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PROCEEDINGS HELD 6/27/12 IN THE COURTROOMWITHOUT THE JURY PRESENT:

THE COURT: For the record, after furtherdiscussions this morning in regard to the specialverdict form, a couple changes have been made toadd two items of potential damages. One isreduction in lifetime earnings, and the other ishousehold production. Any objection to theverdict sheet, Mr. Mills?

MR. MILLS: No, your Honor.THE COURT: Mr. Brousseau?MR. BROUSSEAU: No.THE COURT: All right. Please be seated.

Bring in the jury please.. .

(The jury comes into the courtroom)THE COURT: Good morning. Be seated.' All

right, Mr. Brousseau, you ready?MR. BROUSSEAU: Yes. May it please the

court, counsel; ladies and gentlemen of the jury,the first thing that's kind of obvious, I want tothank you for your service. This has been sevendays out of your life. This is the eighth'daynow. The parties all appreciate the attentionyou've given to this case, the time that you'vetaken out of your lives to listen to the

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testimony, look at the evidence in this case.During my opening statement, I asked you toreserve judgment and try to make a decision basedon the facts of the case rather than anyemotional appeal to the permanent injury thatRachel Hand obviously has sustained. I submit toyou that the medical evidence in this case andthe testimony in this case have established thatDr. Lizardi did not deviate from acceptedstandards of medical care and did not through hisnegligence cause injury to Rachel Hand back onFebruary 25, 1996. I'm not going to go throughall the medical records again. You've gonethrough his progress notes. The actual notes andthe actual documents that deal with the liabilityin this case you've seen almost all of theimportant ones. Dr. Dexter, our expert, wentthrough every single note. Plaintiffs' expertDr. Borow went through pretty much every note.Dr. Lizardi went through pretty much every singlenote. We've gone through what the testimony wasat depositions. We've gone through, we've heardlive testimony from witnesses. It's not disputedthat when Dr. Lizardi first saw Susan Hand onthat day, he did a physical examination. The

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first thing he suspected was a potential shoulderdystocia. It's undisputed in the records, it'sundisputed in the testimony that he talked to theHands about the possibility of a shoulderdystocia based on the mother's short stature.We've gone through what the risk factors were,and the evidence will show the risk factors werea shoulder dystocia, what the risk factors wereand what the objective thought process andcriteria were to conduct a Cesarean section basedsolely on the shoulder dystocia. The evidencehas shown that Ms. Hand did not meet the vastmajority of that criteria, that if Dr. Lizardihad done the Cesarean section, it would have beenbased solely on her height or her weight, and itwould have required for him to set aside ordisregard objective reasons not to conduct aCesarean section such as the fact that she didnot have gestational diabetes, to set aside thefact that she had a prior successfuluncomplicated vaginal delivery of a seven poundthree ounce baby girl, to set aside the fact thatthere had been no dystocia in that case, to setaside the fact that there was no indication inthis case that the baby was trending toward, I

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think we've heard the term a couple times, amacrosomic baby or trending towards a situationof cephalopelvic disproportion. He did aclinical estimation of fetal weight. He backedthat up by ultrasonic estimation of fetal weight.The record is clear that he advised the Handsthat both of those had a margin of error ofapproximately fifteen percent. He was aware fromthe outset that the baby could be large obviouslyfrom what's in the record. He took appropriatesteps to monitor her through her labor. Therewas a time for about an hour to two hours whereshe wasn't making marked progress in labor.You've heard from Dr. Dexter, from Dr. Lizardithat that is not unusual. At that point Ms. Handhad no pain medication whatsoever. He prescribedher with some Nubain. She received some Nubain alittle after six o'clock. He reassessed heragain at nineteen fourteen or seven fourteen p.m.He noted again her dilation hadn't changed verymuch although the fetal head had descended duringthe course of the time that she'd been at theCanton-Potsdam Hospital. There's no indicationat that point that the baby was stuck or hung up.The evidence has shown that he said, he

