Copyright 1998 The New York Law Publishing Company
The National Law Journal
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November 23, 1998, Monday
SECTION: WINNING; Successful Strategies From 10 of the Nation's Top Trial Lawyers; Pg. B15
LENGTH: 1518 words
HEADLINE: She Uses Her Cases To Improve Society
BYLINE: Dianne Jay Weaver
BODY:
ATTORNEY: Dianne Jay Weaver, 54
FIRM: Fort Lauderdale, Fla.'s Krupnick Campbell Malone Roselli Buser Slama & Hancock
CASE: Wynn v. Towey, 94-011434 (18) (Cir. Ct., Broward Co., Fla.)
THE TREATMENT Aaron Wynn received while in custody of the Florida Department of Health & Rehabilitation Services reads like something out of the annals of an insane asylum in the 19th century. In 1985, Mr. Wynn, then 18 years old, sustained a head injury in a motorcycle accident that left him with symptoms akin to those of schizophrenia, says his attorney, Dianne Jay Weaver. In April 1988, he was arrested after hitting a policeman and was committed to the South Florida Evaluation and Treatment Center for evaluation. "The committing diagnosis said he had a possible brain injury, but this was ignored," Ms. Weaver contends.
Mr. Wynn spent more than two of the next 3 1/2 years in seclusion and restraints, medicated with drugs contraindicated for a brain injury. "They would leave him for hours or days tied spread-eagled on the bed," she says. "They would let him urinate or defecate on himself." When he was eventually transferred to the medical ward of the facility, she says, "he couldn't walk anymore because he had been tied down so much." As he recovered, she says, he was still restrained, but in a wheelchair. "They let him out for 45 minutes each day to walk in an exercise room. Then they would bring him back and tie him down."
After his release, in November 1991, he returned home, she says, "extremely withdrawn, paranoid and disoriented." In July 1993, he became "spooked while purchasing bologna in a grocery store and ran out the door. He knocked an elderly woman, and she hit her head and died." Mr. Wynn was arrested and charged with manslaughter.
He was committed to another state forensic hospital and "put in isolation, in a 6-by-10-foot room with no furniture and no windows." More than a year later, he was placed in a private facility under court order, she reports. The manslaughter charge was eventually dropped.
Mr. Wynn's criminal defense attorney, Howard Finkelson, contacted Ms. Weaver, long considered one of the nation's most prominent female trial lawyers. Ms. Weaver represents plaintiffs in products liability, medical malpractice, general personal injury and fraud, but she specializes in litigation with a public-interest component.
In the 1980s, she won a $ 5.1 million punitives award, the nation's largest consumer fraud verdict to that date, in a class action against a Florida-based auto dealership. For this case, she was featured in The National Law Journal's 1988 "Winning" section.
Also in the 1980s, as plaintiffs' counsel for women whose mothers had taken the drug diethylstilbistrol, she persuaded the Florida Supreme Court to accept the notion of market share in the litigation. Overall, she has won about 15 verdicts of $ 1 million or more, plus numerous settlements.
Mr. Wynn's family wanted to sue the Florida Department of Health and Rehabilitation Services, but there were several major obstacles, she says. In Florida, she says, "if you sue a sovereign for mere negligence, there's a cap on recovery of $ 100,000 -- $ 100,000 won't take care of this man for six months."
It is possible to get the cap lifted, she says, "but we would have to go to the state Legislature with a claims bill." This would have taken years, or even decades. On a previous occasion when she had won $ 8 million for a baby who sustained massive brain damage at a public hospital, "it took 11 years before the Legislature finally passed the bill. She got substantially less."
A Way Around the Cap
Ms. Weaver decided to try the case as a civil rights action, for which there is no cap. "The failure to provide proper medical care was a violation of his civil rights," she says. The decision brought new hurdles, in the form of a higher standard of proof. "I had to prove deliberate indifference to medical needs and substantial departure from any sound medical judgment."
To try a case using an unusual theory, she says, "you have to know the law. . ..They will come back claiming that this was the best they could do, so you have to know what the standards are."
