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Transcript for Trial Lawyer Talk, Episode 30: Eric Fong

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Scott Glovsky: Welcome to Trial Lawyer Talk. I’m Scott Glovsky and I’m your host for this podcast where we speak with some of the best trial lawyers in the United States. This is storytelling podcast. We have great lawyers tell great stories from cases that had a profound impact on them. Let’s get started.

We’re very fortunate today to have with us a wonderful human being, an amazing trial lawyer, Eric Fong from Port Orchard Washington.

Eric Fong: Hi Scott, thank you.

Scott Glovsky: Eric, thanks so much for being with us.

Eric Fong: Yeah, I appreciate you saying that about me. That feels good to hear. It’s good to be here. It’s good to be asked questions about who I am and cases I’ve done. I also tell you it’s a little nerve wracking. I’m nervous right now, but I am glad to be here.

Scott Glovsky: I’ll tell you, it’s always a pleasure for me to see your smiling face and the joy you bring to courtrooms and to your friends and family. Can you tell us a story of a case that had a profound impact on you?

Eric Fong: There’s many. There’s many, many cases that affect me in ways that are hard to explain, in ways that hard to explain. I’ve got a pretty varied practice from some of the craziest criminal events that you can imagine. I mean horrific things, both what we are capable of doing to each other and what the government is capable of doing to people in a rush to get the case over with or to get a conviction or to close it out, or even to follow a story that was written by the media. High profile cases can be driven by what, the story is created by the media. I’ve done all of that. I’ve done cases on the civil side that equally profound but it’s coming at it from a little bit of a different angle.

I tell folks that the two biggest frauds in this country, one is the criminal justice system that is leeching your communities of valuable resources. I think you can check the budgets of all the local governments, so cities. We’re in Los Angeles right now or Newport Beach. It doesn’t where, I could be in my city of Port Orchard, or you can be in New York. The local tax dollars that are coming from these folks, almost 70% to 80% of it’s going to police officers and jails, prosecutors, the criminal justice system. What it does is it takes good people, who that money should be going to helping them.

If nothing else sit down with them and their kids and have them read to each other, and say, “You know what, you’re a good person but you made a mistake.” What it does instead is, takes these people and locks them up and takes away any hope they have. Takes away any pride they have. You’re telling them, “You need to be kept away from everyone else because you’re dangerous,” or, “you’re sick,” or, “there’s something terribly wrong with you.” It’s never if they get out, it’s when. How are they left when they get out? We know the answer to that question, yet we keep plowing all of these resources into it. It’s pretty disturbing.

The second equally large fraud in this country is the insurance industry. I think of it this way, there are some 200 million car insurance policies in this country. 200 million. What’s 200 million times $100. My insurance policy happens to be a little bit more, I just caused a crash and it’s going to be even more.

Scott Glovsky: Sorry to hear that.

Eric Fong: It was on my way here actually. I was going to the airport and I was a distracted driver. It was minor, I don’t anyone was hurt. If they were I immediately texted him and I told him how sorry I was, what I did for him, to him. He was very gracious and told me he was alright. So 200 million car insurance policies time 100 is a staggering figure, staggering figure. You’re not in good hands. They’re not good neighbors. When it’s time for them to do what they promised to do, they will stop at nothing to hold onto that money and do tremendous damage to their insureds, to the people that they’re insureds hurt and anyone who has a legal equitable ethical moral claim to be helped with that pot of money. I’m sorry I’m rambling.

Scott Glovsky: No. No, this is helpful. Let’s chat now maybe about a case that had a profound impact on you.

Eric Fong: Well when you ask that I immediately flashed on a case that’s relatively recent on my soul and that I still carry with me. It was a young man that got … he had his neck fused and he was in the construction industry, so he wore his neck out by the age of 40. Actually, yeah, so a few years prior to me meeting him he had neck surgery. Prior to that he was an IV drug addict. He had a lot of criminal history, had very little tax returns to show that he worked but was a new man. He had bottomed out and he had a wonderful like with a wonderful lady. They were raising two beautiful kids. They’re exactly the age of my kids.

