By LawReader Senoor Editor Judge Stan Billingsley (Ret.) Jan. 26, 2013

LawReader Senior Editor Judge Stan Billingsley (Ret.) sat down recently with attorney Marc Carey, one of the persons being talked about a possible replacement for retired Supreme Court Justice Wil Schroder, to discuss the Supreme Court, and his recent run of successes in winning plaintiff’s verdicts in tough cases, and in tough venues.

Justice Schroder was a strong advocate for lawyers and had lead the fight to limit the overreaching demands of the Ky. Bar Association. The KBA is funded entirely by lawyer’s dues, and last year they sought a big increase in the $5 million dollar KBA budget. Justice Schroder successfully limited their demand for even more funding. LawReader will attempt to interview a number of potential candidates for the vacant Supreme Court position created by Justice Schroder’s retirement. The first potential candidate we tracked down was Mark Carey who just won a big civil case in Carroll County.
LawReader: Well Marc, congratulations on your recent victory in the medical malpractice case in Carrollton last week. According to people in the court system yours may have been the first personal injury case to be tried there in a decade or more.

MC: Thanks judge. I asked and was told that a contract case with one of the big industries along the river was tried about three years ago, but nobody could remember a civil case being tried there in a long, long time. I don’t think any lawyers or insurance companies considered Carroll County a venue friendly to plaintiffs before we won our verdict. Maybe that will change.
LawReader: Maybe it will. But one thing that makes this case so interesting is that you tried it against the local ER doctor at the community hospital located just a block or two from the courthouse. That had to add a layer of difficulty your case.

MC: As if it needed any more layers of difficulty. Yeah, that was a concern, but we ended up with a jury of pretty fair minded people who vowed not to let any of that influence their deliberations, and they upheld that oath.

LawReader: Tell us a little about that case. I’m not sure that many lawyers would have even taken a case like that.

MC: Haha ha. I will admit that when discussing the case with other lawyers they thought I had no chance of winning. Well, the case was this simple. A lady with a long history of having suffered from a condition which produces chronic pain went into the ER with a particularly severe bout of pain. She was worried about her condition having gotten suddenly worse. The doctor on duty came into the examining room and almost immediately concluded that she was faking her pain to get drugs. So he ran a toxicology screen on her and he concluded from her results that she was on a number of different narcotic pain relievers and says that his suspicions were then confirmed. What he didn’t do was confirm her history or the need for the medicines which she had been taking as prescribed by her physicians. In fact her condition had gotten so bad that three weeks after this ER visit she had major surgery. The doctor then did a vaginal exam on her which she immediately thought was weird, and during that exam she felt that it wasn’t medically proper. In fact she said he “violated” her. When she confronted him about that he went out, called the police, told them she was faking pain to get drugs illegally and based upon his statements she was arrested and charged with a felony.
Of course the criminal case and all the charges were dismissed for lack of probable cause at the preliminary hearing because there was no evidence at all that she had requested any medicine, or drugs, at all.
When I got the case I was curious why a doctor would do something like call the police and jump to the conclusion of “drug seeking behavior” so quickly, particularly with a woman who had a long history of multiple surgeries and a long history going back to her puberty years, of chronic pain who was being treated by reputable doctors for it. Then we found out.
The doctor was an admitted alcoholic and drug abuser. He had been stealing narcotics from another hospital and abusing them for two years until he was caught. He was never charged or even threatened with criminal action but rather allowed to continue practicing under close observation.
It turned out that even after his restrictions were lifted he got in trouble with alcohol again and was arrested for a DUI and then lost his license and forced into rehab. The day we took his deposition he’d only had his license back a few days.
And while this kind of evidence might not have been admissible in most cases, the doctor made it admissible by testifying in his deposition that his medical decision making was influenced by his own experience with alcohol and drugs. He opened a door into that history.

LawReader: I agree. That’s a very difficult case. But you took it; you tried it and got a pretty good verdict. What were your client’s injuries?

