By Fredric and Martin Levin
In October of 1988, while scuba diving in the Gulf of Mexico, Keith Rawson was inflicted with decompression sickness, “the bends”. Approximately five hours after suffering the first symptoms of this disease, Mr. Rawson entered a recompression chamber for medical treatment. All treatment efforts failed, and Mr. Rawson remains paralyzed below the chest.
At trial it was Mr. Rawson’s contention that his paralysis resulted because of his medical providers failure to provide him expedient recompression therapy. The first jury trial arising out of this incident occurred in February of 1995, and resulted in an $8 million plaintiff’s verdict. The second jury trial, which occurred in September of 1997, resulted in a defense verdict. The third jury trial occurred in June of 2000, and resulted in a $31 million plaintiff’s verdict.
What caused these divergent results?
FACTS OF INCIDENT
On October 2, 1988, at 3:00 p.m., approximately fifteen miles off the shore of Pensacola, Florida, Keith Rawson (an experienced diver) began his first dive of the day. Approximately thirty minutes after reaching the depth of ninety feet, Mr. Rawson began his ascent. When he reached the water’s surface, Mr. Rawson noticed that he was extremely weak and was unable to swim to the dive boat.
Mr. Rawson inflated his scuba vest and floated in the water as the boat was brought to him. When the boat arrived, Mr. Rawson was too weak to remove his scuba vest, and was too weak to climb the ladder hanging on the side of the boat. Three of Mr. Rawson’s friends pulled him into the boat. Mr. Rawson then began losing his eyesight, and began experiencing extreme numbness and tingling in the lower portion of his body.
Mr. Rawson realized he was suffering from decompression illness, and needed hyperbaric recompression therapy. Thus, at approximately 3:50 p.m., Mr. Rawson’s friends notified the Coast Guard that Mr. Rawson was suffering from the bends, and that they would take Mr. Rawson to the Coast Guard station located at the Pensacola Navy Base.
At approximately 4:00 p.m., the Coast Guard notified the Escambia County Emergency Medical Service (EMS) of the incident. By 4:05 the EMS was in route to the Coast Guard dock, arriving at 4:16 p.m. At approximately 4:40 p.m., the EMS notified Baptist Hospital of the incident. Dr. Thomas Lohstreter, one of the emergency room doctors at Baptist Hospital, agreed to undertake responsibility for Mr. Rawson’s medical care. Dr. Lohstreter immediately notified the United States Navy of the situation, and asked whether the Navy could treat Mr. Rawson in the Navy recompression chamber. Dr. William Stewart, a Navy doctor, stated that the Navy was prepared to treat Mr. Rawson and would have the chamber ready and staffed by the time Mr. Rawson arrived at the Coast Guard dock.
Approximately ten minutes after Dr. Lohstreter spoke with the Navy, Dr. Richard Slevinski, the head of Baptist Hospital Emergency Room and Baptist Hospital Life Flight, instructed Dr. Lohstreter to fly Mr. Rawson by life flight helicopter to the recompression chamber at Bay Medical Center in Panama City, Florida, a distance of approximately 100 miles. Dr. Slevinski informed Dr. Lohstreter that he did not wish for Mr. Rawson to be treated at the Navy Base, a distance of 1.5 miles from the Coast Guard dock.
Mr. Rawson arrived at the Coast Guard dock at 4:55 p.m.. The EMS crew examined Mr. Rawson and noted that he was experiencing numbness and tingling in the lower portion of his legs, but that he still had normal range of motion of all extremities. By 5:07 p.m., Mr. Rawson was stable and ready to be transported to the Navy chamber (which was 1.5 miles away) or to Baptist Hospital emergency room (which was 12 miles away). The EMS crew, however, was instructed by Dr. Lohstreter not to transport Mr. Rawson because Dr. Slevinski was sending Baptist Hospital life flight to the Coast Guard dock, and was going to fly Mr. Rawson directly to Bay Medical Center in Panama City. Unfortunately, Dr. Slevinski was not aware that there was not enough fuel in the helicopter to fly Mr. Rawson to Panama City, and Mr. Rawson waited at the Coast Guard dock an additional thirty minutes while Baptist Hospital attempted to determine whether the helicopter could be refueled with Mr. Rawson onboard. When it was determined that the helicopter could not be refueled under these circumstances, Mr. Rawson was flown to Baptist Hospital emergency room and waited while the helicopter was refueled.