He had this hardware in his neck, had a history of IV drug abuse and he started to develop severe neck pain, disabling neck pain. Over the course of a month he went to the emergency room four times. He kept going in. In addition to that, he went to a community doctor in a urgent care place. Each time he went to the doctor they basically sent him home, with him feeling left indignant. Him feeling like, “Why won’t you listen to me?” Each time he came back he was getting progressively worse, to the point where he would be hallucinating. He was holding himself up in a dark room because like would overwhelm his senses and cause crashing headaches.

He finally goes and sees a doctor who listened to him and put him on an ambulance to the hospital, where he already been by the way. Puts him on an ambulance over there, saying, “I think he has meningitis.” This young man and his wife like, “I’ll drive because I don’t can’t pay for the ambulance. We’ll drive there.” This doctor would not let him drive because he knew that if they just showed up walking in off the street, those precious hours spent in the waiting room could be deadly. So he made them go on an ambulance so that the minute he arrived he would be whisked into a room where you would immediately seen by care providers.

When he arrived the emergency room doctor looked at him and sent him home. Basically we can guess as to why, but he has tattoos, he admitted that he had a history of IV drug use. Left to speculate as to what was going on in the doctor’s minds, but he also wrote in his medical reports that this could be a spinal epidural abscess. That’s like saying, “You could be having a heart attack, go home.” Because a spinal epidural abscess is a deadly horrific disease. They also drew blood and did all sorts of lab tests. Without ever knowing the results, and without by the way the simple test for an epidural abscess.

There’s many, many very, very simple, simple tests to see if you have it. Some that require no money at all, others very little. But the minute doctor is suspecting epidural abscess you have to do an MRI because it will show it. It’s the only test that will instantly. It’s 100% accurate. Instead of doing they sent him home, but they did draw blood. They did draw blood and the next day that blood blew up with staph, which is the number one cause of an epidural abscess. At this point there’s complete panic on the part of this hospital and this doctor. They send an ambulance to go pick him up.

The tragedy of this story is that his wife was getting ready to drive him to another city because they had lost complete faith in this hospital where they had already gone multiple times for this pain. Wife is going to school to get their kid and she’s going to come straight back and get, we’ll call him Bob, and take him to another city because he’s in dire need of help. In the meantime the ambulance arrives and takes him back to the hospital that he was too afraid to go to. They admit him. They do not testing for the epidural abscess. Where he lays in bed and suffers, and suffers for the next three days with no treatment, as they think he’s suffering from a benign viral infection.

He goes from the headaches and the neck pain and hallucinating to being unable to walk, to being unable to control his bowel and bladder, to then being unable to move his legs, to then being unable to use his arms. To the point where all he can do is nod his head. Over three days this man laid in that condition as his epidural abscess is growing on his spinal cord and severing it. A doctor comes in and sees him unable to move and thinks, “Well, let’s run an MRI.” And there it is, an abscess that has completely cut into this man’s spinal cord and crushed it to the point where he’s a virtual quadriplegic. This is what happened.

Now, an epidural abscess, as horrific as this story is, the fact of the matter is this is not an easy case. The defense will get experts. In fact, the people who write the books on emergency room medicine and on infectious disease, they’ll hire these people to come in and be their experts and say that, “Hey, you know, these are complicated affairs. How could we know? Doctors can make judgment and there’s just unfortunate events.” But this is the case and I’m ready to go all in on it, because I know when there’s a grave injustice in humanity the law needs to step in and stand up for someone that others won’t. That’s what we do. That’s what gets my juices flowing, is to stand up and fight for something I believe in. My God, how lucky are we to be able to do that.

