WEBVTT

1
00:00:00.030 --> 00:00:03.543
<v ->SJC-13577.</v>

2
00:00:05.760 --> 00:00:08.623
Steven Luppold versus Susan Hanlon et al.

3
00:00:23.200 --> 00:00:25.980
<v ->Okay. Attorney McDonough, whenever you're ready.</v>

4
00:00:25.980 --> 00:00:27.300
<v ->Thank you, Madam Chief Justice.</v>

5
00:00:27.300 --> 00:00:28.350
And may it please the court.

6
00:00:28.350 --> 00:00:31.410
Miles McDonough with me is my partner, Christopher Riley.

7
00:00:31.410 --> 00:00:34.740
We represent the defendant (indistinct) Susan Hanlon.

8
00:00:34.740 --> 00:00:38.460
Your honors I intend plan to spend most of my time

9
00:00:38.460 --> 00:00:40.050
on the new trial issue concerning

10
00:00:40.050 --> 00:00:44.070
the denial of cross-examination concerning bias associated

11
00:00:44.070 --> 00:00:45.660
with the high-low agreement.

12
00:00:45.660 --> 00:00:47.430
Before I do that, I just wanna spend a minute,

13
00:00:47.430 --> 00:00:50.790
or two on the other new trial issue that the issue

14
00:00:50.790 --> 00:00:52.740
concerning the, so-called model instruction

15
00:00:52.740 --> 00:00:54.810
of the Superior Court on causation.

16
00:00:54.810 --> 00:00:56.460
There are just two or three points

17
00:00:56.460 --> 00:00:57.840
that I wanna just quickly hit on this.

18
00:00:57.840 --> 00:01:02.460
The first is that the district court in May of 2024,

19
00:01:04.830 --> 00:01:07.500
updated their instructions on causation.

20
00:01:07.500 --> 00:01:11.370
I did, they did it in premises liability and motor vehicle.

21
00:01:11.370 --> 00:01:13.830
And in both of those sets of instructions,

22
00:01:13.830 --> 00:01:16.740
they assiduously avoided the word impact.

23
00:01:16.740 --> 00:01:18.510
They did not take the path

24
00:01:18.510 --> 00:01:22.620
that the superior court form instruction takes.

25
00:01:22.620 --> 00:01:24.120
And I submit they did that

26
00:01:24.120 --> 00:01:27.150
for the reasons we were argued in the brief.

27
00:01:27.150 --> 00:01:31.620
Second point is that we do ask the court's consideration

28
00:01:31.620 --> 00:01:35.040
of the jury question that was raised in the McDonough case,

29
00:01:35.040 --> 00:01:39.570
no relation that came out of Middlesex County as well.

30
00:01:39.570 --> 00:01:41.160
That's an example of

31
00:01:41.160 --> 00:01:42.990
what we submit is going on out there

32
00:01:42.990 --> 00:01:45.666
in the jury deliberations rooms.

33
00:01:45.666 --> 00:01:48.690
There's a lot of confusion created by this instruction.

34
00:01:48.690 --> 00:01:52.320
That instruction, that request for clarification

35
00:01:52.320 --> 00:01:54.600
was denied by the judge in that decision

36
00:01:54.600 --> 00:01:57.060
that's up on appeal in a different matter.

37
00:01:57.060 --> 00:02:00.060
But the jury was obviously very focused

38
00:02:00.060 --> 00:02:04.050
and wrote a very cogent note pointing out the conflict

39
00:02:04.050 --> 00:02:07.680
between the had no impact prong

40
00:02:07.680 --> 00:02:10.320
of the third paragraph of the instruction,

41
00:02:10.320 --> 00:02:13.050
and we have it on page 19 in our brief

42
00:02:13.050 --> 00:02:16.200
versus the other prong of the instruction

43
00:02:16.200 --> 00:02:18.120
that tells the jury when the defendant

44
00:02:18.120 --> 00:02:19.950
is supposed to win on causation.

45
00:02:19.950 --> 00:02:22.590
The second prong is the dual test.

46
00:02:22.590 --> 00:02:23.820
Of course, we have no problem with that.

47
00:02:23.820 --> 00:02:25.320
That is what should be done.

48
00:02:25.320 --> 00:02:27.690
It's the first prong that's problematic.

49
00:02:27.690 --> 00:02:30.060
And that what I'd like to do is also just quickly touch on

50
00:02:30.060 --> 00:02:34.230
what I would call the end run problem of this instruction,

51
00:02:34.230 --> 00:02:36.600
the pratfall problem, if you will,

52
00:02:36.600 --> 00:02:38.670
the instruction can lead a jury

53
00:02:38.670 --> 00:02:41.160
to find for the plaintiff on causation

54
00:02:41.160 --> 00:02:45.510
where dual would mandate a defense finding on causation.

55
00:02:45.510 --> 00:02:46.860
Here's the problem,

56
00:02:46.860 --> 00:02:49.320
because of the way the instruction is phrased with that,

57
00:02:49.320 --> 00:02:51.330
and in between it's conjunctive,

58
00:02:51.330 --> 00:02:53.610
the jury could look at the first prong,

59
00:02:53.610 --> 00:02:57.000
the impact language did the, poses the question,

60
00:02:57.000 --> 00:02:59.190
it says if the defendant,

61
00:02:59.190 --> 00:03:02.090
these two things happen, the defendant wants on causation.

62
00:03:04.471 --> 00:03:07.530
If the negligence of the defendant

63
00:03:07.530 --> 00:03:11.220
quote had no impact on the result, that's the first prong.

64
00:03:11.220 --> 00:03:12.053
The second pro is-

65
00:03:12.053 --> 00:03:14.280
<v ->That's not exactly what the instruction says, right?</v>

66
00:03:14.280 --> 00:03:17.580
It doesn't say had it further defines what no impact means.

67
00:03:17.580 --> 00:03:19.080
I can't pull it up right now.

68
00:03:19.080 --> 00:03:19.913
<v ->No, your Honor.</v>

69
00:03:19.913 --> 00:03:21.720
The third paragraph says,

70
00:03:21.720 --> 00:03:23.940
if a defendant's negligence had an impact

71
00:03:23.940 --> 00:03:25.380
on Steven Luppold's injuries,

72
00:03:25.380 --> 00:03:27.540
and this parallels the model instruction,

73
00:03:27.540 --> 00:03:29.010
then it caused those injuries.

74
00:03:29.010 --> 00:03:30.960
But if this is the problematic language,

75
00:03:30.960 --> 00:03:32.940
but if the negligence had no impact

76
00:03:32.940 --> 00:03:34.680
on Steven Luppold's injuries

77
00:03:34.680 --> 00:03:36.990
and the result would've happened anyway,

78
00:03:36.990 --> 00:03:38.730
that's dual-
<v ->And the result</v>

79
00:03:38.730 --> 00:03:40.500
would've happened anyway, right?

80
00:03:40.500 --> 00:03:41.333
<v ->Right. That's dual.</v>

81
00:03:41.333 --> 00:03:42.450
We have no problem with that,

82
00:03:42.450 --> 00:03:44.550
<v ->Isn't it defining the first part?</v>

83
00:03:44.550 --> 00:03:47.880
I'm not saying it's artfully done as it could be,

84
00:03:47.880 --> 00:03:50.290
but isn't it clear that it's defining

85
00:03:51.180 --> 00:03:53.160
what the had no impact means?

86
00:03:53.160 --> 00:03:55.199
Meaning it had no result?

87
00:03:55.199 --> 00:03:56.580
No, it didn't affect the result.

88
00:03:56.580 --> 00:03:58.200
<v ->Well, no, I don't think so, your Honor,</v>

89
00:03:58.200 --> 00:03:59.790
it's reading it top to bottom, left to right.

90
00:03:59.790 --> 00:04:02.100
It's setting forth two requirements

91
00:04:02.100 --> 00:04:03.340
with the conjunctive

92
00:04:04.716 --> 00:04:06.720
and the plaintiff's position on this essentially

93
00:04:06.720 --> 00:04:09.510
is suggesting that there's a redundancy here.

94
00:04:09.510 --> 00:04:11.850
So, no, I don't agree with that point at all.

95
00:04:11.850 --> 00:04:14.700
And I think there's a real danger here because a jury,

96
00:04:14.700 --> 00:04:17.070
obviously the McDonough jury had a problem with it.

97
00:04:17.070 --> 00:04:18.210
They saw conflict in it.

98
00:04:18.210 --> 00:04:21.180
I think any reader could find conflict in it.

99
00:04:21.180 --> 00:04:24.540
And the upshot is, the danger is

100
00:04:24.540 --> 00:04:27.420
that the jury could stop on that first element

101
00:04:27.420 --> 00:04:31.110
and say, there's two things for the defense to prove here.

102
00:04:31.110 --> 00:04:32.880
The two requirements for the defense to prevail

103
00:04:32.880 --> 00:04:36.210
and causation, the first requirement is had no impact.

104
00:04:36.210 --> 00:04:39.060
Impact means any effect of one thing on another.

105
00:04:39.060 --> 00:04:40.920
The jury could very well think

106
00:04:40.920 --> 00:04:42.390
and may have thought in this case

107
00:04:42.390 --> 00:04:46.140
that Ms. Hanlon's preceding negligence had an impact,

108
00:04:46.140 --> 00:04:47.640
if only in the slight sense

109
00:04:47.640 --> 00:04:50.940
that it slightly increased the chance

110
00:04:50.940 --> 00:04:52.380
that the second defendant,

111
00:04:52.380 --> 00:04:54.450
Mr. Loucraft or the other fellow

112
00:04:54.450 --> 00:04:57.120
that negligence caused the harm.

113
00:04:57.120 --> 00:04:58.290
So there's a little bit of mental gymnastics.

114
00:04:58.290 --> 00:04:59.801
<v ->So in your mind,</v>

115
00:04:59.801 --> 00:05:03.807
the solution would be to change the word and to meaning?

116
00:05:03.807 --> 00:05:05.010
<v ->The solution, your Honor,</v>

117
00:05:05.010 --> 00:05:06.540
is to cut out the third paragraph,

118
00:05:06.540 --> 00:05:07.980
get rid of-

119
00:05:07.980 --> 00:05:10.560
<v ->But alternatively, we could change</v>

120
00:05:10.560 --> 00:05:13.653
and to meaning,

121
00:05:15.060 --> 00:05:18.390
it's as Justice Kafker was saying,

122
00:05:18.390 --> 00:05:23.390
it is the no impact means it had no effect.

123
00:05:28.050 --> 00:05:30.720
<v ->I still think you're throwing in unnecessary language,</v>

124
00:05:30.720 --> 00:05:31.892
your Honor,

125
00:05:31.892 --> 00:05:33.960
I could still see a jury being confused by the word impact.

126
00:05:33.960 --> 00:05:37.170
It's inherently vague and confusing.

127
00:05:37.170 --> 00:05:41.070
So I don't think that that would solve the problem.

128
00:05:41.070 --> 00:05:44.640
<v ->So your solution is cut out the entire paragraph?</v>

129
00:05:44.640 --> 00:05:45.780
<v ->Just do what dual said,</v>

130
00:05:45.780 --> 00:05:47.940
like the district court judges are doing,

131
00:05:47.940 --> 00:05:50.490
just stop with the but for causation instruction,

132
00:05:50.490 --> 00:05:52.740
end of story, it's simple.

133
00:05:52.740 --> 00:05:55.740
And I think is that would be helpful to jurors.

134
00:05:55.740 --> 00:05:57.510
Jurors, let me, your Honor,

135
00:05:57.510 --> 00:05:59.703
let's turn to the other new trial issue.

136
00:06:01.680 --> 00:06:03.030
The plaintiff takes the position that

137
00:06:03.030 --> 00:06:07.710
the reasonable right of cross examination for bias,

138
00:06:07.710 --> 00:06:09.600
particularly here associated bias associated

139
00:06:09.600 --> 00:06:10.590
with a high-low agreement,

140
00:06:10.590 --> 00:06:13.830
does not exist in the civil jury trials.

