Every trial attorney has war stories. Some of them are even true. Many defense clients do not want attorneys to publicize even favorable results; and they certainly don't want their defense attorney commenting on a bad result. Unfortunately, this means that most legal orientated stories about trials in the press are usually one sided press releases from the Plaintiff's attorney followed by the standard: "Defense counsel ........... was unavailable to or (unwilling) to comment on the outcome of the trial." This is a disservice to folks that actually would like to learn about the defense perspective. Here is a true story from an old trial; names and identifying features have been deleted to spare the actual clients and participants.
Once upon a time, I tried a case where the plaintiff claimed that he was struck by Styrofoam coolers that had fallen on his shoulder and caused an aggravation of a rare skin condition. I was defending the property owner that set up the display of coolers in an archway over an aisle. The coolers fell from a height of about 8 feet. The impact allegedly caused a preexisting skin condition to fester resulting in deep black necrotic sores all across his upper arm and collar bone area. The plaintiff was attempting to avail himself of the "eggshell skull" legal doctrine which holds that a defendant tortfeasor takes its victim as it finds him. In other words, if the plaintiff is unusually susceptible to injury or harm; or suffers greater harm than one would anticipate; then the defendant is still responsible for all the harm suffered--even if a normal person would have sustained no harm. The plaintiff's injuries were documented with graphic photographs that showed deep ugly bruises, scabs, and scarring over the entire affected area.
The plaintiff claimed that he contracted the skin condition through exposure to "Agent Orange" while serving in Vietnam. His voluminous medical records from the Veterans Administration repeated that history, or story, as to how he developed the condition. One medical doctor from the local VA actually published a journal article about this plaintiff; and what he believed was the development of "Bechet's Disease" from chemical exposure. Bechet's Disease, like Tay-Sachs or Sickle Cell, typically affects a particular ethnic group; in this case, people of Turkish or Middle Eastern descent. The plaintiff, however, traced no descendants to the Middle East. He did have a history of multiple civil claims where minor injuries allegedly caused widespread aggravation of this condition. Furthermore, the VA had approved a full disability status that included the use of a motorized wheelchair and handicapped modified van. He had produced various documents reflecting attempts to recover compensation through a trust established for Vietnam Veterans exposed to Agent Orange. His civilian dermatologist diagnosed him with Pyroderma Gangrenosum and treated his various flare ups. He also treated with a civilian internist for his other medical issues.
I retained an expert dermopathologist who reviewed the skin photographs and records. The expert opined that he was suffering from cutaneous artifactual disease, a form of Munchhausen's Disease, where the patient causes the lesions himself for secondary gain or psychological reasons. He believed the sore pattern shown in the photographs was consistent with some form of intentional acid burning using a gloved hand. Although the expert was confident in his opinion, defending the case on this basis was very risky. We were essentially calling an injured Vietnam Veteran a liar; and if the jury believed the plaintiff, then they were likely to award a huge verdict to compensate him not only for the injury, but also for the insult upon his honor. Suffice it to say, that I was very concerned about this defense strategy. It was the proverbial home run swing; either we won the case outright; or the verdict would be very large.
We tried the case before a judge who was generally very sympathetic towards personal injury plaintiff's. He was very skeptical of our defense strategy; and indicated that he would give the plaintiff wide leeway to go into the specifics of his military experience in order to establish the credibility of his condition and causation. The plaintiff had been convicted of certain crimes outside (before) the ten (10) year period when they were generally admissible under the rules of evidence; and the judge already ruled that the convictions were inadmissible. One of the convictions was a minor drug offense in the early 70's, but the other was a conviction for statutory rape for which he did real prison time until the early 80s. the judge was clear that I was not to reference them or mention them even though the plaintiff would be able to testify about his heroic activities from this time. During direct, the plaintiff spent a great deal of time explaining his military service in Vietnam. He testified that he served as an infantry man "in country;" was wounded by stepping on a "Punji Stick;" treated at a "China Beach" hospital facility; and that he was exposed to both "Agent White" and "Agent Orange" during his service, which he explained were defoliants used on rice paddies and jungle cover respectively. His testimony was quite colorful: he referenced fire fights with "Charlie;" buddies that never came home; his time in a military hospital recovering from his wounds; and the disdain of his own countrymen when he returned stateside. At one point, he became quite emotional and teary eyed in discussing his service and the terrible things he saw "over there."
