on the

time line, andMichael was talking: Whatdid you see? I saw the two babies, and he was showing us

the flow ofblood or whatever around the baby. He could tell which way it was going and where it

wasgoing and all of this kindof stuff, but he didn't lookvery long. Hejust saidthat onebabyhadalot ofamniotic fluid and the other one had basically none. And he did the heart rate, and the one with

no amniotic fluid was slow. He used a number, 40 to 50 per minute, beats per minute, or something

like that.

But slow is not normal. This is a long time ago. He actually gave you a number? Yes. He

said slow. It's about, you know, 40 to 50 beats a minute, or something like that. And thenhe said

that we needed to get the babies out of there. We need to get the babiesout of there.

And this wasa longtimeago, before —andeventually they found out that theywere offon thetime line, thattheyreally didn'tdo the ultrasound in the labor and delivery room. So whatstarted tohappen, as sometimes happens in litigation, the facts start changing. Well, first they did it real quickand there shouldn't be - there shouldn't be a lawsuit because it was done so fast. But then when they

found out it wasn't done so fast, now it becomes therewasn't an emergency, it's not important, this

wasnever really something to be considered. And then they have to start doing away with otherevidence that's in the medical record that isn't very helpful to the defense, like the tachycardia. What

tachycardia? It's just in themedical records. It'sjust written down by people long before this caseever started. But it's not important now because it's inconsistent.

But once westart proving it, and proving it, and proving it, then suddenly it's okay that it wasalready fast but there for a very brief second and then it's already down. But you know somethingthat was just an amazing piece of- and I thought this was - it wasn't funny, because a case can't befunny when you're dealing with something so serious, but itwas odd I should say. Dr. Brent Finleyfrom Kansas City got on thestand and swore he'd tell the truth, the whole truth, and nothing butthetruth- even though he's never testified for a Plaintiffin a lawsuit; and who is represented by adefense lawyer - and that's his best friend and they dodefense cases. And he gets on there, but I call

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it the gift.

They tell you how stupid - how bad, stupid, whatever. Dr. Fred Kader is - and we'll get tohim in a minute - he's the one we'll talk about in a minute - and they disagree with his evaluation as

a treating physician. And you heard his evaluation, and hecan't speak - he speaks even faster thanme, I think- and he saysjust whathe's thinking to people, and he expects people to believe what is

true because it's true, and that's the kind ofman he is. It doesn't take long to figure him out.

Butlet's just go to Brent Finley because weknow what Kader said. And then as I was startingto examine Dr.Finley, andI started talking about thebradycardia andI started talking about thetachycardia. I kind ofmentioned there was a terminal pattern kind of thing, and I was sitting rightover there (pointing). And Dr. Finley -1 had drawn lines upand down, and I had to goback for somereason, andhe interrupted me andsaid, "ah-ha, thatwent up there but it didn't comedown." And so Idrew it down. And it was exactly a layover patternwithwhat Dr. Kaderhad indicatedwas the

terminal pattern. It was a gift. Because if thedefense witness who never testified forthePlaintiff inhis whole career, in his whole life, knew that even the truth can escape from your mouth fi-om time to

time, he probably wouldn't have saidthat. Hewould have had a different story, a different way oftalking about it.

And, youknow what they were kind of stuck with. And this is a kind of difficult thing, if youhave the bradycardia - and, of course, wetalked about Roger Freeman being theguywho didthe oldterminal pattern studies - and hewasn't inthe courtroom today, and hewasn't in the courtroom inourcase. Butthey knew who hewas because hewrote the book on fetal monitoring, and he talked aboutthe terminal patterns. And Dr. Elliott studied under Dr. Freeman, and Brent Finley knew who Dr.Freeman was, and he sureknewwhat a terminal pattem was. But if you run into a terminal pattem

and it's occurring inour case here, that's bad for the defense. And it's sobig hehelped draw theterminal pattem.

I got to here, and then hestarted telling me how I was not being fair about the terminalpattem. I went from the 60to the 192 and the 200 to the severe tachycardia as we call it. They call itjust a tachycardia. But hesaid, no, you've got to come down. So hedrew it. And hesaid that if youhave that kind ofa pattem you can end up with death orcerebral palsy if that had occurred. But itdidn't occur.

Then, of course, the defense lawyer got up and pointed out that, gosh, on itsway down itpassed through the normal zone. Well, we already knew that. I mean, that's what Dr. Kader alreadyhad talked about, and wedidn't expect it not to pass through the normal zone and to bea terminalpattem. Ithad to pass through the normal zone. It had to. But Ididn't know I was going to get thegift of the tmth at that time by interruption from that doctor.

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And there have been some other gifts, too. And here's thecausation chart that Dr. Kader did.What is the pattern that he drew? No movement, no fluid, bradycardia, severe tachycardia, 192 to200. And this is where he timed the injury. And then it came down, and he felt the injury wasoccurring after that, the massive stroke, the ischemic stroke, and we got agift from the defense onthat also, on the stroke. Dr. Molteni by deposition.

And I was afraid that I got too mad at Dr. Molteni oncross-examination. Sometimes I getupset and I don't mean to, but during his cross-examination I was trying to point out the delays, and Iwas trying to point out the causation and I was trying to point out the facts that are on our side.

And when we got to talking about ischemic stroke, or ischemia, and how that might bedifferent and might, ifhe had an ischemic stroke, meaning the lack ofblood flow to the brain, thatthat might allow for having the normal pH, having anormal acidosis, ifyou will, and having thosekinds of findings.

But you never heard the word "tachycardia" spoken byDr. Molteni either. This was afearsome thing for them. Until later inthe case, later inthe case as we - itbecame clear that themedical records said there's a tachycardia, there was a whole bunch ofdoctors who didn't testify, atleast under oath before you, and who wrote medical records talking about a severe tachycardia. Butwe've got to get rid ofthat, because even their own witness helped me draw the lines that Dr. Kaderhad drawn.

