Appellate opinions usually begin with a very short introductory paragraph – just enough to orient the reader to the nature of the case and the outcome of the appeal. Here’s a typical example:
Appellant Shana Becerra sued appellee Dr Pepper/Seven Up, Inc. (Dr Pepper), alleging that Dr Pepper violated various California consumer-fraud laws by branding Diet Dr Pepper using the word “diet.” After the district court dismissed her third amended complaint with prejudice, Becerra appealed. We affirm the judgment. (Becerra v. Dr Pepper/Seven Up, http://cdn.ca9.uscourts.gov/datastore/opinions/2019/12/30/18-16721.pdf.)
Sometimes, however, the court begins with a factual summary that expresses its attitude so clearly that the reader knows right away what the outcome will be:
In a game where the players wear sharpened steel blades on their feet and are garbed in protective gear from head to toe, the playing field is a glossy ice rink, checking not only is allowed but a fundamental aspect of the way the game is played, and the object of the game is to put a puck into a goal (or to prevent the same), the plaintiff, 17-year-old Daniel Borella, was cut on the wrist by one of the blades worn by the defendant, Julion Lever, in what Borella acknowledges was a “freak accident” occurring moments after Lever checked Borella hard from behind into the boards and took the puck away. Borella appeals from the decision of the Superior Court judge granting summary judgment in favor of the defendants….
The Supreme Judicial Court has held that participants in sporting events owe each other a duty to not engage in “reckless” misconduct….In this case, we apply that standard to the game of ice hockey, in which physical contact between players standing on two thin metal blades atop a sheet of ice is not simply an unavoidable by-product of vigorous play, but is a fundamental part of the way the game is played. (Borella v. Renfro et al., https://www.mass.gov/files/documents/2019/12/02/g18P0322.pdf).
You don’t need to read the ensuing 21 pages of facts and analysis to know that the court is going to affirm the grant of summary judgment.
Here’s one more example, from a case in which a physician appealed his conviction for unlawfully prescribing controlled substances:
From March 2011 to January 2012, Dr. Alan Godofsky was a doctor at a “pill mill”….The clinic did not accept medical insurance; it accepted payment by only cash (later by debit card), at $300 for the first visit and $250 per visit thereafter…The clinic had thousands of dollars in cash on hand every day, so the manager was armed with a handgun and patrolled the clinic with a German Shepherd. The clinic scheduled multiple “patients” at the same time, every 15 minutes, and was often open until after 10:00 p.m. The clinic received hundreds of “patients” per day, many of whom had traveled long distances and waited for hours for a few minutes with a doctor who would then provide a prescription for a large amount of opioids, usually oxycodone.
Evidence produced at trial…revealed that Godofsky routinely prescribed pain medication, notably oxycodone, without performing any medical examination, discussing risks or alternatives, obtaining informed consent, or ordering follow-up monitoring. In short, “patients” arrived at the clinic, paid $250 in cash, and waited to see Godofsky for a few minutes, whereupon he might or might not ask a few questions before providing a prescription for opioid-based painkillers.
During his ten months at the clinic, Godofsky worked about 120 days and wrote nearly 6,000 prescriptions for over 552,000 pills or dosage units, [or] about 50 prescriptions per day….Almost 90% of the prescriptions Godofsky wrote were for oxycodone. The clinic paid him almost $200,000 during that time, as an independent contractor, which presumably contributed to his personal net worth of $5.6 million. And despite his describing it as a “seedy, filthy place” shortly after he began working there, he continued to work there, without complaining about scheduling or patient care issues, until he was caught.
Do you think the doctor is going to win a new trial on appeal? I don’t.
My point here is that every trial tells a story. So do the affidavits, depositions and memoranda of law submitted in support of or in opposition to a motion for summary judgment. And the winner is usually the side with the more compelling story. Very often (though not, as it happens, in the two cases quoted above), expert testimony is an essential part of the story. Vident Partners stands ready to assist you whenever you need help finding an expert witness.
