All Shook Up

[David.v.Goliath]

Well, i am pleased to announce that my legal malpractice suit has beed determined that the suit was timely filed. the insurance company attorney representing the defence filed an Exception of perscription simply stating that i had not filed within a year of when the malpractice actually occured. However, upon recieving the responce from my attorney he called my attorney and admitted defeat in that i had them beat on the perscription issue and withdrew their exception which was scheduled for hearing on march 4 respectively. perscription was there only chance in getting out of this law suit and now the only way they can file again on perscription is if they manufacture NEW evidence by deposistion of myself. They took the posistion that they aknowledged that the lawyer had blatintly malpracticed me and any person should have been able to be aware of that but upon recieving our evidence showing that the former attorney acknowledged that i did not know by his own letters to me after the hearing they threw in the towel. this is a big win for me and i thank God for his help in winning. hopefully a settlemnt is not far off and i can put this all behind me. i have been in this fight for 7 years now and the end looks within throwing distance. I am now loading my sling for the final throw and

GOLIATH BEWARE

 

[ellencee]

DvG
It seems you are going to prove the adage, 'persistence pays off'!

On a side note, really back to the original issue, do you have reason to believe that the product-maker, marketer, or surgeons learned anything from your situation? anything to keep them from doing this again?

EC

 

[David.v.Goliath]

yes

there is elencee, we also have a case now pending in Maryland against the doctor for the same thing using the wrong bone in the cage and violating the standard of care. same experts as my case. this case is very close to winning also and it will set president for any other case that comes forward after this. the manufacture has despretly tried to defend the doctor in all of these suits so that no class action would evolve against them, however, they really screwed up in maryland and now we are on the brink of a big win and when all the other doctors hear how one of their own went down for the manufacture they will all roll over and blame the company for its illegal marketing and promotion. i am working closely with the FDA right now in their investigation of the manufacture and it looks like they have violations of human subjects and illegal promotion of their device. Its sad to say that in both cases they bought all of our lawyers and some of the judges and really abused the system to try to get out of these suits, in maryland they got to 2 of the plaintiffs lawyers and 1 judge in the circuit court. but they made a fatal mistake in believing that an affidavit from the manufacture could set the medical standard of care and now the appelate court is on the brink of reversing. i know this for a fact because i wrote the brief for the appeals and have been made aware of imminent rulings. in my case they clearly bought my attorney and had to malpractice me to get the case thrown out wich now the attorney is paying for dearly. you folks should watch that new movie RUNAWAY JURY and yes these things do happen in our system of so called justice. to answer your question they now have BMP's (bone morphogenic protien) to pack the spine cages with and all compitent surgeons use this or cancellous bone from the patients hip. the exclusive use of ground lamina bone in the cage has been proven by the manufactures own investigators to cause failures and was peer reviewed by the NASS in their annual meeting in sept. 99' (see orthopedics today web site-archives).

so that is whats happening. i'm sad that all this dirty attorney is insured for is 1/3 million when i could have recovered much more in my original law suits but thats how it goes so i'm happy with a win over him since he was their fall guy anyway. when this case comes to closure i will post the results (except for the amount settled for) to let all of the folks out there know that you should never give up when you have been wronged. no matter how big and powerfull the adversary you can win with God on your side.

DvG

 

[David.v.Goliath]

?????????????????????????????

wonder what ever happened to all them Nay-sayers that wanted me barred from this site. called me stone thrower and some other names i won't lower myself to mention. looks like they all crawled under a rock to me.... LOL

my attorney is going for a summary judgment against the lawyer for liability since they fully admitted malpractice when they filed their motion of perscription. looks good now and they won't have bargaining chips left after that happens. closing in on them really fast now and

Goliath Beware

 

[David.v.Goliath]

well, the giant has buckled to his knees. On Feb 27, the defense threw in the towel and said they could not win on the issue of prescription and at that time told my attorney on the phone that they want to take my deposistion. My attorney has contacted them by phone message 7 times, by fax 8 times and by email 13 times and by U.S. mail 1 time requesting a deposition date for my deposition since Feb 27,2004. To date they have refused to contact us at all, in other words they have broken off all comunication with us. The last comuication to them was a letter from my attorney informing them that we were no longer waiting on them and were going forward with the case. They have no defense to argue as my case went all the way to the supreme court and my former attorney argued that he did not need expert witness at the sumarry judgement level to get to a jury trial. to argue that now would be in vain as that arguement was disposed of by the trial court-appeals court and supreme court in my prior case against the doctor and implant manufacture. I had 2 board cert neurosurgeons that had reviewed my file prior to the sumarry judgement and both said i was not a canidate for the implant surgery and furthermore the doctor used the wrong type of bone in the implant to facilitate the fusion violating the standard of care, why these experts affidavits were not entered at the sumarry judgement level on my behalf is unknown and can only be construde as Wanton negligence. At any rate when the attorney for my former attorney admitted their exception to prescription motion (that they withdrew) they admitted liabiliaty and i quote--