At the emergency room, Dr. Lohstreter examined Mr. Rawson and determined he had full range of motion of all extremities, and was not paralyzed. Dr. Lohstreter diagnosed Mr. Rawson as suffering from severe decompression sickness and in need of receiving immediate treatment in a recompression chamber. At 6:33 p.m., or approximately one and one-half hours after Mr. Rawson could have been transported to the Navy chamber, Mr. Rawson left Baptist Hospital and was flown to Bay Medical Center, a one hour flight. Unfortunately, Baptist Hospital failed to inform the helicopter pilot to fly at an altitude of 200 feet, which is required when transporting patients with decompression illness. Thus, the pilot did not restrict the altitude of the flight.
When Mr. Rawson arrived at Bay Medical Center, he was completely paralyzed. Additionally, Bay Medical Center was not prepared to treat Mr. Rawson, as Baptist Hospital had failed to perform a physician to physician transfer, and Bay Medical Center did not have the medical staff present to perform recompression therapy. It took an additional one and one-half hours before Mr. Rawson was finally placed in a recompression chamber, approximately four hours longer than it would have taken if Mr. Rawson had been transported to the Navy chamber from the Coast Guard dock.
Mr. Rawson filed a lawsuit against Baptist Hospital alleging that Baptist Hospital’s negligence resulted in his paralysis. Baptist Hospital raised two primary defenses. First, Baptist Hospital claimed that Mr. Rawson was suffering from a severe, life threatening, pulmonary condition which could not have been treated at the Navy facility, and this is why Mr. Rawson had to be sent to Bay Medical Center, which is a full service medical hospital which additionally has a recompression chamber. Second, Baptist Hospital claimed that Mr. Rawson was paralyzed from the moment he surfaced, and any delay in treatment did not cause his condition to deteriorate.
The first trial in this case occurred in February of 1995 in Panana City, Florida. We, as counsel for Mr. Rawson, emphasized the fact that the EMS and the emergency room doctor both determined that Mr. Rawson was not paralyzed before Mr. Rawson was sent to Bay Medical Center, and that eighty-five percent of scuba divers with severe bends do not end up paralyzed. We also argued that the Navy facility could have adequately treated any pulmonary condition Mr. Rawson may have been experiencing. The defense argued the seriousness of Mr. Rawson’s pulmonary condition and need to be in a hospital, and also argued that Mr. Rawson was basically paralyzed from the moment he surfaced, citing the testimony of Mr. Rawson himself. The trial resulted in an $8 million plaintiff’s verdict, but was reversed on appeal because the appellate court concluded that Fred Levin’s closing argument was inflammatory. As a result of the appellate decision, The Florida Bar brought ethics charges against Mr. Levin. The ethics charges culminated in a two day judge trial, and a finding of not guilty on all charges. The acquittal was upheld by the Florida Supreme Court.
At the second trial, which was tried in Pensacola, Florida, we decided to adjust our trial tactic so that the defense would not be as well prepared to respond to our case. Based upon numerous focus groups, we decided we wanted a jury of scuba divers and Navy personnel, and that we also needed to emphasize that 100% of the divers who enter a recompression chamber who are not paralyzed do not end up paralyzed. We also emphasized that the Navy chamber was prepared, ready and capable of treating Mr. Rawson at the time he was at the Coast Guard dock and that Mr. Rawson should have been sent to the Navy for immediate recompression treatment. During the defense case, Baptist Hospital called its chief expert to testify. We had previously deposed this expert for ten hours, and received Baptist Hospital’s statements as to this expert’s proposed testimony. When the expert took the witness stand, and for the first time, he presented a novel theory that Mr. Rawson was suffering from a type of decompression illness which is extremely rare and which cannot be treated by the use of recompression therapy unless it is treated within the first thirty minutes after the condition arises. The expert testified that no matter when Mr. Rawson was treated after the first thirty minutes, he was going to end up paralyzed. We were unable to counter this testimony as it occurred at the end of trial, and had not been presented during the discovery process nor during opening statements. Even so, when the jury retired for deliberations, four of the six jurors wanted to return a plaintiff’s verdict. The foreman, however, who was a Navy captain, was able to convince the jury to return a defense verdict. The jury verdict was reversed on appeal because the defense expert presented testimony which was formed after the discovery deadline and was not revealed in a timely manner.