141
00:06:13.830 --> 00:06:16.740
That position I submit fails for at least three reasons.

142
00:06:16.740 --> 00:06:19.800
First, the genesis of that right, is civil law.

143
00:06:19.800 --> 00:06:22.050
It comes from the Day versus Stickney case

144
00:06:22.050 --> 00:06:25.470
that is cited by no less than six of the decisions.

145
00:06:25.470 --> 00:06:27.960
The SJC decisions in the notes.

146
00:06:27.960 --> 00:06:31.560
<v ->Well, you know, in the civil trials</v>

147
00:06:31.560 --> 00:06:34.020
I presented over involving in these parties,

148
00:06:34.020 --> 00:06:38.550
in (indistinct), there's lots of examination over bias.

149
00:06:38.550 --> 00:06:40.710
<v ->Yes, absolutely.</v>
<v ->It's rife with it.</v>

150
00:06:40.710 --> 00:06:41.880
<v ->Absolutely.</v>
<v ->I don't know</v>

151
00:06:41.880 --> 00:06:44.028
the absolutist position here.

152
00:06:44.028 --> 00:06:45.780
<v ->Well there's bias.</v>

153
00:06:45.780 --> 00:06:48.993
My point is bias, because bias does arise in civil cases.

154
00:06:51.000 --> 00:06:54.360
<v ->Every expert witness, we've got 10 minutes unbiased.</v>

155
00:06:54.360 --> 00:06:57.300
<v ->Right. And I think that supports our point here</v>

156
00:06:57.300 --> 00:07:00.570
that the Massachusetts guide is correct

157
00:07:00.570 --> 00:07:03.090
in applying the right, in both this criminal

158
00:07:03.090 --> 00:07:03.923
and the civil context.

159
00:07:03.923 --> 00:07:07.950
<v ->Well, here's the issue I had when I read your brief,</v>

160
00:07:07.950 --> 00:07:10.980
you say it's as of right and it can't be diminished,

161
00:07:10.980 --> 00:07:12.843
but when I read 611B2,

162
00:07:14.730 --> 00:07:17.640
it says reasonable cross-examination show bias

163
00:07:17.640 --> 00:07:20.553
and prejudice is a matter of right.

164
00:07:21.726 --> 00:07:23.430
And you stop there,

165
00:07:23.430 --> 00:07:27.000
but then it says, which cannot be unreasonably restricted.

166
00:07:27.000 --> 00:07:29.220
<v ->Your honor, you've jumped ahead to my next point</v>

167
00:07:29.220 --> 00:07:31.740
that what does reasonable mean in context here?

168
00:07:31.740 --> 00:07:33.510
And we have the answer.

169
00:07:33.510 --> 00:07:35.220
I do want to just mention two other things.

170
00:07:35.220 --> 00:07:38.160
Article 15 means for the reasons of the brief,

171
00:07:38.160 --> 00:07:41.910
we have to have this exist in the civil side as well.

172
00:07:41.910 --> 00:07:44.730
And it's absurd to say that in the civil side,

173
00:07:44.730 --> 00:07:47.280
we should be satisfied with a less satisfactory truth

174
00:07:47.280 --> 00:07:48.600
telling mechanism.

175
00:07:48.600 --> 00:07:51.990
Cross-examination is the best truth telling mechanism,

176
00:07:51.990 --> 00:07:53.730
particularly on bias and credibility.

177
00:07:53.730 --> 00:07:54.780
<v Wendlandt>Well, no one's suggesting</v>

178
00:07:54.780 --> 00:07:56.820
there was no cross-examination, right?

179
00:07:56.820 --> 00:07:58.770
<v ->I'm sorry, your Honor.</v>
<v ->No one is suggesting</v>

180
00:07:58.770 --> 00:08:01.440
that you were prohibited from cross-examination.

181
00:08:01.440 --> 00:08:04.800
The question I think is that you were prohibited

182
00:08:04.800 --> 00:08:09.120
from asking about the high-low agreement because

183
00:08:09.120 --> 00:08:11.220
you didn't tell the trial judge

184
00:08:11.220 --> 00:08:14.278
what inconsistency Loucraft had created

185
00:08:14.278 --> 00:08:17.640
between his trial testimony on either day,

186
00:08:17.640 --> 00:08:20.670
or the deposition testimony years before.

187
00:08:20.670 --> 00:08:23.820
<v ->And for both, this is gonna be able</v>

188
00:08:23.820 --> 00:08:25.560
to answer both questions at the same time.

189
00:08:25.560 --> 00:08:27.420
If we look at the question of what reasonable means

190
00:08:27.420 --> 00:08:29.850
in context, that'll address your Honor's question as well.

191
00:08:29.850 --> 00:08:33.300
Because the test for entitlement as of right

192
00:08:33.300 --> 00:08:35.460
to the as of right part is

193
00:08:35.460 --> 00:08:37.800
provided in the Aguiar case that cites back

194
00:08:37.800 --> 00:08:40.560
to the civil case that I just mentioned.

195
00:08:40.560 --> 00:08:44.250
The threshold inquiry a judge should be mindful of is,

196
00:08:44.250 --> 00:08:46.350
it's a might test. A could have test.

197
00:08:46.350 --> 00:08:49.350
So if you look at 400 masks at page 513,

198
00:08:49.350 --> 00:08:50.787
that's what I'm talking about.

199
00:08:50.787 --> 00:08:52.410
And it cites Stickney for this.

200
00:08:52.410 --> 00:08:55.470
Days versus Stickney for this proposition as well.

201
00:08:55.470 --> 00:08:56.940
It's a potential bias.

202
00:08:56.940 --> 00:08:59.610
If there's any indication in the evidence,

203
00:08:59.610 --> 00:09:03.540
or in the circumstances that there might have been bias,

204
00:09:03.540 --> 00:09:05.853
that's what triggers the right to cross on it.

205
00:09:05.853 --> 00:09:06.997
<v ->This more-</v>
<v ->And your Honor,</v>

206
00:09:06.997 --> 00:09:08.430
it was the failure of the judge

207
00:09:08.430 --> 00:09:12.360
to let cross-examination happen on the bias

208
00:09:12.360 --> 00:09:15.000
arising out of the concept of a high-low.

209
00:09:15.000 --> 00:09:16.380
And there are three types-

210
00:09:16.380 --> 00:09:18.520
<v ->Reasonable restrictions would include</v>

211
00:09:20.160 --> 00:09:24.720
important into a trial, the word settlement, right?

212
00:09:24.720 --> 00:09:27.330
<v ->The reasonable as a general proposition, your Honor,</v>

213
00:09:27.330 --> 00:09:28.800
settlements can't be excluded

214
00:09:28.800 --> 00:09:30.090
under the discretion of a judge

215
00:09:30.090 --> 00:09:31.980
balancing probative and all that.

216
00:09:31.980 --> 00:09:33.300
That's not this case.

217
00:09:33.300 --> 00:09:34.650
This case has inherent,

218
00:09:34.650 --> 00:09:36.840
and again, this is getting to the same point I wanna make.

219
00:09:36.840 --> 00:09:39.450
There are three at least that I can offer to the court.

220
00:09:39.450 --> 00:09:42.690
Three inferences that arise as a matter of law

221
00:09:42.690 --> 00:09:44.010
from the mere utterance

222
00:09:44.010 --> 00:09:47.220
of the words high-low in front of a trial judge, okay?

223
00:09:47.220 --> 00:09:48.390
Let me give you three examples.

224
00:09:48.390 --> 00:09:50.880
Number one, there's a quid pro quo inference.

225
00:09:50.880 --> 00:09:52.380
This is the most important thing

226
00:09:52.380 --> 00:09:53.640
that a defendant needs.

227
00:09:53.640 --> 00:09:54.930
<v Kafker>I get it when it's a Mary,</v>

228
00:09:54.930 --> 00:09:57.060
whatever the Mary Ellen agreements where-

229
00:09:57.060 --> 00:09:58.560
<v ->Mary Carter.</v>
<v ->Mary Carter,</v>

230
00:09:58.560 --> 00:10:00.360
where you shift the,

231
00:10:00.360 --> 00:10:03.360
you shift the responsibility to the other defendant.

232
00:10:03.360 --> 00:10:07.203
But this is high-low is you're just bracketing,

233
00:10:08.441 --> 00:10:10.830
it's totally different.

234
00:10:10.830 --> 00:10:12.240
<v McDonough>It's not totally different from-</v>

235
00:10:12.240 --> 00:10:15.900
<v ->And also I read your, the excerpt for the trial.</v>

236
00:10:15.900 --> 00:10:20.900
You don't ask the judge to sort of dig in here.

237
00:10:21.450 --> 00:10:22.770
You just say there's a high-low,

238
00:10:22.770 --> 00:10:26.278
and then I'm not even sure what what your objection is

239
00:10:26.278 --> 00:10:27.133
at that point.

240
00:10:27.133 --> 00:10:29.880
<v ->Oh, your Honor, first trial counsel did mention</v>

241
00:10:29.880 --> 00:10:31.710
the fact that there were opinions that had been offered

242
00:10:31.710 --> 00:10:34.110
that had attacked his clients, number one.

243
00:10:34.110 --> 00:10:35.850
Number two, he mentioned the high-low.

244
00:10:35.850 --> 00:10:38.250
I'll get into the inferences that I wanna discuss

245
00:10:38.250 --> 00:10:42.903
to show that there's inbred inherent bias in a high-low.

246
00:10:43.740 --> 00:10:46.650
And number three, he mentioned the insurance problem, okay?

247
00:10:46.650 --> 00:10:47.880
So there was plenty on the table

248
00:10:47.880 --> 00:10:50.910
for the judge to understand there's a problem.

249
00:10:50.910 --> 00:10:53.790
<v ->You can follow exactly what the trial counsel</v>

250
00:10:53.790 --> 00:10:55.050
objection was there.

251
00:10:55.050 --> 00:10:57.630
But I mean, it's pretty incoherent, isn't it?

252
00:10:57.630 --> 00:11:02.010
<v ->Oh, your Honor, there's a typo that said, get him to bias.</v>

253
00:11:02.010 --> 00:11:04.437
Obviously what he was saying was get into bias,

254
00:11:04.437 --> 00:11:06.390
and it was on the heels of that cross

255
00:11:06.390 --> 00:11:09.483
of those adverse opinions that had been offered.

256
00:11:11.729 --> 00:11:14.940
And so it's not, it wasn't unintelligible at all.

257
00:11:14.940 --> 00:11:17.940
He said, I'm looking, he mentioned bias.

258
00:11:17.940 --> 00:11:20.040
He specifically, he mentioned the high-low,

259
00:11:20.040 --> 00:11:21.180
the nexus between the two

260
00:11:21.180 --> 00:11:23.033
is something that I submit

261
00:11:23.033 --> 00:11:24.510
should have been obvious to the judge for these reasons.

262
00:11:24.510 --> 00:11:26.820
Number one, there could be a quid pro quo,

263
00:11:26.820 --> 00:11:28.890
not only the high in exchange for the low,

264
00:11:28.890 --> 00:11:31.170
but also the high in exchange for the low,

265
00:11:31.170 --> 00:11:33.240
and also maybe getting some help

266
00:11:33.240 --> 00:11:35.340
from giving some help to the plaintiff.

267
00:11:35.340 --> 00:11:38.790
Remember, this is a desperate time for this defendant.

268
00:11:38.790 --> 00:11:41.125
He needs his house protected, he needs his assets protected.

269
00:11:41.125 --> 00:11:43.770
<v ->Can I just, this is Mr. Kelly, right?</v>

270
00:11:43.770 --> 00:11:45.060
That's the trial count.