And, you know. Dr. Kader, who is he? We know little bit about him. We knew he was inGermany - well, in Europe during the war. We know that he was raised by an aunt. We know hewas basically not raised by his parents. We know that some people who have gone through hardtimes have high degrees ofintegrity even if- now, he thinks he's a good fhend ofMike Levine's, butapparently not, and maybe not now. But in spite ofthat, you have aman who comes forward becauseit's his patient and there's an ethical responsibility that attaches to it, or attaches to doctors whentaking care ofpatients to help them - not only for their care but for the truth oftheir service to Colin,no matter where the chips may fall.

Now, he didn't testify that anybody violated the standard ofcare. He testified that the injuryto this baby, to Colin Gourley, occurred within the last hour. And they attacked him, and theyattacked him, because in his deposition he had said, when they hit him with that magical moment ofquestioning by sophisticated lawyers, sophisticated defense lawyers, people who do this for a living,as they say, they hit him with that question: Do you have an opinion to an absolute medicalprobability? Ahundred percent certainty is what that is. And you won't find doctors who walkaround very often telling you that they're a hundred percent certain. They might say I'm 95 percent

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certain, they might givea high probability, buta hundred percent certainty is asking for what onlyGod can make. So they don't do that.

Andso whenthey've got himin the littledefense trap, theycan say he changes his testimony,

but he didn't. And that's why I went back with Dr. Kader when he was on the stand. I broughtout

right in his deposition where he said, under oath at that time, that he thought the event had occurredstarting with thebradycardia and getting worse and worse, until birth in a cascade of events.

That's why I pulled that right backoutof the deposition, to showright there in thatroom on

that day and they're playing games with him about when it occurred to an absolute medicalprobability that it was absolutely started, and it started with the bradycardia. There was no otherbradycardia ever heard upto that time. The bradycardia, and the cascade of events gotout ofcontrol.And he explained how when you go from thebradycardia and you have no blood flow, the body startsgetting behind. And how theheart speeds up andit gets faster, and faster, and faster, until theheart isbeating so fast because it has no blood in an acute event.

We're not talkingaboutan infection or something whereyou have a gradualslowingand a

heart rate rise. That would be untruthful to say that it was anything but an acute event going from a

bradycardia to a severe tachycardia andthen down to thebradycardia, which he saidthen shock, noheart rate, noblood pressure, no blood flow. Fresh, thick meconium, thatbecame another gift. Rightin their own medical records they said it was fresh.

Although, as westarted to pointout that meconium - and in the little bookthatthey gave out,

that you'll have in the juryroom, to their patients, it talks about meconium being a sign of fetaldistress. 1actually used thepassages outof the book tocross-examine Dr. Finley, 1believe it was,where we talked about: Doyou agree with this? Do you agree with that? Heagreed with some ofthe stuffthat they were giving out to their patients, butnotother things. And those quotes were justnot in there. Meconium, fetal distress. Is fetal distress good for babies? Fetal distress isn't good for

babies, and that's the meconium problem. And that became a real severe thing because Dr. Kaderindicated that he wasn't someone who didn't understand what was going on obstetrically. He knew

what he was talking about, the fetal monitor tracings, and how wegauge these things, and how hegoes back and he looks into the pregnancy and timing a brain injury - a neurological injury. And helooks at the circumstances surrounding the nine months, or eight months, orwhatever they are aroundthat pregnancy, and they look for infection. And don't you think Dr. Kader, as a member of themedical profession locally, practicing right next door, so to speak, to the physicians inthiscourtroom. If he could find a reason that didn't haveanything to do with these folks he wouldn't do

that? Hewould say, oh, that's an infection; oh, that's congenital; oh, it's this; oh, it's that?

That's the way the medical profession is. That's the way the brotherhood of the profession is.

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And it has to be to somedegree. But it shouldn't be. It should always be the truth is the most

important thing, the most important thing.

And so Dr. Kader, he comes with no motive, a treating physician looking at the medical

records but he gives credibility to the things that are written on the fetal monitorstrips, like 192. He

gives credibility to the things thatare written in the medical records, like Dr. Seidel's report, which

willbe before you. I showed you a blowup of thesame report that talked about the severe tachycardia

thatoccurred after the patient got to the hospital. Hedoesn't say, oh, there's a mistake, and it's all got

to disappear. When somebody wrote that 192-1 think youcan trustthe nurse thatwrote that to thebank. I think you can trust the nurse. She was writingwhat she heard. I think you can trust Dr.

Seidel when he's writingdown there's a tachycardia of200 upon arrival fi*om the hospital during that

period of time. I thinkyou can trust the people around that they didn't just makeit up. I don't thinkpeoplejust run around doing that. That'sAvritten right on the fetal monitor strip, 192.

How do you get rid of it? So gradually, especially after Finley and after Kader - after Kader

and Finley, and so forth. You've got to get rid of it; you've got to get rid of that. I don't think that's

fair to thejury system to have to start doing that, and thefacts startchanging. You start outwith thiscase where they weren't even there, they actuallydid everything in the labor and deliveryroom as

theywerepreparing, and then thoseaffidavits kindof disappear whenyou find out the truth about the

phone.

I hatecell phones sometimes, but in this casethose records wereprettydam good. I hate them

for a reason, becauseof the accidents and stuff like that in cars. But gosh dam, this wasn'tdone like

that. But this changed therecord of thisand helped focus - andthengradually the testimony startedbecoming that's what wewanted to do anyway. That's what wewanted to do anyway. And then thetwo to four week thing, everything is two to four weeks, two to four weeks. Why? Because that's faraway. Two to four, ever3dhing isalways two to four weeks. Two to four weeks, I didn't think thatwas going tobean issue about the report of Dr. Brown. I didn't think there was going tobea bigissue with thepathology report about a little-bitty marginal infarction. There's an infarction. Theplacenta is screwed up. There's bad stuffgoing on. So what wehad to do is wehad tocall otherdoctors. Dr. Brown, who looked at those filmsjust as Dr. Kader did.

Now, theirexperts - this isjust amazing - theexperts thattheywantyou to believe. Theywant you to believe they didn't look at the films. We candate the timeof the injury from thedoctor'sreport, and it's two to four weeks away from the time of the delivery. And especially when we got to

go two weeks, two to four weeks, because if weget too close to that magical moment after Sundaynight - now, remember, Lisa and Michael are good people, buton Sunday night and Monday they'reliars. Thatjust makes me so mad. How can you be liars and good people at the same time? You

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can't.