In preparation for trial, things you looked at over and over again can suddenly become frighteningly significant. During his pretrial deposition, he testified that he graduated High School and gave his date of birth. As I prepared my cross examination and read his deposition, I did the math. He was born in 1954 and would have been 18 at the time of his High School graduation in 1972. Given my knowledge of history and the timing of the Paris Peace Agreement's end of hostilities in January, 1973, I was skeptical that a person could graduate High School in June,1972 complete basic training, complete infantry training or specialized training, and then ship off to Vietnam to participate in active combat. Significantly, his drug arrest in the fall of 1972 and conviction in early 1973 would have placed him in the United States during the only real time he would have had an opportunity to gain any combat experience. But there was always the possibility that he skipped a year of high school, or that he was simply lying about graduating high school which would have been far less significant than lying about combat experience while chemicals rained down on his head. I also could not preclude the possibility that he served in some capacity before Saigon actually fell in 1975; and even troops assigned to the US embassy abandoned Vietnam. Absent actual military records that proved he was a liar, I was very concerned about cross examining him about his alleged combat career.
We had requested actual service records from the plaintiff but and were advised that they were unavailable. We also sent a request to the DOD's record repository but did not received a timely response before the short discovery time allowed in this jurisdiction. However, within the VA records we did receive, the physicians noted a history of service in Vietnam, even though the service was never confirmed. This trial took place during the infancy of the internet and Veterans Groups were not as aggressive as they are today in rooting out false heroes through checks that allow verification of certain awards or commendations that would prove service overseas or in combat. Accordingly, I decided to obtain other records that showed that he was in the United States during the relevant time.
Through a conversation with plaintiff's High School's registrar, my paralegal obtained high school records that confirmed a graduation date in June 1972; and service on the newspaper during the Spring of 1972. (The registrar actually faxed us the yearbook page). I did have the county criminal records confirming that he was "stateside" in late 1972 and early 1973. I also contacted the local Vietnam Veterans Group who confirmed that he was not active or even eligible (according to their records) to be a member of their organization because he has not earned the Vietnam Service Medal ("VSM") which was awarded to all service members who had served in the Vietnam conflict. This effectively precluded the possibility that he served in Vietnam in some other capacity between 1973-75. The President of the local Vietnam Veteran's organization was so outraged by the story that he indicated that he would be willing to testify that the plaintiff was not a Vietnam- era veteran according to the records provided by the DOD of eligible members.
Unfortunately, we had a number of admissibility and disclosure issues with some of this material. Generally, an attorney is not permitted to introduce extrinsic evidence solely to impeach a witness on a collateral issue. In our case, whether plaintiff was or was not a combat veteran was arguably collateral to the issues in the case. Presumably, the plaintiff could recover for an aggravation of a skin condition whether he contracted it in combat or by some other manner. Although the plaintiff had certainly "opened the door" to much of this evidence by voluntarily testifying about his combat experience, I was fairly confident that this particular trial judge was not going to allow a mini-trial within our trial about whether plaintiff actually served in Vietnam. Given that the VA records on their face appeared to confirm "Agent Orange" exposure, we had not filed a specific motion before trial disclosures were due to compel production of plaintiff's actual military or school records. We certainly had not identified the High School Registrar or County Vietnam Veteran's President in pretrial disclosures as trial witnesses. Accordingly, there was a distinct possibility that the trial judge would not allow us to introduce these recently acquired documents or witnesses to impeach plaintiff on his claim of combat experience or "Agent Orange" exposure. In practical terms, the court could decide that I was stuck with the plaintiff's answer to any of my questions on these subjects and that I could not confront him with or introduce documents that tended to show that he was lying; introducing witnesses would even be more of a long shot. From the jury's perspective, cross examining about these issues could seem like I was just casting unwarranted aspersions on a war hero's character.
I have always had confidence that the truth ultimately comes out in a trial whether the parties like it or not. I was very confident from our own investigation that the plaintiff had never served in combat in Vietnam. Accordingly, I took a calculated risk to cross-examine him on the subject. To minimize the risk, I first asked him questions in the hope he would dig himself in deeper.
