Advocates Forum
June 12, 2006
Participants:
Howard Stevens, Stevens and Johnson
Frederick Stellato, Tallman, Hudders & Sorrentino
John McGreevey, Kilcoyne & Nesbit, LLC.
Background:
The parties settled with the plaintiff and agreed to arbitrate the respective apportionment of liability between a hospital and two physicians. Each had separate counsel. Robert A. Creo was retained to act as sole arbitrator to issue a final and binding arbitration decision. The amount of the settlement was not disclosed to the arbitrator. The arbitrator was not informed of insurance levels nor the identity of any carriers. The parties agreed that there would be no live testimony and that the existing medical records, expert reports and depositions would constitute the evidentiary record. This was submitted to the arbitrator prior to counsel arguing the case orally on June 12, 2006. The issue was which of the defendants were negligent. Causation was not an issue. An award issued on June 15, 2006.
Howard Stevens: There are substantial benefits of apportionment arbitration. The potential of risk of larger general verdict is avoided. Parties have a fixed maximum liability. A trial forum restricts the ability to argue against other defendants for fear that jury would be tainted by the finger-pointing by defendants to each other.
Frederick Stellato: It would have made plaintiff’s case easy since plaintiff counsel would just point to defense experts to support aspects of their own experts. A case would be made against someone or defense would have to cooperate to preclude an expert critical of other defendants.
Although a good causation argument on the main item of damages exists in the case, the concern was that negligence issue conflicts would detract from the causation contentions. The jury would not be able to assess the causation issue in light of all the cross-accusations by the defendants.
John McGreevey: The causation argument would be lost or not believed with all the information overload.
Frederick Stellato: The credibility of the lawyer is also on trial. If the lawyer is not believed on one aspect of the case, the jury may not believe him or her on another point.
Howard Stevens: False in one, false in all.
John McGreevey: Arbitration is a major expense savings.
Howard Stevens: There are substantial savings of professional time for the health care providers. The personnel from the hospital and the doctors make more money by working than being in court.
Frederick Stellato: It is more important to practice medicine than attend court or even an arbitration process.
John McGreevey: Physicians have personal liability threats eliminated. In many ways the arbitration process liquidates damages within an acceptable range of risk.
Frederick Stellato: There are benefits of having a professional arbitrator from outside of the venue. The arbitrator is not involved with counsel or the parties on other cases.
Howard Stevens: I cannot accept someone active in advocacy practice who has past, present and future relationships with the parties or counsel in a representational capacity. There is a concern that there may be an appearance that the advocate is seeking future business from one of the parties or their insurance carriers.
John McGreevey: There is no question of the need for a professional with substantial medical malpractice experience. This limits the pool of people from any one area.
Howard Stevens: Arbitrator is experienced enough to read and understand the expert reports. The arbitrator can accept portions of these reports and give them due weight. This is more difficult for juries.
John McGreevey: The best method is for arbitrator to review all file documents and all information ahead of time. The arbitrator is then ready for the arbitration.
Frederick Stellato: The hearing can be scheduled at times convenient for counsel and the parties.
Howard Stevens: I have never slept the night before first day of a jury trial. I reread all documents the day before the start of the trial. But in arbitration I sleep the night before. This lack of stress and ability to be physically comfortable is a huge benefit of arbitration over jury trials.
John McGreevey: Part of the difficulty of a jury trial is making sure that the fact-finder has all of the information before deliberating. The jury cannot ask questions but the arbitrator can, so you know the information is being heard and understood before the process is over. The ability of the arbitrators to ask questions is a huge advantage for the advocate.
Frederick Stellato: Arbitrators get to see more evidence and experts by not having the plaintiff participate in the arbitration process. An advocate is able to bring all information into the record for consideration. The arbitrator can read the entire deposition and the entire medical record.
John McGreevey: Counsel does not have to take the time to explain the basic issues and how medicine and the health care system operate.
Frederick Stellato: Counsel does not have to fit every piece of information into the closing arguments. He or she can shortcut the arguments based upon common experience and knowledge.
