June 5th, 2007

Deconstructing the Trial of Flea — Part 2

(In Part 1, I discussed how a plaintiff’s attorney discovered the identity of medical blogger Flea, and used it during his medical malpractice trial.)

When this trial ended in settlement many people wanted to know: Was the existence of the blog and the Boston Globe’s description of a “Perry Mason” moment a factor in the settlement?

The answer I come up with, after discussing limited facets of the case with plaintiff’s attorney Elizabeth Mulvey, is that while I doubt the blog or the Perry Mason moment made a big difference, the reality is that only the jurors would ever know. And they didn’t hear all the evidence.

While Mulvey wouldn’t discuss the facts of the case — the agreement is confidential and I doubt either the parents of the boy that died or Flea want to talk about it — I did learn that there had been five witnesses before the settlement, including Flea and two experts.

The trial started with Flea on the stand. It is a common tactic for the defendant to be called first by the plaintiff’s attorney. There was then a break in his testimony after Mulvey had done her direct exam so that the experts could testify, with Flea to return later. (This is not unusual, as scheduling expert witnesses is always a problem unless they are retired.) The blog outing occurred on the fifth day of trial. In addition to more testimony from Flea, there were still likely to be a couple more witnesses, with the defense team having another expert ready that could have testified if the trial continued.

Thus, even if a synopsis of the facts were available by someone, they would likely have been disputed. That’s why we have juries to look in the eyes of the witnesses and consider all of the available evidence placed before them. It is difficult for a summary by a newspaper or blogger to fully capture two weeks of trial for an in-depth analysis.

(As to the timing of the settlement, it is not at all unusual to have cases settle mid-trial, after the attorneys can evaluate the evidence. In fact, I’ve had four medical malpractice cases settle while the jury was deliberating on the verdict.)

And about that “Perry Mason moment?” Mulvey told me that while it was certainly interesting, it hardly amounted to the melodramatic rendering of it by the Boston Globe. Trial attorneys, you see, routinely confront witnesses with prior inconsistent statements. Sometimes it means something to jurors. And other times they shrug it off.

Just a few weeks ago Anne Reed wrote on this very subject at Deliberations, in The Overrated Prior Inconsistent Statement. From that posting, which has many links to original sources:

But are jurors really going to throw out a witness’s testimony because of one inconsistency, or even one lie? Think about it. Do you have a co-worker who has lied to you but with whom you still manage to work well? A family member who has lied to you whom you still love? Perhaps you yourself might have told a lie once, long ago? For most of us, the idea of falsus in uno is too simple to be useful in real life. [The latin phrase means that someone who lies about one thing is likely to lie about another, and a jury is therefore permitted to disregard all the testimony of the witness — ET]

Jurors are often forgiving and practical when a witness lies. That’s the conclusion of an empirical study by Jones Day lawyer Richard Stuhan, and trial consultants Melissa Gomez and Daniel Wolfe of TrialGraphix, Inc, collecting data from over 800 mock jurors in “over a dozen states.” Stuhan, Gomez, and Wolfe authored an extensive post about their study (and its limitations) at the Drug and Device Law blog, and plan to publish it in full in the April 2007 edition of DRI’s For the Defense magazine.

And so, while the confrontation with the blog may have been presented in the Boston Globe as exceptional, it appears that the only exceptional thing was where the prior statement came from.

This article was blasted across the front page a full two weeks after the trial was over. So the guy who wrote it, and the editors that placed it above the fold on the first page, weren’t even there.

Tomorrow, my final bit on the trial of Flea. But it really isn’t about him. It’s about the Boston Globe.


June 4th, 2007

Deconstructing the Trial of Flea – Part 1

(This is a follow-up to Doctor “Flea” Settles Malpractice Suit After Blog Exposed In Court. regarding a pediatrician that was live-blogging his own trial. I first discussed the legal ramifications of doing so on May 8, in Medical Malpractice Trial Starting For Med-Blogger)

Were you wondering how Flea was exposed in court and how his blog would be used? So was I. Curiosity got the better of me, since the details weren’t in the Boston Globe story from last week.

