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The Equation


Randy Nassau and John Fitzgerald, Fitzgerald & Fitzgerald.  

Close to a year after she’d given birth to the twins, Torres contacted a lawyer, who sat on the case for two years before declining to press it. At that point, she called Fitzgerald. “It was about getting the answers that I needed,” she says. “I needed to know why this happened to my son. Nobody ever talked to me when my son died. Everything got quiet. Every time I asked a question, no one answered.”

The lawyer who eventually came to represent Torres was Randy Nassau. Nassau is the attorney whom John Fitzgerald counts as his firm’s top malpractice litigator, and the lawyer whom Fitzgerald himself would be “the last person in the world he’d want to try a case against.” Nassau gets credit for two of the firm’s biggest verdicts—$29 million and $32 million—featured in the firm’s ads. A mother of three herself, she works out of her home in New Jersey when she doesn’t have a trial. Nassau, a 40-year-old with deep black hair, had moved from Florida to New York to join the Bronx D.A.’s office, where she spent five years prosecuting sex crimes, child abuse, and domestic violence. Uninterested in the usual path of moving from prosecuting criminals to defending them, she turned to defending doctors and hospitals from malpractice suits. Nassau was not opposed to defense work in principle, but she quickly found that only the partners got to do trials, and she had a background in defending children. After two years, she went to work at Fitzgerald. “I had the same moral understanding on both sides,” Nassau says. “Even when I did defense work, I felt that where there was a departure and it caused injury, you should pay appropriately.”

A star trial lawyer like Nassau is too valuable for her time to be spent on the years of research and motions and depositions that lead up to a trial. Nassau usually starts working intensively on a case only weeks before it goes to trial. This is a key moment, because in cases that are strong for the defense, hospitals will not offer a settlement until the last possible instant. One of Nassau’s cases got settled after the jury had reached a verdict but before it was announced. In eight years with the firm, eleven of Nassau’s cases had gotten to final verdicts—all victories, most in the millions of dollars. Her total may well have been even higher if she didn’t recommend to clients that they settle, reasoning that a settlement of $2 million was from their point of view a better bet than going for a huge verdict and getting nothing. And Nassau has never walked away from a case without getting any money for her client.

Taamel’s case did not promise to be an easy one. This is common, because the defense has the luxury of deciding which cases it wants to settle early. “When they see the cases I’m dying to try,” Nassau says, “they just look at the case and put $4 million on the table.” This wasn’t going to be one of those: The hospital was promising to “no pay” the case and had not offered even a small settlement. The hospital’s lawyer, Robert S. Melnick, was no less accomplished than Nassau: A partner at Aaronson Rappaport Feinstein & Deutsch, he had (in a longer career than Nassau’s) taken 40-plus cases to a verdict, with just one loss. The trial was to be held in Manhattan, a borough where juries are less hospitable to plaintiffs than the famously plaintiff-friendly juries of Brooklyn and the Bronx.

Nassau was not onboard with a key theory of the case pursued by Fitzgerald’s other lawyers and investigators, and in a risky maneuver decided to change the focus as the case moved toward trial. Since the suit had been filed in early 2004, Fitzgerald’s lawyers had spent dozens of hours mostly pursuing the question of the group-B strep infection in depositions with the attending physician in charge of Torres’s care, Janet Stein. Torres had come to think that the untreated infection was the cause of Tahliek’s death and Taamel’s cerebral palsy. But treating it during pregnancy in a case like Torres’s has never been standard procedure, and even Nassau believed the hospital had acted appropriately. In fact, going into the trial, both Nassau and Melnick agreed that the direct cause of Taamel’s disabilities was his seriously premature birth. Nassau’s job was to prove that this was the hospital’s fault.

Whatever problems she may have had at Beth Israel’s prenatal clinic, it was clear to everyone that Torres’s pregnancy was high-risk from the start: She was overweight, had been repeatedly hospitalized for serious asthma, and was pregnant with twins. Treated at the clinic by three different residents, Torres had felt ignored. Nassau saw this as a kind of class issue. Nassau’s own recent pregnancy—covered, unlike Torres’s, not by Medicaid at a clinic but by private insurance at an obstetrician’s office—had been difficult, and for seven weeks she was monitored constantly and put on drugs that would forestall a risky preterm birth (she gave birth at 36 weeks).


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