MC: It was purely a general damages case. We offered no proof of physical injury except the infliction of increased pain while she was in jail without medical treatment, we offered no proof of economic loss such as lost earnings or impaired earning capacity and instead offered the jury proof by her own testimony to the anxiety, emotional distress and fear she was in being arrested, jailed, facing a possible prison sentence and being rendered helpless to defend herself against the allegations of a doctor. We also offered proof on how outrageous it was for him to have threatened her with arrest while he was in the process of performing the vaginal exam, and of course there was the harmful and offensive touching during the exam itself.
LawReader: He actually threatened her with criminal charges during the exam?

MC: Yeah, he did. He even admitted on the stand that he confronted her while he was between her legs. I think the jury understood how gruesome that would be for a woman, and tended to confirm her testimony that something he was doing wasn’t right.

LawReader: Okay, well congratulations on that one, but then you also got a $400,000 verdict in Owen County recently too. Also not a venue many plaintiffs would want to venture in to.

MC: You know, they too had not had a plaintiff’s case in many years and I was very concerned about the reputation Owen County had for being a defendant’s best friend. But we had a woman who was the victim of a rear end collision who had settled with the other driver but couldn’t get her own insurance company to pay her the underinsured coverage she had purchased. They defended that her injuries didn’t develop for more than a year after the collision and felt pretty safe making no offer at all. But what we proved was that she had a condition which resulted in the slow death of bone tissue over a long period of time and that it wasn’t until her doctors took her off of her pain medicine that she started to recognize the symptoms and seek treatment. Her future may include an amputation of her lower leg as a result. The UIM coverage was only $100,000. I only asked the jury for $200,000, so the $400,000 verdict was very rewarding.

LawReader: Did she collect?

MC: Yes, we then sued the company for bad faith and we settled at mediation.

LawReader: Did they pay you the full $400,000 or did you get more?

MC: The settlement was and remains confidential. But it was a good outcome, a very good outcome.

LawReader: I know you use the services of trial consultant Mark Modlin frequently; did he assist you in these cases?

MC: I don’t think lawyers realize how valuable Modlin is. Whereas most plaintiff’s lawyers try one kind of case and then another, and not all that often, Modlin sees 100 times as many cases as the ordinary lawyer and works with some of the top attorneys in the nation. He has insights that you can’t get anywhere else. And his partner, Becky Jones runs an amazing focus group for cases. I don’t care how smart a lawyer thinks he/she is, there are things a jury is going to pick up on, and wonder about, that we lawyers never can predict. Becky knows how to explore those things with a focus group and I will never try another case without her help. Those experiences help me see my case the way a jury might and informs my decision making about the order of proof, the degree of proof required and so many other little things that I can say without hesitation, any lawyer who tries a case without that kind of help is doing himself and his client a great disservice.
LawReader: Did you use them in that other case you recently had where you got a summary jury in Federal Court to give you what I have heard was a half million dollars with a sizeable punitive damages award?
MC: Damned right I did. We had a case against a big police department who broke a woman’s arm during an arrest. Odd thing is they arrested her inside her own home, after she had called them to help her with a domestic argument with her boyfriend. They arrested her insider her hallway, in the winter, with the doors and windows closed, and charged her with disorderly conduct. Her broken arm required a nasty surgery and left her with some never damage. Once again, we were up against the local police and an incredibly skillful lawyer. Nobody gave me a chance.
LawReader: Did you settle or go to trial?

MC: I tried the case to a summary jury after there was only a nuisance offer at mediation. Two summary jury panels came back with substantial verdicts and the defendant’s settled quickly.

LawReader: Punitive damage awards are rare. Have you ever gotten one before?

MC: Yeah, actually I got a pretty good one in a contract case. And I know punitive aren’t supposed to be awarded in a contract case, but we alleged and proved fraud and the jury loaded up on punitives. Of course that makes collection a bit more difficult because most people aren’t insured for that so we are sitting on the judgment, letting the interest build and plan to collect all of it in due time.
LawReader: One lawyer recently said that you are fearless and seem to take the toughest cases, why?

MC: Haha haha haha, ha. They just seem to find me. I guess that’s my lot in life. But I’m okay with that. You know, there are a lot of doctors making lots of money and maybe what they do looks easy. But then there are also a few doctors who don’t stop pounding on your chest until they save your life, or who take the really hard reconstruction cases, or the complicated surgeries that other doctors won’t touch. I didn’t set out to make a career out of hard cases, but I think it’s good that when somebody has a really hard case, they’ve got somewhere to go. If that’s what God’s plan is for me, so be it.
LawReader: Okay, so what about the rumors that you are going to run for the Supreme Court. Are they true?