So I called plaintiff’s counsel, Elizabeth Mulvey, of Crowe & Mulvey to find out. She told me she was tipped off to his blog by another attorney. How did the other attorney know? Because Flea had blogged about a subject that Mulvey had spoken on some time back and the other attorney realized that she had the case. Flea had unwittingly given out the identifying information when he discussed her talk. On this cached version of Flea’s site, you can see his comments discussing Mulvey on April 28th.

With that information in hand Mulvey scoured his blog for helpful information, much the way any attorney would review writings produced by a witness for the other side. She found a post where Flea referred to Nelson’s Pediatrics as the bible of pediatrics. (I have the 11th ed. from 1979 on my own bookshelf.) So she asked him on the witness stand if he considered Nelson’s the bible for pediatrics. He said no. Lawyers call that a “prior inconsistent statement” that allows us to confront the witness with the other statement. That meant asking him if he was Flea and confronting him with the blog posting.

This testimony came out during the direct exam of Flea by Mulvey (she called him as her own witness making it “direct” even though he was adverse and it more realistically resembles cross-examination). She did not use the comments about the meetings with jury consultants that I discussed back on May 8th, but then, she still had another opportunity to examine him when his own attorneys were done. The tips he received on how to conduct himself on the witness stand could still have come up.

She never got to that second part of her exam, however, because the case settled. The details are confidential.

Mulvey considered this just another type of prior inconsistent statement. The most frequent use is when deposition testimony deviates from trial testimony. It could also come out if a witness has published an article where the contents of the article differ from the testimony. That it came out on a blog was novel, but the concept was not. (William Childs at TortsProf hit this point on May 31st.)

Tomorrow, more details concerning the trial…

Addendum 6/5/07 – Part 2 now available at this link.

Addendum 6/6/07 — Flea, The Boston Globe and Morality in Journalism and Blogging


June 1st, 2007

Flea and Crisis Management

I was updating the blog postings on Flea’s outing, and was stunned at how many there are…and they continue to pour in and are now expanding beyond the legal and medical blogospheres.

But this particular posting is important for Flea, if he or his friends are reading this: Blog Scandal Hits Home

When I got home I found an email from a friend requesting an urgent referral to a new pediatrician. I emailed back and said, oh, so-and-so loves her pediatrician, ask her. My friend then replied, yeah, so-and-so has the SAME one and is also looking for a new one – see sordid story on front page of Boston Globe. So I read the story, and there was that blogger scandal again. I couldn’t believe it – a Law and Order type of story in my friends’ lives…

…Judging from my friends’ responses, I imagine his entire practice scurrying to jump ship. It’s scary to think that someone who had some good qualities as a clinician, judging from what my friends told me, and from some stuff he has written for his practice’s website, might have his career ruined by poor judgment (or perhaps hubris? or a false sense of security behind a pseudonym?) about where and how to vent his frustrations / indignation / contempt / stress.

With the Globe’s decision to blast Flea’s name on the front page, Flea has, as I see it, two choices as his practice that will no doubt undergo a substantial drop-off in the coming months:

1. Crawl under a rock and hide;
2. Find a good crisis manager to help go public by saying:

  • It was really stupid to blog this stuff in real time;
  • I should not have let my distress at being sued get the better of me in my writings;
  • This was a tragic case that not only devastated the parents of the child, but has caused me endless sleepless nights due to the death of a patient. But it settled due to my blogging and not my medical conduct;
  • Do not say anything that, in any way, requires a response from the parents;
  • Read Kevin, M.D.’s post on the importantance of your Google reputation, and start a plan to take back your name so that this story doesn’t pop up on the first page of Google three years from now when new patients pop your name into the search box.


May 31st, 2007

More on Doctor "Flea" Being Outed On The Witness Stand

The outing of Flea’s real identity in the Boston Globe is now generating an immense amount of comment in the blogosphere. (For those new to the story, see Doctor “Flea” Settles Malpractice Suit After Blog Exposed In Court): So I’d like to add a few additional observations and links:

First, I learned of Flea’s outing yesterday when Jonathan Saltzman of The Boston Globe called me for comment. To say I was stunned would be an understatement. While I had discussed the risks of his posting confidential trial prep work back on May 8th, I told Saltzman I was surprised to see it actually happen.

Second, I wrote this morning’s lengthy post last night, and then held it for today, since the story belonged to the Globe, and not me.

