We would like to introduce you to the SJBM support staff. Our paralegals, Betty Nieters, Diane Huey, Pamela Kahn and Jo Ellen Howard (not pictured) provide us with a combined 48 years of litigation experience. Our secretaries, Karla Bouck, Stephanie LaSalle, Susan Vernon, Barbara Kearns, Robin Bridges, Barbara Schultz and Sherry Scott keep our Macintoshes busy. Beverly Allen, who has been keeping the firm's books for 13 years, handles all the bills and expenses. Millicent Williams, is our runner when she is not attending Johnson County Community College, where she is taking paralegal courses. Patricia Cooper is the voice of the firm and for more than 20 years she has been answering the phone, taking messages, and keeping track of everyone.

  We salute all of our support staff for their dedicated and tireless effort on behalf of our clients. We are proud of their accomplishments and contributions to the success of our firm.

  Cardiovascular diseases and emergencies are often handled incorrectly by health care providers. Errors of omission, predominantly failures in diagnosis, lead to improper treatment and result in serious injury and death. The firm has successfully handled numerous cardiac and emergency room cases. Some examples include: long-term failure to recognize or control hypertension, resulting in strokes; failure to diagnose and treat coronary artery disease, resulting in cardiac arrest; and, failure to recognize dissecting aneurysms or acute myocardial infarctions in need of emergency treatment, resulting in death or anoxic brain damage. In some cases, even where the proper diagnosis was made, we have seen the wrong treatment provided. For example, in one case thrombolytic therapy was given to a person with an acute myocardial infarction who also had accompanying acute uncontrolled hypertension, thereby causing stroke, coma, and brain injury. For some reason, diagnosis and treatment of cardiovascular diseases seem to regularly produce injurious mistakes, and our firm reviews many cases falling within this area.

  Victor Bergman recently settled one such case. The client was a 42-year-old Michigan man who, in 1987, suffered cardiac arrest from undiagnosed coronary artery disease, resulting in anoxic brain damage and permanent disability. The case was settled three weeks before trial in Sedgwick County, Kansas for the policy limits of 53.2 million, including 53 million to be paid out in ten annual installments by the Kansas Heath Care Stabilization Fund.

  The action was filed against a Wichita cardiologist. The plaintiff had a strong history of early coronary artery disease on both sides of his family. He was a long-distance runner who began to experience "atypical" chest pain both with and without exertion. In July 1985, he went to his family physician, who obtained some lab work which showed an elevated cholesterol level, and a treadmill stress test which was "positive" and highly suggestive of myocardial ischemia and coronary artery disease. She recommended that the plaintiff be seen for a cardiology consultation. Due to a lack of insurance, the plaintiff delayed the consultation seventeen months until December of 1986.

  At the consultation, the defendant cardiologist documented the history of chest pain, the elevated cholesterol level, and reviewed the treadmill stress test. On physical examination, he heard a click and murmur when listening to the heart, which suggested a mitral or tricuspid valve prolapse. The physician pursued the diagnosis of mitral valve prolapse with an echocardiogram and confirmed his suspicion. However, he failed to do the testing necessary to rule out coronary artery disease. Instead, on the faulty reasoning that mitral valve prolapse can account for a falsepositive treadmill stress test and the type of atypical chest pain reported by the plaintiff, the defendant cardiologist reassured the plaintiff that long-distance running was beneficial and the chest pain should not be a concern. The plaintiff and his wife left the cardiology consultation relieved that coronary artery disease was not a concern for worry.

  Ten months later, the plaintiff collapsed after a ten-mile run when his heart stopped pumping, a condition known as "sudden death," that was caused by the undiagnosed ischemic heart disease. By the time he was resuscitated, the plaintiff had sustained significant brain damage due to the interruption of the flow of blood and oxygen to his brain.

  After many months of hospitalization and attempted rehabilitation, the plaintiff returned home to his wife and two children. His principal injury was damage to his short-term memory and thought processes. He could not remember what year it was, who he was, or who various members of his family were, and this frustrated him. He had to be assisted and "cued" in performing every basic daily task of living, such as brushing his teeth, eating a meal, or getting dressed. He was prone to bizarre and inappropriate conduct in public, which embarrassed his family. He was cognizant of and became depressed about his situation and became threatening and potentially suicidal. Eventually, his wife could not cope with the situation and obtained a divorce. The plaintiff went to live with his parents in Michigan. The plaintiff's parents found themselves living again with their son, now as an adult who needed constant attention and care.