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considered the possibility that there was asecond arrest of labor, that he took appropriatesteps to determine whether her contractions wereadequate to birth including the insertion of aintrauterine pressure catheter, including theinsertion of an internal fetal heart ratemonitor. He said in his notes give her some morepain medication, continues to monitor her. Atthat point plaintiffs' expert Dr. Borow says no,he should have conducted, should have scheduledand conducted a'Cesarean Section based on thatalone. You heard from Dr. Lizardi and Dr. Dexterthat there really wasn't any objective reason toconduct a Cesarean section at that point, thatthe conservative way to 'go was to continue tomonitor her. In fact, you heard Dr. Dexter sayit would have been absolutely contraindicated toconduct a Cesarean section at that point based onthe medical information that was on hand. Aboutforty five minutes, about half an hour laterabout nineteen forty six which is about the sametime that if he had called for an emergencyCesarean section that an anesthesiologist wouldhave been there ready to help and perform thatCesarean section that the pain medication had

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worked, her dilation had rapidly increased toabout eight centimeters. The effacement hadchanged. The fetal head had dropped, continuedto drop down in the birth canal. There was noindication that the baby was hung up. Thevaginal delivery continued fairly normally withpelvic exams. At twenty 0' five you've heardsome testimony that there was probably some cordcompression. You've heard the term decels.You've heard from the nurses. You've heard fromDr. Lizardi, you've heard from Dr. Dexter that'scommon place, it happens quite often. It wasdealt with in this case simply by changing herposition two times, giving her a little oxygen,and then from that point on there were no furthermarked fetal decelerations. You heard that thehead of the baby was spontaneously delivered attwenty twelve, and you've heard that Rachel Handwas delivered three minutes later at twentyfifteen .. You've heard from Dr. Dexter, from Dr.Borow, plaintiffs' expert, from Dr. Lizardi thatthere's approximately a five minute time framethat you have to go through maneuvers to get thebaby out safely. After that you're risking somegrave side effects to the baby including hypoxia,

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brain damage, paralysis, et cetera. We've heardabout all the various maneuvers that wereaccepted at the time for a surgeon to do to tryto get out a baby whose shoulder's impacted.We've heard that Dr. Lizardi, and Dr. Borowadmits that Dr. Lizardi performed the maneuvers.There was nothing wrong with the manner in whichhe performed the maneuvers. Dr. Borow admitsthat the appropriate first thing to do would bethe McRoberts, do a McRoberts. We've heard proofthrough the nurses notes, through Dr. Lizardi'snotes that at first it was difficult to get herinto the McRoberts position because of herextreme pain. Once they were able to get herinto the McRoberts position, it did not assist,the shoulder did not free up. Nurse CarolGallagher conducted, performed some suprapubicpressure which Dr. Borow also said was entirelyappropriate. After that did not work, Dr.Lizardi then extended the episiotomy and decidedhe needed to do an intravaginal procedure toremove the baby. That he chose to deliver theopposite arm, the left arm. Dr. Borow andeveryone involved in .this case, Dr. Dexter, Dr.Lizardi have all said at that time back in 1996

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there was no preferred order to these maneuvers.He performed that maneuver. The baby wasdelivered. After the baby was delivered, Dr. Kayand the nurses noticed an Erb's palsy on herright arm, noticed that she wasn't moving herright arm the same as the other arm. It'sdocumented in the discharge papers, it'sdocumented in Dr. Kay's notes, documented in Dr.Zsoke's note. Erb's palsy was appreciated afterthe fact. Where we differ in this case is thatDr. Borow says that Dr. Lizardi must have causedthat brachial plexus injury, and how does he getto that determination? He gets to thatdetermination by assumption and by speculation.We've heard Dr. Nath say a brachial plexus injuryis a risk of a shoulder dystocia. We've heardDr. Dexter say that a brachial plexus injury is arisk of shoulder dystocia. We heard Dr. Lizardisay the same thing. However, Dr. Borow insiststhat it must have happened due to excessivedownward traction. Dr. Lizardi must have pulledand yanked on the neck and caused the injury,that it didn't happen when the baby was caught upon the mom's bony pelvis, that it didn't happenduring the birthing process. It happened only

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because Dr. Lizardi yanked on the neck. Whatevidence is there that Dr. Lizardi yanked on thehead or neck? There is no evidence that heyanked on the head or the neck. There's nonursing note documenting that. The nursing notesdocumented everything he was doing in real timeon the fetal monitoring strips. The nurse had noidea that there was going to be a brachial plexusinjury. Dr. Lizardi at the time had no idea thatthe baby was going to have a brachial plexusinjury. Granted, Dr. Lizardi of course wasdelivering the baby, and he didn't dictate thenote until later on, however the nursing noteswere taken contemporaneously. The nursing notesconfirm and corroborate everything that Dr.Lizardi says in his notes, in his progress notes,in his labor and delivery report, in his historyand physical. There's no testimony that heyanked on the head or neck. Pat Hand was there.He testified he didn't see Dr. Lizardi yank onthe head or neck. Granted, he said he was tryingnot to look down there, and I certainlyunderstand that. Susan Hand obviously was not ina position to see what Dr. Lizardi was doing downthere, but nevertheless, she did not give any

