Usually, Melnick is soft-spoken, even reticent. A tall man, he has a soft manner and a civility that make him seem to float rather than tower. All of this makes his sudden turn to aggressiveness in cross-examination especially compelling.
Charash (who’s a regular on the Jerry Lewis telethon; he’s the guy who turns the numbers), old enough that pediatric neurology didn’t even exist as a specialty when he started working with children, rose to the bait, thundering out the list of his well-aged qualifications and telling the jury that of the 600 members of the Child Neurology Society, “only one, me!” was so eminently qualified that he was allowed in without the usual prerequisites.
Charash had examined Taamel, and his examination merely confirmed what everybody knew: that he was, in Charash’s words, “a sweet kid,” as Charash simply put it, who “can’t count to 10” and who would need lifelong care for cerebral palsy that would never get better. Charash said that a child like Taamel was likely to live and need continued, expensive care into his fifties: maybe on the longer side of the estimates for a child with his condition, but not unreasonable.
Though Melnick found the substance of Charash’s testimony unobjectionable, he was in other ways a target of opportunity. Melnick repeatedly tried to turn the questioning toward a case in which a judge had stricken Charash’s testimony as not believable. Charash had testified that he’d spent 30 or 40 hours looking over Taamel’s medical records—at $175 an hour. But he had arrived in court with only a very slim folder to refer to that couldn’t have contained more than a few pages, and under Melnick’s aggressive cross-examination, he testified that he’d just discarded most of his work, a credulity-straining moment.
The jury, Nassau noticed, didn’t take notes when she presented the economic experts who would testify to Taamel’s lost earnings and the cost of his care. This was what Nassau had feared: “We had to ask for money before we’d established that there was something that was wrong.” The economic expert’s testimony was largely uncontroversial. Melnick was careful in his cross-examination because no extended discussion of damages is good for the defense. He did, however, press on whether Taamel, had he not been born disabled, would have been likely to have college-grad-level earnings. Though Melnick never mentioned race (in fact, the core of his argument was simply that most Americans did not finish college), the episode upset Torres, who said she believed it was a personal attack on her and her son.
When her medical expert, Dr. Bruce Halbridge, finally got to the stand, the gap between his credentials and those of, say, Janet Stein was evident. A doughy-faced family practitioner with a sideline in courtroom testimony (he advertised in law journals), he had none of the fellowships and academic appointments that would endear him to a Manhattan jury. Halbridge testified that Torres’s pregnancy might have been extended with bed rest and tocolytics. But he did so with the disadvantage of examining the medical records long after the fact. It was essentially his call against the calls of the doctors who had examined Torres at the time.
The fact that Halbridge was called in at the last minute, leaving little time to research his background, was potentially as much of a problem for Melnick as for Nassau, maybe more. But Melnick had lucked out and found a Texas lawyer who had just been up against Halbridge and compiled an impressive dossier. The lawyer had visited Halbridge’s office and found two of three examining rooms filled with boxes, an indication to Melnick that Halbridge’s practice consisted more in testifying for plaintiffs than examining actual patients (Halbridge denied the story on the stand, and mentioned that he’d just moved to new offices). The lawyer who’d dealt with him in Texas even managed to find Halbridge’s post on an online personals site, a largely irrelevant but still embarrassing detail. Having all this was valuable to Melnick in part because it let him psych out the doctor—“put him on notice,” as Melnick says—with the implication that he could have even more information up his sleeve. “I used [the information about the boxes in his office] partly to let him know that I knew, that he should be a little bit cautious,” says Melnick.
Nassau knew that, as much as an evaluation of the medical evidence, a malpractice trial is a theater of sympathy. Torres’s absences—a medical appointment, a school appointment—weren’t helping in this regard. On one day, Nassau was furious that she didn’t even know where Torres was. “All the medical testimony,” Nassau fumed, “is going to go over the jury’s head. They’re going to decide this based on what they think of Nashaba. Where is she?” Nassau even suspected that Torres could be avoiding her. “I don’t think she wanted to come in because she was tired of me yelling at her,” Nassau told me after the trial.