But then we got another gift. Dr. Knolla told about how much time I spent on trying to figure

out when she left that visit, that office visit, and went over there to deliver some twins that were in

trouble. Wasn't true, wasn't true, is the only thing, it didn't happen. And then we get a gift. I can't

take credit for this. Paul Madgett, that works with me said, you know, Dan - he used to be a federal

prosecutor - he said, Dan, youknow, youcangetbirth certificates down there in Vital Statistics

about whether or not Dr. Knolla delivered some babies that day. They were saying we're not telling

the truth about this five-minute visit. It's not there. I said, well, really? And guess what happens?

We all know now today in the courtroom because now they've accepted it as true.

Now, they accept it as true that on the morning ofthe 15^ Lisa was there. There is no disputethat she was there for a visit. They say she didn't say anything about the babiesnot moving, but it

sure is different from her sworn testimony. And I wouldn't be surprised if Dr. Knolla just wouldn't

remember. But then I would hope that somebody would stand tall and say, you know, I don't

remember, maybeI left early. MaybeI didn't, I don't know. But then we get the birth certificates, and

guess what? Thebabies weredelivered at 11:31 and 11:32. AndI forget the numbers rightnow, but

11:30, 11:31 or 11:32, the other twins, the pre-term twins. I don't know how many weeks' gestation

theywere, but it seems to me like theywereevenbefore 30 weeks, which is evengetting it back on

our little chart there a ways, those babies.

And youknow something that I thought wasreally amazing - andI like lawyers, and they

have jobsto do. But, I think weallhave a duty as lawyers to lay outthe facts for allof this. I don'tlikethishiding-the-marble game. And I don't mean to attack anyone, andI'mnotgoing to,butDr.Knolla testified underoath that her lawyertold her not to look at those records, or lookat the logs,

andwe know that there was a hospital log. That's private. I don't havea right to just run in andseewhoever's medical records. I certainly wouldn'twant to. But gosh dam, until the birth certificates

appeared at the trial we were going tobe under theimpression, weren't we, that that visit was just aroutine visit there. And gosh dam, shejust finished it up and dideverything sheneeded to do andgave her the instmctions and everythingjust went well.

And I was in pain early in thecasewhen I heard that wequestioned their document, andtherefore someone might be charged with a crime. I'd never charge anybody with a crime. I'm a civillawyer. There's nobody to becharged with crimes here. That hasn't happened. Nobody ischargedwith a crime. Nobody goes to jail.

And, in fact, we don't have the burden ofproof of a criminal case, which is beyond a

reasonabledoubt. In this case our burden of proof is by the greater weight of the evidence. So, if you

had a scale, and you took- and I've heard some lawyers say this sometimes, it probably was Judge

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McGill when he used to beat me all the time- but just put whatever, a feather, on one scale,and it

tilts it ever so much. If you're thePlaintiff ina money case- that's another dirty word; "money."We'll talk about that in a little bit.

Butnobody is charged withcrimes. Just the opposite. I wishthe verybest for these people.

This is one case, one time, and one moment in history. It's the most important case I've ever handled

in mywhole career. I've spent 50years notpreparing for this because I didn't want to be here.

So, if somebody told me I'm not going to be a bailiff, likeRosieJenkins, and go on to the

Public Defender's Office and be scared to death for four years over there, and then go out and nobody

wouldcome to me. I mean, howdo youdecide what kind of a practice you have? The kindof

practice youhaveis somebody comes to you and thenyourepresent them.

Why in the world these people chose me, I haveno idea. Why'd theytrust me? Theyhave no

ideawhatI'm going to say or do. Whydo theytrust us? Or thejury system, even? I don'tknow. But

it's the best system we have in the world.

And it reminds me that partof why I ended up beinga lawyer was not to be a trial lawyer,

because I never wanted to have that experience of being in front of people everagain since my acting

class. Butmyowngrandpa wasan immigrant from Ireland —which kind of bonded mea little bitwith theGourleys, because Mr. Gourley is an immigrant from Ireland also, andI liked himrightaway. Butmy grandfather usedto talkabout howgreat thiscountry was. And probably almost

higher than a priest, heprobably figured that, basically, the highest positions in the world were inthelegal system. Because his feeling was, because he was an immigrant and hedidn't have nothing fornothing, his feeling was the law in America makes it the- the law.

And the law in America is not just for the big, rich people. And I'm not suggesting that

people are big and rich - but the law inAmerica is for ordinary people, and the lawyers are the onlykeys to the courthouse. We're the only chance because they don't have a way of doing it—a way ofgetting justice. And the jurysystem is the only thing. It's the only thing that keeps it fair. Maybe notasgood as it should sometimes, because we hear about some crazy verdicts, and we've all heard aboutthat. But it's the only thing thatkeeps people from abusing power. It's the onlything. Andnot as

well as it should, we make mistakes, but it's theonly thing that allows honest people to come beforejurors and get justice, true justice.

Now, is big justice. This is the biggest case I've everhad. It's probably, to some of us,

historic in thesense that wehave people that, I'm shocked, thatwould say I want to do everything thesame way again. I don't intend to do kick counts ever again. I'm not going to look for chorionicity.I'm not going to rush any faster. I'm not going to do any of those things. To me, it's kind of historic

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then, when you get into a situation when you say if the real standard of safe care, of safe medical

/^\ practice, is to do ultrasounds, is to do kick counts, is to do a faster Cesarean section, is to

communicate. To take a patient with a bradycardia of60 -1 don't think there's a mother in the world

who's at term, who found out her babies had no fluid. A bradycardia of60! And if she knew that the

babies can die in seconds and in minutes wouldn't she want to let someone cut on her pretty dam

fast. I don't think there's a mother in the world that wouldn't allow an emergency Cesarean section

with all of these incredible risks that the defense talks about for doing a crash C-section.

I think the incredible risk thing is another phony, phony, phony, phony defense. Read the

book they give the patients about these Cesarean sections. They give the book to the patients about

how safe Cesarean sections are. They're safer than a tonsillectomy. And the one doctor, Finley I

think it was again, admitted another gift, that he'd come up with - this kind ofneat little device where

you Just pump up that little cuff and you just kind ofprevent aspiration from going up. They don't

even have that going on, you know, with an epidural. So if the mother were to throw up during the

epidural, they would have to suction with a suction, with a suction, with a suction, with a suction. So

there's - so you have even a safer modality.