271
00:11:45.060 --> 00:11:46.170
<v ->Yes, your Honor.</v>
<v ->Mr. Kelly,</v>

272
00:11:46.170 --> 00:11:48.720
the reason I ask to be seen, your Honor, is the original,

273
00:11:48.720 --> 00:11:52.200
more than, more the prior testimony in getting him to bias

274
00:11:52.200 --> 00:11:55.470
of this witness and giving those opinions about the nurses

275
00:11:55.470 --> 00:11:58.260
because of his circumstances with his company

276
00:11:58.260 --> 00:11:59.520
and with a high-low agreement,

277
00:11:59.520 --> 00:12:00.930
I'd like to be able to inquire of that.

278
00:12:00.930 --> 00:12:02.220
I don't know what he's saying.

279
00:12:02.220 --> 00:12:03.630
<v ->Well, let me explain your Honor.</v>

280
00:12:03.630 --> 00:12:07.500
Him, change him to into, so he wants to get into bias.

281
00:12:07.500 --> 00:12:09.060
The context is at the time

282
00:12:09.060 --> 00:12:11.100
he had just the record will show

283
00:12:11.100 --> 00:12:14.730
that there were opinions attacking his clients,

284
00:12:14.730 --> 00:12:17.490
and there were changes in testimony

285
00:12:17.490 --> 00:12:19.500
that align with the changes in interest

286
00:12:19.500 --> 00:12:20.970
created by the high-low.

287
00:12:20.970 --> 00:12:24.090
<v Wendlandt>What do you have those changes? Why?</v>

288
00:12:24.090 --> 00:12:25.320
<v ->Let me give you a few, your Honor,</v>

289
00:12:25.320 --> 00:12:27.720
and I do wanna circle back to the nature of the high-low,

290
00:12:27.720 --> 00:12:29.010
why there's inherent bias in it.

291
00:12:29.010 --> 00:12:30.660
But let me give you the references.

292
00:12:30.660 --> 00:12:33.660
Volume three pages 150 to 151.

293
00:12:33.660 --> 00:12:36.090
That's Mr. Luppold saying at first,

294
00:12:36.090 --> 00:12:37.417
I'm sorry, at his deposition, he said,

295
00:12:37.417 --> 00:12:41.640
"I don't remember any conversations with Ms. Hanlon."

296
00:12:41.640 --> 00:12:43.800
And then at trial,

297
00:12:43.800 --> 00:12:46.974
at page volume three pages 116 to 117

298
00:12:46.974 --> 00:12:48.480
and 120 to 121.

299
00:12:48.480 --> 00:12:51.720
He says, now I remember when she was discharging me,

300
00:12:51.720 --> 00:12:54.900
I told her my foot's swollen, my foot's purple.

301
00:12:54.900 --> 00:12:56.070
Does that make any difference?

302
00:12:56.070 --> 00:12:58.020
And she supposedly said to him,

303
00:12:58.020 --> 00:13:00.210
you are being discharged, totally-

304
00:13:00.210 --> 00:13:03.930
<v ->So those are the changes in the plaintiff's testimony?</v>

305
00:13:03.930 --> 00:13:05.730
<v ->Which is part of the problem here, your Honor,</v>

306
00:13:05.730 --> 00:13:07.830
is because the plaintiff, after giving the high-low,

307
00:13:07.830 --> 00:13:10.830
the benefit to Loucraft, what's his financial motive?

308
00:13:10.830 --> 00:13:13.200
He has to turn his gun sites against somebody else

309
00:13:13.200 --> 00:13:15.630
who doesn't have the cap, but has assets.

310
00:13:15.630 --> 00:13:18.090
He's looking to recover money.

311
00:13:18.090 --> 00:13:22.110
<v ->And that change in the plaintiff's testimony,</v>

312
00:13:22.110 --> 00:13:24.330
you identified for the trial judge,

313
00:13:24.330 --> 00:13:27.570
so that the trial judge could make this informed decision.

314
00:13:27.570 --> 00:13:29.190
<v ->I don't know that that was spoken about</v>

315
00:13:29.190 --> 00:13:30.525
at that precise time, your Honor,

316
00:13:30.525 --> 00:13:32.130
but I know it's part of the record

317
00:13:32.130 --> 00:13:34.200
and the judge is supposed to be,

318
00:13:34.200 --> 00:13:36.330
but let me address it was, I'm sorry.

319
00:13:36.330 --> 00:13:38.130
<v ->You expect the trial judge to know</v>

320
00:13:38.130 --> 00:13:41.760
what the plaintiff testified to at deposition?

321
00:13:41.760 --> 00:13:42.660
<v ->Because it was brought out</v>

322
00:13:42.660 --> 00:13:43.770
on the trial record, your Honor.

323
00:13:43.770 --> 00:13:44.930
<v Gaziano>Right.</v>

324
00:13:44.930 --> 00:13:46.770
It's part of the regular cross examination anyway.

325
00:13:46.770 --> 00:13:47.787
<v ->Right, right, right. But-</v>

326
00:13:47.787 --> 00:13:50.670
<v ->You want another inference apart from he's lying now</v>

327
00:13:50.670 --> 00:13:52.080
we want a different inference

328
00:13:52.080 --> 00:13:54.374
that he's lying because of the high-low.

329
00:13:54.374 --> 00:13:55.230
<v ->Exactly. Right.</v>
<v ->Versus he's lying,</v>

330
00:13:55.230 --> 00:13:56.380
'cause he wants to win.

331
00:13:57.540 --> 00:13:59.400
<v ->And because of the high-low and most particularly</v>

332
00:13:59.400 --> 00:14:00.233
because of the high-low,

333
00:14:00.233 --> 00:14:01.560
that's the real alignment of the interest, your Honor.

334
00:14:01.560 --> 00:14:05.670
<v ->And question I have for you factually is if you know,</v>

335
00:14:05.670 --> 00:14:08.760
was the high-low entered into

336
00:14:08.760 --> 00:14:10.830
before the plaintiff took the stand,

337
00:14:10.830 --> 00:14:13.683
so that it would have the impact that you're suggesting?

338
00:14:15.060 --> 00:14:16.080
<v ->What we know is the high-low</v>

339
00:14:16.080 --> 00:14:17.700
was mentioned right before trial.

340
00:14:17.700 --> 00:14:19.380
It might have been mentioned years before.

341
00:14:19.380 --> 00:14:20.213
We don't know because

342
00:14:20.213 --> 00:14:22.320
there was no cross-examination allowed. But you honor-

343
00:14:22.320 --> 00:14:24.570
<v ->So instead of saying what you don't know,</v>

344
00:14:24.570 --> 00:14:26.940
can you tell me what the record shows?

345
00:14:26.940 --> 00:14:27.960
<v ->Yes.</v>
<v ->In terms of when</v>

346
00:14:27.960 --> 00:14:30.330
the high-low was entered into relative

347
00:14:30.330 --> 00:14:32.460
to when the plaintiff took the stand?

348
00:14:32.460 --> 00:14:33.293
<v ->Yes, your Honor,</v>

349
00:14:33.293 --> 00:14:35.100
according to the plaintiff's representation

350
00:14:35.100 --> 00:14:36.450
at the post-trial hearing,

351
00:14:36.450 --> 00:14:39.660
it happened sometime between the 10th and the 21st.

352
00:14:39.660 --> 00:14:42.810
<v ->And was that before the plaintiff took the stand?</v>

353
00:14:42.810 --> 00:14:45.420
<v ->The plaintiff testified on the 13th.</v>

354
00:14:45.420 --> 00:14:47.340
I believe those are the window dates.

355
00:14:47.340 --> 00:14:49.470
But Mr. Loucraft, I mean,

356
00:14:49.470 --> 00:14:51.540
let me get to the Loucraft stuff, your Honors.

357
00:14:51.540 --> 00:14:55.110
Volume two pages 574 to 575.

358
00:14:55.110 --> 00:14:59.400
At that point, Loucraft, in his deposition,

359
00:14:59.400 --> 00:15:00.930
Loucraft had testified

360
00:15:00.930 --> 00:15:04.110
that he did not read the triage note,

361
00:15:04.110 --> 00:15:05.640
which was important because of the reference

362
00:15:05.640 --> 00:15:06.473
to the cool foot,

363
00:15:06.473 --> 00:15:08.010
it was critical on the diagnosis.

364
00:15:09.210 --> 00:15:10.350
At trial,

365
00:15:10.350 --> 00:15:12.690
I'm sorry, that was on March 10, that was during trial.

366
00:15:12.690 --> 00:15:14.370
He said, I don't recall,

367
00:15:14.370 --> 00:15:16.740
I don't recall if I read the triage note,

368
00:15:16.740 --> 00:15:17.670
on March 10.

369
00:15:17.670 --> 00:15:21.810
11 days later, same trial after the high-low.

370
00:15:21.810 --> 00:15:24.873
He says, "I did not read it.

371
00:15:25.837 --> 00:15:28.500
"It was an important step that I skipped

372
00:15:28.500 --> 00:15:33.193
and it violated my own custom and practice." So he-

373
00:15:33.193 --> 00:15:34.026
<v Kafker>Was it a cross-examination</v>

374
00:15:34.026 --> 00:15:36.060
on all these inconsistencies?

375
00:15:36.060 --> 00:15:36.960
<v ->Was it a cross examine?</v>

376
00:15:36.960 --> 00:15:40.410
He he was being led by plaintiff's counsel.

377
00:15:40.410 --> 00:15:42.783
<v ->On cross-examination.
On cross-examination,</v>

378
00:15:44.310 --> 00:15:45.900
did all, I mean,

379
00:15:45.900 --> 00:15:47.640
my understanding based on the briefing,

380
00:15:47.640 --> 00:15:49.440
and I haven't read the transcripts yet,

381
00:15:49.440 --> 00:15:53.253
is none of these inconsistencies were pointed out.

382
00:15:54.300 --> 00:15:56.373
<v ->Your Honor and I think,</v>

383
00:15:57.270 --> 00:15:58.470
I don't think that it's-

384
00:15:59.580 --> 00:16:01.980
<v ->Really, it's a fact question.</v>

385
00:16:01.980 --> 00:16:02.813
<v McDonough>I'm sorry, your Honor.</v>

386
00:16:02.813 --> 00:16:03.646
<v ->It's a fact question.</v>

387
00:16:03.646 --> 00:16:07.233
Were the inconsistencies explored in cross-examination?

388
00:16:09.450 --> 00:16:11.010
<v ->There were some inconsistencies</v>

389
00:16:11.010 --> 00:16:12.660
explored in cross-examination, your Honor,

390
00:16:12.660 --> 00:16:13.830
I can't recite for you-

391
00:16:13.830 --> 00:16:16.890
<v ->Were these inconsistencies that you say are relevant</v>

392
00:16:16.890 --> 00:16:18.660
to the high-low agreement,

393
00:16:18.660 --> 00:16:22.650
where they explored in cross-examination,

394
00:16:22.650 --> 00:16:24.720
were brought out in examination?

395
00:16:24.720 --> 00:16:26.070
<v ->Luppold certainly was, your Honor.</v>

396
00:16:26.070 --> 00:16:28.830
I believe Loucrafts were, all right?

397
00:16:28.830 --> 00:16:29.663
But in any event,

398
00:16:29.663 --> 00:16:31.958
the judge went back to the deposition transcript post trial.

399
00:16:31.958 --> 00:16:33.030
<v Kafker>I'm gonna stand up and say the opposite,</v>

400
00:16:33.030 --> 00:16:33.870
you sure of that?

401
00:16:33.870 --> 00:16:37.410
Just to save us some time. Are you just speculating?

402
00:16:37.410 --> 00:16:38.850
<v ->I'm not speculating, your Honor,</v>

403
00:16:38.850 --> 00:16:41.133
I'm trying to recall as to the,

404
00:16:42.150 --> 00:16:43.420
I can give you the record citation at that-

405
00:16:43.420 --> 00:16:46.290
<v ->Well, but wouldn't that be important</v>

406
00:16:46.290 --> 00:16:49.950
because you're beginning at the point of saying

407
00:16:49.950 --> 00:16:51.750
that you have this right to do so.

