My South Dakota colleague, John R. Hughes, a plaintiff’s attorney and, dare I say, fine plaintiff’s advocate, represented a woman in a serious gynecological medical malpractice case. Due to the many, many misrepresentations during closing arguments by the defense attorney representing the doctor and facility, the jury came back in favor of the defendants within one hour. The verdict was appealed and the Supreme Court of South Dakota granted a new trial based on the outrageous conduct of the defense attorney. Click here to read the facts of the case and full decision in LUCILLE SCHOON and JOHN SCHOON, a husband and wife, Plaintiffs and Appellants v. THOMAS L. LOOBY, M.D., an individual, and SIOUX VALLEY CLINIC, formerly known as Obstetrics and Gynecology, Ltd., a South Dakota corporation, Defendants and Appellees. SUPREME COURT OF SOUTH DAKOTA, 2003 SD 123; 670 N.W.2d 885; 2003 S.D. LEXIS 151 which delineates the outrageous conduct of defense counsel including references to "Asserting Personal Opinion and Knowledge of a Witness," "Misstatement of Fact," Misstatement of the Law" and "Using Inflammatory Statements."
For example, defense counsel repeatedly referenced this lawsuit as playing the lotto or powerball or rolling the dice in an attempt to inflame the jury. At one point during his closing argument, he misrepresented the facts by saying that one of the defendants, Sioux Valley Clinic, was a non-profit organization owned by the public, i.e., inferring, of course, that the jurors will ultimately be the ones that are out of pocket for a jury award against SVC.
It is important, in my opinion, to note that lawsuits are brought by people who are injured and seek compensation for their injuries from the responsible party. I have represented literally 100s of injured persons none of whom has ever said that the ultimate settlement, no matter how large, made it all worthwhile. No one person would ever willingly trade their health and quality of life or go through the pain of injury and rehabilitation for money. When someone is injured, they are made less than whole physically, mentally and financially and the negligent party must be held responsible for returning that person to their prior state to the extent possible.
More later on the Myth of the Frivolous Lawsuit.