Here is a Florida appellate court decision that may help with that.

During jury selection, Okaloosa County Circuit Court Judge William F. Stone refused to excuse for cause one of the jurors who Seadler flagged as biased. This meant Seadler was forced to use one of his three peremptory challenges to toss the problematic juror, the justices’ opinion said. Seadler was ultimately forced to accept a different juror he didn’t want and would have removed if he only had that challenge, the opinion said.

Read more at: https://www.law360.com/personal-injury-medical-malpractice/articles/1779945?nl_pk=029cff45-637f-44e3-babf-75563f8e0bfd&utm_source=newsletter&utm_medium=email&utm_campaign=personal-injury-medical-malpractice&utm_content=2023-12-22&read_main=1&nlsidx=0&nlaidx=5?copied=1

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… although acute medical care presents myriad risks to patient safety, there is no category for devices designed to preserve that safety.

Why We Need a New Category for Safety Devices

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If offended, keep in mind the standard of proof you may be required to meet. You don’t want a judge making a finding like this in your case

Grayson literally seeks costs related to securing a job he does not want. Under no construction of the law does this amount to a compensable damage. Accordingly, Mr. Heller’s expert opinions fail to satisfy the third prong of the Daubert analysis.

The most important thing to know is that if you are a public figure, you don’t get much protection. Celebrities and famous people in America have to overcome a high standard of proof, especially against the news. Donald Trump famously lost his libel claim against Bill Maher based upon Maher’s claim that his biological parents were monkeys. Back in February, I noted this same problem in a post about Sarah Palin’s case against the New York Times (the link is here (Malice In Wonderland).

Don’t confuse British libel verdicts with American cases – the rules are different in the UK. Maybe they should be given the bloodlust in those papers.

Private persons (not celebrities) have an invasion of privacy (IOP) claim. These are easier to prove and come in different flavors. The links to the reports of my IOP case are found here: Doe v. Beasley Broadcast Group.

The news on good evidence of libel (as opposed to invasion of privacy) and the case filed by Alan Grayson mentioned above comes from Volokh’s excellent blog

The Volokh Conspiracy: Expert Witnesses in a Libel Case

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I have extensive experience litigating and trying birth-related injury cases.

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Empty prayer, empty mouths combien reaction
Empty prayer, empty mouths talk about the passion
Not everyone can carry the weight of the world
Not everyone can carry the weight of the world

REM, Talk About The Passion

In pursuit of my clients’ cases, I have risked everything: financial ruin (investing everything I had in a case when I first went out on my own), sanction by a judge who felt I was overstepping (I was not – now retired, he was forced to recuse himself from all of my cases without sanctioning me) and unseemly amounts of time chasing leads (discovery) to maximize my clients’ recoveries (including chasing impaired healthcare practitioners across all ends of the country as they tried to evade justice). This is the story of one of those cases.

As I’ve written on this blog many times using countless examples, the life of a personal injury trial lawyer (a good one) is not for the feint of heart. It requires a certain dedication.

Before moving – more like escaping – to Florida, James D’Amico was a licensed dentist in Connecticut and New York. He wasn’t the first or last outlaw to come to Southwest Florida to hide out near the Everglades in an effort to evade authorities. In the Killing of Mr. Watson trilogy of books written by Peter Matthiessen (compiled more recently into one work called Shadow Country) the Pulitzer Prize winning writer explores the long history of Chokoloskee and The Swamp as a den of displaced thieves, murderers, cutthroats, poachers and other notorious characters. Turns out, dense mangroves and abandoned Indian shell mounds make for decent hiding places. Just ask the boat people and community of shrimpers who made up the Square Grouper community working around Ted Smallwood’s store in Everglades City. If sufficiently motivated to brave the extreme elements, there’s plenty of money and trouble to made in The Swamp.

In any case, D’Amico got caught up north writing himself prescriptions in his patient’s names. It was not a complicated or well executed scheme. Nor was it small. His habit was large and vicious enough that by the time the Connecticut authorities caught up with him the case for licensure death penalty was sure and swift. Unpersuaded, D’Amico immediately moved to New York to feed his habit – using the same clumsy and open scheme. Of course, he was caught almost immediately and suffered the same fate.