408
00:16:51.750 --> 00:16:55.200
But it does it back to Justice Gaziano point,

409
00:16:55.200 --> 00:16:58.440
the reasonableness of curtailing the cross-examination

410
00:16:58.440 --> 00:17:00.300
in the judge's discretion.

411
00:17:00.300 --> 00:17:03.450
That all of these things were,

412
00:17:03.450 --> 00:17:08.190
the inconsistencies were explored on cross-examination.

413
00:17:08.190 --> 00:17:12.510
So you're looking for a different type of exposure of bias

414
00:17:12.510 --> 00:17:17.510
or lack of credibility where the counsel at trial

415
00:17:18.510 --> 00:17:21.090
could get into your testimony

416
00:17:21.090 --> 00:17:22.890
is different from your deposition

417
00:17:22.890 --> 00:17:27.153
versus a trial without getting into the high-low agreement.

418
00:17:28.211 --> 00:17:30.840
And so you're looking for something different.

419
00:17:30.840 --> 00:17:33.390
But how is that an abuse of the discretion

420
00:17:33.390 --> 00:17:36.390
or an unreasonable thing for the trial judge

421
00:17:36.390 --> 00:17:37.223
to have done.

422
00:17:37.223 --> 00:17:39.480
<v ->Under Aguiar and I believe other cases, your Honor,</v>

423
00:17:39.480 --> 00:17:41.310
the trial judge has zero discretion

424
00:17:41.310 --> 00:17:44.100
to totally cut out cross examination on the subject.

425
00:17:44.100 --> 00:17:45.390
<v ->He didn't.</v>
<v ->He did.</v>

426
00:17:45.390 --> 00:17:46.223
There's no reference.

427
00:17:46.223 --> 00:17:48.870
He said, quote, we are not getting into any of that.

428
00:17:48.870 --> 00:17:50.123
We're not getting into any of that.

429
00:17:50.123 --> 00:17:52.070
Meaning cross on the bias. That's the whole point here.

430
00:17:52.070 --> 00:17:53.910
<v ->So you're talking about subject matter,</v>

431
00:17:53.910 --> 00:17:57.120
you're not saying that the trial judge curtailed

432
00:17:57.120 --> 00:18:01.290
any cross examination into all of the other things

433
00:18:01.290 --> 00:18:03.960
that might impact the witness's credibility?

434
00:18:03.960 --> 00:18:05.460
<v ->Oh, that's not the point, your Honor.</v>

435
00:18:05.460 --> 00:18:07.440
The point is the bias.
<v ->Well, that's my point.</v>

436
00:18:07.440 --> 00:18:08.880
<v ->No, I understand. I understand.</v>

437
00:18:08.880 --> 00:18:11.400
And I'm not saying there wasn't other cross-examination

438
00:18:11.400 --> 00:18:14.250
on credibility issues in the trial by any stretch,

439
00:18:14.250 --> 00:18:17.160
there always would be some, that's not the point here.

440
00:18:17.160 --> 00:18:19.260
The point here is the bias,

441
00:18:19.260 --> 00:18:20.460
bias is special.

442
00:18:20.460 --> 00:18:21.450
It's not like a settle,

443
00:18:21.450 --> 00:18:22.517
a routine settlement agreement like

444
00:18:22.517 --> 00:18:25.110
in the Mitchnik versus Zilberman case.

445
00:18:25.110 --> 00:18:28.080
Bias is the most important thing that jurors deal with,

446
00:18:28.080 --> 00:18:29.520
bias and credibility.

447
00:18:29.520 --> 00:18:31.530
It goes to the heart of the right to jury trial.

448
00:18:31.530 --> 00:18:32.910
<v ->Counsel, sorry, could,</v>

449
00:18:32.910 --> 00:18:33.840
our time is really limited.

450
00:18:33.840 --> 00:18:36.720
Could you possibly please take a moment

451
00:18:36.720 --> 00:18:38.700
to finish your answer that you got interrupted in

452
00:18:38.700 --> 00:18:41.760
before about you were, I think gonna say three

453
00:18:41.760 --> 00:18:43.020
<v ->Yes, your Honor.</v>
<v ->main problems</v>

454
00:18:43.020 --> 00:18:45.210
with these agreements in terms of the kinds of

455
00:18:45.210 --> 00:18:46.080
<v ->Yes.</v>
<v ->things that you might</v>

456
00:18:46.080 --> 00:18:46.913
be concerned about.

457
00:18:46.913 --> 00:18:48.900
And you started by saying it theoretically

458
00:18:48.900 --> 00:18:50.670
could be a quid pro quo.

459
00:18:50.670 --> 00:18:51.570
What else did you wanna say?

460
00:18:51.570 --> 00:18:55.560
<v ->Yes. And the quid pro quo, including not just the low,</v>

461
00:18:55.560 --> 00:18:58.200
but the potential for helping the other side.

462
00:18:58.200 --> 00:18:59.400
The second is,

463
00:18:59.400 --> 00:19:02.190
it could be even if there's not a contractual element to it,

464
00:19:02.190 --> 00:19:04.470
and the quid pro quo, by the way, could be written or spoken

465
00:19:04.470 --> 00:19:06.420
or wink in an odd.

466
00:19:06.420 --> 00:19:09.090
The other aspect, the second is,

467
00:19:09.090 --> 00:19:10.530
if not contractual in nature,

468
00:19:10.530 --> 00:19:13.050
it could be simply considered a favor.

469
00:19:13.050 --> 00:19:14.880
Again, this goes to the point of how important

470
00:19:14.880 --> 00:19:17.400
a high-low is for somebody, a defendant in these cases.

471
00:19:17.400 --> 00:19:19.200
It's everything, okay?

472
00:19:19.200 --> 00:19:22.530
So if he gets this gift,

473
00:19:22.530 --> 00:19:24.780
this benefit from the plaintiff,

474
00:19:24.780 --> 00:19:28.590
he is by definition virtually favorably disposed

475
00:19:28.590 --> 00:19:31.650
to someone who gave him the biggest favor in his life.

476
00:19:31.650 --> 00:19:33.630
Even if that's all there is to it, that's bias.

477
00:19:33.630 --> 00:19:35.576
That's fairly explorable precisely.

478
00:19:35.576 --> 00:19:38.190
<v ->That's totally speculative. We have no idea,</v>

479
00:19:38.190 --> 00:19:40.380
nor do you what that high-low agreement.

480
00:19:40.380 --> 00:19:41.310
It could have been,

481
00:19:41.310 --> 00:19:44.370
he could have agreed to a huge amount of money, right?

482
00:19:44.370 --> 00:19:45.523
<v ->Right.</v>

483
00:19:45.523 --> 00:19:46.980
And it's a high, and it's a high, it's a cap.

484
00:19:46.980 --> 00:19:48.930
It's a liability cap, okay?

485
00:19:48.930 --> 00:19:49.763
And by the way-

486
00:19:49.763 --> 00:19:50.880
<v ->And also it's a low too, right?</v>

487
00:19:50.880 --> 00:19:52.170
<v ->Right.</v>
<v ->He could agree</v>

488
00:19:52.170 --> 00:19:55.167
to pay a certain amount no matter what, right?

489
00:19:55.167 --> 00:19:58.110
<v ->But the prejudice, the bias here arises out of the cap,</v>

490
00:19:58.110 --> 00:19:59.370
the high cap, your Honor.

491
00:19:59.370 --> 00:20:00.203
<v Budd>Can we get to the third?</v>

492
00:20:00.203 --> 00:20:02.070
<v ->The brass ring to get the protection of it.</v>

493
00:20:02.070 --> 00:20:03.630
<v Budd>Okay. Let's get to the third thing</v>

494
00:20:03.630 --> 00:20:05.033
that you were saying quickly.

495
00:20:05.033 --> 00:20:09.150
<v ->The third, your Honor, I would submit is a defendant</v>

496
00:20:09.150 --> 00:20:12.990
who gets a high-low is going to be emboldened by reason

497
00:20:12.990 --> 00:20:15.090
of specifically the cap, whatever the number is.

498
00:20:15.090 --> 00:20:16.470
It doesn't matter.

499
00:20:16.470 --> 00:20:19.080
And we know high-lows are going to be, you know,

500
00:20:19.080 --> 00:20:20.370
there's a high and a low, there's a range.

501
00:20:20.370 --> 00:20:22.740
It's not the ultimate exposure on the case,

502
00:20:22.740 --> 00:20:24.090
so it's to protect.

503
00:20:24.090 --> 00:20:27.270
And the defendant in that context

504
00:20:27.270 --> 00:20:30.570
is necessarily financially biased

505
00:20:30.570 --> 00:20:33.990
and moved to be embold can be moved.

506
00:20:33.990 --> 00:20:36.840
<v ->Well, doesn't it depend on what the range is?</v>

507
00:20:36.840 --> 00:20:40.697
If the high-low is I will pay you a minimum of $39,000

508
00:20:42.180 --> 00:20:44.963
and a maximum of $40,000.

509
00:20:44.963 --> 00:20:46.048
<v ->Then that's probably-</v>
<v ->Then there's very</v>

510
00:20:46.048 --> 00:20:46.881
little incentive.

511
00:20:46.881 --> 00:20:47.714
<v ->That's very suspicious, your Honor,</v>

512
00:20:47.714 --> 00:20:48.960
'cause that's just keeping that defendant in the case

513
00:20:48.960 --> 00:20:50.733
to tattoo the other defendants.

514
00:20:50.733 --> 00:20:52.080
<v ->Well, isn't that part of the question then?</v>

515
00:20:52.080 --> 00:20:53.610
<v ->Well, that's another piece of information</v>

516
00:20:53.610 --> 00:20:55.380
that would the judge ruled

517
00:20:55.380 --> 00:20:57.060
was not gonna be available to the defense.

518
00:20:57.060 --> 00:20:58.632
And that would've been very valuable information.

519
00:20:58.632 --> 00:20:59.970
<v ->Well, was there a request to the judge here</v>

520
00:20:59.970 --> 00:21:03.120
to get a disclosed to the defense, the precise term,

521
00:21:03.120 --> 00:21:05.850
the co-defendant, the precise terms of the settlement?

522
00:21:05.850 --> 00:21:07.740
<v ->Well, there was a cross-examination.</v>

523
00:21:07.740 --> 00:21:09.030
He went up the sidebar and said, your Honor,

524
00:21:09.030 --> 00:21:09.960
I wanna cross on this.

525
00:21:09.960 --> 00:21:11.010
He wanted to take them on,

526
00:21:11.010 --> 00:21:12.630
get the benefit of cross-examination,

527
00:21:12.630 --> 00:21:15.510
which is instantaneous immediate responses, spontaneity.

528
00:21:15.510 --> 00:21:18.300
Nobody gets a dry run. Go right at it.

529
00:21:18.300 --> 00:21:20.920
And that's why once you cross that threshold

530
00:21:21.900 --> 00:21:24.120
and you have a might situation-

531
00:21:24.120 --> 00:21:25.955
<v ->But I'll defer to my college,</v>

532
00:21:25.955 --> 00:21:26.788
it's matter of trial justice.

533
00:21:26.788 --> 00:21:28.020
But isn't it an offer of proof?

534
00:21:28.020 --> 00:21:30.900
You've gotta , your Honor, we need to,

535
00:21:30.900 --> 00:21:33.360
this could be a fishy high-low.

536
00:21:33.360 --> 00:21:35.463
There could be something sinister here.

537
00:21:36.930 --> 00:21:38.610
We wanna make an offer of proof on this.

538
00:21:38.610 --> 00:21:39.810
None of that's happened.