Now, you throw up at the beginning, then you got to do a suction. That's the evidence. But it

_ isn't. But see, we got to make everything just dangerous. Everything is dangerous, and dangerous,

and dangerous, because that changes the focus problems. The severe bradycardia, the severe

tachycardia, the bradycardia, the stroke, the fresh meconium.

Fresh meconium, that's another thing they don't want to have to be too fresh right now. In

fact, somebody suggested the other day that it might go back to a couple days, that meconium. But

not the pathologist, who again, is just a treating physicianat the hospitalwhere this all kind of

happened, who kind of comes in andjust says, you know, this was fresh meconium. Why was it fresh

meconium. Doctor? Well, Lohff, Lowe, whatever his name is - Lohff, I think. Why was it fresh

meconium? Becauseof the pathological finding? Doctor,did anybody ever come to you in this case,

beforewe presented it to a jury, besides myself, to find out if it was fresh meconium or not?

I have a duty, too. If I found out there'd been meconium before, injury before, all those things

before, I could not stand before you. I could not stand before you. But, instead, we have fresh

meconium that hasn't been there very long. Again, it's a real problem. A real problem. But it comes

from whom? The doctor who did the pathology himself? And then it becomes the short cord, the

short cord, the short cord. I mean, every single little thing. The nucleated red blood cell thing was

one of the funniest things that ever occurred in the case, because that was one of the first defenses.

Until they found out the normal baby has a high nucleated red blood cell count, and the injuredbaby

has a lower, a much lower, nucleated red blood cell count. Ah, it's the nucleated red blood cells that

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caused it, that shows he's injured- yes, that's the ticket.

But no, the injured baby has the lowest, and the normal baby, Connor, had the higher. I mean,

there arejust so many defenses - they just keep coming and coming, and coming witha new one.What are we doing? Where do we go?

Dr. Brownjust happened to be in town. I could hardly sleep this weekend. I was so

depressed after hearing Dr. Goodrich testify. Myweekend was terrible. That's whyI wished youguys were having a good timewatching thegame or something. At least somebody would be havingsome fun. But I found Dr. Brown. I found the pathologist over the weekend to straighten out a few

things that I thinkwereheaded in the wrong direction.

Now, there's just so many other things, but kind of- we need to talk a little bit about the dirty

word, and that's money. I've got to talk about the dirtiest word of all. We all need it. We can't

survive without it. We can't survive without it. We can't survive without it. Render to Caesar what

is Caesar's is a gift. Quote: One, two, or three? If one, two, or three -1 always think of the song,

you know, "Once, Twice, Three Times a Lady." But thisjust kept ringing in my mind, and I would

kind of wake up in the middle of the night, and I would keep hearing what I heard in the courtroomat

thebeginning of the trial. If one, two, or three of thedefendants are held or found responsible in thiscase, then pleasedon't give the Plaintiff too muchmoney. Pleasedon't give them too much money.

Give them a little bit ofmoney, but not too much money.

Now, you're not goingto hear the word"annuity," - or see it. AndI'm sure youwill not see

it. The word "annuity" in the instructions doesn't exist. It doesn't exist in the instructions. But, the

suggestion was made to youthat, let's not, if we find one, two, or three - and thiswasmade by the

guy who's next - fourth in line now. This is Dr. Robertson's lawyer talking to us saying, if you findone, two, or three, but don't find number four- because he goes one, two, three, or four- that might

include Dr. Robertson in the money game, too, for puttinga little bit into the pot.

So, it should be one, two, or three. How about four? I would add four. Or should we? That's

when it started, but don'tgive themtoo much money. Because, we learned, and we learned aboutthis

in cross-examination of Dr. Winkler, who was the physician who did the life care plan for Colin, and

I'mgoing to talka little bit about that, too. When Dr. Winkler does the lifecareplan it adds up to alotof money. Over seventy-some years it comes up toapproximately $12.5 million to take care of achild and have full-time attendant care, and that's with some other factors involved.

And, you'll have that lifecareplan with you in thejury room. You really haven't seentheseyet, so I'll just show them to you a little.

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Butyou havethe life careplan that Dr. Winkler did. He'sa specialist in rehabilitative

medicine. He's not a nurse. He's the guy that specializes in takingcare of very seriously injured

people. And then he looked at it, and he probablyhas a little bit of a personal concern forwhat

should or shouldn't be, or what's a reasonable or unreasonable plan. He's a doctor and doctors should

care about patients and what should or shouldn't be an unreasonable plan for the child. Not for the

parents, for the child. This is not the parents' plan; this is the child's plan.

Let's not forget who my client is. 1represent the parents,but my real client - my real client is

ColinGourley. He's not here. Webrought him in and1wanted you to see himbecause I was afraid

that if 1didn't bring him. But then I was afraid;1didn't want anybody to accuseme ofgoing for

sympathy. 1don'twant that. We're talking aboutreal evidence here, not sympathy.

The same thing for the defendants in a case like this, we don't want anybody to be sympathetic

just because, quote, they're doctors. And 1alreadyhavesympathy for that, having brothers and family

in it. But that doesn't mean they shouldn't stand up and be accountable. 1think if you want - you

might want people just coming in andsaying, hey, we did it. It was wrong, so we want to be fair, but

we want to pay for full justice.

Well, what 1 heard when 1heard that one, two, or three, what 1 heard next worried me because

what it said was this: Let's not give full justice to this lad, let's not give full justice. Let's give less

than that. And, in fact, we don't want - let's have some kind ofa deal. We want you in your minds

to be thinking some way, somehow, evenif theirdamages aregoing to be great, like $12million ormore. That's only the out-of-pocket sort of expenses thatgo from this place in a court-supervised

fund to people who are taking care of him. That's notmoney that's going to- he's notgoing to beoutruined. But what else is he going to be doing?

Now, he can buy a house, in essence, with his lost earnings. But that's for wages that he lost.

