How Relevant is the “Flea’s” Blog to a Medical Malpractice Case?
Many attorneys (and non-attorneys) have been debating whether and how the Flea’s blog could have been relevant in a medical malpractice case. I hypothesized on another blog that it likely could have been relevant as a prior inconsistent statement. Well, it appears I was correct. New York personal injury attorney Eric Turkewitz decided he would call Elizabeth Mulvey, the lawyer who represented the plaintiffs in the case against the Flea. First, it appears that, similar to Mark Twain, reports of his demise were greatly exaggerated. There was no Perry Mason moment like reported by the Boston Globe Even more significant is the fact that several witnesses had already been called in the case, including several experts. Mulvey had already called the Flea in her case in chief and cross examined him. Once some of the other experts had testified, he was recalled. Not unusual in a medical negligence case since scheduling out of town expert witnesses for trial often involves breaking up other witnesses testimony. So, according to Turkewitz, here is how the Flea was outed: “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.” So, there you have it. Was the Flea’s outing his undoing in the trial? Ultimately, only the Flea and his attorneys know; however, considering it was the 5th day of trial, it is highly likely the settlement was the result of the facts of the case and how it was coming into evidence as opposed to Flea’s blog. And that’s the way it should be.