Nassau ended her case by putting Taamel and then Torres on the stand. Taamel was wheeled in front of the jury just long enough for everyone, including the judge, to coo over the sweet 6-year-old in the wheelchair, but not long enough for it to seem blatantly manipulative to the jury. His smile was broad, and his first adult teeth were coming in. His palsied body was scrunched up into the side of an electric wheelchair, and it made him seem like a child playing at making himself small, but for anybody who understands his condition, there was always the consciousness that he will not appear this way at all when he is fully grown. His mother asked him what he wanted to eat, then translated his syllables into “chicken and French fries.” Melnick understandably passed up the chance to cross-examine Taamel. With his mother, however, Melnick’s choice was harder. Torres told the jury about her pregnancy and the difference between the care she’d gotten in her previous pregnancies from a single physician, when she had private insurance, and the difficulty of starting over again at the clinic with each new resident.
Melnick cross-examined her briefly and carefully. Months before, Torres had given a deposition in which she’d said she hadn’t had contractions—the very essence of what the layperson calls “labor.” Torres’s medical records from Beth Israel did in fact say that she had complained of contractions during her pregnancy. But occasional contractions are common in mid-pregnancy. It is only when they become sustained and regular that they signify the onset of labor. For Melnick, the contradiction between the deposition and what Torres said on the stand was a big deal. In addition, Melnick knew that nurses who’d stopped by Torres’s home to monitor her asthma had also noted that she had no contractions—in the very week before she gave birth.
Melnick, however, kept the contradictions in Torres’s account in reserve, planning to make the point in his closing statements so as not to appear callous by attacking a grieving woman on the stand.
The underlying engine of Nassau’s case was that Torres, as a poor woman and a Medicaid patient, had received substandard care. Juries tend to view consistently excellent medical treatment as a basic human right, even if our health-care system doesn’t reflect that belief. “I know Randy wanted to get into that as an issue,” says Melnick, “but I knew the witnesses the jury would be seeing would be people like Dr. Stein.”
Melnick again called Stein, along with one of the residents who had treated Torres. Neither recalled the visits in great detail, so, in essence, their role was not so different from that of the independent witnesses called by the defense: They too reviewed the records after the fact and testified largely to their “custom and practice.”
In a case going well for the plaintiffs, the defense testimony would be the second stage of a duel. But in this case, it already seemed like the endgame. Nassau had not been able to rattle Stein on the stand. The second time around, instead of answering “yes or no,” she got to give the jury her full explanation of what had taken place. Melnick led her through this in a way that let her conclude with the records of Torres’s last visit to the prenatal clinic: no contractions. It was precisely the point he believed the judge would later let him pick up from Torres’s deposition. He then called the resident who’d seen her on her last visit, Mario Leitao. A common complaint of the plaintiff’s bar is that too much of the care in teaching hospitals is administered by overwhelmed and inexperienced residents. Leitao, however, was a fourth-year chief resident (he went on the next year to a Sloan-Kettering fellowship in gynecological oncology): even by John Fitzgerald’s standards a pretty experienced physician. He, too, noted that there were no contractions. Nassau saw clearly that this was a huge flaw in her case. She tried mightily to get him to admit that it was at least possible that Torres had contractions that even she hadn’t noticed and a transvaginal ultrasound would’ve picked up. Leitao, however, didn’t budge.
From Torres’s viewpoint, the subtext of the trial was about impressive degrees versus a black mom, and she’d eventually bonded with Nassau over the issue. She’d been angry about Melnick’s line of questioning about college and income, as if, as she told me later, “a black kid from the projects wouldn’t go to college.” When one of Melnick’s last witnesses, Dr. David Berck, said that, yes, he sometimes did prescribe bed rest (though he told the court he wouldn’t have prescribed it for Torres), it was for Torres a victory of ordinary common sense against “their expert, their Harvard guy, their Yale guy.”