I’m a solo practitioner, I know my limits. I’ve done medical malpractice in the past, but this is a case that has multiple, multiple defendants. The number of doctors that screwed this deal up is astounding. The hospital and the corporations that hired these doctors that ship them in and ship them out, all working together but no one knows what each other is doing. The way healthcare is practiced in this country is very scary. If the public knew what was going on there would be an outrage. The problem is, is that the doctors are protected by a secret society and everything they do is protected under the quality assurance procedures that allows their errors to be kept secret.

In fact, John Hopkins University will tell you that the third leading cause of preventable death in this country is hospital error. This is a righteous case that stands for the proposition that there’s something really wrong with our system. As the law should do under theory is make out society better. We should be able to use the law to make our world a better place. This is a case that I’m willing to do that. I’m willing to go to any length to help this family. But I also know my limits and a case like this, it’s hard for me to explain this but it’s $200,000 to $300,000 just to work it up. If it goes to trial you might be able to keep it within that budget but it can also explode.

Scott Glovsky: Right, and you’re talking about the cost out of your pocket. Not attorney’s fees for your time but just what you have to pay out of your pocket.

Eric Fong: Yeah. That’s right. The risk that I’m taking to help this family is conservatively $200,000, because you’re hiring neurosurgeons who will charge you $2,000, $3,000 an hour just to pick up the phone and see if they’ll even take the case. So before you even know if you have a case or not the vetting process is 10,000, 15,000. This is a case that you can very easily lose. As outrageous as that story is there’s another story that trumps that story.

It’s a story that a lot of people out there believe very strongly, and that is that the system’s broken and that there’s frivolous lawsuits that are causing insurance rates to go up. It’s a windfall. It’s jackpot lottery. The McDonald’s case is a great example of that, of where we can look and draw examples and make up a story that the system’s broken, and because of that all cases should not go forward. The system is so broken that anything that comes into is rejected. That’s a real bias that we face. This case is easily winnable by the other side. In fact …

Scott Glovsky: You decided that just because of the sheer scope and magnitude of the case you needed to team up with some other folks.

Eric Fong: Yeah. Yeah, thank you for … I appreciate you reeling me in because it’s easy for me to get sidetracked on side stories that are much deeper actually than this story.

Scott Glovsky: This is all helpful, all interesting.

Eric Fong: I’m a solo practitioner and I know my limits. My creativity is enhanced with others. You leave me alone to do stuff and I will come up with nothing. You get me with someone, like with you or other friends and we sit down and we talk about stuff, my creativity increases exponentially. I can distribute the risk, the money we’re talking about. I’m not a wealthy man, I have a fabulous lifestyle compared to most people on this planet but at the end of the day I’m not rich, and certainly could lose it all in a heartbeat.

The work on this case is crushing. The amount of legal work and the motions practice, that is not strength, is a year or two of just thinking and writing and research. So I team up, I work with other lawyers and I have friends and I can choose. On a case like this, if you believe in it and you’re right, you could go out and pick anyone to go work with you on this case because it’s righteous and it needs to be done. The people who believe in what we do, it’s easy to get behind this because we can do real good, both for this family but also to change the hospital’s practice and to make it public. Which the medical industry won’t do on its own, they want to keep it secret.

So I chose some friends that I’d known for many years, and in fact I tried cases with, to go in with me on this. They’re prominent, successful lawyers. We’re working this case up and we’re killing it. We’re doing an unbelievable job. Along the way there were red flags that this wasn’t a perfect relationship.

The first real alarming moment was when I would prepare documents and they would take if off of the pleading paper that was ready to be filed. They would remove it and put in on theirs, and they say that they were afraid that I would screw up the filing process. Which is a pretty mundane simple procedure and certainly doesn’t depend on what pleading paper it’s on.

Scott Glovsky: Sending you a message that they don’t trust you and that their name should be front and center.

