EP 620- Old School Cool with Dan Ryan Part Two

Episode Notes

Transcript

Announcer (00:01)
Welcome to The Jury is Out, a podcast for trial attorneys who want to sharpen their skills and better serve their clients. Your co-hosts are John Simon, founder of the Simon Law Firm, Tim Cronin, personal injury trial attorney at the Simon Law Firm, and St. Louis attorney, Erich Vieth.

Tim Cronin (00:19)
Thank you again for joining us for another episode of The Jury is Out. We’re continuing our discussion with our good friend, Dan Ryan. Dan, welcome back.

Dan Ryan (00:26)
⁓ thank you, Tim. Thank you, John.

John Simon (00:28)
I’m Glad to have you back.

Tim Cronin (00:30)
We had a case against a pharma company, but we also had the hospital as a defendant. And we were focusing on the pharma company and not the hospital, which the hospital liked. And the hospital lawyers are local, very good attorneys. It was a five week trial and it was like nothing I’ve ever seen before. It was crazy. We all had like huge binders for every witness. And so what the hospital’s lawyers did is the trial, do you remember this John? As the trial went on, they were in the table furthest away from the jury. They let…

those binders pile up in front of them so that by like the end of week two, the jury couldn’t even see them. They were hidden by all the binders and they wouldn’t ask questions of any of the witnesses. They just disappeared from the case.

John Simon (01:05)
or in the room.

Dan Ryan (01:14)
See, I thought you were talking about your opioid case. Did you try it with Paul Venker? Remember that? Yeah. Paul’s a good friend of mine, great lawyer, know, a great guy.

Tim Cronin (01:19)
Yeah, this is in 2016.

John Simon (01:24)
Have a great day.

Tim Cronin (01:26)
He was not blessed with great facts in that case.

Dan Ryan (01:28)
No, wasn’t.

I had a similar case that we were getting ready for trial for just like that one. So I would come in a while. I watched some of the trial. And so after the verdict came in the next morning, there was a Burger King. I used to go for breakfast every morning. remember.

Tim Cronin (01:44)
you

being there? We talked, cause you and you and someone else had a case coming up that was very,

John Simon (01:49)
Yeah.

Dan Ryan (01:49)
Yeah,

me and Jill. Yeah, maybe it was Doreen. don’t know. Yeah. But anyways, I see Paul, you know, and it’s like, ⁓ Paul, said, get, know, and I’m kind of like trying to be upbeat and stuff. And it was like, I guess you’re going to kind of appeal it. And Paul was just, you know, he was just depressed as hell. And I said, dude, you you did his best. You killed with the facts you had, you know. And, and, but yeah, he was really depressed about that verdict. And he ended up, they,

Tim Cronin (01:52)
Yeah, I think it was Dorian.

We collected the whole thing. They appealed it. We won the appeal. They tried to appeal to the Missouri Supreme Court. They rejected it and the whole judgment got paid. I remember in the middle of that case, I mean, it’s just one of those, look, that was the height of the opioid epidemic exploding all over the media. And the facts were just really terrible for the defendant. We were worried they were going to offer an amount of money before trial that like we wouldn’t get to try the case.

Dan Ryan (02:22)
After the appeal?

Tim Cronin (02:48)
I can remember at one point something came in and John was like, no. And then it’s it was not something that we still got to try the case. And in the middle of the trial, Paul was like, you guys are running us ragged. We were working really hard on it. We know we were passionate about the issue in the case. And I said, Paul, the best thing the client has going for you is you and your personality and your dignity. And he went, man, I hope that’s not true.

Dan Ryan (03:16)
The other thing I remember about that case, watching that case, you guys discovered that the doctor frauded up his records in the middle of trial. Do remember that?

John Simon (03:26)
⁓

That was last witness. what we had was, I thought it was just, he was very sloppy record keeper. He just was. And what had happened, which you’re not supposed to do because it’s a narcotic, is he had so many people getting these pills so often. I think they were just calling in and the nurse would he put it something in the record, which is like a felony or, you know, I think you can lose your license for it. I’m not sure if it’s a felony.

Tim Cronin (03:53)
And we had, it is a felony. And we had, we’d all just gone off the pharmacy records to know the scripts. Right. And the doctor was the last witness in the case. We played him by video.