This time, perhaps feeling his luck had run out in the Northeast and so following in the tradition of Ed Watson and other outlaws – he sought refuge in The Swamp Florida. He was almost immediately arrested buying rocks of crack in Fort Pierce. Did Florida’s Board of Dentistry do anything? Of course not. Because … Florida. Noting his history and the screeching car wreck of his getaway from the scene of his crimes – Florida’s DPR focused on his rehabilitation without limiting his license to practice on patients. He was put into the Physicians Recovery Network to work through his “issues”.

Meanwhile, having set up shop in Fort Myers, Dr. D’Amico was busy establishing a new way of operating on dental patients. According to staff I deposed, he would sedate his patient and then lock himself in his office with a vial of injectable Demerol from his narcotics cabinet kept in his desk drawer. Usually, his office manager and girlfriend was locked in there with him. After a half hour or so, according to his nurses who would be waiting in his OR, D’Amico would come out of his office to perform the surgery. None of his staff ever reported this activity but the medical offices where he rented space routinely evicted him, suggesting it was an open secret – causing him to change his address every six months to a year.

My client was one of the patients unwittingly victimized during this crime spree disguised as dental care. During a relatively routine implant procedure, he fractured her jaw and severed the nerve that runs along it. This led to a stroke-like affect, making it impossible to move one side of her face – smiling, speaking fluently, drinking, eating safely …  all of these were permanently ruined.

During our work identifying witnesses and evidence, my investigator ran across a local oral and maxillofacial surgeon in town (the dean of our local community). He happened to live across the street from me so I was able to coax an informal meeting with him that led to a deposition about a lunch he had called with D’Amico. As he explained it (very vaguely), he was aware of certain “problems” with D’Amico’s practice. “Did you call the authorities?”, I asked. “Heavens, no.” came the reply. As ever in The Swamp, the purpose of the lunch was to persuade D’Amico to move on – away from “our people”. Out of sight, out of mind. Someone else’s problem.

Apparently, D’Amico heeded that advice. My investigator and I soon found the reappeared D’Amico at the University of Miami – having lied his way into a fellowship program. I began serving subpoenas on the University officials so that they could testify under oath about his application and standing to practice dentistry in their fellowship program. During that process, D’Amico disappeared again. Again, no reports to the authorities by UM or any other healthcare providers.

By now, the case had developed into something of a gargantuan undertaking but there was no point letting him escape into the ether. His insurance carrier was keen to use his flight and absence as evidence that his “failure to cooperate” might save them a ton of money by relieving them of their contractual duty to pay for the harms caused by his negligence. In a way, it seemed that they were working hand in glove with the absent professional supervision of D’Amico without regard to patient safety.

Rather than allow circumstances (even those marginally  out of my control) cheat my client, my investigator and I stayed on the case. We next found D’Amico popping up for his next “geographic cure” at – of all places – Tufts University in Boston. Rather than setting depositions and serving supboenas out of state – an expensive and uncertain proposition – I took a chance. I called the Dean of the School of Dentistry at Tufts. I actually got him on the phone. “Do you know who D’Amico is?” was my simple question. D’Amico was out of Tufts that week – no letters, no subpoenas, no pleadings. Just gone.

Back to Miami where we found him at a small house in Coral Gables. Around this time, D’Amico was also seen circling my block in his car. My residence. I guess it was a way for him to show that he wasn’t the only one who could be surveilled – even though I’ve lived in the same old 1928 home for twenty five years. You learn a lot about the addled mind dealing with drug addicts.

In the end, we settle the case as the largest (confidential) dental malpractice claim in Southwest Florida. These things are hard to know for sure, but I asked the carrier and their counsel to confirm what they could to make sure no patient with a similar injury had ever been paid more. Of course, I did my own research and felt reasonably sure we hit that mark.

At no point during this multi year process did the Florida Board of Dentistry ever revoke, suspend or limit D’Amico’s license. In the end, he kept moving – we found him in Orlando and later in West Palm. Eventually, he made the radar of the FBI – and was convicted in the a major illegal drug and steroid ring supplying professional athletes. You can read news stories and follow other links related to our case Fulbright v. D’Amico on our website here. You can also read other blog posts about the case I wrote here and here.