Eric Fong: Yeah, exactly. Exactly, exactly. Those two things are exact. They didn’t trust me and they wanted their name all over this case. Which, for better or for worse, I travel the path of least resistance. I’m not trying to take on the world. I don’t pick fights. I give everyone a chance. My default is that you’re a good person, you’re going to make good choices. So when this came, I was shocked, I was hurt, but I looked the other way because we were doing good work for the client. We were lining this case up and both guns were locked and loaded, and so I let it go. I’m working with the lawyer who has never tried a case in his life. I have a little bit of trial experience.

Scott Glovsky: That’s a tremendous understatement, for our listeners.

Eric Fong: I’ve tried a few cases and I know the process and spent a lot of time thinking about. To say nothing of the fact that this is my client, who I love and know and care about deeply. The deal always was, I was going to make those strategic choices. In trial, when you’re in trial you cannot have competing paths or theories, and you can’t have multiple people. It’s not a group process.

As ironic and as funny as that may seem, the reality is you have to have one person in charge making those crucial moments when everything is coming down, what’s your judgment? Are you going to go right or are you going to go left? It’s not a discussion that can be had my multiple people because the mind is infinite in possibilities and the paths are so varied that you can debate these questions forever, and you know what? You’ll both be right. There’s no right or wrong way to do this. That’s why we call it a judgment call.

There has to be one person making that call and it was always going to be me. There was never even any question on this, at least in my mind. A little bit of foreshadowing here, right? Because little did I know. As this case goes along, the first, we mediate the case and I wasn’t overly optimistic, but there was a sense, there was a feel like, “Alright, let’s go get some justice for this family.” So we go and we have a mediator who’s the best mediator in the state, has this great reputation, who I quite frankly distrust vehemently from a previous experience I had with him. Where he wanted to shoo me out and say there wasn’t a case but ultimately didn’t listen to his advice and pushed it and settled for enough to change my client’s life.

I didn’t trust this mediator. I swore to God I’d never go in front of this mediator again but this other side loved him, my partners that I chose. I call them the other side because at this point they’re starting to become the other side. At this point I don’t realize it. The first offer to settle this case was, I want to say half a million dollars. This man’s medical bills are over a million. He needs 24/7 nursing care. He needs to have a catheter put in so he can just get his bodily waste out. His needs are staggering. Half a million dollars, why did we even go through this process?

We walk out of there and they move up to maybe by the end of the day a couple hundred thousand dollars. We walk out and we keep working it up for trial, keep preparing it for trial. As we get closer to trial, sure enough they start chipping in a little bit of money, there’s multiple defendants. You want to divide and conquer medical malpractice cases. When you have multiple defendants a decent strategy is to get them divided and then starting to focus their attentions against each other and start to sweat it out. That’s guaranteed to happen the closer you get to trial because at the end of the day they want to save their own ass.

So we start being approached by individuals that are either teaming up, certain doctors and institutions that are starting to team up against other individuals and institutions. You can start to see that happen and globally, all these defendants now have increased their offer to $2 million. Now all of a sudden there’s great excitement with my partners, that there’s real money on the table, and I’m kind of dismayed because that’s not real money. That’s nothing, and at the end of the day out of that two million the client would get nothing.

Scott Glovsky: When you say nothing, you mean that whatever his recovery would be would pale in comparison with his needs.

Eric Fong: He would get virtually nothing. On a $2 million settlement with the liens that the state had paid for his care, which was over a million dollars, the costs that we had now sunk into this case, which were astronomical, I’m talking about nothing.

Scott Glovsky: Got it.

Eric Fong: This man would get nothing. It sounds like a lot of money, and it is, two million is a huge amount of money. But in the context of what we’re talking about here it’s nothing to what was taken from this person, and two little kids by the way that were also my client that needed to be taken care of.

Now I sat and I watched as those kids would gather around their dad and they would have a balloon. They would want some interaction, some movement, some acknowledgement, some playful moment. You know what it is? It’s them readjusting the blanket so that a exposed part of this man’s skin, as he sat in front of a wood burning fire in the middle of winter, had a little more comfort. That’s their existence, father, daughter. This is a profound loss for these kids that has done more to them than I could ever express or explain until you’ve been there.