539
00:21:39.810 --> 00:21:41.880
<v ->Well, in Monday morning quarterbacking, you know,</v>

540
00:21:41.880 --> 00:21:43.350
you can always ask, could that have been done?

541
00:21:43.350 --> 00:21:45.900
<v ->But no, it's not Monday morning quarterbacking.</v>

542
00:21:45.900 --> 00:21:49.920
Because there's also an obligation that council has

543
00:21:49.920 --> 00:21:53.220
to have a good faith basis to ask the question

544
00:21:53.220 --> 00:21:54.870
that they're asking.

545
00:21:54.870 --> 00:21:56.550
So without an offer of proof

546
00:21:56.550 --> 00:22:00.000
or asking for voir dire, when you say all they,

547
00:22:00.000 --> 00:22:01.200
he could have had this,

548
00:22:01.200 --> 00:22:03.360
he could have had been motivated by that,

549
00:22:03.360 --> 00:22:05.670
potentially could have been motivated by that.

550
00:22:05.670 --> 00:22:08.970
All of these don't satisfy a good faith basis

551
00:22:08.970 --> 00:22:11.761
to the trial judge to even ask these questions.

552
00:22:11.761 --> 00:22:13.710
<v ->Your Honor the good faith basis is satisfied.</v>

553
00:22:13.710 --> 00:22:15.240
Once he has the might,

554
00:22:15.240 --> 00:22:17.880
there might be bias afoot, test satisfied.

555
00:22:17.880 --> 00:22:19.170
That's what triggers the right.

556
00:22:19.170 --> 00:22:22.830
This is not like a standard settlement agreement.

557
00:22:22.830 --> 00:22:24.090
You can't do an offer of proof

558
00:22:24.090 --> 00:22:26.280
in the traditional sense in this context. Why?

559
00:22:26.280 --> 00:22:28.936
Because the information is hidden from you.

560
00:22:28.936 --> 00:22:29.959
You have the cross examiner-

561
00:22:29.959 --> 00:22:31.285
<v Georges>Could ask for a voir dire.</v>

562
00:22:31.285 --> 00:22:32.118
<v ->I'm sorry.</v>
<v ->You could ask</v>

563
00:22:32.118 --> 00:22:33.510
for a voir dire.

564
00:22:33.510 --> 00:22:34.740
<v ->May have been able to ask,</v>

565
00:22:34.740 --> 00:22:36.030
but if he wants to cross examinee,

566
00:22:36.030 --> 00:22:38.040
he has the right to cross examinee, your Honor.

567
00:22:38.040 --> 00:22:40.620
He doesn't, he's not, if he had to do a voir dire,

568
00:22:40.620 --> 00:22:41.480
if he had to do a voir dire,

569
00:22:41.480 --> 00:22:43.470
it would not be a matter of right.

570
00:22:43.470 --> 00:22:45.120
That's inconsistent logically,

571
00:22:45.120 --> 00:22:47.880
he has the right to cross examine not only upon-

572
00:22:47.880 --> 00:22:49.680
<v ->I think we've covered it.</v>

573
00:22:49.680 --> 00:22:52.260
<v ->All right, your Honor if there's any issue about</v>

574
00:22:52.260 --> 00:22:55.350
the emboldening as the court to consider that too,

575
00:22:55.350 --> 00:22:57.150
as to what would happen
<v ->Thank you.</v>

576
00:22:57.150 --> 00:22:59.823
<v ->with such an agreement. Thank you, your Honors.</v>

577
00:23:01.470 --> 00:23:02.943
<v ->Okay. Attorney Satin.</v>

578
00:23:06.030 --> 00:23:06.930
<v ->May it please the court.</v>

579
00:23:06.930 --> 00:23:08.100
My name is Adam Satin

580
00:23:08.100 --> 00:23:09.570
and along with Robert Higgins,

581
00:23:09.570 --> 00:23:11.733
I represent the plaintiff in this matter.

582
00:23:13.530 --> 00:23:15.420
I naturally, as you might expect,

583
00:23:15.420 --> 00:23:19.170
prepared where to start and go at least as far as I got.

584
00:23:19.170 --> 00:23:23.040
But just briefly, where Mr. McDonough started

585
00:23:23.040 --> 00:23:24.690
on the dual issue,

586
00:23:24.690 --> 00:23:29.690
that McDonough case is a different set of instructions

587
00:23:30.150 --> 00:23:33.540
to a different jury under different facts.

588
00:23:33.540 --> 00:23:35.850
It is not a part of this record,

589
00:23:35.850 --> 00:23:38.640
was not part of any of the briefing.

590
00:23:38.640 --> 00:23:41.400
They made a motion. It was not allowed.

591
00:23:41.400 --> 00:23:43.470
<v ->How about the language itself?</v>

592
00:23:43.470 --> 00:23:45.420
Is it, should we,

593
00:23:45.420 --> 00:23:47.640
is this is the district court

594
00:23:47.640 --> 00:23:50.860
instruction a better instruction,

595
00:23:50.860 --> 00:23:53.340
'cause it avoids potential confusion or not?

596
00:23:53.340 --> 00:23:55.830
<v ->Respectfully, as I recall,</v>

597
00:23:55.830 --> 00:23:58.380
they didn't brief the district court instruction.

598
00:23:58.380 --> 00:24:01.440
So with all due respect the instruction

599
00:24:01.440 --> 00:24:05.040
that the model superior court instruction

600
00:24:05.040 --> 00:24:08.130
based on a committee of trial judges

601
00:24:08.130 --> 00:24:10.830
who brought in a linguistic expert

602
00:24:10.830 --> 00:24:15.690
to evaluate and try to use plain language for jurors

603
00:24:15.690 --> 00:24:18.030
that they can understand,

604
00:24:18.030 --> 00:24:20.820
they came up with essentially the instruction

605
00:24:20.820 --> 00:24:21.960
that was given.

606
00:24:21.960 --> 00:24:26.397
And Justice Kafker, you're absolutely correct that the

607
00:24:26.397 --> 00:24:28.590
and that he's so troubled by

608
00:24:28.590 --> 00:24:33.420
absolutely just defines what's to the left of the and.

609
00:24:33.420 --> 00:24:37.710
<v ->But Justice Wendlandt's better articulation,</v>

610
00:24:37.710 --> 00:24:39.900
should we be clarifying that,

611
00:24:39.900 --> 00:24:42.720
saying that meaning blank as opposed to

612
00:24:42.720 --> 00:24:47.190
weaving it out there as an and given. But again-

613
00:24:47.190 --> 00:24:51.450
<v ->So I would suggest that Justice Wendlandt's</v>

614
00:24:51.450 --> 00:24:52.890
comment about the wording

615
00:24:52.890 --> 00:24:57.630
and saying meaning if you read it, if you hear it out loud,

616
00:24:57.630 --> 00:25:00.630
that's what the and says, it says,

617
00:25:00.630 --> 00:25:02.940
and just, it helps to hear it out loud,

618
00:25:02.940 --> 00:25:06.360
that if a defendant's negligence had an impact

619
00:25:06.360 --> 00:25:08.040
on Steven Luppold's injuries,

620
00:25:08.040 --> 00:25:09.900
then it caused those injuries.

621
00:25:09.900 --> 00:25:12.210
But if the negligence had no impact

622
00:25:12.210 --> 00:25:14.070
on Steven Luppold's injuries

623
00:25:14.070 --> 00:25:16.666
and the result would've happened anyway,

624
00:25:16.666 --> 00:25:19.920
then that defendant did not cause the injuries.

625
00:25:19.920 --> 00:25:22.650
<v ->Does the and clause really solve the problem though,</v>

626
00:25:22.650 --> 00:25:24.720
even agreeing with you that

627
00:25:24.720 --> 00:25:27.240
and essentially means meaning that here,

628
00:25:27.240 --> 00:25:29.520
if the problem with the impact word

629
00:25:29.520 --> 00:25:32.760
is that it's so vague that it suggests that

630
00:25:32.760 --> 00:25:35.850
a defendant could be liable if there was sort of

631
00:25:35.850 --> 00:25:37.950
any contribution whatsoever,

632
00:25:37.950 --> 00:25:40.800
no matter how slight to the extent of the injuries

633
00:25:40.800 --> 00:25:44.820
and then the and clause then means that

634
00:25:44.820 --> 00:25:48.330
the exact same injuries would not have occurred,

635
00:25:48.330 --> 00:25:49.740
but, you know, but for,

636
00:25:49.740 --> 00:25:51.930
so I don't know that it deals with that problem.

637
00:25:51.930 --> 00:25:54.180
<v ->So, well, I don't think it's a problem</v>

638
00:25:54.180 --> 00:25:56.850
because it was drawn directly from the language

639
00:25:56.850 --> 00:26:01.620
this court used in dual, excuse me, dual.

640
00:26:01.620 --> 00:26:03.630
The dual court correctly said-

641
00:26:03.630 --> 00:26:06.330
<v ->Well we, I mean we were moving away</v>

642
00:26:06.330 --> 00:26:09.300
from substantial factor, which was a vague language

643
00:26:09.300 --> 00:26:11.790
that was causing some confusion here.

644
00:26:11.790 --> 00:26:15.540
So I'm not sure we were counseling the trial court

645
00:26:15.540 --> 00:26:18.570
to instruct with this impact sentence.

646
00:26:18.570 --> 00:26:20.610
<v ->But the-</v>
<v ->Most of the opinions</v>

647
00:26:20.610 --> 00:26:22.803
devoted to but for construction, right?

648
00:26:23.790 --> 00:26:26.250
<v ->And the but for construction was requested</v>

649
00:26:26.250 --> 00:26:27.930
by the defense in this case.

650
00:26:27.930 --> 00:26:31.230
But the dual opinion says,

651
00:26:31.230 --> 00:26:34.890
we don't judge these instructions based on fragments of it.

652
00:26:34.890 --> 00:26:35.940
And that's what they're doing.

653
00:26:35.940 --> 00:26:38.010
They're asking you to look at one sentence,

654
00:26:38.010 --> 00:26:40.770
say it could have been better articulated.

655
00:26:40.770 --> 00:26:42.270
And the reality is,

656
00:26:42.270 --> 00:26:45.030
is that great was made to try and give

657
00:26:45.030 --> 00:26:47.220
a plain language instruction.

658
00:26:47.220 --> 00:26:50.160
<v ->Isn't some of the issues</v>

659
00:26:50.160 --> 00:26:53.340
that your opposing counsel is identifying

660
00:26:53.340 --> 00:26:54.870
with the word impact

661
00:26:54.870 --> 00:26:59.870
and it's breath solved by the proximate cause instruction?

662
00:27:02.760 --> 00:27:05.520
<v ->So looking at,</v>

663
00:27:05.520 --> 00:27:10.260
I think that the instruction as a whole makes clear

664
00:27:10.260 --> 00:27:13.740
what is necessary to find factual causation

665
00:27:13.740 --> 00:27:15.780
as well as proximate causation.

666
00:27:15.780 --> 00:27:19.170
It began with the defendant caused the injuries,

667
00:27:19.170 --> 00:27:23.040
if the injuries would not have occurred without that is,

668
00:27:23.040 --> 00:27:27.450
but for that defendant's negligence and then it goes on.

669
00:27:27.450 --> 00:27:31.320
I mean that is the overriding principle from dual

670
00:27:31.320 --> 00:27:32.730
and the jury got it.

671
00:27:32.730 --> 00:27:35.010
This jury didn't ask a question.

672
00:27:35.010 --> 00:27:37.020
This jury didn't have a problem, by the way,

673
00:27:37.020 --> 00:27:40.470
medical causation was not greatly in dispute.

674
00:27:40.470 --> 00:27:44.040
The only expert they heard on medical causation was ours

675
00:27:44.040 --> 00:27:46.410
who said there was medical causation.

676
00:27:46.410 --> 00:27:49.650
They wanna create this issue of,

677
00:27:49.650 --> 00:27:53.010
well, it's really Loucraft and not Hanlon.

