Beating Goliath – Season 4, Episode 2 – Part 2: “Losing Hope”

[00:00:04.34] - Marcy Mangan

From the Chicagoland law firm of Salvi, Schostok & Pritchard, this is Beating Goliath: A Plaintiff's Pursuit of Justice. Case #4, Part 2: Billy Fern v. Central DuPage Emergency Physicians et al. In Episode 1, we introduced you to Billy Fern, A man whose foot was amputated after his doctors failed to recognize signs of a blood clot, despite clear warning signs and a medical history that made him more prone to blood clots. The delay in diagnosis was earth-shattering for Billy and his family, and it was entirely preventable. After losing his foot, he underwent months of painful infections and had to learn to maneuver around his home without a foot. It took 6 months for Billy to receive his prosthetic. But even then, he was still in an immense amount of pain. Seeing what he was dealing with and feeling so wronged by the medical industry, his parents hired attorney David Rashid to file a medical negligence lawsuit against the doctors who failed Billy. But as David and the Ferns worked towards a resolution of the case, they encountered even more frustration.

[00:01:11.08] - Jennifer Cascio
It was all set for trial and then COVID hit and then the courts shut down.

[00:01:15.18] - David Rashid
Sometimes these cases take a really long time to work up, especially cases that fell in that 2020-2021 COVID era.

[00:01:23.16] - Marcy Mangan
Many of the trials scheduled to take place in 2020 ended up being delayed until it was safe to gather in groups again. But in March of 2022, the Ferns finally had a new trial date. They were mentally prepared to share their story with a jury, but another unforeseen obstacle came their way.

[00:01:38.52] - David Rashid
I was going to take the case to trial at my old firm, and the family medicine expert that I had retained had been deposed, was, was set to go to trial with us, we reached out and he informed us that he had had, uh, recently been diagnosed with a serious medical condition.

[00:01:54.53] - Marcy Mangan
That medical condition prohibited the expert from being able to testify at trial, even remotely via Zoom. David asked the court for 30 days to find a new expert. He was ultimately given only 21 days to find a new expert, depose them, and file their opinions. Any lawyers who are listening know that hiring a new expert so close to trial can be very challenging.

[00:02:15.15] - David Rashid
That was an impossible schedule to keep. I did get a new expert, but we had to voluntarily dismiss the case, which is a procedural option here in Illinois. So the case was actually refiled.

[00:02:25.04] - Jennifer Cascio
It was just delay after delay.

[00:02:27.12] - Speaker 4
I was sort of thinking that like it was like stuck in limbo and it's pretty nerve-wracking.

[00:02:32.25] - Marcy Mangan
One way David helps ease his clients' anxiety during any delays or hiccups throughout the process is to always keep them informed of both the good and the bad news.

[00:02:40.52] - David Rashid
My practice is to write them letters. The beginning of every case comes with a 5-page letter from me explaining each step of the process so that they can know in a general time frame about which they can expect it to take. And that sort of serves as a roadmap for them. But along the way, there are always speed bumps, stop signs, or downed power lines, right? It is important and probably more important to tell them when something didn't go well or we didn't get the review that we were you're hoping for. That to me is equally, if not more important, as telling them the good stuff. It helps if they're feeling like they are watching the process unfold through the letters, through the conversations, whatever it is.

[00:03:25.03] - Jennifer Cascio
We worked with David for 8 years, and we're just so grateful for his knowledge and his perseverance.

[00:03:32.20] - Speaker 4
To have someone like that in your corner, you can't replace that.

[00:03:35.58] - Marcy Mangan

The Ferns trusted David through and through, and they were appreciative that he kept them informed throughout the ordeal. That's why when another curveball came their way the following year, they knew things would be okay as long as they had David in their corner.

[00:03:48.08] - David Rashid
In 2023, I had the extremely wonderful opportunity to become a partner at the premier personal injury medical malpractice firm in the state of Illinois and frankly across the country at Salvi, Shostak Pritchard. When I joined Salvi, Shostak Pritchard in February of 2023, a number of my clients from my old firm elected to stay with me. And transfer their case with me. And one of the many cases that came with me to SSP was the Billy Ferns case.

