DES MOINES, Iowa (Legal Newsline) - Iowa's highest court has struck a nearly $100 million verdict in favor of a family who blamed doctors for a baby's brain injuries, and its chief justice delivered a smackdown of the plaintiffs' lawyer for ridiculing the defendants' arguments to the jury.
Justice David May and others on the Supreme Court on Nov. 8 found fault in the trial judge allowing jurors to see an insert that comes with the Mityvac obstetrical vacuum delivery system and instructs on when the product should not be used.
The insert also contains statements about what harms could happen, and Johnson County District Judge Kevin McKeever permitted the plaintiffs to introduce it as evidence. The result was a $97.4 million verdict.
But the insert violates hearsay rules, the Supreme Court found in reversing the verdict and remanding for a new trial.
"It is the manufacturer's written statements about when the vacuum should not be used ('contraindications') and what harms could result from its use (adverse events')," May wrote.
"Those written statements were made outside of the 'trial or hearing' at which they were offered. And those statements were offered by the plaintiff 'to prove the truth of the matter asserted' in the statements.
"So, those statements fall within the definition of hearsay."
The suit was brought on behalf of S.K., the child. His mother was admitted to Mercy Hospital in Iowa City in August 2018 to deliver.
A doctor used forceps twice but was unsuccessful, so he went to the vacuum. S.K.'s skull was fractured, causing a brain injury, it was alleged.
S.K. spent 46 days at the hospital. Experts at trial debated what actually caused brain damage, which will allegedly require him 24-hour custodial care for the rest of his life. Plaintiffs said a failure to address the mother's low blood pressure caused her son a lack of blood and oxygen, then misuse of the forceps led to a fracture of his skull. Additional trauma came from the vacuum, they said.
The defendants said the injuries were caused by the labor and not the result of any negligence on their part. They made several arguments on appeal that weren't discussed by the Supreme Court because it first agreed with their objection to the vacuum insert.
"The package insert itself says that its instructions are just 'general guidelines' for using the vacuum," May wrote.
"The package insert says nothing about the specific facts of this case. And so the insert was not superior to the testimony of the plaintiff's actual experts, who addressed the same general topics as the insert but who provided superior evidence because (1) they could address the specific facts of S.K.'s birth and (2) they were subject to cross-examination."
Of note in the ruling is a concurring opinion by Chief Justice Susan Christensen. She addressed the defendants' argument the verdict should be struck because of outrageous behavior by well-known plaintiffs lawyer Geoffrey Fieger.
His conduct resulted in at least seven motions for mistrial that were all denied. Christensen said he was "uncivil and disrespectful to his opposing counsel and the presiding judge."
She focused on his closing argument and said it broke the Rules of Professional Conduct.
“[Dr. Goodman] just stood up here two minutes ago and said the heart rate was always fine. They’ll say anything. They’ll literally come up here, they’ve got a script," was one of the statements Christensen took issue with.
He also repeatedly disparaged the defense and insinuated their arguments were completely unfounded, Christensen said. Those statements made by him include:
• “I told you the evidence that you heard and I kept my promise. And I kept my promise. And on the other side I got the most fantastical story that anybody could ever hear that in real life not one single doctor or hospital accepts as true.”;
• “By coming up with such preposterous defenses. It reveals, really, the total lack of a defense in this case, and the total lack -- an admission, really, of how bad it really is.”;
• “Now in real life, in real life here, here in this -- [S.K.’s] case, no one in real life, in real time who has ever seen [S.K.] in life has ever accepted this nonsensical defense that’s been offered in this case.”;
• “I don’t like to give it lip service because when you start repeating a falsehood enough times, some people start to believe it. It’s a method of propaganda, by the way.”; and
• “And if you believe that, then I’ve got a bridge to sell you in Brooklyn.”
"The examples above are just a sample of the disparaging remarks Fieger made about the defense's case," Christensen said.
"He routinely offered his personal opinions on the defense's arguments and mocked the idea that a jury could possibly find the defense truthful. This kind of rhetoric paints attorneys in a poor light.
"Attorneys may be zealous advocates while at the same time being respectful of the other side. Fieger's statements in his closing argument undermined the role of the defense in this trial and disrespected the counsel making the arguments."
Other statements urging the jurors to punish the defendants encouraged them to act outside their duties, the chief justice wrote.