They want to negotiate because they’re now in an area that they see as doable. We’re now in striking distance from their perspective, whereas my thoughts are, “Why are we wasting our energy on this?” Because now we’re literally months away from trial. Each thought that you have is a commitment of resources. There’s only so much that we can do, if you give a thought something you’re taking it away from something else. It is for me very distracting, two months out from trial, to be seriously committed to trying to settle case, because they are mutually exclusive. You cannot have one and the other.

When you’re at that point you’re only doing on thing, focusing 100% on how it is you’re going to overcome the bias that’s going to kill your case, that the pre-told story that’s loaded into the jurors is going to trump all the horrible medicine. You have two experts saying it was good medicine, you’ve got my expert saying it was bad, you lose. So they want to negotiate and I’m vehemently against it, so we’re having huge conflict. Now, they had asked me to be their partner. I thought about it, I did not want … I chose, I like my little heaven in the small town of Port Orchard and they brought in a trial lawyer to be their partner, because they needed someone who could take their cases and go into court and try cases.

They wanted me to do it. I liked my setup and they brought in this other guy, who now clearly is taking over this case and pushing me out, and they’re desperate to settle the case. Now I’m really starting to get freaked out, because I learned a lot. I learned a lot, and looking back on it I waited far too long to take control and exert myself, under the belief that we were doing good. Our experts were locked and loaded, we were killing their experts in depositions, we were killing them on all the pleadings. We’d gone into court and we would just win.

But behind the scenes of us killing it, it was beginning to fracture pretty significantly. We then get approached by a single defendant who wants to settle with us. They are now offering enough money to cover the costs of what we have into this case. My partners are really excited because from their view of it, we can settle with this one defendants, we can get all of our costs back and they’ll pay more, and then we can get a little bit of money and we can finance the rest of the case and we don’t have a dog in the fight.

And by the way, we still have all these other defendants that can pay the full amount because we still have other defendants we can go after. I’m outraged. I’m like, “You cannot settle with this defendants,” because in my view he was the single most responsible doctor that could have made a difference in this man’s life. They are all excited about settling with this one defendant because now there’s money that can come in immediately. Obviously they’re starting to feel the pinch financially.

I’m vehemently against this and now there’s open conflict and open arguments with me and this new guy, who’s clearly talking about what he’s going to do. I’m like, “Wait a second, what are you talking about? You don’t even know what an abscess is, you’ve never met my client, and now you’re talking about trying the case.”

My theory on medical malpractice cases was radically different than theirs. They wanted to go after the individuals and make a focus of what the individuals did, whereas I want to take a holistic approach and say the system failed, and then, let’s look at their policies and procedures of what they say they’re going to do, and what they did do. Let’s talk about why these individual doctors aren’t talking to each other, even though the policies and procedures require it. You take the focus off the individual, you put it on the institution. Let’s talk about holistic changes that can change this hospital. I like that. That’s a theory that I think is going to resonate better with the jury, not that I’m not going to let … I’m not giving the doctor a free pass, but my focus is elsewhere.

Most certainly I have enough focus on this doctor that I’m not going to settle with him for $5 million, because we have what’s called an empty chair, and then the other defendants will point at that empty chair and say, “Well wait a second, that doctor’s the guy who screwed up. He’s the one that’s responsible for this and this and he’s not even here.” It’s a devastating legal blunder to settle with this doctor.

I don’t know if you’ve ever been in a situation where everyone is teaming up on you and telling you you’re wrong. You’re surrounded by people that are bigger and stronger and you’re out of your environment. You’re being pressured and pressured and pressured. That was my existence for weeks as I’m arguing with this entire law firm now, by the way, who had some pretty strong personalities. I’m sticking to my guns. I’m sticking to them and I’m fighting, and I’m fighting, and I broke down.

