By: MICHAEL PETERSON, KEENAN LAW FIRM
This month’s Reptile© Superstar is Nicholas Naiser. Nick started his personal injury firm in 2010. His firm primarily focuses on wrongful death, catastrophic personal injury, medical malpractice, automobile accident, and employment law cases.
Outside of the law, Nick enjoys spending time with his wife, son, and their two dogs. Nick has sat on the board of directors of the Epilepsy Foundation of Kentuckiana and served as a member of the University of Louisville's College of Business Alumni Council.
INTRO TO THE REPTILE©
Around 2011, Nick’s associate provided him with the Keenan Method to Witness Preparation DVD. Nick was blown away by the richness of the content provided in the DVD. Nick went on to purchase the REPTILE©: The 2009 Manual of the Plaintiff’s Revolution book. Nick remembers how the jury reacted after his first Reptile© case. The jury spoke to him after deliberations, and told him that their verdict would stand as a symbol of good in the community as it would deter the defendant and any future individuals from engaging in negligent behavior.
Nick wants to use his autopsy to inform the Reptile© community of two cases where he was able to display the power of the Reptile©. The first case is a dental malpractice case.
FACTS OF THE CASE, No. 1:
Nick’s client had been going a dentist from 1999-2009 for regular cleanings. In 2005, the Plaintiff developed gum disease, which went undiagnosed until 2009. During that time, Nick’s client was seeing his dentist three or four times a year. The Plaintiff’s gum disease was visible via x-rays and dental records created by the dentists. The x-rays and records showed increased pocket depths and bone loss, the two most common signs of gum disease. Despite numerous visits, the Plaintiff’s dentists never informed her of the gum disease, nor took any action to treat it. As a result, Nick’s client ultimately had to have 14 of her teeth removed.
The Defense argued that they did not overlook her gum disease; they claimed she had an aggressive form of gum disease, which left no room for early detection. The Defense did not provide an offer until trial, and even then, they refused to cover the Plaintiff’s medical bills. The Defenses’ ace in the hole was the Plaintiff’s personal history. Nick’s client was a schoolteacher with a history of illegal drug and alcohol use. Unfortunately, many of these habits continued throughout trial. In light of this, Nick was not optimistic about going into trial and was most concerned the evidence of drug use would make his client unsympathetic – making a large verdict unlikely.
REPTILING THE CASE:
Voir Dire:
The Judge gave Nick 30 minutes to conduct jury selection, which was not enough time for Nick to touch on all of the issues he wanted to address. Instead, Nick used Voir Dire to address the 800-pound gorilla in the case: During jury selection, he addressed his client’s marijuana and alcohol use. He asked the jury whether they would hold that fact against his client. A few of the jurors chuckled. It was not until after the case that he learned that the jury’s perception of individuals who smoke marijuana in this venue was no different than someone who drinks beer.
Opening:
Nick’s Opening was short and to the point. His bumper sticker was: My client lost her teeth because the dentist missed her gum disease.
Nick called his client’s dentists to the stand first. During deposition, Nick proceeded to go through the records of each visit that his client had with their office from 2005-2009. After every record, he asked whether she had gum disease. Each of them said “No.” Nick posed the same questions at trial; however, this time they stated that his client definitely had gum disease from 2007-2009, but they were managing it. Nick, therefore, impeached the two dentists about 20 times, which caused the dentists to lose all credibility with the jury.
As we know, the Reptile© hates liars, because liars threaten the survival of community. According to Nick, the Defenses’ dishonest testimony set the tone for the whole trial.
The Defense also brought in a couple of experts to testify on their behalf. In light of the Defense expert’s testimony, Nick brought in several medical articles and well-respected textbooks that touched on the types of gum diseases and the ways to check for gum diseases. The Defense’s expert testified that a dentist could simply “spot probe” the mouth in certain locations rather than check every area of the mouth. Nick challenged his testimony by revealing to the jury that the medical literature stated that a dentist is supposed to check the entire mouth when looking for diseases. One of the books Nick brought even had an illustration on its cover that showed a dentist must check the whole mouth, rather than “spot probe.” The Defenses’ expert stated that he did not care what the literature said, because that was not the medicine. The Defense stubbornness only caused the jury to disregard his testimony and place him on-code. The jury could not understand how an expert who relies on peer-reviewed medical literature would reject the soundness of the literature simply because it disagreed with the Defenses’ theory of the case.
Nick had two experts testify at trial. One was a general dentist and the other was a periodontist, or a gum specialist. Both were off-code. They spoke in simplified terms, they were personable with the jury, explained their testimony like a teacher, and used a simple flow chart to explain what went wrong and how the defendant should have fixed it.