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testimony that it felt like he was pulling oryanking, he didn't pull or yank. Laurie Mousaw,Carol Gallagher did not document any traction,any touching to the head or neck, any testing tosee if the shoulder was impacted because in thiscase what happened was not an unexpected flukeevent. Dr. Lizardi had anticipated thispossibility. The head was spontaneouslydelivered. At the point the head wasspontaneously delivered, Dr. Lizardi immediatelyappreciated that there was a dystocia. There wasno need to test by pulling on the head or neckbecause the proof showed he was ready for it. Hehad prepared the family for the possibility of ashoulder dystocia. He had prepared himself forthe possibility of a shoulder dystocia. Therewas bruising on the right side of the baby's bodyacross the trunk. You heard Carol Gallagherdescribe it as a linear hematoma. You heard herdescribe that is consistent with simply the bodybeing dragged across the bony pelvis duringbirth. There's been no testimony that thatbruising was consistent with Dr. Lizardi applyingexcessive traction or Dr. Lizardi grabbing on thehead or neck, or Dr. Lizardi pulling too hard on

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the' left arm when he delivered the left arm.Point of fact Dr. Borow says, pinpoints when theexcessive downward traction must have occurred.He said it must have occurred after the head wasdelivered spontaneously and before Dr. Lizardiattempted any intravaginal procedure so therefore

'IDr. Lizardi, nothing Dr. Lizardi did once heattempted to deliver the posterior arm hadanything to do with the brachial plexus injury.According to Dr. Borow, it had already occurred.There's a short window of opportunity during thisthree minute period of time apparently when Dr.Lizardi was yanking and pulling on the head whichof course is undocumented in any medical record.Now, plaintiffs have tried to argue that it musthave occurred in this case, and they tried toestablish in this case that Dr. Lizardi wasoverwhelmed or unprepared for this or not capableof dealing with this type of situation. You'veprobably heard by now that Dr. Lizardi is notboard certified. He's not board certified.Never said he was board certified. Dr. Dexter,Dr. Borow are board certified. Dr. Lizardi isnot board certified. He was licensed to practicemedicine. He had privileges at Canton-Potsdam

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Hospital. He delivered hundreds and hundreds ofbabies by February 25, 1996, and more importantlyyou can impune Dr. Lizardi for not being boardcertified. We can impune the fact that he didnot pass his written board certification exam onthe first try. But it does not eliminate thefact that when Dr. Borow was on the stand, whenDr. Dexter was on the stand, two board certifiedobstetrician gynecologists, they agreed withvirtually everything he did that day. You'regoing to hear and you're going to receive a juryverdict sheet that asks you to decide on twodiscrete deviations, two allegations of what Dr.Lizardi did wrong that day. One, you heard Dr.Borow, he says that Dr. Lizardi should haveperformed a Cesarean section at nineteenfourteen, should have called for it, should haveperformed it. Dr. Borow also says he appliedexcessive downward traction on the baby's head.You were here, you saw me cross-examine Dr.Borow. You saw Dr. Borow admit to virtuallyeverything else that Dr. Lizardi did was withinthe standard of care, was appropriate. The factthat he didn't pass the bar exam is irrelevant.It's an attempt to distract you from the medical

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records. It's an attempt for you.to believe thatDr. Lizardi is somehow incompetent to performthese types of maneuvers, to birth this baby.You've heard him criticized for allegedly notknowing what the Wood's procedure was, howeveryou heard me read his deposition testimony wherehe said he didn't know what Wood's maneuver was,if that's the corkscrew maneuver, he knew whatthe corkscrew maneuver was, and once again in thegrand scheme of things, it's irrelevant becausehe didn't perform this corkscrew maneuver. Dr.Borow said he didn't have to perform thecorkscrew maneuver. Dr. Dexter said he didn'thave to perform the corkscrew maneuver, and inany event, Dr. Borow says at the time it came toperform the maneuvers, the brachial plexus injurywas already there. It's irrelevant to thealleged deviations in this case. Now, we alsohave the claim by the Hands that Dr. Lizardi toldthem after Rachel was delivered that it wouldn'thave been a pretty picture, words or substance,it wouldn't have been a pretty picture a nursejumping up and down on your stomach, another onescreaming, and me pulling like a mad man. Thatis apparently the evidence that Dr. Lizardi did