At the third trial, which also occurred in Pensacola, we decided to once again change our trial strategy. Despite the fact that our focus groups suggested that scuba divers and Navy personnel would be positive jurors, we decided to strike any persons in these two categories after experiencing the dominance of the Navy captain in the previous trial. We made this decision because our case was strong on the facts that we did not wish to take a chance of the case being decided by one or two jurors who claimed to possess personal knowledge of some of the issues being addressed. We also decided to directly attack the veracity of the Baptist Hospital doctors in regard to their testimony, and to attack Baptist Hospital (a local, not-for-profit, faith-based hospital) as having inadequate policies and procedures to handle bends patients. As an example, we decided to directly argue that Dr. Lohstreter and Dr. Slevinski were fabricating their entire testimony. We argued that Mr. Rawson was not suffering from a pulmonary condition, and that the Baptist Hospital doctors were never concerned with any potential pulmonary problem. We argued that the Baptist Hospital doctors sent Mr. Rawson to Panama City as a result of ignorance of the Navy chamber capabilities and because of a desire to utilize the Baptist Hospital helicopter. We argued that the doctors fabricated medical records to support their testimony of the pulmonary condition, and that the hospital was simply trying to avoid liability. The trial resulted in a $31 million plaintiff’s verdict.
In looking back over the past twelve years of litigation, we wish we could tell you conclusively whether the divergent jury verdicts were caused by differing trial tactics or whether the results were caused by different jury perspectives. Unfortunately, the answer is not simple. While we did present slightly different trial strategies in each trial, the approaches had numerous similarities, and it is difficult to state that one approach was clearly more effective. At the same time, the make up of the three juries were not noticeably different. While there were some distinguishing characteristics, the differences were not drastic.
The best that can be concluded is that trial advocacy is a combination of trial preparation and strategy, and a combination of juror makeup. Experience, preparation, and good facts are always important features of trial success. However, a trial attorney should always inform his/her client that a prediction on the outcome of a jury trial is simply an educated guess, and that the client needs to be prepared for widely divergent results. There is always an element of jury uncertainty. Any time a client agrees to have his/her case tried before a jury, the client needs to understand that in some ways it is simply a game of chance.
Fredric G. Levin is a shareholder with the law firm of Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. in Pensacola, Florida. He is a member of the Inner Circle of Advocates, and has been listed in every edition of the publication The Best Lawyers in America. He is board certified in civil trial litigation by both The Florida Bar and The National Board of Trial Advocacy. For the year 1999, the National Law Journal named Mr. Levin as the top civil litigator in Florida. This honor encompassed plaintiff and defense counsel. Mr. Levin was also named in the October 4, 1999, edition of the National Law Journal as one of the “Top Ten Litigators for 1999", which again included both plaintiff and defense counsel. He has received more than twenty-five jury verdicts in excess of $1,000,000 (five in excess of $10,000,000, and one in excess of $40,000,000). Mr. Levin received his undergraduate degree from the University of Florida in 1958, and graduated number two in his law school class from the University of Florida Fredric G. Levin College of Law in 1961, a law school which now bears his name.
Martin H. Levin is a shareholder with the law firm of Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. in Pensacola, Florida. He received his economics degree (with honors) from Stanford University in 1985, and graduated with high honors at the University of Florida College of Law in 1988. While at law school, he was a senior editor on the Florida Law Review, a member of Phi Delta Phi honorary fraternity, and installed as a member of The Order of the Coif. After law school, he worked as a law clerk for the Honorable Edward B. Davis, United States District Court, Southern District of Florida. Mr. Levin has received eight jury verdicts in excess of $1 million, including one jury verdict in excess of $1 billion and three additional jury verdicts in excess of $22 million. He is board certified by the National Board of Trial Advocacy and The Florida Bar.