In a visit to the clinic several weeks before the premature delivery, Torres had complained of contractions. For Nassau, that was a key sign that her doctors had ignored the signs that she was going into labor and failed to administer the medicines—called tocolytics—that would stop it.
There was another, more tactical problem: Nassau’s key medical expert had bailed on her the night before the trial, pleading a scheduling conflict. Not only did she have to find a new expert; she also had to reorder her witnesses and present the experts who would explain the extent of Taamel’s injuries and the costs of his care: Essentially, she would have to ask the jury for money first—by calling her economic experts—before her medical expert would be able to make a strong case that the hospital had erred.
Janet Stein, the first witness Nassau called, was the attending physician in charge of Beth Israel’s obstetrics clinic when Taamel was born in 1999. On most of Torres’s visits to the clinic (it handles 700 births a year), Stein had signed off on the examinations of three separate residents.
Stein spoke in a voice so low that the judge repeatedly had to ask her to speak up. Stein had been called as a hostile witness, which meant that Nassau had to confine herself to “leading” questions with very clearly defined answers, lest she give Stein an opening to turn to the jury and reel off her version of the story.
The encounter between the two women grew progressively more tense. Nassau’s goal was to show that there had been unheeded signs that Torres was going into labor: contractions and a dilation of the cervical canal. Over and over, Nassau prodded Stein, asking if the signs were “consistent” with labor. And over and over, Stein said that it was “not a yes-or-no question.” Stein was understandably unhappy to be on the stand, being held to a standard of 100 percent perfect outcomes that no obstetrician could meet.
“It’s hard not to take it personally,” she told me after the trial. “I don’t believe that every premature baby or less-than-perfect outcome is within my control.”
Both women were clearly frustrated; at one point, Nassau had to turn away from the jury to compose herself. During a break, Nassau frankly asked me if she seemed bitchy (I said she did), knowing this was especially dangerous for a woman lawyer. “Why is it,” Nassau asked me in the same break, “that a man can do an aggressive cross-examination but a woman can’t?”
Nassau made some inroads in showing the jury that the records had Torres’s cervix going from “closed” to “fingertip dilated,” but Stein steadfastly refused to grant that any significance. Nassau thought that Stein’s repetition of the rote response that it “is not a yes-or-no question” made her appear cold and evasive. Melnick, however, was satisfied with her performance on the stand and didn’t even bother to cross-examine her, calculating that he’d rather save her testimony until after he’d seen Nassau’s expert witnesses and knew the case he was responding to.
From the beginning, Nassau worried about how her client was coming off to the jury. Nassau’s relations with her client were strained. Torres had worked with another lawyer in the three years that led up to the trial. Nassau’s discarding the strep theory had surprised and disturbed Torres, and she had called the other lawyer to vent.
Torres was an unmarried mother of four living with her boyfriend (Taamel’s father, Louis Dawson) in a project on Avenue D. But she had gone to community college before her asthma got too bad. She was active in her local school district, had met with the school chancellor, and had also met the mayor. These weren’t things that Nassau knew or guessed. “She talked to me as if I was beneath her,” Torres recalls of her first experiences with Nassau. “Like I’m this ghetto chick from the projects just looking for some money for her kid. She didn’t know me, she didn’t know anything about me, all she knew was what was on the paper.”
The irony of this relationship was that if anything, Nassau was extremely worried that an upper-middle-class jury would be unsympathetic to her client. “Where were Nashaba’s peers on this jury? Did you see anyone with her socioeconomic background? It was the hospital’s peers, it wasn’t Nashaba’s or Taamel’s peers,” Nassau would tell me after the trial.
Torres often came in late, and when she was there, she sat not at the front but near the door. To Nassau, that “made it seem that she didn’t care.” It also meant that the jury was concentrating not on the aggrieved mother but on the procession of experts. And in this area, Beth Israel had a distinct advantage, since few obstetricians are willing to testify for plaintiffs. Nassau’s first expert was a prickly 79-year-old pediatric-neurology specialist named Leon Charash. Charash was well known to Melnick—he knew that he’d testified in hundreds of cases and that every defense firm kept a dense file on him.