Almost five months to the day after a mistrail was declared in Crewcut Charlie Weis' wildly colorful malpractice lawsuit against Massachusetts General doctors Charles Ferguson and Richard Hodin, the parties are set to return Monday to Suffolk Superior Court.
Fourteen jurors were chosen Friday to hear the retrial. Weis did not attend the jury selection.
The first trial ended Feb. 20 in stunning fashion, when juror Anthony Perry collapsed while listening to testimony. Ferguson and Hodin rushed to Perry's aid and Judge Charles Spurlock called a mistrial.
Once again, we are going to offer gavel-to-gavel coverage, with a daily report on developments followed by expert analysis. To get us started, we once again welcome attorney Tom Kirkendall, right, whose site Houston's Clear Thinkers is one of the best reads on the Internet.
First a disclaimer: Although Kirkendall's field of expertise is business litigation and he is not familiar with applicable Massachusetts law regarding medical malpractice liability and damages, he brings an important perspective to all of this: He's a big college football fan. Nonetheless, he humbly writes: "My comments about the case should be taken with those substantial grains of salt in mind."
Here is what he has to say about Weis teeing it up for another try:
"The fact that the Weis case is being re-tried illuminates quite a bit about the probable status of the case. As in most lawsuits, financial interests on each side of the case that have considerable risk in the outcome are probably calling the shots in regard to whether the case settles or goes to trial. In this particular case, those interests are likely Weis' lawyers and the insurers that insured the defendant doctors.
"Weis' lawyers probably took the case on a contingency fee basis. Thus, they will not make any money for their expenditure of time and resources on the case unless they obtain and recover a judgment for damages. Consequently, unless the insurers have placed a substantial settlement offer on the table, there is little downside for Weis and his counsel to take a flyer on a re-trial.
"On the other hand, the insurers are attempting to resolve the case in a manner that minimizes the amount of money that they will have to pay on the claims that Weis has made against the doctor-insureds. In all likelihood, the doctors have little financial skin in the game (other than the adverse publicity from the lawsuit and the trials) because they have probably directed the insurers (behind the scenes, of course) to settle the case within the financial limits of the doctors' insurance policies.
"Under the law of many states, when an insured makes such a "settlement demand" on the insurer, the insurer has two options. First, the insurer can simply go ahead and settle the case within policy limits if the plaintiff is willing to accept such a settlement, which is usually the case. Or, if the insurer believes that it can do better financially than settling the claim by attempting to minimize or zeroing out the claim at trial, then the insurer can take its chances and defend the insured at trial.
"However, if the insurer elects to take the risk that it can do better at trial than settling the case, then the insurer usually has to protect (i.e., indemnify) the insured from the risk of a bad result at trial — i.e., a judgment that is more than the limits of the insured's insurance policy that, absent such an indemnity, would require the insured to come out of pocket to pay the portion of the judgment that is in excess of the amount of the insured's insurance policy.
"So, in short, if the insurer can settle the case within policy limits, but chooses instead to take the risk of trial and a judgment in excess of its insured's policy limits, then the insurer has to pay the entire judgment — not just the amount of its policy — if the plaintiff hits a home run (i.e., a judgment in excess of the insurance policy limits) at trial.
"I suspect that the foregoing considerations are driving the retrial in the Weis case. The insurers believe that the doctors have a strong case in defense of Weis' claims. Thus, in the insurers' view, the financial spread is probably too large between the amount of Weis' current settlement demand and the amount of a judgment that the insurers think is probable after a retrial. Accordingly, the insurers are willing to take what they perceive to be the relatively small risk of a judgment for damages in excess of the doctors' insurance policies in order to take a good shot at doing considerably better financially than what they could achieve in settling the case before the retrial.
"Beyond those considerations, retrials are always interesting because both sides have already had a test run before a jury to determine what works and what doesn't. As a result, retrials are usually more streamlined than the first trial and the presentations are generally sharper and more focused.
"The legal case has not changed from the first trial. The key issue remains whether the doctors' actions caused Weis' post-operation problems and, if so, whether the doctors' actions were of quality that were beneath the standard of care for doctors performing such procedures in the Boston area. Given that the surgeon-defendants are indisputably quality doctors (one is on the faculty of Harvard Medical School), an important consideration during the trial will be the quality of Weis' expert witness on the issue of the doctors' standard of care. It's not easy to find a credible expert witness to testify against prominent doctors unless the doctors really did something wrong.
"Nevertheless, as noted in my post before the first trial, the politics of the case tend to favor Weis and politics often trump legal issues in this type of case. That's why courtroom dynamics such as the way the judge and lawyers handle the trial and the makeup of the jury often determine the outcome. Thus, although the doctors would appear to have a strong case in defense of Weis' malpractice claims, the glare from the diamonds in those multiple Super Bowl rings on the fingers of some of the plaintiff's witnesses has a way of obscuring even the clearest legal issue."