678
00:27:53.010 --> 00:27:54.450
But the reality is,

679
00:27:54.450 --> 00:27:58.533
is that the causation proof was absolutely,

680
00:28:00.000 --> 00:28:03.690
this wasn't something where the facts would lead to,

681
00:28:03.690 --> 00:28:06.330
she might have had a slight impact on the outcome.

682
00:28:06.330 --> 00:28:11.160
The causation proof that Mr. Higgins got six ways to Sunday,

683
00:28:11.160 --> 00:28:13.200
including with Mr. Loucraft,

684
00:28:13.200 --> 00:28:16.020
is if she had delivered the information

685
00:28:16.020 --> 00:28:19.230
she was supposed to deliver to Mr. Loucraft,

686
00:28:19.230 --> 00:28:20.700
this wouldn't have happened.

687
00:28:20.700 --> 00:28:22.020
He wouldn't have been sent home.

688
00:28:22.020 --> 00:28:24.870
He would've been kept, he would've gotten an ultrasound.

689
00:28:24.870 --> 00:28:26.670
<v ->This is a he said,</v>

690
00:28:26.670 --> 00:28:28.533
she said case essentially.

691
00:28:29.490 --> 00:28:31.530
Wait, wait. She either gave the information,

692
00:28:31.530 --> 00:28:32.910
or didn't give the information?

693
00:28:32.910 --> 00:28:35.638
<v ->I think it was pretty undisputed that</v>

694
00:28:35.638 --> 00:28:37.077
she didn't give the answer.

695
00:28:37.077 --> 00:28:40.020
<v ->But that was the dispute.</v>
<v ->Fair.</v>

696
00:28:40.020 --> 00:28:42.090
And I do want to get to the high-low portion

697
00:28:42.090 --> 00:28:43.860
while I have time, if I may.

698
00:28:43.860 --> 00:28:45.990
But I'm happy to answer your question

699
00:28:45.990 --> 00:28:47.520
on that Justice Gaziano,

700
00:28:47.520 --> 00:28:50.550
but it really was not a close call on causation.

701
00:28:50.550 --> 00:28:51.960
It was factually,

702
00:28:51.960 --> 00:28:55.260
did she have responsibility to deliver that information?

703
00:28:55.260 --> 00:28:56.490
And once she did,

704
00:28:56.490 --> 00:28:59.040
the evidence was this would've been avoided

705
00:28:59.040 --> 00:29:01.353
and the amputation would not have occurred.

706
00:29:02.610 --> 00:29:04.080
On the high, if I may.

707
00:29:04.080 --> 00:29:06.120
On the high-low issue,

708
00:29:06.120 --> 00:29:10.320
this court has long favored settlements

709
00:29:10.320 --> 00:29:12.270
and tried to have policies

710
00:29:12.270 --> 00:29:14.940
that favor and encourage settlements.

711
00:29:14.940 --> 00:29:19.940
The use of high-low agreements,

712
00:29:20.010 --> 00:29:23.070
particularly in medical malpractice cases

713
00:29:23.070 --> 00:29:27.003
where damages can be quite substantial,

714
00:29:28.560 --> 00:29:32.790
has allowed parties to proceed to the verdict

715
00:29:32.790 --> 00:29:34.350
with each party to the settlement,

716
00:29:34.350 --> 00:29:38.340
maintaining their effort to win the case outright.

717
00:29:38.340 --> 00:29:39.900
And those have been widely used

718
00:29:39.900 --> 00:29:41.970
because it benefits everyone.

719
00:29:41.970 --> 00:29:45.123
I someone mentioned bracketing, I think Justice Kafker,

720
00:29:46.020 --> 00:29:49.950
this allows the plaintiff to guarantee some measure

721
00:29:49.950 --> 00:29:52.620
of compensation for what has happened for them.

722
00:29:52.620 --> 00:29:54.300
It allows the defendant

723
00:29:54.300 --> 00:29:58.693
to protect against seizure because the high level, which is-

724
00:29:58.693 --> 00:30:03.030
<v ->And incentivate the plaintiff to go after</v>

725
00:30:03.030 --> 00:30:06.850
the non-high-low settlement defendants, right?

726
00:30:06.850 --> 00:30:08.400
<v ->Well, that was just mentioned.</v>

727
00:30:08.400 --> 00:30:11.610
And with all due respect to Mr. McDonough,

728
00:30:11.610 --> 00:30:16.610
Mr. Luppold always had his sights on the nursing, always.

729
00:30:17.340 --> 00:30:19.500
He brought the case, he pursued the case.

730
00:30:19.500 --> 00:30:20.790
He wanted to win the case.

731
00:30:20.790 --> 00:30:24.420
Mr. Higgins said no fewer than five times,

732
00:30:24.420 --> 00:30:27.270
they're all responsible.

733
00:30:27.270 --> 00:30:29.730
The jury agreed as to three of the defendants.

734
00:30:29.730 --> 00:30:33.810
The jury thoughtfully acquitted a couple of the defendants.

735
00:30:33.810 --> 00:30:35.190
But the reality is,

736
00:30:35.190 --> 00:30:37.080
is there was no,

737
00:30:37.080 --> 00:30:40.200
someone said it, Mr. Luppold's incentive

738
00:30:40.200 --> 00:30:41.400
was to win the case.

739
00:30:41.400 --> 00:30:43.350
<v ->But when he changes,</v>

740
00:30:43.350 --> 00:30:46.680
the plaintiff changes his testimony from the deposition

741
00:30:46.680 --> 00:30:51.420
where he doesn't remember telling anything to Hanlon

742
00:30:51.420 --> 00:30:54.390
to suddenly remembering clearly at trial

743
00:30:54.390 --> 00:30:57.780
after the high-low that he specifically told her,

744
00:30:57.780 --> 00:31:00.033
what about the discoloration?

745
00:31:01.231 --> 00:31:02.460
<v ->There's actually nothing in the record</v>

746
00:31:02.460 --> 00:31:04.920
to say that that was after the high-low.

747
00:31:04.920 --> 00:31:07.050
And the record is unclear about that.

748
00:31:07.050 --> 00:31:11.940
That having been said, this was a plaintiff who explained

749
00:31:11.940 --> 00:31:15.720
to this jury that when crossed by,

750
00:31:15.720 --> 00:31:17.820
it's the one thing Mr. Kelly crossed on

751
00:31:17.820 --> 00:31:19.170
was that you said one thing

752
00:31:19.170 --> 00:31:22.110
and now you're saying that you remember this.

753
00:31:22.110 --> 00:31:24.270
What Mr. Luppold said is,

754
00:31:24.270 --> 00:31:25.200
it's been a long time,

755
00:31:25.200 --> 00:31:28.200
I see her in the court, I remember this.

756
00:31:28.200 --> 00:31:31.050
Jury could assess his credibility in that regard

757
00:31:31.050 --> 00:31:33.330
and did, I would suggest

758
00:31:33.330 --> 00:31:35.580
and they rendered their verdict to answer.

759
00:31:35.580 --> 00:31:37.320
<v ->It can go both ways.</v>

760
00:31:37.320 --> 00:31:39.570
I mean the presentation was,

761
00:31:39.570 --> 00:31:44.570
it only helps to enhance the incentive to point the finger.

762
00:31:46.110 --> 00:31:48.720
But doing that could also work against the person

763
00:31:48.720 --> 00:31:50.550
pointing the finger,

764
00:31:50.550 --> 00:31:52.440
where the jury could say

765
00:31:52.440 --> 00:31:55.440
you're trying to bury the other defendant.

766
00:31:55.440 --> 00:31:58.890
So there can be another component of tales to

767
00:31:58.890 --> 00:32:00.780
the high-low coming out as well.

768
00:32:00.780 --> 00:32:03.720
<v ->I maintain again from the second Mr. Higgins</v>

769
00:32:03.720 --> 00:32:05.190
gave his opening statement.

770
00:32:05.190 --> 00:32:07.320
The sites were on the nurses,

771
00:32:07.320 --> 00:32:10.050
they were also on Mr. Loucraft.

772
00:32:10.050 --> 00:32:12.330
And frankly that's why this case

773
00:32:12.330 --> 00:32:16.560
was such a clear cut case of responsibility.

774
00:32:16.560 --> 00:32:20.580
Mr. Higgins had the benefit of being able to say,

775
00:32:20.580 --> 00:32:22.350
look, the only person whose fault this

776
00:32:22.350 --> 00:32:24.660
isn't as Mr. Luppolds, he went,

777
00:32:24.660 --> 00:32:29.340
he reported certain important limb threatening conditions

778
00:32:29.340 --> 00:32:31.260
or symptoms I should say.

779
00:32:31.260 --> 00:32:34.980
And nobody assessed it. No one talked to each other.

780
00:32:34.980 --> 00:32:38.100
And he said it was Mr. Loucraft's responsibility

781
00:32:38.100 --> 00:32:40.380
and he said it was the nursing response.

782
00:32:40.380 --> 00:32:41.853
<v ->One thing I'm confused about,</v>

783
00:32:41.853 --> 00:32:46.080
does Mr. Loucraft do a physical examination

784
00:32:46.080 --> 00:32:47.177
of the plaintiff?

785
00:32:47.177 --> 00:32:50.070
Wouldn't he see that the foot is purple?

786
00:32:50.070 --> 00:32:51.240
I'm confused by this.

787
00:32:51.240 --> 00:32:54.840
<v ->The way that these cases are defended,</v>

788
00:32:54.840 --> 00:32:56.910
it can be confusing because

789
00:32:56.910 --> 00:32:59.430
what Mr. Loucraft talked an awful lot about is,

790
00:32:59.430 --> 00:33:02.970
well I don't remember this, but what my usual custom

791
00:33:02.970 --> 00:33:05.490
and practice would be to do is,

792
00:33:05.490 --> 00:33:08.250
well of course I looked at everything head to toe.

793
00:33:08.250 --> 00:33:11.130
His actual medical record, which you have,

794
00:33:11.130 --> 00:33:14.910
doesn't say anything about the feet.

795
00:33:14.910 --> 00:33:16.680
He interprets the medical record.

796
00:33:16.680 --> 00:33:19.140
The jury was free to accept his interpretation,

797
00:33:19.140 --> 00:33:20.940
reject his interpretation.

798
00:33:20.940 --> 00:33:23.010
But that record does not say,

799
00:33:23.010 --> 00:33:25.470
I looked at the foot, the foot is fine.

800
00:33:25.470 --> 00:33:28.410
It doesn't say the pulses on the foot is fine.

801
00:33:28.410 --> 00:33:30.570
It says something about the skin.

802
00:33:30.570 --> 00:33:32.730
It says something being warm.

803
00:33:32.730 --> 00:33:35.163
The skin, there's skin here too.

804
00:33:37.110 --> 00:33:39.630
There are pulses in the upper extremities too.

805
00:33:39.630 --> 00:33:43.500
There was nothing about the specific examination

806
00:33:43.500 --> 00:33:47.380
of the foot and the jury would be well

807
00:33:48.660 --> 00:33:53.193
within its province to believe that,

808
00:33:54.254 --> 00:33:55.830
since Mr. Loucraft had told them that

809
00:33:55.830 --> 00:33:58.530
he thought the whole issue was back pain,

810
00:33:58.530 --> 00:34:02.160
that had someone brought this critical information to him,

811
00:34:02.160 --> 00:34:04.800
you would've seen a heck of a lot more in that note

812
00:34:04.800 --> 00:34:06.420
about an examination of the foot.

813
00:34:06.420 --> 00:34:09.510
You would've had information that's now not there.

814
00:34:09.510 --> 00:34:12.360
They could've accepted that, they might not have.