Here is the cross examination as best as I can remember it:
Me: Sir, I believe you testified that you completed a full combat tour in Vietnam?
Plaintiff: That's correct, I completed one full tour, but was injured during the second, so technically I never completed that tour?
Me: So, if I understand how tours worked, you would have been "in-country" for at least a full year; and part of a second?
Plaintiff: That is more or less true, but there were 30 day extensions and leave. . . it was basically a full year from "boots down" in Vietnam to "wheels up" when the plane took you off to go back home.
Me: So just to get the dates right, you were definitely in Vietnam at least a year before the January 23, 1973 ceasefire that ended combat operations by US troops according to the Paris Peace accords--because if I understood your testimony, you were definitely serving in a direct combat role as opposed to support operations for the South Vietnam Army. .
Plaintiff: Well the war didn't end completely until 1975, but my first tour definitely started more than a year before combat operations ended in 1973; and we were definitely working on our own and not supporting ARVN.
Me: So your "boots down" date was sometime before January of 1972?
Plaintiff: I don't have great memories of that date so I can't give you the specific date, but it was definitely before January of 1972; maybe even 1971.
Me: In any event, you were certainly in Vietnam in June, 1972; and this was part of the period of time that you were exposed to Agent Orange?
Plaintiff: Yes, they were spraying it all the time over there
Me: Would you agree that they did not spray Agent Orange in Holidaysburg PA on June 17, 1972 which was the date of your high school graduation?
Plaintiff: . . . . [indignantly] I don't know what you are trying to imply, but I would be happy to go home during a break to grab my service records and give you dates and times when I was over there
Me: Well in your deposition, you gave your birthday as 5/16/54 correct?
Plaintiff: Yes
Me: And you testified that you graduated high school at Hollidaysburg?
Plaintiff: yes
Me: Would you agree with your graduation date, according to Hollidaysburg High School, was June 17, 1972--and I even checked with the school to make sure that you didn't graduate early?
[Remarkably and luckily, the Plaintiff's lawyer was so shocked that he didn't even object]
Plaintiff: Well, I could have been "boots down" a little later than I thought?
Me: Well, you had to complete basic training sometime in the summer of 1972, so even if you left right after graduation, you couldn't have even completed it before August, right; then with specialty infantry training, it would really be stretching to think you were "boots down" before September of 1972?
Plaintiff: Well, you've challenged me, so I will go home and get my records to confirm the specific dates. I think you will be surprised how little you know your real history of what went on there and how long it went on.
[At this point, I was very nervous, because he seemed so convinced himself in his own story. I was terrified that he was going to come back with, but I figured I already crossed the threshold]
Me: And will you agree that their are other records that I won't go into that confirm that you were actually in Pennsylvania on October 15, 1972 and February 1973, so any service started after that time?
Plaintiff's Attorney: Objection. Your honor may I approach side bar?
Judge: Yes, both of you approach, I am concerned that counsel is going way astray of the relevant issues in this case.
[at sidebar]: Didn't I already rule that the criminal records were inadmissible?
[Me:] I am not going to introduce the records, just have the Plaintiff confirm that he was in Pennsylvania during those dates.
[Plaintiff's Attorney:] Judge this is in direct violation of your ruling, he should be held in contempt
[Me:] Judge, you ruled that the convictions were inadmissible and that I should not mention convictions; I haven't mentioned convictions. I just asked him whether he was in Pennsylvania during a time court records say he was. The records are just my good faith basis for asking him whether he was in Pennsylvania during the relevant time rather than in Vietnam as he claims.
[Judge:] No, the relevant time is the date of the accident at your client's property not a date he may or may not have been in Vietnam. This evidence is very collateral. Unless you have evidence that nothing fell on him that day, then dates from 1972 and 1973 are irrelevant and I am ordering you to move on.
[Me:] I understand your ruling, but the Plaintiff opened the door to these issues. You let him testify for hours about minute activities he did while he was allegedly in Vietnam. I should be entitled to cross examine him with records that show he was actually thousands of miles away.