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pull like a mad man, evidence that was heard atSusan Hand's deposition in 2005 from her 1996deposition or from the 1996 delivery. Now,memories fade, memories change over the course ofyears. What doesn't change are the hospitalrecords. In this case the hospital records haveremained the same since 1996. The hospitalrecords for the delivery of Hillary Hand haveremained the same since 1993. Memories canchange, memories can be clouded, memories canbecome confused. The records do not. They wantto criticize Dr. Lizardi because he said I don'tremember saying that, I don't remember if I saidthat in 1996. I submit to you that you wouldprobably find it patently ludicrous if Dr.Lizardi came into this courtroom and said I havean absolutely distinct indelible memory of notsaying something sixteen years ago, and withregards to this claim that Dr. Lizardi told theHands or told Mrs. Hand that she could notdeliver a seven point five pound baby afterdelivering Hillary in 1993, that was nineteenyears ago. Dr. Borow, Dr. Dexter, Dr. Lizardihave testified that there's nothing in Hillary'slabor and delivery records that indicate that Ms.

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Hand had any difficulty delivering that baby orthat she wouldn't have been able to deliver ababy that was any larger. Dr. Kiken who was herobstetrician gynecologist prenatally for bothHillary and Rachel never documented any suchthing. Let's look at it one more time. That forthe sake of argument assuming that some statementwas made like that in 1993, once again it'sutterly irrelevant. We've heard some testimonyregarding how shoulder dystocia occurs. Shoulderdystocia is unpredictable. Shoulder dystocia,women who are of short stature, people who havecertain risk factors are at greater risk toexperience shoulder dystocia. You heard Dr.Borow testify that shoulder dystocia occurs insmall babies and it occurs in large babies. Itoccurs in a higher frequency with large babies,but it can occur in a six pound baby, it canoccur in a seven pound baby, it can occur in aneight pound baby, and the reason the shoulderdystocias occur is because of the position thebaby happens to be in coming through the birthcanal. You've heard that the shoulders are notin the oblique in order to allow the body to comeout under the mom's bony pelvis. You've heard

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testimony about this condition calledcephalopelvic disproportion, the concern that thebaby's head is too big to come through thepelvis. Obviously, it wasn't. It did comethrough the pelvis. What didn't come through thepelvis was the shoulders. The shoulders didn'tcome through the pelvis not because the baby wasmacrosomic, not because the baby was nine pointtwo pounds as opposed to seven point five pounds.The .baby did not come through the mom's bonypelvis because of the way it happened to beoriented. Dr. Lizardi was able to remove thebaby, remove Rachel using the regular andaccepted procedures. There was no necessity tobreak the clavicle, to break her arm to get thebaby out. He did not have to resort to any ofthe last ditch efforts that the doctors talkedabout known as the risky Zavanelli procedure.The seven point five pound issue is a distractiononce again from the case because what Dr. Borowhas said is Dr. Lizardi should have performed theCesarean section or should have called for andperformed the Cesarean section after nineteenfourteen hours and then he applied excessivedownward traction. Once again, the seven point

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five pound issue, memories over the course ofnineteen years change. Nobody has said thatthere's any documentation in any of the medicalrecords regarding Hillary Hand about that fact.Dr. Lizardi again I think you would find itpatently ludicrous if he came in and said I knowit's not in the medical records, I know it's notin Dr. Kiken's chart, I know I didn't documentanything, but I have a distinct memory that I didnot say that nineteen years ago. The nurses inthis case, Dr. Lizardi in this case have said,and I believe honestly that they don't have anindependent recollection of this from 1996,sixteen years ago. That's why they producedmedical records. That's why the hospitalproduced medical charts that sixteen years latersomeone can try to figure out what happened, andwe don't have to rely on people's memories. Now,as an indication of how memories can change,Hillary Hand in, I'm sorry, Rachel, Susan Hand in2005 gave deposition testimony about whathappened in the labor and delivery room. Between2005 and 2010 what was some testimony of Dr.Lizardi and Carol Gallagher were having adiscussion after the shoulder dystocia was