But thenyou get worried about, oh, my gosh, he got started talking about all kinds of taxes andnottaxed and all that. But one of the worries that wasn't computed either was that the money that's

sitting there for him, even interest on that would be taxed. Everybody knows that. So it really doesn'taccumulate as fast as everybody would presume because your interest on something maybe taxed,

unless it's invested in certain types ofconservative tax-freebonds or something.

And they got into that discussion. But the suggestion was made that a life insurance company

would know more about how to take care of Colin than maybe the court and the parents and his

caregivers. Somehow, some way, theywould like to takethis $12 million, or whatever the number

comes out to at the end, because they reduced it down. They reduced it down because of what we call

present value. And

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I'm not an accountant, so all I know is that you have to reduce it to present value so that it equals

enough money that would be enough at the end, so you don't runout of money when you're done.

But you also have to worryabout inflation, and I think they considered a very conservative

inflationary rate when it came to medical expenses, because medical expenses inflatevery, very,very

fast. So you still can run out ofmoney. But the suggestion is made, in essence by a wrongdoer that,

wait a second, we want to suggest to you something that isn't even in the instructions. We want to

suggest to you that yousomehow, evenif theyprove up andshow a careplancalling for$12.5million, givethem a whole bunchless than that. And then, instead of paying it out whenthe child

needs it, pay it out over a periodof years, you know,just on periodic payments. That was the

suggestion, and by their counsel.

But guess what,we didn't know this was goingto happen when Dr. Winklerdid the lifecare

plan, but all ofa sudden we have an unscheduled surgery that nobody knew was going to happen

rightnow on the hip. Now there's going to be a wholebunch of moneyspent for the hip surgery. It

wasn't even in the life care plan of Dr. Winkler. It's not in there. It came up short.

Now, ifwe had the periodic pa3anent system, we're already broke, we're already behind the

eight ball. We're already done. Now, do we have to wait until the next payment before we can have

the next pieceofcarrot that we deserve, or not? Do we haveto wait for thosepayments before?

That's not fair. I don't think that's fair. I don't think that's the law. I don't think that's the way it

should be. But that's the suggestion.

Andthe suggestion, I think, is madetherebecause I think a lot of us haveheardabout big

verdicts, youknow. Youhearof billiondollar verdicts against FordMotorCompany, andthisandthat, and they're just -1 can't imagine. Andthey said something about let's makesure that an injured

person doesn't get anything. And, in fact, the statement was made. And then, if they make these

periodic payments theycankeep the amount of money that the life insurance company is spending

because if the babydies quickenough there's nothing there to make thosegreedy relatives get it. So

the father, and the mother, and the brother, and the two sisters, Chaele and Caitlin, and the

grandparents for a while, if they're taking care of this loved one, and they're doing this for him, Godforbid that something, if it shouldgo wrong, he gets killed by lightening, or in a car accident, or

something. God forbid that those who have loved him and taken care of him, taken care of the child,let's keep that money with the life insurance company who can just forget that there are doctors andso forth over there helping him and he might die.

And, of course, the life expectancy is directly related to the quality of care, and thequality ofcare is related to the amount of love that you get. There isn't any doubt that the parents in this case

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love Colin Gourley. There isn't any doubt that they want the best for Colin Gourley. For their part of

it, and there's the verdict form and we'll go through that, they want this to be Colin Gourley's care.

They want Colin - and their greatest - their greatest fear is what happens when they're gone or

something happens to them. Who will take care of Colin Gourley? And that's another problem with

a periodicpayment plan. And that's another something that's wrong with their suggestionthat the

parents take care of him 24 hours a day, 7 days a week, and give up their lives immediately because

that's - they're innocent parties in this case.

Colin is the most innocent of all. And I'll talk to you later in the rebuttal section I'm going to

give you. I'm going to talk to you a little bit about Colin, a little more about Colin. Over the last four

years I've gotten to know Colin pretty well, and he scoots around now. He scoots around on the

ground, and we love it. He couldn't always even do that. But the parents are going to make sure that

this baby gets therapy and lives a long, long life. And then, hopefully, ifhe's properly raised, and the

brothers and sisters are properly raised, and I think they all are, Colin will have someone kind of

watching over him.

And here's the picture, and you guys really didn't get to see it. I apologize because the

pictures at the hospital were shown to you right away, but then I knew I goofed up because I didn't

_ show you the pictures that we could have had you kind of go through and look at. That was my

mistake. But here are some of the pictures. This is what Lisa looked like on her last day ofwork, and

if they couldn't figure out that she was pregnant, fine. And ofcourse she's happy here, expecting to

have these babies, and here (indicating).

Now, my time is up here. I'm going to hope to get another chance to talk to you again after

the other counsel tell their side of the story and explain to you why the care and not doing those

pictures and everything is so reasonable. After they tell you why they want some life insurance

companyto give a little amount, so he can only afford to go to some life insurance companyor

something. I don't know exactly how they're going to explain those things away.

And I don't know how they're going to explain away the sworn affidavits on the time line.

And I don't know how they're going to explain away the phone records. And I don't know how

they're going to explain away all of the medical expenses up to this date that would never have

happened but for this.

And there's one thing that really wasn't gone over with you very well. That was Paul Larsen's,

the pediatric neurologist at the time, report. Hypoxic ischemic encephalopathy secondary to in utero

event, possible cord compression. The baby's clinical course, laboratory values, clinical seizures, and

EEG findings reflect the degree of asphyxia, which is severe. Neurological prognosis is very

guarded. And I'll get to come back and spend a brief time before we're done. Thank you.

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(Defense Closing)

REBUTTAL

MR. CULLAN: If it please theCoin, ladies and gentlemen. This is our lastopportunity to speak for

Colin. I think we're all tired and we want to get through with it, and we want to do our jobs and we

want to go home.

I think the most surprising thing that happened here during the arguments, for me, was being

involved with Dr. Kader, and controlling his testimony. I asked counsel, when they were showing the

scan ofwhat Dr. Kader said, for a copy of that scan because I thought it was important. Because back

in Dr. Kader's deposition, he said the eventstarted with the bradycardia, and with the cascade of that

until the end. And I think that's so important because that was his testimony then.

I'venever had anybody accuse me of having somebody do theirtestimony before. It's the first

time for me in my years ofpracticing lawto be accused of doing something improper. I've neverdone it, and it didn't happen. I've never, ever.