[00:04:21.15] - Jennifer Cascio
I was a little concerned when I first heard he was leaving because I had this fear, like, what if he just dumps this on this lawyer that I've never met?

[00:04:30.14] - Speaker 4
We were concerned because we don't understand the system at all. And so we didn't know because of the time energy and expenses that had gone into the case on our behalf up to that point.

[00:04:42.37] - Jennifer Cascio
He wanted us to come with him. You know, I said immediately, yes, we will go with you. We had 100% faith in David. We were totally confident with him.

[00:04:51.49] - Speaker 4
He's a very credible man, and we were going to stay with him no matter what. I trusted David's judgment by going there.

[00:04:59.07] - David Rashid
This was obviously a big case, and they trusted me along that continuum, along that process. They stuck with me. I appreciated their loyalty to me, and I wanted to to make sure that the team that I offered them and Billy the best potential outcome that he could get.

[00:05:15.58] - Marcy Mangan
When David started working at Salvi, Schostok & Pritchard, he created a summary of all the cases he brought with him from his old firm for Salvi, Schostok & Pritchard's founder and managing equity partner, Patrick Salvi Sr.

[00:05:27.16] - David Rashid
Then Pat, with his years and years and decades of experience and accomplishments, put together what he felt was going to be the best team for each case, depending on those circumstances and those facts as outlined mind when I got here. And so Pat put together the Fern team, which was Patrick Salvi Jr. and Jim Cascio, the two of them who obviously had come off their hugely successful Sterogenics trial. So that became the Fern team.

[00:05:55.11] - Marcy Mangan
David joined the firm in February, and the case was set for trial in September, so the team had just over 6 months to prepare their case.

[00:06:02.33] - David Rashid
We decided that each one of us would focus on a particular area.

[00:06:07.37] - Speaker 4
The way that they divide the responsibilities between the different people who are going to be questioned and stuff is, is really ingenious.

[00:06:17.19] - Jennifer Cascio
It was just like a whole different thing than when we switched firms.

[00:06:24.35] - Patrick Salvi II
My name is Patrick Salvi Jr. I'm the managing partner of Salvi, Shostak, and Pritchard.

[00:06:30.29] - David Rashid
Patrick Salvi Jr. is— I don't think it's an exaggeration to say this— he is historically good at what he does. He is historically great at what he does in this business. That's not hyperbole. That's a fact. You can just look at the results over the last year plus, 2 years. He's breaking all kinds of records every time he gets his hands on a case and his self in front of a jury. He very much became a leader within the team.

[00:06:58.08] - Speaker 4
Patrick has a very commanding presence in a room. He was someone that was very confident, but most important, he was personable. And he was real friendly. It was a really terrific experience. He explained to us who he was and what they intended to do. We got more information about what was going to happen later at the trial. And after that meeting with him, and David was there also, that's when the wheels really started rolling.

[00:07:27.43] - Jennifer Cascio
My name is Jennifer Cascio, and I'm an attorney at Salvi, Shostak Pritchard.

[00:07:32.13] - David Rashid
She began working with the family and the damage witnesses, and she has such a great rapport with the client.

[00:07:38.43] - Speaker 4
She's compassionate, and she's efficient, and she's a really good listener. So, it was good to have her with.

[00:07:44.53] - Jennifer Cascio
It was apparent within the first 5 minutes how difficult Billy's life is.

[00:07:49.19] - Patrick Salvi II
As I first met the Ferns, everything really started to make sense. Everything seemed to fit in terms of the way those fateful days played out. It really became all the more perplexing why the defendants didn't listen more carefully to Billy in terms of what he was telling them and make the appropriate decisions that would have led to the diagnosis and treatment that would have saved his foot.

[00:08:11.46] - Marcy Mangan
As we mentioned in episode 1, the defendants did not propose a settlement agreement prior to trial. They also never admitted liability, meaning they did not believe their actions led to the loss of Billy's foot.