It was a Friday and we’re now literally two, three weeks from trial. I’m like, “Alright, we’ll settle for a million dollars.” That was what they wanted to settle for, I think they had offered now maybe half a million, just this individual doctor. They make me make the phone call, because they know that this family will only listen to me. I’m surrounded by three of my friends as I make this phone call.

Scott Glovsky: It’s a little bit ironic when you say, “Surrounded by three of my friends.”

Eric Fong: Yeah. I talk to these people, I actually was speaking to the wife because it’s hard for Bob to even talk. A lot of times they have it on speaker, so she’s doing the talking. As I’m talking and I’m giving their arguments of why it’s the right thing to do, and I’m looking up at these smiling faces giving me the thumbs up, as I’m persuading these people to do something that they know is wrong and I could hear the tears, I could hear the tears in her eyes as she argued with me, or asked questions really. Her final words well, “Well Eric, if you think it’s the right thing to do we trust you.”

We hang up and instantly I watch as my partner picks up the phone, and is calling up the other law firm that represents this individual doctor, and is negotiating off of the million and is now down to like 600,000. If we lose the case, we get another 100,000. Agreeing to this, without ever talking to my, our client.

As if you had a cruel fisherman that had a little minnow hooked on a large hook, a large lure, that insurance company lawyer did not accept our last offer, because they knew we would settle for anything. If we lost maybe we’d take 75,000 instead of 100,000. Now it’s pure torture and gamesmanships by the insurance company and their lawyer and they’re just flat out screwing with us, and they don’t accept. They’re keeping us on this little hook, as we’re tortured and swimming around, as the weight of the lure would pull us down to the bottom, but it’s being held up by the cruel fisherman as the tail flaps.

I go home and didn’t sleep that night. Didn’t sleep at all. Tortured and tossing and turning. I call, first thing I did when it was a reasonable hour was call up this family. Before I could get into saying anything other than, “Hello,” was her saying, “Eric, I know what you’re doing.” I say to her, “Well, I’m sorry. You need to know something. There’s a huge problem with your legal team. What I need to know … ” At the end of me explaining the disfunction that exists to my client and his wife I ask a question that I know the answer to, but I needed to hear it. I asked, “If they say go left and I say go right, we go right.” He says, “Of course Eric, you are always our lawyer.” At that moment I’m like, “Fuck you guys. You’re gone,” and I go and get my client to put down in writing that he no longer wants them to represent them.

At this point we’re not at a state of preparation to go try this case. I reach out to various friends and professionals to see if they can help. I get one lawyer who says, “Yeah, I’ll do it,” with nothing in return, except, “I’m going to help you Eric. You’re a good friend and I’ll help you.” He didn’t ask, there was no agreement on anything, other than I need help and he was willing to help me. They immediately note up, this now happens, we’re fast forwarding to the … This happens on a Wednesday, where I now tell them … It was a Friday …

I’m a bit confused on the days of exactly how it happened, but the timing is the next day they bring a motion on behalf of my client, because remember there were kids involved. The guardian ad litem, my client, was their best friend, one of the preeminent guardian ad litem in the state who is their best friend.

Scott Glovsky: The best friend of your lawyers-

Eric Fong: Quote-unquote, “partners and friends.” They bring a motion on behalf of my clients to stay in the case. They get up and the new trial lawyer, who’s going to try this case, gets up and, as best as I can tell, proceed to commit perjury. We’re now on, this is a Friday. It was motioned in order to shorten time. We’re now on a Friday, this I know. Trial’s starting on Monday.

This is complete crisis. All the defense lawyers are roaring with laugh, you can hear them exploding with laughter in the hallways. They get up and they proceed to say, “We put in $900,000 in costs and Mr Fong has put in 100,000, and we did all the motions and he did none,” you know, legal work, “did none of the legal work. We did 18 depositions and he did two depositions. Mr Fong is not qualified to do this case. This is about his ego.” They proceed to tear me down.