John Simon (04:04)
And in our case, right. And

so what happens is, had, you know, talk about luck, we had was also a practicing pharmacist. wow. So during the trial, he was helping us with some of the records, he’s helped us before. And then he pointed out, I think I had asked him to go through and match up all of the pharmacy records to the doctor’s records for particular two, three month period. Right. And so what happened was,

Tim Cronin (04:29)
Thinking there might be one or two missed

John Simon (04:33)
he had him on morphine at what some point, guess to, don’t know if it was upstepping them or downstepping them. So he’s given them morphine and that’s a whatever class drug it is. It’s a class two. got to get, you know, you got to document it and you got to see the patient and all of this. And so I’m sitting there the night before the defendant doctor is going to take the stand the last day of testimony. I saw it. Right. And you were there.

Tim Cronin (04:38)
because he threw his two early to get a refit.

and of their case.

Dan Ryan (05:00)
Yeah, I watched it.

Tim Cronin (05:01)
John figured that out the night before.

Dan Ryan (05:03)
No!

John Simon (05:04)
And

so I’m going in and that’s when I kind of started out with, doctor, you understand that there are rules for, you know, describing these kinds of things. It would be illegal to the standard of care. could lose your license. You could go to prison. know, and then I said, now morphine is one of those, you know, right? And then all of a sudden the records, of course, were, you know, three feet thick. But what I had done is I had pulled out a two month period of time. You made a chart.

a chart and I gave it to him and said, do you have any indication? We got the pharmacy records, whether you prescribed morphine, morphine, morphine during this time period, where are they in the records? And as you saw, you know, he just completely melted on the stand.

Tim Cronin (05:47)
gave him the time, he couldn’t find it. And then you did like three more examples. And then you went, I’ve got this chart. Would you be surprised to learn that half of these scripts you gave my client are not in your records? And he went, you weren’t given all the records. And it was like,

Dan Ryan (06:01)
Yeah,

that’s right.

John Simon (06:03)
Yeah.

And lucky, lucky we did not ask for, maybe we did ask for a miss, we didn’t ask for it. Did we ask for a miss trial?

Tim Cronin (06:09)
for pleadings to be stricken. Because it was like you don’t have the electronic record of the prescriptions. And then when we made our motion, they were sitting on defense counsel’s table.

Dan Ryan (06:20)
Those records were? Yeah.

John Simon (06:22)
Tim talks about how great the facts were in that case and there were good facts. But the flip side is, know, our client also had some pretty bad facts, some negative facts that we had to deal with so much so he. I met with the client at the referring attorney’s office. I signed up the case and we brought it in and I remember Tim. I don’t know if you remember this the day before his deposition, Tim was prepping him. Tim, you came into our office and said, can’t this guy can’t give a deposition. Yeah.

Tim Cronin (06:36)
for all of those drugs.

John Simon (06:51)
This is terrible. It’s horrible. All this stuff that he’s doing and hiding drugs and doing all of this. And he said, we should dismiss the case. Yeah. I was like, Tim, he wasn’t doing any of this stuff before he hooked on the drugs. And every single thing that you’re talking about is our damages.

Dan Ryan (07:03)
function of the drive.

Tim Cronin (07:08)
He was also claiming a bunch of physical injuries that couldn’t possibly be related. And so it was like, we got to cut all that out, start the depot with, we’re not claiming any of stuff anymore. And the story is.

John Simon (07:19)
addicted and

but he did, you know, and again, that’s what you do when you’re a drug addict is, you know, hiding stuff, lying to people, you know, doing all kinds of crazy stuff.

Tim Cronin (07:27)
And

then we did like four focus groups to figure out how we identify people. I mean, those are problems, depending on the makeup of your jury that you can’t get over. So we did like four focus groups to figure out how do we identify people that won’t be able to get over that. then John, that was his whole voir dire.

John Simon (07:42)
It

came down to a single question and that was in our focus groups, if anybody that said that they think addiction is a medical condition versus a lapse in judgment and things like that.

Tim Cronin (08:00)
too. It was that and it was who thinks you have an equal or greater responsibility for your own health care. Right.