Dr. Kader gavehis opinion as a treating physician. They're his opinions underoath. He gave

them in hisdeposition about how thebradycardia started theevent, and he meant it, and he told themthat. And then theygethiminto thismedical certainty, or absolute medical probability, and that'swrong. They're the ones saying thatandwho toldyouabout that, and that's a fact.

And thenhe toldyou about howI'veworked withhim on other cases. I'veworked withDr.Larsen on otherbraindamagecases. I've worked with Dr. Seidel on other brain damage cases. I've

worked with many, manydoctors on braindamage cases. That's myjob. It's what I do. But never,

ever,one time, have I ever been accused of giving testimony for them or changingit. Never. That's

reaching to the bottom of thebarrel. That's going down too far. Itdidn't happen, and I've never doneit. Nobody isgoing to inform Dr. Fred Kader. He tells it the way it is and ina truthful way, and it'sabsolutely true.

They talk about - and I think this is really important, and 1want you to look at Lisa Gourleywhen I tell you this - they talked to Michael, and I want Michael to know this, and I want him toknow that. You can look at Lisa and Michael right now. And I'll tell you something, Lisa Gourley -

and theyhave the medical records in this- LisaGourley, long before 1evermet them, had gotten a

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request to get the medical records from the hospital to go to take the medical records to Dr. Kader.

Those are the facts, and there's no evidence in any way, shape or form, and it would be

improper to indicate that a lawyer made a referral when hehadn't even met the patient. Itwould beimproper tosaythat evidence or inferences existed when it didn't happen. There's no evidence.

Now, I can get hungup on that and talkaboutthatbecause that makes me so mad, but that's

personal. The evidence is what nobody wanted to talk about, and thepersonal attacks is what mademejump. Will Rogers said onetime that if yousaysomething, if you lieabout somebody, and youtell the lie enough times to enough people, someone will believe it. Andthat's really what was going

on here, attack the lawyer. It's wrong.

And it's a shift away from when somebody- and I wanted to know what they woulddo about

the time line - it's a shift away from when somebody under oath did the improper affidavit on the

time line. The medical records were available to the defendants when the improper time line was

done. Now, their lawyertakes credit for doing the quote, time line, for his witness. Who reallywas

creating evidence at that point in time? Who reallywas doing it?

Whensomebody creates a false swornaffidavit that they now have to come into court and

apologize for, and it contradicts the time line before thePlaintiffs had any records, I think that's aserious thing. But it shows you how far- if you look at the evidence, how far they'vegone to try to

win and try to beat a case. Why? Because it's a huge case.

And it really is about two tjqies of practices: which are safe, andwhich are unsafe. And I

wrote thisdown as wewere sitting there and listening to thecriticism of thestandard of care that thePlaintiff says should be used, and I wrote down '̂ preventive medicine." First do no harm. Preventharm. Preventive medicine. And then I wrote down what I think occurred in this case, in this

community, by these doctors: Reactive medicine.

That's what happened. You have one group, one type of doctor who does scans, who looks inand is trying to prevent the injury to the baby. Trying to prevent the injury, preventive medicine, isthe best. An ounceof something saves something. I can'tremember. But something saves

something. A stitch in time saves nine. Whatever those things are, those are about that.

And what it reminds me of, because 1don't know much about stitching, and I don't know

much about ounces. But it reminds me of a trip that you go on, and you're going to go to the West

Coast, or you're going to go across to the desert, and you're going to go over there. And you say, let'sgo across thedesert, and we've gotgauges here, but let's notcheck theoil. Let's notmake sure the caris going to be okay. Let's not make sure we canmake it across thedesert. And so weget into the

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middle of thedesert and we see the engine smoking. Things are not good now. That's reactive

medicine.

Preventive medicine, which is the safe way of medical practice, is to check the oil, make sure

thecar is running right. Notjust say we do a good job. If I'm listening to their testimony, what I hear

people saying is; we're doing a good job,we're doing a good job,we're doing a good job. And if theysay it enough times, you start believing that that's what the standard is.

Butnobody commented really on why. I asked thequestion, youknow, in my first partof ourdiscussion: Why didn't they do thecounts? Why didn't theydo kick counts? Is thatunreasonable to

ask? Isn't that the standard? Isn't that reasonable to ask someone to cooperate, to work with you in

doing thekick counts? They never could answer that. We don't need to do that. We don't need toworkwith the patientto do that. We'll wait until reactive medicine. We'llwaituntil there's a

problem. Then we have to try tosolve the problem. And that's what they did. That's what you see inthis case, is reactive medicine. And that's not the standard ofcare.

The standard ofcare is not to wait until there's a serious problem before you take action. The

safestandard of care is to do preventive - to take the pictures. Thebookthat theyput into evidence

has in it - it's righton the back, actually, theytalk about kickcounts. It happens to put the pagenumber that refers to kick counts in it. And there's a discussion in there about this preventive

medicine, and it talks about how a decrease in movement canbe fetal distress, so you must act upon it

before it causes injury. That's preventive medicine when you're thinking thatway.

Now, shenever got this book. Shehad to gogettwin books about how to raise children thatshewanted to raise. She'd actually had a couple of other children earlier, but thiswasnever broughtup with her. Why didn't they answer that question? Is it easier to attack me? Fine. But they'rewrong. They're absolutely wrong. And you have to look at the testimony and seethe testimony tounderstand that. What is wrong? What question? How did they answer thequestion onwhy, with atwin pregnancy, do we not do the ultrasounds, inorder to make sure that they don't fall through thatgap. That three to four day gap? There was no answer. Nobody could answer that question.

If you justhappen to beunlucky enough to have a doctor who isn't going todo the monitoring,who isn't going to look in there, your baby is going todie or end up with cerebral palsy. That's what'sgoing to happen. And then after they, quote, save the baby's life. They want you toappreciate thefact that they didn't do this, that they didn't monitor. They want you to thank them and say, isn't itwonderful. We didn't do this.