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appreciated. Now, in 2012, Dr. Lizardi and CarolGallagher were having a heated discussion wherethey were arguing with each other. Laurie Mousawback in 2005, she said Laurie Mousaw was talkingto Dr. Lizardi about the fetal monitor strips.Now, in 2012, her memory is that Laurie Mousawwas screaming about the fetal monitoring strips.The hospital chart, the records have not changedin sixteen years. They have not changed innineteen years. Memories change, memories fadeover that period of time. Again, the idea thathe was pulling like a mad man, if Dr. Borow isgoing to base his entire opinion on the fact thatSusan Skelly-Hand and Patrick Hand claim that Dr.Lizardi made that statement to them after thefact, you still have to assume a couple things.Number one, you have to assume that Dr. Lizardiactually made that statement back in 1996.Second of all, you have to assume that he wasmaking that statement as some sort of admissionof guilt as some sort of admission I was pullinglike a mad man on that baby as opposed to sometype of comment to try to lighten the mood, sometype of comment to as you remember back then atthis point, the baby had been delivered, Dr.

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Lizardi after the baby was delivered, he wasn'tinvolved in examining the baby. Carol Gallagherwas. Dr. Kay was. Dr. Lizardi was continuing todo things with Susan Hand, repair her episiotomy,deliver the placenta which took according to thehospital records I think around twenty minutes asopposed to the other portions of labor. The onlyway to believe Dr. Borow that Dr. Lizardi waspulling like a mad man is to believe a couplethings that that was an admission that he made,an admission of .guilt back in 1996 I was pullinglike a mad man on that baby. Number two, that hehad time to pull like a mad man on that baby.Everything else he did was documented in thechart. There was a short period of .time when Dr.Borow said the brachial plexus injury occurredwhich was after the head was delivered. at twentytwelve but before Dr. Lizardi extended theepisiotomy in attempting to and did in factdeliver the left shoulder. If he had time topull like a mad man in there, it wasn'tdocumented by Laurie Mousaw in any manner. Itwasn't documented in there even something asinnocuous as Dr. Lizardi testing the head, Dr.Lizardi testing the impaction., Nothing along

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those lines. She documents McRoberts, troublegetting into McRoberts, McRoberts successfullyachieved, suprapubic pressure, extends theepisiotomy, delivers the posterior arm which wasthe left arm. Again, there's no objectiveevidence in this case of, you know, bruising,damage, et cetera to the head or neck that anyonehas attributed to a reasonable degree of medicalcertainty to any type of downward pulling on thepart of Dr. Lizardi. The only way I think youcould find that he did apply excessive downwardtraction is to just purely speculate similar tothe way that Dr. Borow has. You've heardtestimony that from Susan Skelly-Hand that thecontractions didn't feel the same as withHillary, that they felt stronger. You heard hertestimony that her pain was excruciatingespecially when the shoulder became impacted onher bony pelvis. You heard her testify that shefelt like her pelvis was splitting because ofcontractions. There's objective evidencedocumented in the record, there's the testimonyof Dr. Dexter who says that that is when thebrachial plexus injury could have occurred due tothe natural forces of labor due to the shoulder

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dystocia itself due to the shoulder beingimpacted on the mom's bony pelvis while the bodyis still trying to birth the baby and push it outthrough a hole when it's not oriented in theright way. That's what there's objectiveevidence of. There's no objective evidence ofexcessive downward traction. You heard Dr. Nathtestify that shoulder dystocias can occur, that abrachial plexus injury can occur. It's a risk ofa shoulder dystocia. You did not hear Dr. Nathcondemn Dr. Lizardi, criticize him, say that heapplied excessive downward traction. Dr. Nath aseveryone has agreed is a world renowned brachialplexus expert who performs surgeries and got hera great deal of functionality back. Dr. Nath didnot give outraged testimony regarding what Dr.Lizardi did to this poor girl. The only personwho did was Dr. Borow. Now, again, Dr. Lizardiclearly was not a professional witness. He gavetestimony in this case. He got upset during hisquestioning. He clearly was nervous. But if youtake all that away, what he testified to wasconsistent with the records. It was consistentwith the medicine. It was consistent with thechart. It was consistent with Dr. Dexter's