[Judge:] I made my ruling, we will have no more testimony about Vietnam, no more statements from you about American history or when the Vietnam War ended or what was happening over there; and if you bring up the issue again; I am going to hold you in contempt and instruct the jury to disregard your entire cross examination; are we clear?
[Me:] Crystal clear
[back questioning in front of jury]
Me: Sir, taking you to the time of the accident at [my client's property]. . . .
Plaintiff: Does this mean that I am not going to be able to bring in my military records? Judge, he has questioned my honor, I would like a break to go home and bring in my records to clear this up.
Judge; That won't be necessary, the court has made a legal ruling and [Me] won't be asking you any more questions on this issue; I have ordered him to move on and focus on the accident which brings us all here.
Plaintiff: Well, that's not fair, judge. He has asked me these questions and questioned my honor, I should be able to bring my records in to respond.
Judge: Well, it is a good time to take a lunch break. If Plaintiff wishes to open his direct and return to the stand with certain records, I will permit it. [looking at plaintiff's counsel] Show any records to defense counsel that you are going to use before the plaintiff takes the stand. Court stands in recess. We will take an extended lunch break of 2 and 1/2 hours.
Now, during the lunch break I was nervous as hell. I had no idea of what he had at home and was worried that he might return with some forged papers; or evidence that he was sent over there later. I was on the payphone (again this was before cell phones were even widely available), begging her to get a hold of the county Vietnam Veteran's President to come to court to examine the plaintiff's documents and tell me whether they were legitimate. Clearly, the judge would not be impressed with me arguing that his records were inadmissible because he did not disclose them before trial. I was very concerned that this cross examination was going to backfire quickly. And I thought, clearly this guy has been conning the VA and others, he has to have some records or evidence that he was actually over there. It was one of the longest lunch breaks of my life.
After about 2 hours, the Plaintiff's attorney approached me outside the courtroom holding a folder. I was extremely nervous about what the folder contained. Without showing me the folder contents, he told me that the plaintiff had actually been in the army twice. He said that the plaintiff's papers indicated a discharge from the Army in late 1973, which he said was for medical reasons; and then another General Discharge paper from 1975. I asked him whether the Plaintiff had a DD 214, which would be the transcript of his military service and commendations every soldier is provided with on discharge. Plaintiff's counsel said that his client did not the "original" of that particular document and that he was a bit troubled by copied portions his client did have which indicated service in the United States in 1973 and Korea in 1974. He indicated that the Plaintiff wanted to testify about these documents and why they do not reflect his actual service; but that there was a "philosophical dispute" between attorney and client about the wisdom of this testimony. He asked me whether I would be willing to resume my questioning on other topics subject to his right to revisit this issue in plaintiff's rebuttal case. With great relief I said "yes," but that I wanted him to agree that I could have the documents at least 24 hours before any proposed rebuttal testimony and that the defense could present evidence from the local Vietnam Veterans Association in sur-rebuttal if there appeared to be any irregularities or possible forgeries. To my surprise and relief, he agreed. From my perspective, this meant that I could present the VVA President to testify that the plaintiff was not eligible for membership and that the absence of the VSM in his discharge documents was definitive on the question of whether he served in Vietnam.
When the judge returned to the bench, both counsel requested a sidebar to memorialize our agreement. The judge looked at plaintiff's counsel as though he had two heads. The judge clearly thought that unless the documents confirmed service in Vietnam, any testimony about gaps in plaintiff's military paperwork would only discredit him further. He indicated that he understood that counsel had reached an agreement but that it was his courtroom and that he would decide when and how evidence would be submitted. He stated that from his perspective, he had already ruled that the matter was closed, the plaintiff had not shown the documents to defense counsel at lunch time as ordered, and that he would rule on rebuttal at the time of rebuttal. He stated that the only issue before him that afternoon was the defense counsel resuming his cross examination about the accident itself; and that he did not intend to tell the jury anything other than the court had ruled that the defendant would continue with his questioning.