It's kind of like the auto accident situation, where you're driving down the road, somebody

runs a red light and just injures you terribly, but they want you to thank them for giving you a ride to

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the hospital. It's a little bit backwards ofwhat we're talking about here. They didn't do this. This is areasonable standard of care. Andwhen you're in thejury room, and you'll ask one anotheri Is this areasonable standard ofcare? Is this too much to ask for the mothers in this community, or any

community anyplace inthe United States? What is unreasonable about doing the pictures? What isunreasonable about ascertaining whether it's a single placenta or not? What's unreasonable about

that? What's unreasonableabout those standards? It's difficult to ever see how anyone could even

come - to saythat this isn't thereasonable and safestandard of care.

Any risk ofserious injury ordeath is always unreasonable if reasonable practices andprocedures will reduce oreliminate the risk. That's common sense. They say let's use commonsense. That is the rule of common sense. Any riskof serious injury or death, which is what we havehere, isunacceptable ifreasonable practices and procedures are not used to reduce oreliminate therisks. And they didn't monitor, with either kick counts or the ultrasounds.

Then we come to the 15^, and they talked about the only other witness that we hadn't talkedabout. There was another witness, you know. That witness wasColinGourley. And then yousaw

him and heard "please" and "thank you," "welcome." That witness was Colin Gourley, and he wasspeaking out right then and there on the 14^^ and the 15^ when he had no movement. That was himcrying out for help, when he was asking the doctors to please be careful, and he was asking hismother to seek help. He's the young - he's the kick count. He's the movement. That's a witness.He's thestrongest witness in this courtroom. That's Colin Gourley.

We trust ourdoctors, butdo we know that they're going touse - even knowing that it takesthree to four days to develop something like this - do we know that you're getting those doctors whodon't do the ultrasounds, who don't do the kick counts? Orthe other doctors that do the ultrasoundsand do the kick counts? Do we want to trust the doctors who say let's do it immediately, let's take

careof a fetal bradycardia immediately? And I did miss that.

The corporate thing was a red herring, but the corporate thing, what difference does itmakeexcept that no one to this day knows why the patient wasn't sent immediately, at noontime or before,why with no fetal movement for, you know, 24 hours, that that wasn't acted upon emergently. Theyknew bad things can happen. In fact, bad things did happen, the bradycardia and so forth. Whywasn't that acted on? So theonly person for that particular issue was thecorporation.

Just todefine and make it easy, this is right inthe instructions: The evidence was in failing todiagnose amonochorionic placenta. That was the evidence. Itwasn't diagnosed. And ifthat isnt ahigh risk factor for that development ofthe twin-twin transfusion, the loss ofthe amniotic fluid, andthe causeof the injury in this case, I cannot imagine whatwouldbe.

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Their failing to monitor - and failing to monitor them twice weekly at 32 weeks. They're

supposed to do it twice a weekbecause the condition can occurin three to four days. How can it be

more reasonable to not do that? How can that be the more reasonable standard, to say, no, we're not

going to do that? How can that be?

How can it be, in failing to instruct Lisa Gourley to perform fetal movement counting, how

can that be that that would be unreasonable? In failing to assess Lisa Gourley and her babies on

November 15^by doing abiophysical profile. She admits she would have done that ifthat was acomplaint, and that's where we get back to what happened that day.

And then now they've got to pass off to a friend. Well, that would discount totally Michael

and Lisa's understanding ofwhat happened. So, suddenly, they're out of the picture again, because

now we've moved the thing over to, it's a mistake and it's a friend she's talking to, instead ofher

doctor.

But we worked awfully hard to find out what time those C-section deliveries were. That

wasn't a gift. We worked very hard to try to find that out, and it wasn't given to us. We did finally

find out that, indeed, she left that room that day and had to go do a Cesarean section of twins. And

that's why she didn't gain enough information that day to do the biophysical profiles and deliver the

babies that day. It's clear that she left and did that.

Dr. Sleder, they made a big deal, and there's no evidenceofwhy Dr. Sleder was brought in.

So we hear comments by counsel about why was it later, and so forth? Why wasn't she brought in

for failure to diagnose the monochorionic placenta until later? Because the whole theory was that Dr.

Knolla had that done for her. And it wasn't until Dr. Knolla decided that she relies on this, and that it

wouldget her off the hook if she wanted to push it overon someone else. It wasn't until then that

you need to have the person in there who read that scan on July 12^ and didn't make that diagnosis.That's how she ends up in it.

But it wasn't that you Just go out and you sue everybody in town. It wasn't that at all. In fact,

she was added in later. Just the opposite ofwhat happenedwhen it became apparent that Dr. Knolla

was saying, I didn't do that scan. That was this handwriting - a piece of handwriting. This is not my

signature; it'ssomebody else. Who is that? Is thata technician? Is it an M.D.? Who is this person?That's when that comes out. It's not because somebody is out suing people and just including people

for no reason at all. That's where that came from.

The Obstetrics/Gynecologists, P.C., in failing to immediately refer her for immediate

evaluation and delivery when she reported no movement did an unreasonable thing. At least if a

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person were lucky enough to go to the doctors who do it, the babies would be normal today.

If a person were lucky enough to go to the other doctors, they would have seen the patient

promptlyas soon as they knew that the patient had 36 weeks and no fetal movement for 24 hours, as

Dr. Dietrich admitted. So he failed to see them promptly. They call in at noontime, they schedule it

at 3:30, and they wait all the way until 4:30.

In failing to makeappropriate arrangements for an immediate Cesarean section. That'swhere

it gets into the consultation with Dr. Robertson as to what to do. He's getting someone else involved

at that time.

Why wasn't this an emergency at that time, with a bradycardia, with a low- and they had to

admit that nobody could guarantee the babies would be alive or dead over the next several minutes.

And they want to talk about the resuscitation issuebeing a phony issue? When they're talkingabout

Dr. Elliott talking about that issue and somethingimproving it, that's the acidosis improving. That

isn't the stroke improving. In fact, that's the baby trying to save its life by going through from the

bradycardia to the severe tachycardia. We've neverhad an issuewith that. But they take it out of

context because this was an ischemic stroke. I never said that. That's in the medical records. That's

what the doctors are telling you who took care of the baby at the time - Dr. Larsen and Dr. Seidel.