Third, I picked up a hard copy of the Globe. The story is front page, above the fold. Which is to say, his patients and colleagues will all see it.

Fourth, the Globe story said the outing was on May 14th, and the settlement was the 15th. Flea took down his blog in totality on the 16th. So the blog came down after it was all over.

Fifth, while I hadn’t appreciated it before, the Flea photo from his blog (with guitar, above) is apparently that of the musician by the same name. (Hat tip to Michael Grant.)

Addendum — Sixth, Saltzman informed me during our conversation yesterday that Flea’s attorneys were unaware of the blog, which means of course, that Flea didn’t tell them and he wasn’t prepped by his attorneys on the subject on how to deal with it if it should come up.

Below are some of the medical and legal blogs that have already picked up various parts of this story today:

There will be others and I will try to update later…


Somehow, I don’t think we have seen the end of this…

Addendum 6/1/07 — More:

Addendum 6/4/07 — More:

Last Addendum: After interviewing plaintiff’s counsel, I wrote three more posts on the subject:


May 31st, 2007

Doctor "Flea" Settles Malpractice Suit After Blog Exposed In Court

A Boston pediatrician blogging under the pseudonym Flea has been outed. It happened in court. During cross-examination. On his own medical malpractice trial. And now it is the top story in the Boston Globe.

Flea had written several posts about the upcoming trial, a wrongful death case involving a child. In the process he discussed his private prep sessions with his attorney, explaining how he had been coached to answer questions to be appealing to the jury, how he had been videotaped, and what materials his lawyers told him to read.

After seeing this, I wrote of the extraordinary risks of such disclosures, even under cover of pseudonymity. (See, Medical Malpractice Trial Starting For Med-Blogger.) The issues I raised, in the event plaintiffs’ counsel discovered his blog, ran to the risks of losing his attorney-client privilege for all such communications. If this happened, he could be cross-examined on how he was coached by his defense team to act in front of the jury and the advice they gave him. He also ran he risk of his own insurance carrier trying to disclaim coverage if it thought he was hindering the defense.

Shortly after, he took down three blog postings (Med-Blogger, On Trial For Malpractice, Takes Down Trial Posts), asserting he was superstitious and didn’t want to jinx things that were going well. Then he took down the entire blog, without explanation (Med-Blogger Flea, Previously Live-Blogging His Trial, Takes Down Entire Site).

Dozens of medical and legal bloggers had commented on the live-blogging of the trial, as well as the subsequent, unexplained disappearance of the popular, award-winning doctor-writer.

Well, as revealed in today’s Boston Globe, it appears that plaintiff’s counsel did find out about the blog. And at the end of the day when Flea was on the witness stand in “a Perry Mason moment,” the questions came:

Do you have a medical blog?
Are you Flea?

As per the Boston Globe article, court adjourned for the day, and the case quickly settled.

Why did he do it? While I don’t know Flea, and have no connection to him other than these postings, my best guess was this: He loved writing and this was great material. The subject was, simply put, irresistible. I know that I found his activity fascinating, not only for its raw content, but also for the walking-a-high-wire-without-a-net danger of what he was doing. As seen in the links below, I clearly wasn’t the only one rubbernecking.

How many people took note of this ongoing saga? These links help tell the tale (and there are others), both for the uniqueness of a doctor live-blogging his own malpractice trial and also due to the huge popularity of the blogger:

Finally, this case was a tragedy for two parents, and a nightmare for a doctor. If the parents had lost the trial, it would have added yet another layer of extraordinary emotional trauma. If Flea lost, it would no doubt have been emotionally difficult for him. A settlement allows each to move on with their lives without the additional fallout of a jury’s verdict. The parents might feel they had their day in court and that the settlement was based on the merits, while Flea might feel it was based on his own carelessness with his writing and the concerns a jury might not like the way his legal team was trying to manipulate the jury. Neither won and neither lost. And sometimes that is all for the best.

Addendum: Here is a cached version of Flea’s old site before it was taken down. (Hat tip to Hub Blog)

2nd Addendum: More on Doctor “Flea” Being Outed On The Witness Stand

(Eric Turkewitz is a personal injury attorney in New York)