The plaintiffs sued 17 people, including those who directed the facility, the medical director who developed Mr. Wynn's treatment plan, his physicians, his social workers and his psychologists at each facility. They sued individuals, but the state would be on the hook for any judgment. To make her case, Ms. Weaver researched the standards for each category of worker.
Ms. Weaver sifted through 27,000 pages of documents on Mr. Wynn's treatment in the Florida facilities. Before she had been brought in for the civil action, a brain injury expert, Dr. Antoinette Appel, had gone through the records for the criminal case. Ms. Weaver's team "went through these records many more times with her, to determine what each defendant did and to determine the relationship between his behavior and the drugs. We also had two full-time nurses and two other lawyers going through these with us, looking for deliberate indifference and departures from the standards."
The material was so extensive, she says, that it turned up another problem: "How can we cull this and put the information on to be absorbed by six people?"
Ms. Weaver and her associates developed a series of demonstrative charts, color-coded to indicate the days (and months) that Mr. Wynn spent in various forms of restraint, "so you could see immediately how many hours and what type of restraints were used," says Ms. Weaver.
She also produced charts on the rules on restraints from the American Psychiatric Association Task Force, the Joint Commission on Accreditation of Hospitals and Florida hospital regulations, and how the restraints had violated these procedures.
Ms. Weaver is a great believer in using visual demonstratives: "It's one thing to tell the jury that he was in restraints for 75 percent of the time in 1988. But if they see a chart with a world of yellow and just a patch of white, it gives the jurors a better ability to internalize what they're being told." She used the charts extensively in her opening statement.
She began by telling the jury that "the defendants sought to break Aaron Wynn because he was not compliant. He was put in restraints more than any other individual -- ever. As a result of his being tied down, he had lost his mind. He had a brain injury and could have been rehabilitated. He could have had a life. But now he will always be in institutions."
She stressed not just the liability of the defendants, but also the jury's responsibility for changing Mr. Wynn's life. "I told them that the choice they had to make was whether he will be allowed to stay in the institution, where he is treated like a human being, or he will be sent back to a state institution to be treated like an animal."
She called Dr. Appel, both to testify about seeing Mr. Wynn in custody of the state and to teach the jury. Dr. Appel explained the anatomy of the brain, using charts that were color-coded by parts, by function and by the parts most affected by given drugs. She explained that because Mr. Wynn had been misdiagnosed as a schizophrenic, the drugs administered at the state facilities made him worse rather than better.
Seemingly, this testimony was neutral, but in fact it would prove devastating for the defense, Ms. Weaver believes. At a later point, when she asked the defendants about the effects of certain drugs on temporal lobe syndrome, "the witnesses didn't know the answer, but by then the jury did."
She called each of the defendants as witnesses in her case. "To a person, they all denied responsibility," she says. With each, the cross was relatively brief, centered on proving indifference and departure from standards. With Mr. Wynn's actual caretakers, she was able to score a number of memorable points. When, for example, she asked one of the state's treating physicians what would happen to Mr. Wynn if he was returned to the state facility, he said Mr. Wynn would be tied down again.
One of the doctors, she recalls, brought a notebook with him to the trial. She asked to see the notebook before he testified. In it, she says, was a handwritten note advising him "to give very long answers whenever I asked a question." So Ms. Weaver changed her method of questioning for this witness. "With him, I would ask a question and I would sit down, and he would keep talking. Then I would say, 'Do you remember the question?'" After doing this a few times, she says, "I read the handwritten note to the jury."
On April 3, a Fort Lauderdale, Fla., jury ordered 13 of the defendants to pay Mr. Wynn a total of $ 17.99 million. There was no appeal. The state settled for $ 17.75 million, paying the first $ 10.75 million installment Oct. 28.
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Trial Tips
* Be creative to skirt caps.
* Know what you have to prove before taking depositions.
* Use demonstrative aids to explain extensive evidence.
* Keep cross short.
GRAPHIC: Photo, Photograph of Ms. Weaver. SUSAN GREENWOOD
LOAD-DATE: November 30, 1998