[00:08:22.48] - Patrick Salvi II
I think the lack of any settlement offers before trial probably was due to the fact that the defendants and the folks folks that held the purse strings believed that they felt as though they had a good defense insofar as these doctors were doing things. They were ordering tests, they were seeing the patient, they were accommodating the patient in terms of answering the phone calls and seeing the patient in the office, but they never put the big picture together.

[00:08:52.37] - David Rashid
This was going to be a contested trial on all issues. From liability to causation to damages.

[00:09:01.07] - Marcy Mangan
While the lack of a settlement offer or admission of liability will sometimes baffle the attorneys at Selvey, Shostak, and Pritchard, they find a great opportunity in those cases.

[00:09:10.21] - Patrick Salvi II
If we've taken the case and we're that far along, it's very exciting to me to not have any offers because it takes a different pressure point completely off the table. It's actually, in my estimation, a lot more challenging to go all the way to verdict if there's a very competitive settlement offer. That your client is considering, because then the risk of not winning is much higher.

[00:09:34.53] - Marcy Mangan
As the September trial drew near, the pressure and workload became increasingly intense. The attorneys, paralegals, legal assistants, and other staff members met daily to work on the case.

[00:09:45.44] - David Rashid
Leading up to any trial, in particular a trial of this nature and magnitude, is that case. That becomes your life. For weeks before a trial. There is so much work to do in terms of preparing your witnesses, in terms of preparing your cross-examinations, in terms of preparing your demonstrative exhibits, in terms of preparing your motions in limine, uh, in terms of scheduling, in terms of making sure all of the T's are crossed, the I's are dotted.

[00:10:11.58] - Marcy Mangan
One of the team's most important jobs leading up to the trial was preparing their key witnesses.

[00:10:16.52] - David Rashid
Once opening statement starts, the things that needed to be done in terms of preparation that aren't done can't be done. There's just too much going on. So the weeks that precede trial are, are extremely busy.

[00:10:31.46] - Jennifer Cascio
Bill and Laurel were probably two of the most important lay witnesses in the case. Billy has Asperger's, so it kind of affects him socially. It's very difficult for even someone without Asperger's to sit up in front of a big group of people. You have 12 to 14 people you've never seen before, you know, really thinking, okay, Bill and are gonna have to be the people that really tell this story. They were with him every second of the day, and we're just gonna have to really dive deep with Bill and Laurel to make sure that if things are hard for Billy to talk about, that we can kind of fill those gaps.

[00:11:07.29] - Speaker 4
About 2 weeks before the trial, they just started spending so much time with us. Like, I don't even know how they got any sleep. They probably didn't get any sleep. They'd try to predict what the defense might do, what angle they might come at us with. And then they'd prepare us and they'd ask us questions that we might be asked.

[00:11:24.49] - Speaker 4
Laurel and I worked with Jennifer and Billie was working with David on testimony and the kinds of things they thought they wanted to introduce and talk about and how you should respond to them. This is a whole house full of introverts here, and public speaking is not very close to the top of the list. The only experience any of us have is whatever you see in a movie. And I have to say, it's not too close.

[00:11:48.29] - Speaker 4
We learned a lot. It was a very interesting process. They prepped us so good. They had a mock trial where Billy went and he was testifying. And then afterwards, they got the input from the jury, like, what did you think of him?

[00:12:01.13] - Jennifer Cascio
When you're dealing with whether it's the plaintiff themselves or family members, I think that there's always a lot of emotional work that needs to be done. Nothing will prepare you for what it's like at trial. I personally have always taken the approach that I just need to get to know people before I start preparing them for a deposition or especially trial. I want to know what they like and not just what they like, why they like it. When was the first time you knew you liked it? What do you think about at night? What do you, when you're alone, what kinds of things make you happy? I might not ask any of those questions at trial, maybe one of them, but for me, when I'm producing witnesses, especially for trial, I need to be able to know the witnesses well enough that when I'm looking at them and they're looking at me, I know if they're panicking, I know if they're nervous.