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0plnlons. It was consistent with the vastmajority of Dr. Borow's opinions. I don't thinkthat you're going to have to get to damages inthis case. Again, I said in my opening statementI don't dispute, never disputed that Rachel hasdamages. Plaintiff called Dr. Myers who was apediatric neurologist who I had examine Rachel in2008 to give me some guidance about what abrachial plexus injury is, what type of damageshe has, what type of injury it is, what herprognosis would be In the future. Dr. Myers toldme that it was a permanent injury. I didn't callDr. Myers in here. Plaintiffs' attorney calledthe doctor to confirm the permanent injury.Again, we never disputed it's a permanent injury.What we dispute is that it was caused by Dr.Lizardi's negligence. If you get to the pointwhere you have decided that Dr. Lizardi hasdeviated, if you get to the point that thatdeviation caused the injury to Rachel Hand, Isubmit to you that she's entitled to reasonablecompensation. Dr. Reagles' report, his life careplan, Dr. Reagles met with the Hands for a littlewhile in 2009. He talked to Rachel Hand and thenhe sent her off to his assistant to get tested.

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Then he talked to the Hands themselves. He carneup with a life care plan on his own based on somematerial that had been provided by Mr. Mills,from his discussion with the Hands, from hiseducation, background, and experience. This isnot a life care plan that was made by callingtogether all the treating physicians and askingthem and some sort of interactive process, whatdo you think Rachel is,going to need, Dr. Nath,what do you think, physical therapist, what doyou think, occupational therapist, what do youthink. He came up with this stuff himself. Heput it in a report, and then he sent It off tothe doctors and said will you check off the itemson this. Dr. Laflair said I guess so. Dr.Palomino said for'a number of things yeah, I

guess so. Dr. Nath, the person who's beentreating her, the person who has been prescribingher physical therapy after her surgeries, whoknows what her future prognosis is because he's a

"

brachial plexus expert wouldn't talk to Dr.Reagles, never got back to him. You heard Dr.Nath's videotaped trial testimony. I didn't hearDr. Nath say that she was going to requirelifetime physical therapy one or two times a week

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for the rest of her life, I didn't hear Dr. Nathsay she was going to require a personal care aidefor the rest of her life. I didn't hear Dr. Nathsay she was going to require occupational therapyfor the rest of her life. I didn't hear Dr. Nathsay that she was going to necessarily evenrequire any further surgeries for the rest of herlife. I didn't hear Dr. Nath say that thescoliosis is related or was caused by thebrachial plexus injury, and Dr. Palomino'stestimony I submit to you is kind of equivocalwhether or not the brachial plexus injury causedthe scoliosis or whether the brachial plexusinjury made it more difficult to treat thescoliosis, but regardless, the scoliosis shetestified is under control. She testifiedthere's a certain curvature at which one wouid dosurgery. Rachel is nowhere near any type ofcurvature that would require any futurecorrective surgery, and the brachial plexusinjury might have made it more difficult toimmobilize her in a brace for it. You heard Dr.Reagles talk about loss of competitive advantageand her work life expectancy~ Once again, that'sbased on briefly talking to her in 2009, not.

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talking to her since. Mrs. Hand admitted thatthey went there in 2009, met with Dr. Reagles,and she testified that she spoke to Dr. Reaglesagain on the phqne on June 13th of 2012 of thisyear, but Dr. Reagles did not testify he'd metwith them since then. Dr. Reagles has not doneany examinations of her, functional capacitytests regarding Rachel, hadn't even seen the dayin the life video that was made in 2010 so thatyou could see with your own eyes what her levelof function was. Yet he's arbitrarily come upwith numbers Rachel will necessarily, and he saysthat now based on no experience of her in thework force, of not examining her or seeing hersince 2009, he says that he can say to areasonable degree of professional certainty thatshe is not going to have the same work life..expectancy as everyone else because of what oneof her doctors has termed a moderate Erb's palsydisability of her right arm, that she willnecessarily have a huge reduction in competitiveadvantage over the course of her lifetime as faras her ability to do her job. I didn't hear fromhim any specific jobs that he thought shecouldn't do other than the obvious labor jobs