Those are the reports that are in evidence for you. Those are in their record and reports, and they're

going to you over objection. Objection. Overruled. They go to you. Those reports are in evidence

for you to see.

And those records which will be before you are telling you exactly what happened, and that

this is the information concerninghow this baby suffered his injury right from the records, right

within days of the timeof the delivery. Dr. Dietrich then failed to accompany the patient to the

hospital. That's how they didn't get to the right place. And then as they didn't do the emergency - or

the C-sectionin an emergentmanner. Robertson delayed the C-sectionby performingunnecessary

tests, and in failing to performa more promptCesareansection in failing to recognizeand act on an

obstetrical fetal emergency.

Then I'mjust going to try to finish up. This is actually the jury form that you will get. It starts

out by asking whatyourpercentages are when you get into the economic andnon-economic damages,

and those you haveto consider. And I willpointout that there's absolutely no evidence presented bythe defense at all about damages, from the standpoint of a life care plan. They didn't do a life care

plan. They didn't have a doctor examine and present testimony in that regard to see what the

condition of the child is. They complained we didn't do enough or something, but they can do those

things.

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And when you get to this, the first form you have is what percentage that you will attributeto

each one of the defendants. So you would go through it asking, what's one, what's the percentage,

how much is the percentage? And there's other instructions about whether the injury is indivisible, is

there negligence combined, and then decidingwhat degree that negligence is.

And then, after we get to that point, you have the economicdamages, if any, and the non-

economic damages. Now, the economic damages are the out-of-pocket expenses that are for the life

care plan, for the medical expenses that are before you, and those kind of things.

And then to the other areas that I haven't covered at all. And I'm running out of time, but it

was touchedupon - what is the amount that you give for the elements that are in the instructions for

disfigurement, for pain and suffering, and humiliation, and things like that. And you will have the

life care plan. And I feel that if the damages that are going to go to the other people, that are going to

take care of Colin are such, aren't the damages just as much for the injury that they've caused?

Now, I want to just finish up with a couple of little things. And this (indicating) may be kind

ofa - kind ofa strange thing in a way, but it's not. The purpose of this picture (holds up a picture of

John F. Kennedy), which was given to me by the guy that I worked for in the Public Defender's

Office, is to illustrate the value of pricelessness. I don't know what value it has except that someone

important, and someone that I loved- a former govemor, Frank Morrisongave it to me, when he was

a public defender.

And I think what's important about this is there'sother pictures that have broughta lot of

money, millions of dollars. This is the value of money. Andwhat's the value of life? This is thepoint: If there were a fire in thisbuilding at this present time andwe had to savesomething, would

we savea priceless picture, or would we savesomething more priceless thanthat if we hada baby

here? The first person thatwe would wantto immediately rescue would be the baby. If this were an

expensive priceless picture, we would let it bum, and that'swhatwe shoulddo.

Now, how does that illustrate a point? When I was a young lad, one of my greatest heroes as

a young kid wasPresident Kennedy. Now, he got into trouble later and so forth, but we admired himand thought the worldof him, and this painting means so much to me because it was given to me,but

it has almost no value probably to anyone else but me.

Now, a human life is different. A human life is valuable for all. There should be a total

respect for human life. And that's what we're doing in this courtroom today. We're valuing thecost

- how safe we should practice when we're dealing with human lives.

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When we're dealing with human lives, should wepractice preventive medicine? Pilotswill

bailout a 50 million-dollar planein order to savea human life. They'll do that, and that'sright.

When we're practicing medicine, should it be reactive medicine or preventive medicine? Justwhat isthe value? How do we value human life? And isn't that an attitude that we have? The attitude that if

we don't do the scans, if we don't do those things, isn't that really where it comes from?

And 1want to - and we've been here a long time, and maybe I'm just remembering -1 don't

know where 1wrote it downanyway. We've beenhere a long time, and 1know you're tired, and1

thank you for being here for so long. I'm tired, too, and 1know 1probably didn't do a very good jobof arguing, and1probably didn't do a very good job of responding to the attack on me. And 1don't

care about that. But 1do care totally about the truth. And1have not ever, ever, ever, in any way done

anything 1considered inconsistent with the truth forColin Gourley, or anyone else. And it just hurtsme that somethingat this point in the trial gets off in thosekinds of ways. It'sjust wrong.

And it reminds me, and this isn't my story, but I'm going to tell you a story that an older

lawyer that 1worked with told me, here, at theconclusion. Some of you may have heard it. But ittalks a littlebit about tricking, and trickery, and things likethat, andwhatwe will be doing and what

we won't be doing.

And thestory kind of goes that there was a wise oldman, andthewise old man knew a young

kind of smart-alecky kid. And thesmart-alecky kid, hewanted to trick theoldman, thewise oldman. Andso he decided thatwhathe was going to dowas to catch a bird, andhe wasgoing to put itinto hishands. And hecaught a bird, andhe put the bird into hishands, and then he went to thewiseold man and he said: Wise old man, is the bird alive or is it dead? And the wise old man, he looked

at the young boy, and he thought: If1tell the young boy the bird isdead, then he'll open his handsand the bird will fly away. Ontheother hand, if1tell the boy that thebird is alive, hewill crush it,and crush it, and crush the life out of it. And sotheboy, hesaid: Wise oldman, is the bird alive or isthe bird dead? And the man said: The bird is in your hands.

And so we have years to go for Colin Gourley, and I've said everything 1cansay, sometimespoorly and not so well. 1presented evidence ofwhat 1think ispoor care that caused his brain injury,and 1think Colin Gourley wouldn't be here, incourt today, and we wouldn't behere today if they hadjust done preventive medicine instead of reactive medicine. We wouldn't behere today.

But on behalfof Colin, 1want to thank you because 1stand in his shoes today. But then, you

stand there and it's placed in yourhands. It's in yourhands. 1want to tell you again that1wanttothank you. It's been really for me an honor to know you throughout the course of this long trial, and Iknow you're tired, and you've got other things to do, too. You've got important work to do.

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CHILD Injury and Wrongful Death CD - Gourley v. Knoila, M.D. - Daniel B. Cullan Page 28 of28

Sometimes people say that ordinary people do the most important work ofall for ordinary people. I/^\ wish you the very best in achieving ajust result. Thank you very much.

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