"The evidence will show that the lack of of opposing affidavits or deposition testimoney from an expert witness was a focal point of the hearings, addressed by both opposing counsel and the trial judge, and the REASON for the plaintiffs claims being dismissed."

The trial transcript from the sumarry judgement is really bad because the trial judge reams my attorney 13 times saying over and over again that he is dismissing my case because i have no expert witness to carry my burden of proof at trial. I now have an expert attorney who has signed on to the case and is giving an affidavit saying that my former attorney commited malpractice by not admitting my expert witness's and that i also would have more likely than not prevailed at trial. When this expert attorney read the trial court transcript he said he was HORRIFIED at what my former attorney had done. So now we are just days away from filing our own motion for sumarry judgement on the issue of liability, simply stating that the trial court transcript along with my expert witness affidavit and the fact the my case went all the way to the highest court in my state and was shot downproves that my former attorney is liabile for any damages i can prove to a jury. Of course my prior case the appeals court and the trial court all conceded that my surgery had failed and i was left disabled in pain for the rest of my life. So damages are not a problem. Assuming we win this sumarry judgement, i would only go in front of a jury to prove damages as the court will find as a matter of law that my former attorney is liabile. By filing this motion we are saying that there is no dispute in the issue of not admitting my experts at sumarry judgement. Counsel for the defense has readly addmitted that the reason for my case be dismissed was that no expert was admitted, likewise the district court in this case cannot over-rule the appeals court and the supreme court denying my motion. The defense in this case will not comunicate with us because anything they do only serves to move the case forward and i'm sure they don't want my deposition which would open new areas of malpractice against my former attorney sepreate and apart from what is being aleged now. There not preparing their defense to go to court and by sitting on their hands indicates that they really don't have a case. The word is that they will try and settle when this motion is filed against them in a few days, we will see. I am looking for closure after 7 years of litigation and i only hope at this point that everything continues to go in my favor. I wish everybody a happy Mem Day weekend and may God be with you all.

DvG

 

[David.v.Goliath]

Bout Time

Got the report back from our expert med-mal lawyer and it looks real good, quote "I have come to the conclusion that the former attorney for the plaintiff's was negligent in his legal representation of the plaintiffs. This negligence caused the plaintiffs claims against Dr.____ to be dismissed by sumarry judgement and the claims against the implant manufacture dismissed via exception of prescription." Accordingly, it is my opinion that plaintiffs former attorney was negligent and provided substandard legal services to the plaintiffs in the following paticulars; 1) By failing to secure an affidavit from Dr._____ (plaintiffs expert) prior to June 2001 and file same in opposition to the motion for sumarry judgement filed by defendant physician.
2) By failing to file a motion for continuance, with a supporting affidavit from plaintiff's expert and/or plaintiffs lawyer, requesting more time to review medical records and radiology films and to respond to to the motion; and
3) By failing to request a continuance during the hearing on the motions for sumarry judgement.

basically, he goes on to ream my former attorney royally and pick aprt the entire case giving me an excellent affidavit to file a motion for sumarry judgement against my former attorney for liability. Now the letter my current lawyer sent to the defendants with this report as follows;

Dear __--__

Enclosed please find an export report that i have recieved in conjunction with the above-captioned matter. Within the next week, i intend to file a motion for sumarry judgement on liability using this report (in authentic form of course) LOL...as the basis for my sumarry judgement.

You had previously requested dates for my clients deposition. I have provided dates to you on numerous times, yet i have not recieved a notice. Consequently, it is now my intent to proceed tword sumarry judgement and trial. After reviewing the report, if you wish to discuss same i would be pleased to do so at your convenience............