  Two nationally prominent cardiologists gave depositions on the plaintiff's behalf, and were prepared to testify at trial that the cardiologist was negligent, that the coronary artery disease was severe and should have been diagnosed in 1986 and, had the diagnosis been made, the appropriate treatment probably would have averted the tragedy of the sudden death episode. A life care planner, an economist, a neuropsychologist, and a number of treating physicians were all ready to testify on the subject of plaintiff's injuries and damages.

  The case included a claim for the plaintiff's wife's loss of consortium, and the settlement was allocated 90 percent to the plaintiff's claim, and 10 percent to his former wife's claim for loss of consortium.

  The American Inns of Court began in the 1980's under the leadership of then Chief Justice Warren Burger. Today there are over 200 Inns across the United States. The Ross T Roberts Inn and the Kansas Inn are both members of the American Inns of Court and offer Kansas City area judges and trial lawyers the opportunity to meet and share trial experiences.

  Our firm has been a strong supporter of the Inn of Court movement. Dave Morris is President of the Ross T Roberts Inn, and Vic Bergman is a Master of the Kansas Inn. When he served on the ATLA Board of Directors, Lynn Johnson was on the committee that acted as a liaison to the American Inns of Court.

  Typically, a local Inn of Court is composed of Masters, who are judges and experienced trial attorneys, and Barristers, who are beginning their practice. The local Inns meet monthly and feature a program on trial practice or related subjects. Time is also set aside for the members to socialize and become better acquainted. The goal of the American Inns of Court is to promote courtroom skills and foster civility among trial lawyers.

  Information on the how to obtain a charter for a local Inn of Court may be obtained from the American Inns of Court Foundation, 1725 Duke Street, Suite 630, Alexandria, VA 22314, or by calling 703-684-3590. Feel free to call Dave Morris or Vic Bergman for information about the Kansas City area Inns of Court.

• Cardiology Malpractice Case Settled for Michigan Man
  
• More on Multiple Defendants in Kansas
  
• Firm Supports American Inns of Court
  
• Hurlbut Verdict Affirmed
  
• Trial by Fyre: Adventures of Jack Fyre - Litigator
  

  In multiple defendant cases, particularly at the pretrial conference, plaintiff's counsel must force each defendant to declare any affirmative allegations of causal fault that will be made against another defendant or nonparty. This information has implications for decisions on addition of defendants, trial strategy, possible settlement and peremptory challenges.

  Multiple defendants are often reluctant to "point the finger at one another" in advance of trial. Yet, they do not want to lose the liability-limiting advantages of the comparative negligence statute, K.S.A. ß 60-258(a), which requires each defendant to identify any party "whose causal negligence is claimed to have contributed to" the plaintiff's damages. Defendants routinely raise the fault of others in their answers, but in their pretrial questionnaires, they make no affirmative allegations of fault against their co-defendants. Simultaneously, they take the position that the fault of their co-defendants should be compared "to the extent the jury assigns fault, based upon plaintiff's allegations and proof." Does this defense tactic amount to an affirmative allegation in the nature of a cross-claim against a co-defendant?

  At the pretrial conference plaintiff should press to receive an answer to the questions: Are you making any affirmative claims that any party other than the defendants are at fault? Are you still claiming that no one was at fault? If so, why do you not state that specifically in the pre-trial order?

  When a defendant does make an affirmative allegation of fault against another defendant, plaintiff's counsel should be entitled to rely upon that position, and to discuss during voir dire, opening statement, and closing argument the fact that defendants are blaming each other. If there are no affirmative cross allegations of fault, then plaintiff should be able to rely upon this position in making decisions about settlement with individual defendants. Where the only allegations of fault against a defendant are made by the plaintiff, and the plaintiff settles and thereby withdraws the allegations, any defendant, who previously chose not to make affirmative allegations of fault, should not then be allowed to change position and invoke the comparative negligence statute against the plaintiff. Such conduct is sandbagging because it induces detrimental reliance by the plaintiff, which is contrary to the general policy in favor of settlement of claims.