During my fight to get D’Amico’s records from the Physicians Recovery Network, a local judge took issue with my doggedness. First, he tried to cajole me into dropping the issue. Next, he told me directly that he didn’t want me going after those records. I explained that there was no statutory or other privilege for twelve step programs and their like – no matter how the participants feel. I was at least entitled, I argued, to depose individuals with knowledge of D’Amico’s time and fitness at the relevant periods of time. If they were unwilling to cooperate, that was something we could deal with when it occurred. After weeks, the Judge finally announced angrily that he had been ordered to anger management counseling and twelve step recovery after he’d been rolled up in gambling raid at the Rod and Gun Club in Everglades City – the scene of more than a little shadowy behavior.

Needless to say, that’s not exactly a judicious way to approach issues being litigated in good faith in court. So that Judge and I went toe to toe. I didn’t lose.

In Sam Jones’ seminal movie documentary about the music industry, “I Am Trying To Break Your Heart”, he details the journey of Jeff Tweedy’s band Wilco as their sound and songs underwent transformative change. Wilco, spawn of the band Uncle Tupelo that birthed the Americana movement, was moving into more experimental territory by design. Their record company refused their now classic album Yankee Hotel Foxtrot when originally presented to them by Tweedy. Rather than dampen the new sound as demanded by the record company, the band rejected this approach and demanded their album back. At enormous risk, they bought their record back and walked away from their distribution deal without any hope that the record would ever be heard.

In end, Wilco signed a deal with a subsidiary of the same record company – meaning, that the record company bought it twice. The result was a beloved piece of art / music that forged a stronger bond between the band and its fans – even finding a new demographic of fans and leading to a series of even more avant garde albums. Wilco now has a yearly festival called Solid Sound in New York that thrives on the scene created by the journey that never would have happened had they listened to the powers that be.

Passion for the task at hand is a critical element of success in high stakes litigation. Cookie cutter firms and their work are not designed to maximize your recovery and won’t. Be careful choosing your trial lawyer. Make sure they have sufficient passion to maximize your recovery.

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JJ Grey & Mofro, This River

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After five years at the start of my career doing defense work representing hospitals and doctors, I went to work with my Father in Ft. Lauderdale representing plaintiffs. Just as I do today, we handled cases all over the State. One of my first from that stage of my career involved a four year old girl in Clearwater with a congenital birth mark on her face, called a ‘port wine stain’. A local physician advertised laser removal of these birthmarks. Her mother brought her in to the office and the doctor recommended the procedure. He used a dentist to provide the anesthesia, a simple injection called a “dental block”. The dentist was not competent to treat small children and overdosed the child with the dental block. The medical doctor was not equipped to deal with the emergency. He didn’t even have oxygen and the record was pretty clear that nobody attempted CPR or to resuscitate the child. A helicopter from a nearby Childrens Hospital was called but did not arrive in time to save the child. I made sure the Florida Board of Medicine and Dentistry stayed on top of these two health care providers, eventually chasing the dentist out of the state of Florida. Additionally, the insurance carriers tried to deny responsibility for these events and I successfully defeated them in equity court. These proceedings were separate from the medical malpractice case that resulted in a confidential settlement.

My experience in that case prepared me for my own career. After opening my office in Southwest Florida, I was referred a case involving a dentist who was an active addict and had lost his licenses in New York and Connecticut. Here, he was enrolled in the Physicians Recovery Network and allowed to continue practicing dentistry. During discovery, his staff testified that he would sedate his operative patients then lock himself in his office and shoot demerol before returning to conduct surgery on his patients. His abuse of narcotics was well known to the Florida Board of Dentistry and the local community. He was run out of town – showing up in other places like the University of Miami and Tufts University. During the case, we followed him everywhere he went hoping that the authorities would eventually do something about him. They never took his license during the case, however, when he showed up in a criminal investigation as the provider responsible for shipments of illegal steroids and banned substances to professional athletes he was finally stopped. You can read about the end of his career on our website here.

It has been a great privilege to represent victims of the most serious harms against powerful interests in complicated cases. Though risky, stressful, difficult and costly – doing good work under these circumstances is satisfying. Without my Father’s tutelage and the help of other mentors I try to constantly mention here in case they might inspire others, I would not be in a position to have such a fulfilling professional life. I am truly grateful.

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