MC: Never say never I guess. Yes, I am thinking seriously about it. You know that when Justice Wintersheimer retired Wil and I both competed for that seat. Wil came in first and I came in second and he has served with distinction ever since.
Wil and I have known each other for many years which make his current situation that much harder for those of us who know and respect him. I think our race was conducted on a pretty high level of behavior and professional conduct. We were both very much aware that the press and others were waiting for us to go negative so they would have something sensational to write about. Neither of us did and after the race we remained friends and I have been very complimentary of the service he rendered.
Yes, people have mentioned my name and have asked me to consider running. I am giving that very serious consideration.

LawReader: Well you did give them something to write about when you ran last time. You filed a lawsuit challenging the rules of judicial campaigns, and you won.

MC: Yeah, well you know judge, we all took an oath to uphold the Constitution. Kentucky had refused to acknowledge that the U.S. Supreme Court had ruled that judicial conduct regulations like we had in Kentucky were unconstitutional. I really had no choice. None of the judges running knew if they were free to do as the US Supreme Court had said they were or if they were going to be punished by Kentucky under un-constitutional rules. I sued to clear it up. Fortunately I was right, and we won, and made law, but unfortunately the ruling didn’t come down in time to apply in our race.
LawReader: It’s not many lawyers who get to make such important law in their careers, you must be very happy.

MC: I know you’ve been kind and said that before, but I just did what I thought was right at the time.
LawReader: Well, there’s another rumor out there. Judge Bates in Grant, Owen and Carroll counties has also announced he is going to retire. Some are saying that you might go for that seat.

MC: You know, in many ways that is a very interesting opportunity. It would give me the chance to be of service more locally and to have an impact on the lives of the people of my own community. It’s not about the politics of the thing, it’s about balancing my professional calling with time with my wife, our first grandchild due in June, the farm I love so much and at the same time trying to find a place in the law where I can improve the image of our profession and the grand traditions we represent.
I know that the Supreme Court would give me a wonderful chance to cap off my career with something meaningful for the future, to participate in settling the law on many topics, but my view of the job of the Supreme Court is different than most people.
When we created the Supreme Court back in the late seventies, it was required to hear only two types of appeals, death penalty cases and those where the sentence could be 20 years or more. The rest of the reason for the creation of the Court was to oversee the bar association, oversee the delivery of justice, oversee court administration and serve as sort of a board of overseers of an entire branch of government. It was never intended to become another layer of appeal, to delay the delivery of justice or to create a huge new body of appellate decisions. Hearing appeals is what the Court of Appeals was supposed to do.
But the justices have exercised their discretion quite frequently and I think strayed from the original intent. Along the way the system has missed so many opportunities that it could have taken as a result.
Yes, the Supreme Court could provide me with a chance to help get the entire system back on track, and to bring some of those improvements on line.
But the Circuit Court would allow me to have a much closer contact with the lives of ordinary people, to enhance respect for lawyers, and the court system and for judges on a local level. Admittedly there would be far bigger opportunities in Frankfort, but I feel very comfortable saying that if the people of my community would like for me to serve as their next Circuit judge, I could easily say yes to that honor.

LawReader: We understand that there is talk that Bill Adkins of Grant County may run for the Circuit Court vacancy that will be created when Judge Steve Bates retires in 2014.
Judge Bates recently confirmed to us that he will be retiring. We would suspect that other potential candidates for the Supreme Court position will be Court of Appeals Judge Michele Keller and Court of Appeals Judge Joy Moore.
But as far as the practice of law, what’s next for you? Any new big cases coming up?

MC: I just got out of trial. I spent a week without sleep, a month doing nothing else and what’s next is returning phone calls, cleaning up the mess I’m sure is waiting back at the office and then it’s back to the grindstone where it seems I’m a silk purse manufacturer with an inventory of sows ears.
LawReader: Well thanks for talking with us and good luck on whatever you decide about your future. When do you think you will make a decision and let us know?

MC: I’m not sure, the jury’s still out on that one.

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