This coincidentally is this judge’s first hearing in his life, he got sworn in that morning. So I’m sitting there by myself, I’m sitting there and I’m thinking to myself, “Oh my God, I’m about ready to be kicked off this case.” Then my client, the guardian ad litem gets up next, because he’s the one that brought the motion, and takes it a step further and says everything, he repeats everything about how great this law firm is, that they’re the only ones qualified to do it. He takes it a step further and says that there’s an irreconcilable conflict, which there was, with the lawyers, between myself and this other firm, and says that they can’t coexist and that I have to be kicked off the case.

It’s my turn to talk. It’s just us because it’s what’s called an in camera hearing and it’s private. The other side’s out and you can literally hear them laughing. It’s an uproar of good times in the hallway while this debacle’s happening in chambers. I do what I like to do, that was taught to me by a great man, a wise old man, Gerry Spence. He says the first thing he ever does before he talks is to check in to where he’s at and how he’s feeling. I did that, and the first words out of my mouth were, “This is the saddest day of my professional career. These are friends of mine. We had become brothers through this case and working it up, traveling across the country and doing really good work for this family. But let me tell you what’s really going on,” and I proceeded to lay out the case as I thought it had happened.

This judge looked at me when I was done and he says to me, “Well, what do you want to see happen? What do you want to do?” I said, “Those people out in the hallway need to see a confident lawyer pick a jury. They need to see an opening statement that scares them, and then maybe, just maybe they might offer this family something close to what they deserve.” He says, “Okay, we’ll see,” and he gets off and he goes back in chambers.

He’s back there thinking, “What do I do with this mess?” I go into a jury room and I deliberate. I am a complete mess, haven’t slept. I’m not prepared for trial despite my big talk. I call up my client and I tell them, “I need to go ask for a continuance. I need to go in there and tell the judge what I really want now, and what I really want is to put the brakes on this and regroup, and let’s see what he does.” So I go get the bailiff, she goes, gets the judge. He comes out and I say, “Judge, I move for a continuance.” He looks at them, he says, “You guys are out. Fong you’re in.” He set the case for, a settlement conference in two weeks, and set the trial a date down the road for months.

I could talk all day about what happened next and how this case played out, who came and joined me next, along with my other dear friend. We’re talking about a badass. We walk into this settlement conference and now I’ve got a gentleman by the name of Rick Friedman on my left and David Crump on my right. We walk through those doors, the doors swing open and there’s this team of defense lawyers who don’t say a word as they look and stare at their new opposing counsel. Not a word was spoken until Rick walked up to the person close to him, and if you know Rick, he’s the most humble, beautiful human being you’re ever going to meet. But it’s like me walking into a pickup game with LeBron James. He introduces himself and says, “Hi, I’m Rick Friedman,” and we’re off and running.

My client had hepatitis C, probably lived longer than he should have. He had this when he contracted this horrific, horrific infection, so that when I tell you that there’s problems with this case and why maybe this case could have settled and all the complications that go into it. Believe me, there are many. Not the least of which is hepatitis C, which if you know anything about it, it is a death sentence. Stage liver disease is where we’re at.

The biggest medical breakthrough is a incredible drug called Harvoni. My brother is a biomedical engineer, Yale educated, that works with [inaudible 00:47:00]. My sister is a professor at Carnegie Mellon. So I’ve got some pretty powerful resource tools available to me. I always use them to help me with cases, I don’t care what kind of case it is. Like I said, my creativity is better with others. So I’m aware of one of the most amazing breakthroughs that’s going to cure hepatitis C with virtual 100% chances.

They hire a hepatologist. A hepatologist is a liver doctor. It’s the leading liver doctor, professor, state of Illinois, does the transplants and all this and that. This is their expert. The first time he was deposed Harvoni was not publicly known. His deposition, his testimony is, “This man is going to be dead soon.” I pull up every article this guy’s written. I’ve got everything, now in the meantime Harvoni has been made publicly, it’s now released. The liver is in an amazing organ that is one of the few that can regenerate. If you stop the disease process on it it can regenerate. They’re actually growing liver in Petri dishes. They’re taking stem cells and putting it in a matrix of plastic, and you can grow a liver, I mean the advances … The question is, should we do it with the brain. I’m not making this up.