Closing:
During his Closing, Nick hammered home the fact that his people in Louisville should not have to drive to Nashville (where Nick’s experts practiced dentistry) in order to get safe dental care. He told the jury their verdict would be the gauge for how much this community values safe dental care. He talked about the Defenses’ lies and reiterated how they went off-code during trial. Nick touched on the unsavory habits of his client and reminded the jury that this case was not about his client, but the negligence. He repeated his bumper sticker to the jury, and informed the jury that they had the opportunity to tell them how their actions affect their community. The jury returned with a verdict of $330,000, the largest reported dental malpractice verdict in Kentucky.
FACTS OF THE CASE, No. 2:
The second case took place in Oldham County, Ky. This case concerned a family that had operated a rock quarry since the 1970’s. In the mid 1990’s the family stopped mining and let the mine fill up with rain water. In 2010 they opened the quarry as a place where people could go swimming at a cost of $10 per person.
However, the community knew that people were misusing the area; taking alcohol and drugs up to the quarry, getting drunk and high, and then driving away. In 2012, a man in his mid-20’s went to the quarry and drank alcohol all day. The police began tailing his vehicle as he left the quarry and a police chase ensued. The man ultimately sped through winding country roads, crossing the centerline, and hitting a motorcyclist head on.
The impact of the wreck caused the motorcyclist’s left leg to essentially explode. The Defendant was traveling about 50 mph. Nick’s client lived for only 66 days before he died in hospital. Nick’s theory of the case was that the family who owned the rock quarry allowed people to go up to rock quarry get drunk, and did nothing to stop them. The Defense argued that they did not allow drinking on their property, and kicked out those who did.
Jury selection:
Nick’s theme for the case was profits over safety. During jury selection, he asked the jurors whether they felt it was okay to break the law to make money. None of them raised their hand. Nick analogized this case to the Kentucky Derby. He explained to the jury that people tend to drink at these types of events and bring their own alcohol, even though they are not supposed to. Nick wanted to hammer home that it is foreseeable that if an establishment allows you to drink on their premises, then people will do exactly that.
The Defense did not come across well with the jury. Most of the evidence was not in their favor, and they continually lied to jury. The Defense testified that they did not promote or allow alcohol on the property, and they are unaware of wrecks that occurred by individuals leaving their property. It was clear the Defense was lying, and Nick had all the ammo at his disposal to reveal their lies to the jury.
Nick had the Defense testify to a music video filmed by a local band in 2014 at their rock quarry. The local band, Villebillies, went up to the quarry to film a music video called “Fill My Cup.” The video showed one of the bandmates handing out bottles of moonshine in the video. The owner of the rock quarry continued to deny that drinking took place, either on the day the video was filmed or on any other occasion. Moreover, even if it had occurred the Defense argued that the moonshine had a seal on the bottle, and thus there was no proof that liquor was inside the bottle – in essence arguing that they had no way of knowing whether or not people were drinking on the property. Furthermore, the rock quarry owner attempted to deflect blame on everyone else but himself. The jury believed the Defense was trying to make disingenuous arguments.
Furthermore, Nick had evidence of several instances where individuals left the quarry inebriated and ended up in car collisions. Nick invited three police officers to testify to multiple occasions where members of the community called the police about drinking related issues at the quarry. One officer discussed how he had to come to the scene during an incident where one individual had gotten into a DUI wreck with a pregnant woman. Like in Nick’s first case, the jury wrote the Defense off as liars. The Defense told them that they did not promote or know of incidents where individuals who left their property got in car wrecks. However, the testimony of Nick’s witnesses revealed the truth.
In this case, the jury had the option of placing blame on three defendants. They could place blame on the drunk driver, the owner of the drunk driver’s vehicle, or the owners of the rock quarry. Though the owners of the rock quarry were the furthest removed from his client’s death, Nick believed the jury placed blame on them because of the community danger. Whether it was the story of the pregnant woman or Nick’s client, the jury knew that if they did not deter the quarry’s actions then they were placing themselves and their loved ones in harm’s way.
Nick addressed this in his Closing when he told the jury this was their opportunity to change their community for the better by sending a message to Defense that their negligence would no longer be welcomed in the community.
The jury placed 50 percent liability on the drunk driver and 25 percent on the car owner who knew that the driver had two previous DUIs. The jury also placed 25 percent on the rock quarry owners, along with punitive damages.
The jury returned with a verdict of $10,528,211.35.
By focusing on his bumper stickers, placing the defendant on-code, and revealing the Defendant’s lies, Nick was able to awaken the Reptile© within each juror. By doing so, Nick gained impressive verdicts for his clients and demonstrated just how powerful the Reptile© can be in any case.