  Another important implication of this issue relates to premptory strikes during jury selection. K.S.A. ß 60-247(c) establishes that:

In civil cases, each party shall be entitled to have three premptory challenges. ... Multiple defendants or multiple plaintiffs shall be considered as a single party for the purpose of making challenges, except that, if the judge finds there is a good-faith controversy existing among multiple plaintiffs or multiple defendants, the court, in its discretion and in the interest of justice, may allow any of the parties, single or multiple, additional premptory challenges and permit them to be exercised separately or jointly.

  When most trial judges have this provision pointed out to them at the pretrial conference, and realize they will have to determine if, in fact, a good-faith controversy exists among multiple defendants, they become more inclined to require each defendant to state clearly their position regarding cross-allegations against one another. The trial court should not allow individual defendants to state they have no affirmative allegations against one another, then permit them additional preemptory strikes on the ground that plaintiff's allegations of fault somehow create a good faith controversy among defendants.

  In the event the court determines a good-faith controversy does exist among defendants and awards each defendant separate peremptory challenges, try to negotiate for less than three challenges for each defendant, and to increase the total number of plaintiff's peremptory challenges to equal the number of challenges the multiple defendants have collectively.

  In the event the court determines a good-faith controversy does exist among defendants and awards each defendant separate peremptory challenges, try to negotiate for less than three challenges for each defendant, and to increase the total number of plaintiff's peremptory challenges to equal the number of challenges the multiple defendants have collectively.

  If affirmative cross-allegations of fault are made among multiple defendants, plaintiff's counsel should take advantage of this "cross-finger-pointing" at every phase of the trial to emphasize the admission by the defense that causal blame is in the case.

  We wish you good luck in your multiple defendant cases.

  On July 31, 1993 the Kansas Supreme Court handed down its unanimous opinion affirming David Hurlbut's judgment against Conoco, Inc. Hurlbut V. Conoco, Inc., et al., No. 68379, slip op. at 39 (Kan. July 3(), 1993). Following an eight week trial in March and April of 1992, a Miami County jury found Conoco liable for breach of express warranty, strict liability, breach of implied warranty, negligence, and misrepresentation of material facts and unanimously awarded David Hurlbut $14,613,553.00, and apportioned fault 85% against Conoco and 15% against David Hurlbut's employer, J & J Metal Products Co. (See SJBM Newsletter, July, 1992, for an article on the trial.) Judgment was entered against Conoco and in favor of David Hurlbut in the amount of $12,421,520.00. Conoco appealed, claiming that the trial court (1) erred in failing to grant its motions for summary judgment, directed verdict, and judgment notwithstanding a verdict; and (2) deprived it of its right to a fair trial.

  The opinion is quite instructive on the subject of evidentiary issues and the exercise of discretion by the trial court. The trial judge was faced with a number of difficult evidentiary issues involving expert calculations and opinions, newly discovered documents, and demonstrative evidence. In each instance, the trial court gave the parties an opportunity to present their arguments on the record, and for each ruling provided a detailed explanation of its reasoning. As the Supreme Court noted, judicial discretion implies the liberty to act as a judge should act, applying the rules and the analogies of the law to the facts and situations that occur prior to and during the trial. An open and frank discussion of the issues by the parties followed by a thoughtful and well explained decision will almost never result in a finding of abuse of discretion upon appellate review.

  The Supreme Court affirmed the trial court's admission of a newly discovered critical document (a brochure describing the asphalt dip vat involved in the explosion). The trial judge held that the probative value of the brochure to ascertain the truth substantially outweighed any risk that admission of the brochure would unfairly or harmfully prejudice Conoco. The Supreme Court observed that, [the major purpose of the introduction of evidence at trial is to arrive at the truth." Id. at 39. This basic and elementary proposition should guide all parties and the trial court in every trial. A document, testimony, or any other type of evidence that speaks the truth concerning a relevant issue should be admitted. Such evidence may be rejected only because (1) it is unreliable; (2) it is not relevant; or (3) it contravenes some legal policy more important than the determination of truth. Id at 39.

  Conoco did not appeal the Supreme Court's decision and the entire judgment plus interest has been satisfied.