Upon recieving this report the defendants called my attorney immediatly and requested depositions for myself and another person who submitted an affidavit against their prescription motion. My depo is next week and they have now declined to take the other persons depo which is a sign of weaknness because you don't go to court and allow a witness to testify without taking his depo first. and furthermore can't challange his affidavit without deposing him. It is pretty clear they are cutting their losses now and i would guess that after my deposition they are looking straight down the barrel of a sumarry judgement for liability and i would also imagine that a settlement may be in the works very soon. Since the other person to be deposed is in another state they would have to pay their lawyer a large amount of money to fly there and take the depo and fly back so there cutting their losses now. I firmly believe that if the lawyer was still running the case he would not choose to NOT depose the other person because thats a big paycheck going to another state for depositions, at $200 per hour plus expeces they are looking at a pretty penny to depose a witness when they more likely than not are lossing the case. This tells me that the insurance company is now running the case not the lawyer and that may indicate that they are ready to dispose of this case once and for all. If i were them i would offer a settlemnt before the sumarry judgement is argued because if i win the judgement on liability i really don't have an incentive to settle at that point, the defendant lawyer is under-insured at only 1 mllion and my damages are over 3 million. i think i would rather take my chances with a jury rather than settle for less than the million. At any rate, my case is looking better by the day and its time to load the final stone in my sling and

Goliath beware!

 

[d.w. wilson]

Nevada... Congrats DvG! We think the same. My case is peanuts compared to yours and I won handily over the tricksters but they outfoxed me on appeal. Now I'm outside the "system" working on my turf and moving full speed ahead getting set to pop the lid on the 'conduct' at appeal hearing.

I'm not making any money but am having more fun than any one old fossil oughta be allowed to have.

 

[David.v.Goliath]

dragging the line

well, they backed out of taking my depo at the last minute the day before the depo was to be taken. now we have had to reschedule. they claim that they got mixed up on which day the depo was scheduled for...LOL yea right!!!.... They also told my lawyer that they will only depose me on the issue of prescription and will not depose me on the issues of the 2 cases which consist of product liability and med-mal. Again they are cutting their losses and if they don't manufacture any new evidence at my depo they really don't have anywhere to go with this case but to the settlement table or to the jury. I think if they had anything at all to go with on prescription they would have deposed me months ago when they withdrew their first motion for prescription. At least the delay is only 1 week. if they delay anymore we are going ahead and filing our motion for sumarry judgement for liability next week. then we will let the court make a schedule for the time allowed for discovery.

 

[David.v.Goliath]

looking good

well they had to depose me this time or risk not deposing me at all before the hearing on exception of prescription and our sumarry judgement on liability on Nov 9. they deposed me tuesday for about 5 hours and after the depo the defence lawyer stood up and told my lawyer to call him a couple weeks before trial and they would try and settle the case. this is the first positive thing i have heard in 7 years of litigation!!!!!....they now know they have nothing to go on and a loosing case. offering to settle the case before trial is very promising. i also found out that the defendant lawyer is insured for 2 million instead of 1 million which is great news. so they have a big incentive to settle this because if they loose their prescription arguement they are in deep $hit. hopefully the case is now within sight of a settlement. i now see some light at the end of the tunnel. this will be my last post on this forum (i hope) so i want to say good by to all you nice folks and thanks ellence for your support. remember no matter how big the giant it only takes a small stone to take him down. folks never give up and always trust in god to guide you in your time of trouble. i did and now i feel like i am being blessed for keeping the faith and the fight. Good luck to all and GOLIATH BEWARE!!!!!!


D v G

 

[d.w. wilson]

Totally happy for you. Hope you can do another post that you won the "Fur Lined Pot".

 

[David.v.Goliath]

all over now

Well folks this is it, its over and they finially settled my case. i came out much better than i expected. if you see a Giant killer driving around the country in a 40 foot moterhome with his family it will be me. Now is the time to mend 7 years of stress and agony of litigation that this crooked system of so called justice has done to me and my family. well its off to diseny world and then well, who knows. I give all the praise to my lord and savior Jesus Christ for guiding me thru all this and winning. Christmas is gonna be good this year.

One word of advice to anyone who enters the world of law suits in med-mal or product liability, always hire another lawyer to oversee the lawyer handling the case, you won't be sorry that you did. Now i must leave you all after several years of posting on this forum, and remember, if you have been injured by a doctor never give up and always maintain your faith in God because without faith you will go nowhere quickly. Good luck to all and

GOLIATH BEWARE

 

[ellencee]

DvG
Way to go!
EC

 

[glitterdoll]

I am new here, but I am so glad that your case is finally resolved. I work in orthopedics in a hospital.

How is your joint today? I hope you are doing better. Will your case make a manufacturer change things? Or was it mainly the malpractice of the doctor?
I truly wish you the best!