[00:12:58.37] - Speaker 4
I too am a kind of a quiet, introverted person. I never did well in speech classes in school, and so the idea of being in front of all those people and a judge was just horrifying. I wanted the jurors to like me.

[00:13:12.59] - Marcy Mangan
By the time trial arrives, the attorneys have educated their client and their family as to what they will likely hear and what the other side will present.

[00:13:20.05] - Jennifer Cascio
We try to make it as easy as possible for our clients so they're not surprised by anything. I think of my prep with damages, witnesses, honestly, like a creative writing class. You have to paint such a vivid picture that it honestly almost haunts the jury. You want someone to be like, oh my God, I couldn't even live one day like that.

[00:13:47.29] - Marcy Mangan
But before the plaintiff and the other witnesses can share their story, the jury needs to be selected. The jury selection process typically begins a day or so before opening statements begin.

[00:13:56.55] - David Rashid
My first responsibility in the trial came during jury selection. Patrick did a panel and I did a panel of Selecting the jurors, that's such a critical and important part of any trial because cases can be won and lost in jury selection.

[00:14:10.47] - Patrick Salvi II
I try not to put people in boxes too much. I'll take 12 jurors who care about others irrespective of any demographics every day of the week.

[00:14:19.50] - Marcy Mangan
Patrick says when he is selecting a jury, he tends to look for a person who would be a favorable juror for the facts of the specific case at hand. For example, in a medical malpractice case, a plaintiff's attorney wouldn't want a jury full of people who work in the medical field. While it's impossible to rule out all potential problem jurors, the attorney said in this case they looked for one specific quality in each juror.

[00:14:40.42] - David Rashid
If we're gonna get people on here who have insurance backgrounds or whose spouses are nurses or doctors, what is it about those? What can we look for in those people that we think will be a helpful trait or a trait that will allow the jury to be fair and just in their assessment of the case? And one of the things that we sort of settled on is nice, nice people. Make good jurors.

[00:15:05.14] - Patrick Salvi II
A lot of times your instincts on people are right. If someone is standoffish and cold and withholding, then that's probably the type of juror they're going to be and probably not the best type of juror for plaintiffs. If someone is warm and gracious and kind, and that's your instinct on that individual, then follow that instinct. In this case, we do believe that we ended up with a a very, very good jury.

[00:15:31.41] - Marcy Mangan
Once the jury of 12 people and 2 alternates is set, opening statements can begin, marking the official start of trial.

[00:15:38.40] - David Rashid
One of the main benefits of the plaintiff is that we get to go first and set that narrative. Theming and framing the case becomes such an important part of an opening statement, and that involves the entire team effort. My opening statement was going to track and provide that roadmap for the case that was about to come.

[00:15:58.02] - Marcy Mangan
One challenge in trying a medical malpractice case is getting the jurors up to speed on the science and medicine behind the facts of the case.

[00:16:05.19] - David Rashid
In a medical case, you have to give them some understanding of the medicine, and you also have to let them know best you can that you understand the medicine. So you're worth listening to even though you don't have an MD behind your name. You're worth listening to. If you don't think with every fiber of your body that you're right, You are not going to convince 12 strangers that you're right. This is the ultimate time and challenge to get justice for people who deserve it.

[00:16:33.46] - Marcy Mangan
By the time the Fern case got to trial, David was a seasoned attorney who had delivered a number of opening statements, but he says this opening statement had an added layer of pressure.

[00:16:43.14] - David Rashid
For me, there were a few more nerves than normal. It was my first opening statement in front of, with my new firm. And with these clients who did mean a very, you know, a great deal to me.

[00:16:54.13] - Marcy Mangan
As David began to tell Billie's story during his opening statement, he started to get an inkling that at least some of the members of the jury were with him from the start.

[00:17:02.07] - David Rashid
There were people crying during the opening. Now, during an opening statement, when people start to cry, it's usually a good sign for a plaintiff.

[00:17:13.54] - Patrick Salvi II
Jury service can be a very emotional thing.