John Simon (08:07)
And those two questions correlated almost like 90 % with the result. So going in, we knew that everybody in that room who answered those questions a certain way, we didn’t have a prayer of getting their verdict, no matter what the evidence was. And so then the next big thing was how do you get rid of them? I mean, we identified 20, 25, 30 of them, but the question is, okay, now we’ve got 30 people, how do you get rid of them? Because we weren’t going to get a verdict with those people on the journey.

And what I used as I recall was, you know, who here was something along the lines of who here would be reluctant to give millions of dollars to a drug addict.

Tim Cronin (08:49)
If you

Dan Ryan (08:51)
Great question!

John Simon (08:52)
Great question. By this everybody just picked the people who had already said that they weren’t going to, they already knew they weren’t going to give us a verdict.

Tim Cronin (08:59)
So John mentioned when we were working that case up, I was like four or five years out. was six years out when we tried it almost exactly. So we got the verdict. We’re very happy with it. And we’re, we walking out of the courthouse. We’re standing at the corner right outside the old federal courthouse. So we weren’t in the tall civil courts building. We were in the Carnahan building and we’re walking out and we’re going to go get a, a beer before we like go pack our stuff up. And we’re standing at the corner waiting for the walk sign.

And what do you think John said to me? He went, you remember you said we should dismiss this case.

Yes, you told me so. Got it.

John Simon (09:42)
Yeah, nobody you know what it was is he was such a good guy great do it a good father good husband I’ve cancer survivor all before he got on got on these these opioids and he went in with a strained back It wasn’t even surgery just he strained his back. You know you get you get like Advil for that right and some rubbers so put a heat pad on Yeah, it was it was crazy and then once you know once you get hooked it’s yeah, you know

Tim Cronin (09:49)
He was a cancer survivor.

Dan Ryan (10:04)
Killing an ant with a sledgehammer.

John Simon (10:12)
horrible. Dan, couple we had you’re mentioning before we got started another case you and I worked on together. And it was a chemical exposure case. ⁓ And I wanted to admit there’s something else we talked about the mediation. But I wanted to remind you or talk to you about, do remember at the end of that case, the testing issue, when they did the testing, and I just saw everybody kind of, you know, the folks listening get get some a little bit of background.

It was a young woman we represented who was pregnant and worked in a chemical lab. And what had happened is they were cooking or heating some type of chemical. I don’t remember what the chemical was and they shouldn’t have heated it with people in the room or they didn’t vent it properly. And she ended up, it was was terrible. Her child ended up being horribly deformed. It was a really tough causation issue in the case. And we were alleging

We brought the claim not on behalf of the mom, because it was a work comp bar, but we brought it on behalf of the child, her daughter. And so one of the things that we were struggling with was the causation, like the parts per billion. We struggled with, we need a model? Do we need an expert to model? When you cook this amount and it was a small amount at a certain temperature, how much parts per billion are there? And how many parts per billion or million do you need to establish causation?

And we struggle with that. And then what happened is the defense ended up hiring an expert who did that modeling. And I remember that guy was like, Hey, look, the HVAC system recirculates the air every 12 minutes or something. And he had something crazy, like you could cook six gallons of it and would never get up high enough to make anybody sneeze, you know? And so this is going on. So it was a very, very tough case on causation.

We talked to people about modeling, but there was too many loose ends. We didn’t do the model. We decided not to do the modeling, go with what we had. And honestly, at that point, I didn’t know if we were submissible. So then what happens is a week before trial or a month before trial, maybe some few weeks, we get a call from our client who knows people that are still working there and what the defendant did. And I don’t think it was the defense attorney who was, I don’t think he was aware of it.

they actually decided, their expert had talked them into actually recooking the same substance the night before, like when the lab was closed. And so they went in and they had, I guess they had the mass or whatever it was, and they cooked it and measured it. And over an hour or two to show we cooked it and we measured it to parts per billion and it’s concrete and absolute, there’s not enough in here that would have reached to the level of being harmful. And what happens is they do all of that.

don’t tell anybody and I believe to this day the defense lawyer wasn’t privy to that. So what happens is we find out through our client, her friend who’s still working there shows up the next day at six in the morning, opens the door, this is eight, 10, 12 hours after they finished the testing and he almost passes out. They call 911 and he’s laying out on a picnic table till the ambulance comes to bring him into the hospital.