815
00:34:12.360 --> 00:34:14.620
<v ->Was the argument that</v>

816
00:34:17.190 --> 00:34:21.390
Hanlon needed to cross examinee on the high-low

817
00:34:21.390 --> 00:34:26.390
because the plaintiff had changed his testimony

818
00:34:27.060 --> 00:34:30.780
to now point the finger more directly at her?

819
00:34:30.780 --> 00:34:33.328
Was that ever raised to the trial judge?

820
00:34:33.328 --> 00:34:34.161
<v ->It was not your Honor.</v>

821
00:34:34.161 --> 00:34:37.950
In fact, there was no suggestion at any time by Mr. Kelly

822
00:34:37.950 --> 00:34:42.930
that the high-low impacted Mr. Luppold's testimony.

823
00:34:42.930 --> 00:34:46.560
Mr. Kelly never asked to recall Mr. Luppold

824
00:34:46.560 --> 00:34:50.010
in light of this information about the high-low,

825
00:34:50.010 --> 00:34:53.730
as justice Kafker mentioned, it's not remotely clear

826
00:34:53.730 --> 00:34:57.060
what Mr. Kelly was telling the judge

827
00:34:57.060 --> 00:35:00.570
was the significance of the high-low as to bias.

828
00:35:00.570 --> 00:35:03.150
And if I may, the cases cited on our brief.

829
00:35:03.150 --> 00:35:04.020
Criminal cases,

830
00:35:04.020 --> 00:35:08.280
we can put aside whether cross-examination on biases

831
00:35:08.280 --> 00:35:10.320
is as important and civil as it is.

832
00:35:10.320 --> 00:35:13.140
It's important, do we do it all the time?

833
00:35:13.140 --> 00:35:16.920
But the reality is, is that the criminal cases,

834
00:35:16.920 --> 00:35:19.740
Commonwealth versus Bui, B-U-I,

835
00:35:19.740 --> 00:35:21.690
Common Commonwealth versus Sealy,

836
00:35:21.690 --> 00:35:23.400
Commonwealth versus Meas,

837
00:35:23.400 --> 00:35:28.400
each of them has facts that are absolutely consistent

838
00:35:28.590 --> 00:35:30.992
with what this judge did

839
00:35:30.992 --> 00:35:35.160
and they say this court has said multiple times,

840
00:35:35.160 --> 00:35:38.520
the proponent has to make a plausible showing

841
00:35:38.520 --> 00:35:41.880
of the bias that they're claiming

842
00:35:41.880 --> 00:35:45.120
in order for the judge to make a reasonable finding

843
00:35:45.120 --> 00:35:46.530
that they may have it.

844
00:35:46.530 --> 00:35:49.680
That's just basic trial law to suggest that

845
00:35:49.680 --> 00:35:51.240
there is no discretion-

846
00:35:51.240 --> 00:35:54.510
<v ->Without of voir dire or an offer of proof showing</v>

847
00:35:54.510 --> 00:35:57.720
that this is more like a Mary Carter agreement

848
00:35:57.720 --> 00:36:00.600
than a standard high-low agreement.

849
00:36:00.600 --> 00:36:04.650
And that the plaintiff has changed his testimony

850
00:36:04.650 --> 00:36:07.890
between the time of,

851
00:36:07.890 --> 00:36:11.040
he's first testified and later testified

852
00:36:11.040 --> 00:36:13.470
that the judge can't evaluate this

853
00:36:13.470 --> 00:36:15.180
in any meaningful way. Is that true?

854
00:36:15.180 --> 00:36:18.000
<v ->And to your point, the Colloquy consists</v>

855
00:36:18.000 --> 00:36:20.220
of Mr. Kelly saying two things.

856
00:36:20.220 --> 00:36:25.220
The absolutely, to me uninterpretable thing that says bias,

857
00:36:26.490 --> 00:36:29.850
whether you say into bias or not into bias.

858
00:36:29.850 --> 00:36:32.190
It doesn't clearly say why he thinks

859
00:36:32.190 --> 00:36:36.720
that high-low agreement is relevant to this case or to bias.

860
00:36:36.720 --> 00:36:38.670
And then he says he changed his testimony,

861
00:36:38.670 --> 00:36:41.850
'cause his company is in rehabilitation.

862
00:36:41.850 --> 00:36:44.250
He said bankruptcy, it was corrected,

863
00:36:44.250 --> 00:36:45.547
but specifically they said-

864
00:36:45.547 --> 00:36:49.350
<v ->Meaning the Loucraft's insurance company</v>

865
00:36:49.350 --> 00:36:50.310
is in rehabilitation.

866
00:36:50.310 --> 00:36:52.335
<v ->Correct.</v>
<v ->Right. Okay.</v>

867
00:36:52.335 --> 00:36:55.770
<v ->And with respect to change testimony,</v>

868
00:36:55.770 --> 00:36:58.620
the judge immediately says, hold on.

869
00:36:58.620 --> 00:37:02.250
He said the same things in the deposition.

870
00:37:02.250 --> 00:37:03.600
How did the judge know that?

871
00:37:03.600 --> 00:37:06.870
Because Mr. Higgins had crossed Mr. Loucraft already

872
00:37:06.870 --> 00:37:11.040
in the case and used his deposition extensively.

873
00:37:11.040 --> 00:37:13.350
It was three and a half years earlier,

874
00:37:13.350 --> 00:37:16.680
and he said the exact same things.

875
00:37:16.680 --> 00:37:21.540
You will not find any examination

876
00:37:21.540 --> 00:37:23.910
by Mr. Kelly of Mr. Loucraft

877
00:37:23.910 --> 00:37:27.150
where he brought one change

878
00:37:27.150 --> 00:37:28.680
to the attention of the jury

879
00:37:28.680 --> 00:37:32.640
simply as a prior inconsistent statement, not one.

880
00:37:32.640 --> 00:37:34.590
<v ->Apart from change testimony,</v>

881
00:37:34.590 --> 00:37:38.220
I am wondering what you would meet,

882
00:37:38.220 --> 00:37:42.120
what you would require the non-settling party

883
00:37:42.120 --> 00:37:44.160
to include in a proffer

884
00:37:44.160 --> 00:37:47.700
because they wouldn't know the terms of the high-low, right?

885
00:37:47.700 --> 00:37:48.990
What would be the mechanism

886
00:37:48.990 --> 00:37:51.600
by which they could make a proffer?

887
00:37:51.600 --> 00:37:54.420
<v ->It would honestly be, first of all,</v>

888
00:37:54.420 --> 00:37:57.030
there's nothing in the record to show he ever asked

889
00:37:57.030 --> 00:38:00.330
for any detail, frankly, about the high-low.

890
00:38:00.330 --> 00:38:01.350
It's not a Mary Carter.

891
00:38:01.350 --> 00:38:04.470
<v ->Would he be entitled to it if he had asked?</v>

892
00:38:04.470 --> 00:38:08.220
<v ->Certainly he can ask and the judge can inform as to,</v>

893
00:38:08.220 --> 00:38:09.450
and the judge can ask

894
00:38:09.450 --> 00:38:13.260
and neither of them asked for details related to it.

895
00:38:13.260 --> 00:38:15.990
In medical malpractice cases,

896
00:38:15.990 --> 00:38:18.480
and this may be why, you know,

897
00:38:18.480 --> 00:38:20.940
it's the high is usually the insurance coverage,

898
00:38:20.940 --> 00:38:25.020
the low is some low six figure number to be candid.

899
00:38:25.020 --> 00:38:29.220
And the verdict in between is the verdict in between.

900
00:38:29.220 --> 00:38:32.610
It's to bracket and to protect both parties.

901
00:38:32.610 --> 00:38:34.740
<v ->We can't judge that,</v>

902
00:38:34.740 --> 00:38:37.080
you're speculating as far as we're concerned,

903
00:38:37.080 --> 00:38:39.150
you're just guessing too, 'cause we don't know.

904
00:38:39.150 --> 00:38:40.650
Well we don't have,

905
00:38:40.650 --> 00:38:42.426
it's not in our record with this high-low.

906
00:38:42.426 --> 00:38:43.259
<v ->It's not in your record.</v>

907
00:38:43.259 --> 00:38:45.270
And that's because it was never heard, never asked.

908
00:38:45.270 --> 00:38:47.867
<v Gaziano>It would ake sense, that's where the high is.</v>

909
00:38:47.867 --> 00:38:49.650
<v ->Right, that's the whole point.</v>

910
00:38:49.650 --> 00:38:50.520
That's why they're done.

911
00:38:50.520 --> 00:38:54.167
That's why not only do plaintiffs like it,

912
00:38:54.167 --> 00:38:56.520
'cause they guarantee some compensation.

913
00:38:56.520 --> 00:38:58.530
They get to leave the justice system.

914
00:38:58.530 --> 00:39:01.410
Whatever happens feeling that they had a measure

915
00:39:01.410 --> 00:39:03.480
of compensation for their injury.

916
00:39:03.480 --> 00:39:05.124
Defendants like it,

917
00:39:05.124 --> 00:39:09.690
'cause they get to not have their home subject to seizure.

918
00:39:09.690 --> 00:39:12.780
Insurance companies like it because they get to go to trial

919
00:39:12.780 --> 00:39:14.940
and see if they in fact win

920
00:39:14.940 --> 00:39:17.160
without taking that risk of their insured.

921
00:39:17.160 --> 00:39:17.993
Everyone likes it.

922
00:39:17.993 --> 00:39:20.125
You solicited amicus isn't brief

923
00:39:20.125 --> 00:39:21.360
and you didn't get any counsel in the insurance.

924
00:39:21.360 --> 00:39:23.370
<v ->Doesn't it work especially well</v>

925
00:39:23.370 --> 00:39:26.220
because they can be guaranteed of a low,

926
00:39:26.220 --> 00:39:28.530
they can be guaranteed of some sort of recovery of plaintiff

927
00:39:28.530 --> 00:39:30.600
and then they can go after

928
00:39:30.600 --> 00:39:32.973
the other non-settling co-defendant,

929
00:39:33.870 --> 00:39:35.880
full bore and focus on the person

930
00:39:35.880 --> 00:39:37.410
who has not reached a settlement

931
00:39:37.410 --> 00:39:39.510
and then also have, you know,

932
00:39:39.510 --> 00:39:44.510
potentially an unleashed helper in that regard

933
00:39:44.610 --> 00:39:46.740
in the form of a co-defendant who has settled

934
00:39:46.740 --> 00:39:51.740
and who therefore can, you know, be helpful.

935
00:39:51.990 --> 00:39:54.330
<v ->So that's important because</v>

936
00:39:54.330 --> 00:39:57.810
Mr. Loucraft was not an unleashed helper

937
00:39:57.810 --> 00:40:00.510
because A, he said things three and a half years earlier,

938
00:40:00.510 --> 00:40:01.650
no change.

939
00:40:01.650 --> 00:40:04.590
But also when you read the transcript,

940
00:40:04.590 --> 00:40:07.140
you will see he was not easy

941
00:40:07.140 --> 00:40:10.110
with Mr. Higgins on day one of his testimony.

942
00:40:10.110 --> 00:40:13.680
And he was equally not easy with Mr. Higgins

943
00:40:13.680 --> 00:40:15.540
on day two of his testimony.

944
00:40:15.540 --> 00:40:17.640
As to his own responsibility,

945
00:40:17.640 --> 00:40:20.670
what didn't change at all between the two

946
00:40:20.670 --> 00:40:22.440
was what he said about the nurses.

947
00:40:22.440 --> 00:40:26.400
Simply I would expect them to provide that information

948
00:40:26.400 --> 00:40:29.580
to me as the provider because it's so important.

949
00:40:29.580 --> 00:40:33.000
<v ->So at a minimum for a proffer,</v>

950
00:40:33.000 --> 00:40:35.400
the defendant or the person trying to seek

951
00:40:35.400 --> 00:40:38.310
to put in the high-low would have to show

952
00:40:38.310 --> 00:40:40.620
that the non-settlement,

953
00:40:40.620 --> 00:40:43.620
that the settlement party is helping out

954
00:40:43.620 --> 00:40:46.743
in some way the plaintiff.