When I started my questioning about the alleged incident involving falling Styrofoam coolers in front of the jury, the plaintiff again protested that he was not being given an opportunity to explain his military career. The judge stopped the plaintiff and told him in open court that he had already ruled that the issue was fully explored at this stage of the case by both sides; and that he might revisit the issue at another stage. The judge advised the plaintiff to just answer the questions about the incident. The plaintiff was so preoccupied with his inability to provide his explanation that he essentially conceded most of the facts related to the accident that were favorable to the defendant. I also fully explored all his other civil claims where he had sought money for similar events. Significantly, I pointed out the inconsistency that other types of minor contact apparently did not cause the formation of sores, but that minor contact by third parties resulted in serious sores and litigation. For example, he conceded that he did not spontaneously develop bedsores, or other lesions from the use of crutches or wheelchairs. There was also evidence in medical records where health care providers witnessed him walking on his own but sores did not develop on his feet or legs. By the time I was finished with cross examination, I could tell that the jury had serious doubts about everything related to the plaintiff and this case; and that his credibility was suspect.
The Plaintiff also presented the expert testimony of an architect who opined that the defendant had failed to construct a temporary Styrofoam cooler archway in accordance with professional standards. He conceded that no such standards actually existed, but stated that if an architect had constructed the archway, it would have been braced or fastened in such a way that it did not collapse. The only question I believe I asked him was whether he actually attempted to construct the type of archway that he contended was a superior design.
Interestingly, the plaintiff next presented the evidence of his treating internist. This doctor was notorious in the community because it was suspected that he killed his wife with an overdose of Xanax. Furthermore, he claimed that he had lots of patients with Bechet's syndrome, which itself would be remarkable outside Turkey; and that plaintiff clearly suffered an aggravation of Bechet's from the coolers.The internist was a terrible witness and clearly knew nothing about Bechet's disease. What he did know was how to prescribe the plaintiff significant amounts of narcotic pain medication.
Plaintiff's dermatologist testified that he did not believe that he suffered from Bechet's; and that the plaintiff likely suffered from a rare form of Pyroderma Gangrenosum, provided all other causes could be excluded. On direct, he testified that the plaintiff appeared to suffer an aggravation of his skin condition after he was struck by the coolers. On cross examination, I made him confirm that he had not excluded all other causes and merely treated the symptoms when they arose. I then had him agree that it was difficult to exclude self-harm or artifactual disease even under the best of circumstances. After these questions, I got the distinct feeling from his manner of answering that the dermatologist had serious doubts about the plaintiff's condition. Accordingly, I took another chance and asked him: "Given the difficulty in excluding self-harm, can you please tell me how you excluded that as a cause?" The dermatologist took off his reading glasses, looked directly at the jury, and said: "I haven't excluded it as a cause." I said: "no further questions." Plaintiff's counsel asked no redirect; and rested his case.
I presented the defense's expert dermapathologist. He testified that the skin lesions were consistent with self-induced injury; and specifically felt that it was the result of a glove dipped in some form of acid. He explained that artifactual disease was actually much more common that either Bechet's Disease or Pyroderma Gangrenosum; and was the most likely diagnosis. He also explained that patients with systemic skin diseases irritated by contact got sores all over their body; and that it would be likely he would have sores on contact areas from his wheelchair or bed. He testified generally that plaintiff's background made him a likely candidate for the development of artifactual disease. Because the court had ruled that plaintiff's prior conviction and incarceration for statutory rape was too remote and therefore inadmissible, I could not ask him to elaborate further that medical research showed that it was common for incarcerated prisoners to inflict skin injuries on themselves because sick bay was often more pleasant than being in the general prison population, particularly if the inmate was incarcerated for an undesirable crime like child molestation or rape. I was certainly hoping that plaintiff's counsel would open the door to such a response if he asked my expert about the background of patients diagnosed with artifactual disease. Plaintiff's counsel did not take the bait, more because he was a bit shell shocked over the earlier meltdown of his client's military record (and problems with his own dermatologist); than any calculated strategy to limit his cross examination. In any event, plaintiff's counsel did not lay a glove on my expert, acid dipped or otherwise.
I then presented testimony from the defendant's manager who built the Styrofoam archway. He explained that he simply stacked the coolers in the shape of an arch and braced it with masking tape. He said that he shook and rocked it after it was built and that it stayed stable. He said that he had no idea how the archway had become dislodged; and that it looked to him like someone had intentionally pulled it down. After that testimony the defense rested its case.
