Blogging jury duty: Day 4

Carol Hyland

Judge Kirwan is happy about the weather this morning. "Well, it looks like we're going to get a little sunshine today."

The day starts with Carol Hyland, a "life care planner."

Throughout the trial I'm struck by the strange intimacy shared by Kent and Biegler--before presenting evidence, they'll lean across the aisle and whisper "I'm going to show them this, this, and this. You okay with that?" "No problem." They repeatedly mention to the judge some "gentleman's agreement" they're reached outside the courtroom for putting exhibits into evidence. At one point, one of Kent's witnesses is late, and Biegler cuts him a break by bringing in one of his witnesses early. Kent leans across the aisle to Biegler, "Really appreciate it" and Biegler touches Kent's shoulder and says quietly, "Not a problem, you guys are a pleasure to work with." Biegler is tall and lean, Kent is short and overweight; in another life they could have been Abbot and Costello.

And then I realize that most of the witnesses and Poe and the lawyers and judge of course are all professionals--they've done this countless times before. We in the jury--the scorekeepers, the so-called "ultimate fact-finders"--are the only amateurs in the courtroom.

Carol Hyland is such an authority in the life care planning field that she's been retained by Kent and Biegler on other cases. She goes through in excruciating detail the ongoing care Burr will need--from Visiting Nurses Association housecalls to assisted living, down to paying someone for help with laundry and gardening. Hydrotherapy--very effective in cases like this--runs a whopping $580 an hour. She goes through all the equipment he'll need, from wheelchairs to back braces.

Biegler starts by challenging the figures for cleaning expenses. "So you have cleaners coming one, maybe two hours a week?"

Hyland gives him a look of mock astonishment. "You know that's not how cleaning works." Laughter. Hyland and Biegler are on opposite sides now, but they obviously go back a long way.

Biegler grins. "You're talking to a man who still cleans his own toilets; I think I can get them clean in an hour."

And even the judge can't resist making a joke: "I'm not sure if I should strike that last comment from the record or not!"

It takes only a few minutes for Biegler's questioning to turn hostile.

"Ms Hyland, turning to page 3 of Dr Johnson's recommendation, can you explain to me how he arrives at a sum of over half a million dollars for assisted living, before medical expenses...."

"Mr Biegler, assisted living does not include medical expenses...."

"I understand that." The edge in Biegler's voice grows sharper. "What I am having trouble understanding, Ms Hyland, is how he could possibly get a total..." Kent leaps up, as if his chair is on fire.

The comraderie between the lawyers evaporates. "Your honor, Mr Biegler is a fine lawyer and a gentleman, but I have to object. This is argumentative."

The objection is sustained--Biegler tries a different tack.

"These services you have here: cleaning, cooking, caring for Mr Burr--Mrs Burr provides those services now. True statement?"

"Yes. These are services upon which Mr Burr has become dependent Mrs Burr."

"So these amounts are here in case--excuse me--in case Mrs Burr should die.  True statement?"

"In case Mrs Burr should prove unable or unwilling to provide those services."

"Which is a hypothetical, isn't it?"

Roland Torres, MD

The next witness is Dr Roland Torres for the defense, chief of neurosurgery and director of neurotrauma at Santa Clara Valley Medical Center, associate professor of neurosurgery at Stanford, and the on-call neurosurgeon when Burr was admitted. All the expert witnesses have impressive credentials, but Torres's are especially imposing. Torres has a bit of gel in his hair; he looks like a rock star.

Again, we hear: no evidence of head injury. No evidence of abnormal brain function, either on the date of the accident, or on any of the subsequent visits. GCS score of 15 on each of three visits--completely normal.

Torres goes even further than that. Even though there is variation among patients, "most patients" should be able to reach a full recovery from trauma of this sort within 12 months.

Kent tries to make a dent in his testimony.

"Isn't it possible for symptoms of a brain injury to manifest themselves months after the accident?"

"No. If there was trauma to the brain, the patient would be symptomatic immediately after the accident."

Kent digs through his papers. I sense he is stalling for time. "Why do you suppose some people report cognitive problems only weeks or months after the original injury?"

Torres is unequivocal: that just doesn't happen.

Kent shows Torres the photo of the car with tailpipe pushed into the fender.

"Dr Torres, I don't expect you to be an expert on this, but wouldn't you consider this to be a pretty serious accident?"

"Actually, I'm also a motorcycle rider, and I take a special interest in the subject of motorcycle injuries and equipment."

Oh. Even so, Torres refuses to concede there is a possibility that Burr is suffering from a brain injury.

Rosemary Burr

Finally, we hear from Mrs Burr. We see their wedding pictures, vacation pictures, and hear how they moved here from New Jersey. She's the main breadwinner in the house--she's an office manager, bookkeeper, and client security manager. She talks about how they were separated (not divorced, as the defense asserts) for 3 years (not 7, as the defense asserts), and then reconciled a year before the accident.

And, as you might guess, we hear the story of how their lives have been transformed by the accident--how she has to dress and feed him, how she now has to do all the chores, how they no longer enjoy hiking or bird watching or even shopping together.

"You were separated for a period of time, weren't you Mrs Burr?"

"Yes, for two years."

"But you're back together now?"

"Yes, we worked out our differences and we're very happy together. William--I don't know how I could live without him.... On the day of the accident, William told me he was just looking at the sky, thinking about how wonderful life is. And all this...got taken away from us. We didn't ask for this. We didn't ask to have this happen to us."

On cross examination, Biegler drills in on Burr's employment history.

"Why did your husband leave Atlas Capital Management company after only 9 months?"