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that would require the use of both hands. She'sa very smart girl. She's got a ninety threeaverage. You saw her testify. You heard hertestimony. She's got a ninety three average inschool with what type of accommodations, withwhat type of assistive devices. She's got aninety three average in school with theaccommodations that they give her, two sets ofbooks, they don't grade her on her handwriting,and they give her some extra time to write thingsup. She can do that with those accommodations.The vast majority of things Dr. Reagles has putin his report are just guesswork, speculation.One of the examples that we keep falling back onis the personal care aide to help her in themorning one or two hours a day for school to getready for college, to straighten her hair. Onthe day in the life video it showed I thoughtthat she could do that. It's difficult for her,granted. I saw in the day in the life video thatshe could do it. Dr. Reagles has made a lot ofassumptions, a lot of negative assumptions aboutwhat she could do. He seems to assume thatshe'll never learn how to do things on her own inthe future. He seems to assume that she'll never

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1005

be able to do a job as well as anybody else aswell as a non disabled person in the future. Heassumes that there are things that she's notgoing to be able to do in the future. He didn't,wouldn't even assume that there's a possibilitythat she could get an advanced degree, that shecould become a lawyer like Mr. Mills and myself.He admitted that if she did get an advanceddegree, become a professional, that he wouldhave, she would have exceeded all hisexpectations and not have any loss of competitiveadvantage or any loss of work life expectancy.Again, just arbitrary. When Dr. Lambrinostestified, Dr. Lambrinos did not, it was kind of,Dr. Reagles would, gave some testimony about whatshe can't do and then he's not responsiblefor the numbers. Then Dr. Lambrinos givestestimony. He's not responsible for theassumptions that Dr. Reagles made, onlyresponsible for the math. And the math as yousaw blew up rather large, and the reason the mathblows up rather large is because of certainelements in that life care plan, the personalcare aide, the assumption that she's going torequire physical therapy one to two times a week

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every day for the rest of her life, theassumption that she's going to requireantidepressant medication to the age of thirty,the assumption that she's going to require a lotof assistive devices for the rest of her life.This life care plan, the Hands admitted that theyhad'a version of the life care plan since 2009.There's been no testimony that they've even gone,or that Rachel even required some of theinexpensive things in the life care plan or thatthey've gone ahead and implemented anything inthe life care plan including spring loadedscissors, anything along those lines. Dr.Lambrinos admitted that if any of the assumptionsDr. Reagles made were wrong, if any of the thingsthat Dr. Reagles put in his report were in factnot based on opinions to a reasonable degree ofmedical certainty by the people who are treatingher, then his numbers would be wrong. I think hewould admit, I think his exact words weresomething along the lines of a downwardadjustment would have to be made. And I can'tblame Dr. Lambrinos. He didn't make thoseassumptions. He did the math, and I don'tdispute the conservative estimates that he put in

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his report regarding what inflation rates wouldbe. If you look at his report, they seemperfectly reasonable. What's unreasonable is theinformation that he then plugged in from thoseequations from Dr. Reagles. Garbage in, garbageout, and I submit to you that Dr. Reagles'report was garbage in to Dr. Lambrinos' equationwhich resulted in garbage out. If you get to thepoint where you're going to decide damages inthis case, what I ask you to do is to rememberthe testimony of her treating physicians, thepeople who came into this courtroom and gavetestimony without being paid, Dr. Laflair, Dr.Palomino, the physical therapist, theoccupational therapist who talked about Rachel,and I want you to remember the incredibledifference of attitude I think these people hadabout Rachel Hand and her future than Dr. Reagleshad. Dr. Reagles has spelled out a very bleakfuture of this girl. Her treating physicians Ithink rightly so seem to think this is a girlwho's got a lot of hope and promise in front ofher. Dr. Reagles looks solely at all thenegat~ve things about her, doesn't make anypositive assumptions about what she's going to be

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able to do in the future. Her physicians and Ithink you can tell especially Dr. Laflair, Idon't think they would deny her anything. Ithink they truly care, and their testimony.demonstrated they truly care about this girl andabout the way she's going to adjust to collegeand what she's going to be doing. Maybe theychecked off to Dr. Reagles' report. I didn'thear any testimony, a lot of testimony to areasonable degree of medical certainty thatthey're certain she's going to require all thesethings in the future. Dr. Laflair, her familydoctor, not an orthopedic surgeon, not Dr. Nath,Dr. Laflair said she could need these things inthe future. She could. Doesn't mean she will.It doesn't mean she's entitled or her family isentitled to a large verdict for all these things.And even if you look at some of these things, thepersonal care aide, one to two hours a day,aren't there alternatives to that that are muchcheaper than eleven thousand dollars a year?Isn't an alternative to that to give her somecompensation to allow her to get her hairstraightened at the beauty parlor once a monthrather than to have somebody come in and

