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My book.
"Fascinating" Stephen S. Hall. writer, N.Y.Times magazine. "Hard to put down." A.C.P.A., American Chronic Pain Association.

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Thursday, August 4, 2011

2 out of 3 judges hate me.

I was in the courthouse when one of the judges who had a small part in one ruling saw me. He called me into a side room.

"Ms. Levy. You must find an attorney." "Your Honor, I have tried to find someone to take the case. I am unable to do so."

"Then try and settle it. I think without a lawyer the case is worth $250,000 - $300,000. If you had an attorney it would be different."

"They do not want to settle. I have to take it to trial."

"Then I am going to order a continuance. You must have a lawyer."

I told him I doubted that would happen but I would try. Opposing counsel was informed about the continuance; they were fine with it.

A few days later we were to appear before Judge McGowan, the same judge who had sent me to the "time-out" chair.

We were called up before the Bench.

"Your case starts next Monday." he intoned.

"Your Honor, Judge Murphy ordered a continuance. You should have the papers."

"I don't care what he did. Trial starts next week." Mr. Olszewski spoke up. "Your Honor, we have the continuance and we are fine with that."

"I don't care. You do not have a continuance. Levy v. Jannetta, et al. begins next week."

Neither of us were prepared to start. We had relied upon the order of continuance. Now we had no choice.

First thing was to pick the jury. One by one potential jurors were called to a table where both of us asked them questions. Once all had been queried we went outside to fill out a paper checking off which ones we wanted and which we did not. It was interesting that we both knocked off ones the other wanted. I was surprised it was that easy. Maybe this lawyering would not be so bad.

Dr. Jannetta set the stage with his testimony at the two depositions. "Major and common complication" My testimony was the opposite. He not only never told me that facial paralysis was a risk, he had denied there could be any possibility of disfigurement. Dr. Gendell had said the same thing in the hospital and acknowledged it in his deposition.

I thought he should be rewarded for his honesty, about the risks as well as when he took responsibility for the unnecessary dietary treatment.

I made an appointment to speak with opposing counsel the day before we were to start trial.

"Mr, Olszewski, will Dr. Gendell testify at trial as he had at deposition; that he did not know facial paralysis was a risk and he told me it was not?" "Absolutely." "Then I'm dropping him from the suit."

Dr. Gendell had been named as a defendant as had the hospital. In my pain, and my concern most about Dr. Jannetta being called to account, I had let the case against the hospital slip away, not having done any prep on it.

I felt that Dr. Gendell, by his honesty, did not deserve to remain a defendant.

Before the trial started the judge called us into chambers. He gave me a little speech about going Pro Se and how hard that is to do. He told me he could not give me extra help. I expected that. I did not expect he would try and hurt my case.

I was up first. Opening statements are very specific. You can only say what the issues are and what you will be proving.

I had a sheaf of papers in my hand. My hands, voice and body started shaking as soon as I began reading my statement to the jurors. I looked up every once in a while. It was obvious they were not paying attention.

I knew the case. I should not need my cheat sheets. I stopped reading to them and looked at them directly. Their attention perked. I finished up and sat down at the plaintiff's table feeling I had made my points.

Mr. Olszewski, of course, gave a good opening: whatever she said she could prove we will prove the opposite.

I called myself to the stand and told my story. Then Mr. Olszewski stood before me. One by one he named every surgeon who had operated on me before and after the Jannetta surgery and asked what each had told me about the risks of their procedures. I replied for each that it was not the same kind of surgery so the risks were not the same, and none had named risk of facial paralysis.

These questions were objectionable, irrelevant and improper. I was so nervous I did not think to object. The Judge never interrupted my testimony or indicated the questions were out of line.

I finished and then called Dr. Jannetta to the stand. He took the oath to tell the truth then sat in the witness chair, legs crossed, complacency apparent in his every movement and intonation.

I took him through the hospitalization, what had he done, what had happened and then asked the biggie.

"Dr. Jannetta, is facial paralysis a known risk of the MVD, or Jannetta Procedure that you perfromed on me?" I was prepared to go after him for his lie at deposition. "It is an unknown complication. How could I have told you about something that was unknown?" I was not prepared for a new lie.

I showed him his deposition. "Dr. Jannetta, please read your testimony highlighted here." He looked at it with little interest. "Facial paralysis is a major and common complication of the MVD of which I invariably inform my patients." "Dr. Jannetta, which is true, what you just read from the deposition or the testimony you just gave, that it was an 'unknown' complication."

"You can't ask him that!" the Judge practically shouted, cutting him off before he might answer. Had it been an improper question it was up to Mr. Olszewski to object. The Judge was not supposed to do his job for him. He gave me no opportunity to re-ask the question. Instead he adjourned for lunch.

Throughout the lunchbreak I thought about what I could do. I never thought Dr. Jannetta would change his testimony. The only explanation was that his attorney had told him what I had said about Dr. Gendell testifying about paralysis being unknown to him as a risk. Dr. Jannetta arranged his testimony to jibe with the resident's. Did his lawyer tell him to do so? That I do not know. If he had it would be a crime. It was a crime to commit perjury and it was a crime to persuade another to testify perjuriously.

There was only one choice.

I returned to the courtroom and the trial resumed.

I stood. "Your Honor, I rest my case."

It was pro forma for the other side to ask that the case be 'non suited' or thrown out of court at the end of plaintiff's presentation.

It was to my benefit the Judge wanted me out of there.

The fact was I had presented testimony that I was not told about the risk and Dr. Jannetta testified, at least in shown deposition, that he had told me. That made it a question for the jury. Even though I presented nothing of the rest of my case for negligence and malpractice the groundwork was set for the jury to decide who was telling the truth.

It was to my benefit the Judge wanted me out of there.

"Mr. Olszewski, your request is granted. This case is non suited." And with that it was over. All hope was lost.

Or so I thought.

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