Defendant infighting benefits plaintiffs
Nothing warms the heart of a plaintiff's attorney more than seeing the co-defendants turn on each other.
Jeffrey Kimmel, JD, a partner with Salenger Sack in New York City, is a plaintiff's attorney handling malpractice cases, and he says he loves to see the co-defendants go at each other's throats. When they do, he just steps back and lets them fight.
"A finger-pointing scenario is the worst-case scenario for them and the best-case scenario for me," Kimmel says. "That's my dream, to have the two defendants blaming each other. I don't have to do any work. I just sit down and watch."
When co-defendants fight, Kimmel says he knows the defense is falling apart. Either there are serious personality conflicts, or one of the parties is not going along with the attempt at a unified defense, because he or she doesn't feel responsible. He says risk managers should try to avoid such a conflict by reaching out to the other defendant's attorney, which he says rarely happens.
"When risk managers receive a claim letter or notice of a lawsuit, they usually just forward it to their attorney or, if they're self-insured, pass it on to the appropriate board. Then it's all in the hands of attorneys who are just looking for a good strategic move for their own client," Kimmel says. "I think if they would try to work with the other defendant's attorney and work out any differences beforehand, or even settle the case before it goes to court, you'd avoid most of these bad situations."
Kimmel recalls a case in which a man died from a postoperative infection and the surgeon testified in deposition that he did not know what caused the infection. When Kimmel asked the question again during trial, expecting the same answer, the surgeon volunteered that he had subsequently learned the pathogen came from a sink in the operating room. That opened up the hospital to liability.
"Why on earth the doctor said that, when he had already testified that he didn't know, I have no idea," Kimmel says. "The trial just exploded and we ended up with a seven-figure settlement in a case that, up to that point, had been a no-pay."
Source
For more on the plaintiff's perspective of co- defendants, contact:
Jeffrey Kimmel, JD, Salenger, Sack, Schwartz & Kimmel, New York City. Telephone: (212) 267-1950.
Nothing warms the heart of a plaintiff's attorney more than seeing the co-defendants turn on each other.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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