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Anatomy of a Civil Trial

MR. MALONE: Tat’s it? DR. TZENG: Tat’s correct. MR. MALONE: So he’s supposed to understand from that that if you’re cutting in his armpit, he could lose his hand?

DR. TZENG: He didn’t lose his hand. MR. MALONE: He could lose the function of the major three fingers of his hand?

DR. TZENG: I didn’t go into that specifically.

Tis is my questioning of Dr. Tzeng last Tursday afternoon. [I try to be judicious in ordering mid-trial daily transcript

from the court reporter. It can be a huge distraction and even demoralizing to see all your advocacy shortcomings in black and white. But when I obtain a key admission from a defendant, it’s an easy call to order that piece of the transcript and then put it on the screen for the jury to see.] He also admitted, or slipped it in, that he does vaguely

remember that there was the discussion about insurance that Mrs. Wood mentioned, that she’d kind of like to—she’s got a good job prospect, to go to work for the school board in September, get insurance in thirty days and they could pay for it, and couldn’t they wait that long? Oh, no, you’d better not wait that long. So, actions speak louder than words. He got them there and

put them on the conveyor belt for surgery. And the next thing they know, they’re talking to his scheduler, and they’re in there the next week getting the surgery. Now, you’ll remember, he was here in court last Tursday

afternoon and he said—or I said to him something like, you know, you’ve spent, with the jury, like an hour and a half explaining everything about this case. You couldn’t have spent anything like that with them, maybe what, five minutes, ten minutes, fifteen minutes. And he said, oh, no. And I said, well, come on, Dr. Tzeng, you had a room full of patients in the waiting room. And do you remember the next thing he said? He said, oh, no, I remember the day vividly, it was a slow day. Well, that’s kind of interesting. You know, I’m willing to

accept that maybe it was a slow day on April 16, 2007, and Dr. Tzeng just needed the business, harsh as it sounds, because there are all of these questions that we don’t know answers to, that his lawyer promised in the opening statement that he was going to tell us. And one of the things he was going to tell us, he said, was—

excuse me. [I then showed on the screen an excerpt from the transcript

of the defense’s opening statement. Te defense opening is another piece of transcript I often order at trial, because I can often make the “promises unkept” theme.] Mr. Roling: Mr. Malone is correct; he started out as a heart

surgeon and then shifted over to vascular care. Dr. Tzeng will tell you about that. He will tell you why he did that. Did we hear anything like that? Here’s a guy, on his résumé,

who says he’s trained in heart surgery at the Cleveland Clinic, one of the international premiere heart surgery places, where rich people fly in from all over the country, all over the world—

Trial Reporter / Spring 2012 41

MR. ROLING: Objection. MR. MALONE: —to get heart surgery there. MR. ROLING: Objection. THE COURT: Sustained. MR. MALONE: And he moves to Southern Maryland, and that’s fine. But then, a year before Mr. Wood comes along, he’s out of heart surgery and he’s suddenly in vascular, and he’s not really telling us what’s going on.

So now we get to April 26, 2007, and he’s doing this surgery

in the armpit with the—and let’s not mix apples and oranges, yeah, he’s done the kidney dialysis cut-down. But in terms of rooting around with this Doppler thing,

looking for the artery that had collapsed down, and trying to tell the difference between the artery and the nerves, he told us he’d done that maybe once, maybe twice before, in his life. He’d never done the femoral approach. I’m sorry, he’d done the femoral approach once. He’d never done the elbow approach. So he’s doing this unfamiliar surgery, and he violates what

he calls, himself, surgery rule 101: don’t put retractors on nerves. And here’s this major, pencil-sized nerve right above the artery, but he’s got to get it out of the way to get to that artery. He presses on that nerve for so long and for so hard that he squeezes off the blood supply to the nerve. Tat had to have taken at least half an hour. Tat’s what Dr. Healy told us, the first day of testimony, and that has not been contradicted. You don’t get nerve damage just by touching these nerves; you’ve got to really whack them quite hard.

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