[00:17:16.19] - Marcy Mangan
Once the plaintiffs finish their opening, the defense has a chance to present their case to the jury before the attorneys for both sides present their witnesses. Like in opening statements, the plaintiffs have the opportunity to present all of their witnesses before the defense presents theirs. As the case progressed, the plaintiffs were feeling confident in their case.

[00:17:34.31] - Speaker 4
We were sort of feeling sorry for the defensive lawyers and stuff too, cuz they didn't seem anywhere near as prepared as the Salvi Group was.

[00:17:43.30] - Patrick Salvi II
I think the defense may have underestimated how the Ferns would present in terms of the impact of the injury, and that can be a common occurrence in cases where you have a plaintiff who is either not the picture of health prior to the alleged malpractice or has some other underlying condition that somewhat complicates the damages presentation.

[00:18:09.16] - Jennifer Cascio
One of the saddest parts of this case to me was the way that the defense characterized Billy, his past, his present at the time of trial, and his future. How they tried to characterize Billy— he is not a reliable historian. It was just so much of this kind of underlying implied notion that Billy losing a foot was so much different than what they would try to classify as a normal person losing their foot. They were kind of using this as an excuse, and they were really focused on trying to make Billy look incapable of advocating for himself, for speaking for himself. Shouldn't you— if this is going to be your narrative, shouldn't you have gone above and beyond? If someone can't quite communicate well with you, shouldn't you have ordered extra tests? Shouldn't you have done more?

[00:19:06.23] - Marcy Mangan
Understandably, some of the accusations or implications being made by the defense was hurtful for the Ferns to hear.

[00:19:12.33] - Speaker 4
They warned us that the defense will ask some really harsh questions.

[00:19:17.03] - Jennifer Cascio
What I always tell family members, our plaintiffs, our clients themselves, is, listen, everyone's got a job to do. We have to present our side. This is their job. Don't take it personally. Don't let it rattle you. Don't waver in your position. Like, your truth is what it is. Their client has a right to an attorney and they're going to do their best to prove their case or to disprove our case. And you just kind of have to let it roll off your back.

[00:19:47.47] - Patrick Salvi II
I think that plaintiffs and their family members, when they take the stand, there's always the possibility that there are areas or questions within the cross-examination that are hard. I do think Billy's feelings probably were across the spectrum of anger and humanity. Humility and a bit of self-doubt. Mr. and Mrs. Fern at various times felt offended by cross-examination.

[00:20:15.46] - David Rashid
The efforts were made to make it seem like his damages were not as significant, and because his physical limitations weren't as significant. I think at one point they said something to the effect of, the only thing he can't do now that he could do before is rollerblade.

[00:20:33.11] - Patrick Salvi II
Which couldn't have been further from the truth. It was borderline absurd.

[00:20:37.16] - Speaker 4
He went through all these applications that we went, making it sound like he's just out there living the life of fun. And, and at some point one of them said, and you know, he does have two legs, one's his leg, one's the prosthetic, as if a prosthetic leg is as good as a real leg. It was like mind-blowing.

[00:20:54.56] - Jennifer Cascio
It didn't go over well at all. I think the jury thought it was nonsense. Wildly inappropriate at best, maybe even offensive. So I do think that there was a huge misstep, and it was obvious.

[00:21:06.32] - Marcy Mangan
Despite how hard it was for them to relive this nightmare in front of a judge and 12 strangers, and to hear the defense diminish their son and his injuries, the Fern family's testimony ended up being one of the most powerful and emotional parts of the trial.

[00:21:19.35] - Patrick Salvi II
To their credit, neither of them lost credibility by reacting. They were tough, They were stoic.

[00:21:26.39] - Speaker 4
I kept reminding myself that this was our chance to tell Billie's story to 12 neutral strangers, which is very validating. In a way, it was slightly therapeutic because you got the story out and they were witnesses to the story.

[00:21:42.02] - Speaker 4
I was nervous. My testimony was relatively short. I couldn't tell if they liked us or agreed with the findings or how everything was going.