Plaintiff's counsel asked for a brief recess. From my table inside the courtroom, I could clearly hear a disagreement between plaintiff and his counsel outside in the hall. Plaintiff presented me with the contents of the folder and stated that his client wanted to present rebuttal testimony. The folder contained a few copied excerpts of a DD-214 that indicated service in Korea in 1974 and two separate discharge dates. From the excerpts, it appeared as though plaintiff went into the Army briefly in late 1973 and served briefly in the United States before he received a medical discharge; and then there another enlistment for service in Korea as a military policeman before a notation that he received a "general" or less than honorable discharge in 1974. Conspicuously absent was any indication that plaintiff served in Vietnam. Plaintiff's counsel asked me whether I needed 24 hours to conduct further examination of the documents; and stated that his client intended to testify that he believes that he was subject to Army experiments that altered his memory. I clearly looked at him with a look of total disbelief and said that if that was his proffer, I probably would not object to the documents or that testimony.
When the judge took the bench, the plaintiff's counsel explained his rebuttal and made a proffer. The judge looked at the plaintiff with complete disbelief that he intended to testify in that manner. I explained that I had no objection if that was his intended rebuttal, but that I expected the testimony to be limited in that fashion. The judge looked at the actual plaintiff and stated that he did not believe that the rebuttal would be helpful to his case, but that he would not preclude him from offering that testimony. The judge them called the jury back into the room; and the plaintiff testified. On direct, the Plaintiff tearfully testified about unexplained gaps in his memory and his belief that Army experiments had made him believe things that might not have occurred and wiped away things that might have occurred. He conceded that he was no longer positive that he ever served in Vietnam. The jury was riveted in complete and total disbelief. On cross, I asked no questions.
We both delivered our closing statements. Plaintiff's counsel argued that his client was entitled to compensation for an aggravation of his skin condition regardless of the cause of the underlying condition. I figured less is more; and argued that the only two dermatological experts in the case had serious doubts and concerns about the condition and what was aggravating it. I argued further that there was nothing that occurred during the trial to resolve those doubts and concerns. After a lengthy charge by the judge, the jury was released for deliberations. I gathered my papers, boxed up my documents and went out to the hallway to call my client with an update. Before I was able to even input my calling card code on the payphone, the marshal advised that the jury had reached a verdict. They were out less than ten minutes total. We returned to the courtroom and the foreperson announced that the jury had found no negligence. My client was obviously pleased.
After I received permission from the judge to speak to the jurors, I learned that they were all pretty shocked by the mendacity of the plaintiff. They all felt strongly that the VA should be advised that he was a con artist. I explained that it was not our job to decide whether his VA claim was valid, but that the judge could certainly advise the US Attorney if he felt that perjury occurred; or other criminal conduct needed to be investigated. The plaintiff's lawyer joined the conversation with the jurors and advised them that he had been kept in the dark by his client. He explained that voluminous VA records seemed to substantiate his Vietnam era service; and that he was fairly well known and recognized by his neighbors and friends as being an injured war hero. More than one of the jurors felt that his birth date warranted additional investigation and scrutiny. he explained that he generally trusts his clients and had learned his lesson. I thanked the jury and went home.
As I drove home, I realized that the bigger issue to plaintiff was that he had built his whole support system and family around this big lie. By the end of the trial, he was far more interested in defending that lie to his wife and family in the courtroom than to the jury. I believe that is why he insisted on offering that crazy testimony about the mind experiments. it was more for his wife's benefit than the jury's. As an aside, his wife was much younger than the plaintiff which also freaked me out a bit in light of his statutory rape conviction. I got the sense that they began their relationship when she was a bit too young. When I unpacked my trial materials at home, I glanced at the plaintiff's yearbook picture. At the time of the picture, he looked like a typical teenager. His picture even resembled my old yearbook picture. I wondered how he got from that kid in the picture to an adult who created a whole existence trying to convince people that he was a crippled war hero. I was happy to win the case, but the whole situation just seemed incredibly sad. The file included at least 8 prior injury claims that this person had made, piles of medical records where doctors attempted to treat a completely bogus condition, and VA claims for expensive wheelchairs and a handicapped van.
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