955
00:40:47.850 --> 00:40:52.290
<v ->So there has to be some reasonable basis for the bias.</v>

956
00:40:52.290 --> 00:40:55.260
And the high-low itself doesn't provide it.

957
00:40:55.260 --> 00:40:58.020
He's insulated now, he doesn't-

958
00:40:58.020 --> 00:40:59.160
<v ->But that would be-</v>
<v ->The notion.</v>

959
00:40:59.160 --> 00:41:01.320
<v ->That would be indicative</v>

960
00:41:01.320 --> 00:41:04.110
or change testimony would be indicative of that.

961
00:41:04.110 --> 00:41:07.080
<v ->It could be except there was none, but-</v>

962
00:41:07.080 --> 00:41:08.040
<v ->Right.</v>

963
00:41:08.040 --> 00:41:09.360
I'm talking about a case

964
00:41:09.360 --> 00:41:11.220
where we're trying to set parameters here

965
00:41:11.220 --> 00:41:14.335
and I'm trying to figure out where the parameters are,

966
00:41:14.335 --> 00:41:17.280
where the judge abuses his, her discretion in this area.

967
00:41:17.280 --> 00:41:18.990
<v ->Yeah, and just one thing if I may,</v>

968
00:41:18.990 --> 00:41:22.290
because the briefing I guess doesn't fully cover it.

969
00:41:22.290 --> 00:41:25.110
Mr. McDonough, for the first time in the brief on appeal,

970
00:41:25.110 --> 00:41:28.170
it was never raised before to the trial judge or otherwise.

971
00:41:28.170 --> 00:41:30.000
He raised the concept of,

972
00:41:30.000 --> 00:41:33.240
well now Mr. Luppold,

973
00:41:33.240 --> 00:41:36.480
I'm sorry Mr. Loucraft can have the benefit of the high

974
00:41:36.480 --> 00:41:39.330
and he can seek contribution

975
00:41:39.330 --> 00:41:41.970
from the non-settling defendants.

976
00:41:41.970 --> 00:41:44.910
With all due respect, as these agreements go,

977
00:41:44.910 --> 00:41:48.060
as has been noted, this is about the insurance coverage

978
00:41:48.060 --> 00:41:49.320
that he gets capped on.

979
00:41:49.320 --> 00:41:54.090
He's not paying a dime, he doesn't have contribution rights

980
00:41:54.090 --> 00:41:58.590
because anything that he didn't pay that's paid by a carrier

981
00:41:58.590 --> 00:42:01.140
is subrogated to the right of the insurance company.

982
00:42:01.140 --> 00:42:02.010
So consider what is-
<v ->But we don't have</v>

983
00:42:02.010 --> 00:42:04.260
any of that in the record, right? We don't know.

984
00:42:04.260 --> 00:42:07.620
<v ->No, because frankly, there's no evidence to suggest</v>

985
00:42:07.620 --> 00:42:11.067
that contribution had anything to do anything.

986
00:42:11.067 --> 00:42:13.759
<v ->Can I go back to Justice Gaziano's question, which,</v>

987
00:42:13.759 --> 00:42:15.600
and this is really about this issue in general

988
00:42:15.600 --> 00:42:17.373
and not the specifics of this case.

989
00:42:19.350 --> 00:42:21.960
Do we, is there another context in which in order

990
00:42:21.960 --> 00:42:23.550
to cross examinee on bias,

991
00:42:23.550 --> 00:42:28.550
we require a proffer essentially to cross examinee on bias?

992
00:42:29.400 --> 00:42:33.240
<v ->So your cases of the cases of this court that I mentioned,</v>

993
00:42:33.240 --> 00:42:38.207
Commonwealth versus Bui, Commonwealth versus Meas, M-E-A-S,

994
00:42:39.300 --> 00:42:41.040
Commonwealth versus Sealy,

995
00:42:41.040 --> 00:42:46.040
each of them have facts that essentially indicate that

996
00:42:47.670 --> 00:42:50.940
voir dire not only is appropriate,

997
00:42:50.940 --> 00:42:53.340
but was done in some of those cases,

998
00:42:53.340 --> 00:42:56.160
or could have been done and wasn't as a factor

999
00:42:56.160 --> 00:43:00.000
that they found was a good reason why they didn't need

1000
00:43:00.000 --> 00:43:04.110
to reverse the exclusion of the bias testimony.

1001
00:43:04.110 --> 00:43:07.530
But they also all say

1002
00:43:07.530 --> 00:43:11.190
that there must be a plausible showing of alleged bias

1003
00:43:11.190 --> 00:43:13.470
with factual basis for support

1004
00:43:13.470 --> 00:43:16.710
in order to allow you into that inquiry.

1005
00:43:16.710 --> 00:43:21.210
And frankly the judge has discretion in assessing

1006
00:43:21.210 --> 00:43:23.760
that plausible showing.

1007
00:43:23.760 --> 00:43:26.550
There just was none of any kind

1008
00:43:26.550 --> 00:43:28.890
and the judge was right on it saying,

1009
00:43:28.890 --> 00:43:31.560
he said the same thing before the high-low as he did after.

1010
00:43:31.560 --> 00:43:33.380
So what are we talking about?

1011
00:43:33.380 --> 00:43:35.470
<v ->So is your argument in essence that</v>

1012
00:43:36.510 --> 00:43:40.050
a high-low agreement is not per se sufficient

1013
00:43:40.050 --> 00:43:40.920
in such a voir dire,

1014
00:43:40.920 --> 00:43:43.170
just the existence of a high-low is not sufficient,

1015
00:43:43.170 --> 00:43:46.170
but that if there were additional indicia

1016
00:43:46.170 --> 00:43:49.350
on top of a high-low, that could be sufficient?

1017
00:43:49.350 --> 00:43:54.030
<v ->Obviously if there is some good faith basis</v>

1018
00:43:54.030 --> 00:43:56.580
as to the bias, if it's made to the judge

1019
00:43:56.580 --> 00:44:00.990
and the judge in his discretion allows the inquiry,

1020
00:44:00.990 --> 00:44:04.200
that would be a very different case from these facts.

1021
00:44:04.200 --> 00:44:09.200
<v ->Right, so for example, if he had said at his deposition,</v>

1022
00:44:09.750 --> 00:44:14.750
Hanlon did not tell me anything or the opposite,

1023
00:44:15.570 --> 00:44:18.180
Hanlon told me about the note

1024
00:44:18.180 --> 00:44:22.020
and then at trial day two he says she didn't.

1025
00:44:22.020 --> 00:44:24.480
Well then you could get into the high-low?

1026
00:44:24.480 --> 00:44:25.830
<v ->If the offer is made,</v>

1027
00:44:25.830 --> 00:44:28.880
and the judge, this is very similar to the-

1028
00:44:28.880 --> 00:44:30.480
<v Kafker>Is there another possible way,</v>

1029
00:44:30.480 --> 00:44:31.410
<v ->Sorry.</v>
<v ->which is,</v>

1030
00:44:31.410 --> 00:44:33.180
he falls on his sword

1031
00:44:33.180 --> 00:44:35.160
and doesn't he fall on his sword a little bit here?

1032
00:44:35.160 --> 00:44:38.370
Loucraft takes on more responsibility

1033
00:44:38.370 --> 00:44:40.550
in his later statements. He doesn't do that?

1034
00:44:40.550 --> 00:44:42.300
<v ->He does not. He actually,</v>

1035
00:44:42.300 --> 00:44:45.810
he fights Mr. Higgins on his responsibility in both days,

1036
00:44:45.810 --> 00:44:47.340
day one and day two.

1037
00:44:47.340 --> 00:44:52.340
And frankly, you know,

1038
00:44:52.350 --> 00:44:53.790
I do want to clarify,

1039
00:44:53.790 --> 00:44:56.160
he makes certain admissions due to

1040
00:44:56.160 --> 00:44:59.070
skillful cross-examination using a deposition

1041
00:44:59.070 --> 00:45:00.720
from three and a half years earlier.

1042
00:45:00.720 --> 00:45:02.850
<v ->I thought you with in your closing,</v>

1043
00:45:02.850 --> 00:45:04.890
if you were the trial counsel said,

1044
00:45:04.890 --> 00:45:08.820
and Mr. Loucraft stepped up and took responsibility,

1045
00:45:08.820 --> 00:45:10.950
meaning he fell on his sword a little bit.

1046
00:45:10.950 --> 00:45:15.950
<v ->Well, look, he had a navy veteran as a witness</v>

1047
00:45:17.850 --> 00:45:21.450
who was very different as a witness

1048
00:45:21.450 --> 00:45:24.060
than the nurses in terms of credibility.

1049
00:45:24.060 --> 00:45:26.400
Nurse Hanlon was an abject of that disaster,

1050
00:45:26.400 --> 00:45:28.680
was never called back by Mr. Kelly

1051
00:45:28.680 --> 00:45:30.633
to defend herself in a direct,

1052
00:45:31.860 --> 00:45:34.950
never addressed the second day of ER care she delivered,

1053
00:45:34.950 --> 00:45:35.783
not once.

1054
00:45:36.660 --> 00:45:40.743
But in his closing, Mr. Higgins merely said,

1055
00:45:41.670 --> 00:45:45.210
look, did Mr. Loucraft stand there

1056
00:45:45.210 --> 00:45:47.610
and admit when I asked him

1057
00:45:47.610 --> 00:45:50.520
that he should have read the triage,

1058
00:45:50.520 --> 00:45:52.530
that he fell below the standard of care?

1059
00:45:52.530 --> 00:45:54.840
Yeah, he did. And that's refreshing.

1060
00:45:54.840 --> 00:45:58.410
But let's talk about what you got out of the co-defendants.

1061
00:45:58.410 --> 00:46:01.260
This is done all the time in malpractice trials.

1062
00:46:01.260 --> 00:46:05.310
You take something that is said that helps you

1063
00:46:05.310 --> 00:46:08.615
and you point out that the co-defendant

1064
00:46:08.615 --> 00:46:10.830
is not the same way.

1065
00:46:10.830 --> 00:46:12.000
He always said,

1066
00:46:12.000 --> 00:46:13.830
and this has been noted to be important

1067
00:46:13.830 --> 00:46:17.610
in other decisions, the ones that I mentioned.

1068
00:46:17.610 --> 00:46:21.780
He always said, but I'm not letting him off the hook.

1069
00:46:21.780 --> 00:46:24.257
He is responsible for this care.

1070
00:46:24.257 --> 00:46:26.760
And he was found responsible.

1071
00:46:26.760 --> 00:46:29.760
The courts that have decided these issues

1072
00:46:29.760 --> 00:46:34.293
where bias has been restricted, many of them say,

1073
00:46:35.460 --> 00:46:38.400
and there was other evidence

1074
00:46:38.400 --> 00:46:42.030
of the person's liability from other sources

1075
00:46:42.030 --> 00:46:44.010
to support the verdict.

1076
00:46:44.010 --> 00:46:47.912
The trial judge in post-trial motion said her liability was,

1077
00:46:47.912 --> 00:46:50.430
he had it seven different ways from Sunday.

1078
00:46:50.430 --> 00:46:53.070
He didn't say it that way, he said it in a way

1079
00:46:53.070 --> 00:46:54.570
that was similar to that,

1080
00:46:54.570 --> 00:46:57.630
her liability was apparent all over the place.

1081
00:46:57.630 --> 00:47:01.560
And so there is no basis to reverse this civil case

1082
00:47:01.560 --> 00:47:03.030
given the offer that was made,

1083
00:47:03.030 --> 00:47:05.640
the reasonable discretion of the judge,

1084
00:47:05.640 --> 00:47:09.630
the reasonable limitation when the general rule

1085
00:47:09.630 --> 00:47:12.183
is that these things are not admitted.