I’m now locked and loaded to take on an expert. We are taught, don’t take on the experts. We are told, “It’s not your field. You can’t do it.” Well, I’m going to try because I’ve got to because he’s going to say my client’s going to be dead. As they do their perpetuation testimony it’s all on vide, as they’re going to put their rockstar on to say that this man’s going to be dead in two weeks or two months or whatever, or if not he should already be dead quite frankly.

I’m sitting on his articles that talk about the liver will regenerate, that talk about growing livers in Petri dishes and I have Harvoni. He gets done lying, saying that there’s nothing that can be done, all treatment, interferon or whatever’s failed and everything else. This guys, there’s nothing that can be done for him. He gets done testifying to this with unbelievable persuasion and science and certainty, as if God had told him.

I simply start reading straight from his articles. I ask him very specific questions that are nothing more than a sentence from his peer reviewed article, nothing except the information from the New England Journal of Medicine on Harvoni. I’m simply asking him questions that can’t be denied, and he denies them. After I’m done doing that, I say, “Hey, who’s John Doe?” Which was his coauthor on one of these articles that he wrote. His face turns white as he now realizes on video for the whole world to see he is … what do you say? He sold his soul? He’s committing perjury? He’s a man who has no … I don’t even know how you describe someone like that who just flat out lied.

One of his quotes in his direct testimony from their side is, “It’s not like we can grow a liver in a Petri dish.” He said that. As I’m asking the questions of, “Well, can you do …” he’s saying it’s beyond his pay grade. On an article that he wrote he’s saying he doesn’t understand that stuff. This is bad news for the other side.

Anyways, that deposition ends. They scurry him up to a backroom. To make a long story short, we don’t blink, we’re going to go to trial on this case and they come back with an offer that took care of this family. He’s still alive. He’s doing great. Harvoni has killed hepatitis C and he’s living a good life, as good as he’ll ever have. He’s getting taken care of and the needs that he has. His kids are set, they’re going to go to college, they’ve got a fund set aside. The medical system betrayed this family but the legal system didn’t.

Scott Glovsky: How did this case have profound impact on you?

Eric Fong: I’m still figuring that out. I learned a lot about friendships and the people that came to me in my time in need. I learned something about myself, that in the face of all this, and I could have lost everything I have because I was all in, and I was prepared to do that. I would have rebounded and what have you, but this would have … I learned something at a very deep personal level about friends. That is the profound impact. I learned something about me, that I’m willing to fight. I’m willing to stand up for my clients.

Scott Glovsky: Eric, your tremendous spirit and courage and fight and caring come through loud and clear. What advice do you have for young lawyers out there who are looking for advice?

Eric Fong: Find something you believe in. Get into a line of work that your heart gets behind, because in life you’re going to have a lot of paths to choose and you’ve got to ask yourself above else, does that path have a heart? If it doesn’t, don’t take it. If it does follow it.

Scott Glovsky: Eric, on behalf of your clients and the lawyers that you mentor and the other lawyers that you teach, thank you for your caring, thank you for all that you do and thank you for spending your time with us today.

Eric Fong: Thank you Scott. Really, really happy to have this opportunity to talk and reflect. You gave me a lot today, thank you.

Scott Glovsky: Thank you.

Thank you for joining us today for Trial Lawyer Talk. If you liked the show I’d really appreciate if you could give us a good review on iTunes and I’d love to get your feedback. You can reach me at scottglovsky.wpengine.com. I’d love to hear your feedback.

You can also check out the book that I published called, Fighting Health Insurance Denials, a primer for lawyers, that’s on Amazon. I put the book together based on 20 years of suing health insurance companies for denying medical care to people. It provides a general outline of how to fight health insurance denials. Have a great week. We’ll talk to you in the next episode.