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straighten her hair every day to the tune ofeleven thousand dollars every year for the restof her life. Once again, I don't think you'vegot to get there. Over the course of time,memories fade, memories change. The chartdoesn't change. The ink doesn't change. There'sa saying the palest ink is better than the bestmemory. And I think that's the case here. We'retalking about a difference in time of sixteenyears from the birth of Hillary, nineteen years,or sixteen years with the birth of Rachel,nineteen years with the birth of Hillary. Nowagain, I urge you to focus on the medicine, focuson the facts. Don't get distracted by whetherDr. Lizardi is board certified. You know, theywant you to believe that Dr. Lizardi isincompetent. Again, remember this incompetentdoctor, Dr. Borow agreed with almost everythinghe did .. This incompetent doctor, Dr. Dexteragreed with almost everything he did. Dr. Dexterin fact agreed with everything he did. Thisincompetent doctor, however they want you to thenlook back and say this incompetent doctor wasright though when he said seven and a halfpounds. That seems to be a little bit of a

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disconnect to me throughout this case that he'sso incompetent, he shouldn't have even tried todeliver this baby, but somehow he knew when hetold the Hands verbally, didn't document that shecouldn't deliver a seven and a half pound baby sohe's on one hand incompetent, on the other handhe's smarter than Dr. Kiken I guess. Focus onthe distractions is what they want you to focuson. They don't want you to focus on themedicine. They don't want you to focus on thefacts. They don't want you to focus on what'sdocumented. If Dr ..Lizardi had been pulling likea mad man, then the nurses didn't document it.That would mean that the nurses for some reasonwere covering for Dr. tizardi at that point. Thenurses were willing to lie and cover up for Dr.Lizardi sixteen years ago. There's a lot ofthings that you have to assume to get to thepoint that Dr. Lizardiwas pulling like a madman. The other issue that I think there's kindof a little bit ofa disconnect on, this will bemy last thought, is that again there are the twodeviations that Dr. Borow said. One is thefailure to perform a Cesarean section afternineteen fourteen. The second one is the

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excessive downward traction. If the excessivedownward traction did not occur, then accordingto Dr. Borow, the baby would have been born finewhich seems to me then that there couldn'tpossibly have been a deviations not to performthe Cesarean section at nineteen fourteen ifthere was still a real possibility for a surgeonto successfully deliver a baby girl without thebrachial plexus injury. If Dr. Lizardi hadn'tpulled like a mad man, then she would be fine.The Cesarean section if at nineteen fourteen isalso largely irrelevant. It all comes down tothe idea of whether Dr. Lizardi applied excessivedownwar~ traction because if he hadn't, accordingto Dr. Borow, the baby would have been fine.Again, I don't think you're going to have to getpast the negligence actions or the negligence

>claims on the special verdict sheet. You'regoing to be instructed on the law by the Judge.You're going to be given a special verdict sheetto fill out to render your decision to give yousome guidance as to how to answer thesequestions. Again, I ask you to try to exclude ifyou can sympathy, try to focus on the facts ofthe case. The girl has an injury. We're simply

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arguing that Dr. Lizardi did not negligentlycause it. Thank you.

THE COURT: Mr. Mills?MR. MILLS: Thank you, your Honor. May it

please the court, would it be permissible forRachel to step out at this point?

THE COURT: Sure.(Rachel Hand leaves the courtroom)MR. MILLS: May it please the court, Mr.

Brousseau. Good morning, folks. This case as Itold you last Monday is about Rachel Hand. Fromthe beginning of this case right until you returnyour verdict, this case is about Rachel. It'sabout Rachel's past starting with the day she wasborn on February 25 of 1996 when she was bornwith a life changing disability caused by abrachial plexus injury at the time of her birth.This case is about that injury, what caused itand what the result was. This case is about.Rachel and Rachel's future. Rachel hasprogressed for the past sixteen years doing thevery best she can to try to be normal, to try tobe as close to what her peers are, other peoplewho are sixteen years old at this point, but thetruth of the matter is Rachel will never be