[00:21:50.28] - Jennifer Cascio
With Bill, he doesn't like to talk about his feelings. I was like, Billy, you're gonna have to open up a little bit more. I know this is so hard for you. He was just quiet and, you know, and it like makes me emotional too because I am a parent. But, and he just said, I just love him so much and I just could like never be prouder of him ever. And, you know, and he kind of teared up and I just thought Billy has the best parents you could ever ask for. And I hope the jury sees it.

[00:22:21.22] - Marcy Mangan
Jen asked Bill and Laurel to describe some of the toughest moments from the past 9 years in excruciating detail.

[00:22:27.32] - Jennifer Cascio
Bill and Laurel kind of talked about how Billy would, like, scream out in pain in the middle of the night. Their bedroom was across the hall, and they could just hear Billy just screaming in pain in the middle of the night. And it's— it's not the same as when you have a baby who's screaming because they're a baby. You have your grown adult son who you can hear through the bedroom, is just screaming in pain. And Laurel said one of the worst things was, I literally couldn't do anything.

[00:22:58.57] - Speaker 4
I felt so bad for him. I just wished it was me instead.

[00:23:06.01] - Marcy Mangan
Another way the attorneys tried to paint a picture of how hard Billy's everyday life is was by playing what is called a day in the life video. Since Billy's primary caregivers were his parents, they played this video instead snippets throughout his parents' testimonies.

[00:23:18.59] - David Rashid
The day in the life is to show little things like, oh shoot, I left my wallet upstairs, right? Well, that's not a little thing for somebody like Billy Fern because getting up and down stairs is difficult. So a day in the life will outline the sort of mundane things that you and I go through every day that are not mundane for somebody like Billy Fern. Try to get dressed on one leg. It's not easy. Go to the bathroom on one leg. It's not easy. A jury gets to see things that we can't articulate that well in words.

[00:23:52.37] - Jennifer Cascio
Most of it was played with Laurel, and she was kind of walking because they lived with Billy. And so she kind of walked through it and said, this is what it's like for Billy when he gets up in the morning. Sometimes I have to help with X, Y, and Z. I might have to help him bandage a wound. I might have to get him something from the shower.

[00:24:12.27] - David Rashid
You see him, he has to hobble around from one place to the other, then he's got to put the prosthetic on to get down the stairs. Or alternatively, he has to scoot down the stairs on his bottom.

[00:24:22.11] - Jennifer Cascio
His dad kind of narrated the portion where it showed Billy— Billy learned how to drive with his opposite leg.

[00:24:29.58] - David Rashid
This is how Billy lives his life. And that you didn't think about him having to take that prosthetic off because he's been on his feet for 2 hours. You didn't think about how dripping wet the sleeve and the sock would be. He might have said it, But when you see water literally dripping off a sock and then you see that he either has to get a new one or put it back on, you start to realize like this, this is every day and many times a day. And so the day in the life really demonstrates for the jurors what it's like for Billy and for anybody who has a serious injury.

[00:25:00.55] - Jennifer Cascio
It was incredibly difficult to watch.

[00:25:04.37] - Marcy Mangan
In our next episode, Billy Fern takes the stand.

[00:25:07.49] - Patrick Salvi II
David put Billy on the stand and asked him questions and, and they had great rapport. They, of course, had known one another for a number of years at this point, had talked extensively over the years. And, and boy, did David do a great job, as did Billy.

[00:25:24.03] - Speaker 4
I just accepted that was just part of the, uh, what needed to be done. So I just did it.

[00:25:29.11] - Marcy Mangan
And then the moment of truth. The jury deliberates and returns their verdict. Will Billy win the case, or will all this time waiting to see justice end in even more heartbreak.

[00:25:39.19] - Patrick Salvi II
The time between the jury going out and the verdict coming back can be agonizing.

[00:25:44.50] - Speaker 5
I was didn't know what to think or act or say or anything because of the gravity. It was unexpected.

[00:25:51.59] - Speaker 4
Somehow you feel like even if we lose, his story's been told.

[00:25:57.32] - Marcy Mangan
To learn more about this case and our firm, head to salvilaw.com/podcast. You can find more episodes of Beating Goliath on Apple Podcasts, Spotify, or wherever you get your podcasts.