She seems unable to edit out the first thought that comes into her head. "It's not--it's not that he didn't get along with the other people there." Pause. "He didn't agree with their principles."

"And other than his work there and as a tax preparer for H&R Block, what else did your husband do for work, in the five year period before the accident?"

There is a long silence. "I--I don't remember. I'm sorry, I'm really nervous."

"That's all right. Take your time." Biegler is on a roll; he starts rocking his foot as searches for exactly the right phrasing. "Let's open it up to, say, ten years. It is customary when you introduce your spouse at a party, to mention what he does for a living. How did you introduce William?"

Another long pause. She looks up at the ceiling; she's lost. Finally: "Sales."

"Sales? What did he sell?"

"Real estate." She thinks a bit more. The courtroom is silent. "And he sold electronic parts, for a while."

"No further questions."

Smiling broadly, Kent resumes questioning and throws her a lifeline.

"Mrs Burr, your husband taught at Foothill College, didn't he?"

"Yes, yes, of course he did. He loved to teach."

"And he also loved volunteering at Villa Mahora, didn't he?"

Without moving from his chair, Biegler cuts in sternly with a one word warning: "Leading".

"I'll rephrase. Didn't your husband also volunteer at Villa Mahora?"

"Yes, he did."

She leaves the stand, visibly relieved. But the damage has been done.

Bay Area Pain And Wellness Group

Next we hear from three witnesses for the defense: a parade of three medical professionals from the Bay Area Pain and Wellness Group. This is going to be the linchpin of the defense: that William Burr checked himself into BAPWG one year before the accident, complaining about exactly the same symptoms that he today blames on the accident.

The witnesses are in an awkward spot; they have have nothing against Burr, but they understand their testimony could potentially deny him a settlement in a DUI lawsuit.

Burr went in for a single visit to BAPWG, over three years ago. None of them remember him, so their testimony can only consist of reading aloud the reports they wrote at the time, and speculation about what they might have done.

The written reports document that Burr has complaints of back pain dating back to when he was a teenager, due to "falling off of a truck," sporting accidents, "the list goes on and on." He reports problems sleeping, depression, etc. He reports that he works from home, he "rarely leaves his cave." They report that he's divorced from his wife--apparently that's what he told them..

When asked why he didn't accept treatment there, the doctors try to soft pedal it. "Our program isn't right for everyone." "Maybe he wasn't ready."

But the written reports tell different story: that he's argumentative, not open to treatment, stubborn, hostile.

The last witness from BAPWG is Kim Minh, a physical therapist. In spite of the fact that she is young and doesn't have the long CV of the other expert witnesses, she is by far one of the most credible witnesses: she has no reason to be biased one way or another, she's utterly forthright and candid, and she's in complete command of her material.

Like the other witnesses at BAPWG, she has no independent recall of Burr. But her notes are meticulous. She reports that Burr's "focussed gait" is lopsided, but his "unfocussed gait" is normal.

Biegler: "Can you help us understand you what you mean by 'focussed' vs 'unfocussed'?"

"Well, by unfocussed gait, I mean your walk when you are not paying attention to it. For example, if I were to point out that most of the members of the jury have poor posture"--she throws a glance in our direction, and we react as if marionettes pulled on a string--"you'd immediately sit up straight." We laugh, but we're now also hanging on every word she says. "Likewise, your 'unfocussed gait' is more likely to be your 'normal' walk."

"And you indicate here that Mr Burr's flexion is limited front to back and side to side by 50 percent and 25 percent. Is there any way you could help make that more clear for us?"

"Do you want me to stand up and demonstrate?"

"If you would."

I wonder if Kent and Burr have any idea what is happening to their case.

"Your honor, we would now like to play for the witness the video of the exam from Dr Kiernan's office.  Ms Minh, if you see were to see this patient..."

"I'm sorry, I can't...."

Judge Kirwan: "I'm going to have ask you to speak one at a time. The court reporter can't keep up if you overlap."

"I'm sorry. I'm sorry. Your honor, can I get a little closer to the screen? I left my glasses at home this morning."

Biegler looks at Kirwan, who gives permission.  This time when we see the video, I hold my notebook up in the air and try to sketch the exact angle that Burr is making as he tries to bend his waist.

"Ms Minh, if you were to see this patient today, what would be your observation?"

"That he has limited front-to-back and side-to-side flexion."

"Can you be more precise?"

"I would say he is limited to 50% flexion front to back, and 25% side to side."

"Exactly the same observation you made three years ago, in March 2007."

"Yes."

"No further questions."  He may as well have said "Q. E. D." Kent can't do much to negate this testimony. He does try to make Minh sympathetic to his client.

"You only found out a few hours ago that you were being called to testify for litigation in regards to damages for a DUI, is that correct?"

"That's correct."

"My client was in good enough physical shape shortly before the accident to complete a 4000 mile motorcycle ride. Now I don't expect you to know anything about what it takes to undergo a ride like that...."

Ms Minh corrects him. "Actually I have and ride a motorcycle." Huh, am I the only person in the courtroom who doesn't ride a Harley?

Burr is at least able to get Ms Minh to admit that when she saw Burr, she did not observe that his back was highly sensitive to palpation.

William Burr

We finish with Kent's direct examination of Burr himself. Burr says he's tired and in pain, and he looks it. But he's much more coherent and articulate than I had expected from the defense neuropsychologist's report. There is only time for 15 minutes of testimony, and we're done for the day.

It's now 4:30 on Thursday. We've heard all the witnesses, and my notebook is almost full. I have no idea how we're going to reach a verdict tomorrow.