By Doug Allen
Covering the first federal transvaginal mesh trial was a fascinating experience. As someone with no background in law, I’ve had a huge learning curve to get up to speed on everything involved, from the basics of courtroom etiquette to the intricate details of the law.
In the interest of full disclosure, I must confess that I’ve never covered a federal trial before. Despite more than 25 years as a journalist, I’ve never covered any kind of trial. I had no idea what to expect when I walked into the courtroom for the first time three weeks ago.
I have, however, covered the health care industry quite extensively. I’ve covered countless pharmaceutical drugs and medical devices, and even therapeutic areas like HIV. That experience has been invaluable, as most of the medical terms and concepts in the trial are things I’m at least vaguely familiar with.
A court reporter with no health coverage experience would probably have had a harder time covering this trial than I have. I can’t imagine trying to understand what was going on with the plaintiff’s medical issues with no background in health coverage.
Luckily for me, I’m not the only person in the courtroom who’s never been there before. It was a first for the jurors as well. Since it’s their job to decide what the truth is in the case, Judge Joseph R. Goodwin had to break down the legal proceedings in simple terms we could all understand, and he was very effective at that.
Goodwin, as the judge, is king of the courtroom. It’s his case, it’s his room, and he gets to decide everything from important legal issues to whether someone can drink a bottle of water in the back of the room. Nothing happens in the room that he doesn’t approve.
A benevolent king, Goodwin is generally very friendly and pleasant on the bench, but he suffers no fools. He set a very aggressive schedule for the trial, and he held both sides’ feet to the fire in terms of concluding the case by his deadline. When attorneys said or did something he didn’t like, he let it be known by the look on his face exactly how he felt about it.
Trial or Theater?
Watching attorneys for both sides execute their strategies, which sometimes seemed to change from one day to the next, or even one hour to the next, was gripping. While the entire proceeding is all about the law, it’s equal parts trial and theater.
When the jury’s not in the room, the lawyers and judges wrangle over the rules, what can or cannot be said, what evidence may or may not be admitted. They set the stage for the only audience that matters, and when the jury comes into the room it’s like a curtain going up on a stage.
In a case like this, the entire burden of proof is on the plaintiff. The defense doesn’t have to prove anything; they only need to refute the facts presented by the plaintiff. At least that’s what the law says. What a jury does with the information they receive is up to them.
Lead plaintiff attorney Henry Garrard is a soft-spoken, congenial man when he’s not performing his role in front of the judge and jury. With a grey beard and strong southern drawl, he’s akin to the kind uncle you look forward to seeing at a family reunion or maybe your favorite professor in college.
When court’s not in session, he’s quiet and subdued. If you hadn’t seen him before, you’d never realize he’s the powerful lead attorney in a huge MDL lawsuit. But don’t be fooled. Just because a bear is silent doesn’t mean it won’t attack.
Lori Cohen is the lead attorney for the defense team. With a shock of blond hair and an extensive collection of finely tailored suits, her big personality dominates the defense side of the courtroom.
Friendly and outgoing, Cohen, who had a record of 55-0 until this verdict came in, talks and makes friends with nearly everyone in the courtroom, from court staff to observers in the gallery.
Garrard and Cohen couldn’t be more opposite in terms of style and persona. It’s typical before court is in session to see Garrard sitting in a chair in what appears to be deep thought, while Cohen is joking with a law clerk or engaging in conversation with a random observer.
As far as I can tell, these two smart, powerful attorneys have only one thing in common: When the curtain goes up and the show starts, they’re both going to fight to the last breath to win a verdict for their clients.
Each side has a team of about 10 colleagues supporting them. Attorneys, paralegals, IT specialists and assistants — it’s clear neither side could operate without their support staffs.
The courtroom is equipped with multiple video screens used to view documents, photos and videos presented in the case. Each team has one person dedicated to running a computer that puts the documents on the monitors, and highlights various lines or paragraphs on the documents during arguments or testimony.
Gerard Buitrago has served this function for Cohen for 15 years. While the jury was deliberating, Cohen joked that Gerard’s name was spoken more frequently during the trial than any of the attorneys or witnesses. Phrases like, “Gerard, can you pull up exhibit number 62a?” and “Gerard, can you highlight the second paragraph?” were heard many times each day during the trial.
Greg Dadika represents Bard in the courtroom. He’s the company’s associate general counsel for litigation, and he could be seen dutifully taking notes each day. When the time came for the jury to deliberate punitive damages, Dadika took the stand to testify about Bard’s financials.
Dan and Donna Cisson, the plaintiffs, attended the trial almost every day. It’s difficult to listen to graphic testimony about what most would feel are private things, while the person they’re discussing is sitting right there. As difficult as it was for me, I can’t even begin to imagine how hard it was for Mrs. Cisson and her husband.
Court Not So Friendly to Outsiders
My only real complaint about the proceedings is that they seem to not really want people to observe the trial. Goodwin made a comment at the beginning of the trial that it was an open proceeding, invite your friends to come and watch, etc. But the rules he imposes, and the way the courtroom itself is set up, are such that it would discourage any sane person from wanting to attend.
For example, everyone associated with the case is allowed to have laptops and phones in the courtroom. Attorneys, witnesses, assistants . . . they all carry their technology around. For everyone in the courtroom who isn’t “associated” with the case, Goodwin forbids any electronics.
That causes quite a problem for a reporter. No laptop means handwriting everything in the case. Accurate quotes are important to any story. But when the questions themselves can be as much as two minutes long, and the witnesses’ answers can be even longer, getting accurate quotes by hand is nearly impossible.
That’s not the only silly rule. Everyone associated with the case is allowed to have something to drink in the courtroom. They all carry their bottles of water around all day long. But anyone not associated with the case directly are not allowed to drink water in the courtroom.
Is a bottle of water really such an inconvenience, when everyone else in the courtroom already has one?
For a court that says it’s open and wants people to know what’s happening, it’s not that accommodating.
Another thing that struck me while spending my days in the federal courthouse was how nice the people who work there are. From court reporters and law clerks to assistants and U. S. Marshals, it takes a lot of people to run that building every day.
I have a special respect for the Marshals. One only needs to remember the bombing of the federal building in Oklahoma City in 1995 to understand the critical importance of their job. They are the first line of defense against those who seek to harm. I would not want that level of responsibility on my shoulders.
Now that the Cisson case has concluded, the next case starts Monday. That plaintiff is from Wisconsin, so the case will be tried under Wisconsin law. The same teams of attorneys will represent the plaintiff and Bard in that trial, and Goodwin will preside. Members of the jury and the plaintiff are the only new faces I expect to see in the courtroom.
Finally, although I rarely ever comment, I do read the chatter online about the trial and my coverage of it. I’ve read several comments regarding the defense attorneys along the lines of how can they live with themselves, or sleep at night knowing they’re defending what some consider the indefensible.
I understand that it’s difficult to take the emotion out of such an emotionally charged issue. The older I get, the more I realize that the world is not black and white but varying shades of gray. There are few absolutes in life.
I’ve spent a fair amount of time with the folks in this courtroom, and I’ve met and spoken with everyone in there, with the exception of Goodwin and members of the jury. As far as I can tell, everyone associated with this case, including the defense team, are fine people who are just trying to do their jobs to the best of their abilities.
Doug Allen is a freelance reporter based in Aspen, Colo. His work has appeared in local and national print and radio outlets, including The Washington Post and Aspen Public Radio.