because of chemical exposure. And the other lawyer, the defense lawyer still didn’t know this. We didn’t know it at the time. we take a deposition of one of his experts. We have that information. I don’t think the defense lawyer did. ⁓ And so in the depot, I’m saying, okay, if you can smell it 10 hours later, 12 hours later, if you can smell it, okay, that has to be a certain level. And so if these exchanges you’re talking about every 15 minutes,

How high would it need to have been at the time of the exposure? So that 15 minute or 12 hours later, you could still smell it. And the amounts were like crazy high. And so then we noticed up the deposition of the poor guy that was exposed to it. And then the whole case fell into place. But it was just one of those things where testing, we’ve talked about this before, Testing is troublesome. Because whatever it is, man, you just bought it. You’re with it. You’re living with it. You do the testing yourself.

But that was a really, really fun, interesting, horrific case. It was a horrific case on the damages, but it was one of those things that it was a gift. I mean, it was gift wrapped with a bow on it. And this guy, we took his deposition. He’s like, yeah, I still have a headache. It’s like six months later. I think he wanted us to wrap. You talk about a great claim. That would have been a great claim. They’re already being sued for it and they do it again with the same chemical.

Tim Cronin (14:54)
have these war stories. You guys been doing a lot longer than me. You have more than I do. And we like to talk about the ones that turned out well, but we also have the ones that were like never, ever, ever, ever going to get over, right? Like losses that were never going to get over. I’ve learned, obviously I learned bad habits from the wins because I don’t remember any of mistakes I made, but I learned much more from the losses. And we pat, have these times and because of the nature of what we do that

Dan Ryan (15:08)
Remember all the laws.

Tim Cronin (15:25)
We’re like struggling and frustrated. And that’s why it’s so important to have close friendships like, know, you and John have had for a long time. And I consider you a friend too. But the kinship with people who do what we do, because when I have get some terrible ruling or some depot goes really bad or something goes sideways or I lose a case, I, you know, I talked to my wife about everything, but she at some point she doesn’t want to.

John Simon (15:52)
can’t understand exactly. mean, you’re in order for somebody to understand how it feels, I think. Yeah, you have to do is to, know, to put your your, your time, effort, energy, heart and soul into something for three or four years, and and present the case with with your client relying on you sitting there, and a client who’s gone through some horrific stuff. And then to just be I mean, there’s no you’re gonna get around.

Tim Cronin (16:16)
man.

John Simon (16:19)
It’s

win or lose, man. It’s win or lose. You know, every single case that’s tried, somebody loses. Yeah, somebody loses it.

Tim Cronin (16:26)
So the support system that everybody should build and most of us do, I get on the phone with fellow trial lawyers, defense side or plaintiff side, and just like pour my heart out a bit about it. And I’ve done the same for others because it’s the shared experiences in this like stressful profession of knowing what that’s like that is just so important to being able to keep doing it. ⁓ It’s like you got to like, you guys got to be able to call each other. And I call, you know, Kevin.

Dan Ryan (16:54)
I call John all the time, you know, and run stuff by him.

John Simon (16:57)
That’s

so cool too. You know, we do that a lot. Yeah, we do. about cases, talk about issues, talk about other judges, attorneys. Yeah. You know, it’s, it’s neat to share.

Tim Cronin (17:08)
There’s always some perspective of, it can be younger lawyers or older, of something you’re trying to talk about the situation and usually they’ll think of it from some perspective that I haven’t, that I’m like, that’s how I solved it.

John Simon (17:21)
You know, yesterday, you know, Grant Davis. sure. So Grant and I talked yesterday about some issue. I think he called me or I called him and he’s getting ready for a trial. And so we start talking about that a little bit. And I mean, he’s great guy. You won’t meet a better guy and a phenomenal lawyer. That’s true. And he said, I’m getting ready for this case. And I just I do so much stuff. just I’m having trouble getting everything done, you know, getting it ready. And I started laughing. I said, Grant.

If you call me and said, I got a case going to trial in three weeks and I’m all ready, ⁓ you’re never ready. know, I said, you know, but again, to be able to appreciate that, the only person that can appreciate that as you guys just did is somebody who has prepared for several trials.

Dan Ryan (18:09)
That

kind of thing. I say this to my Lisa, my fiance and other civilians. It’s like things that are exciting to us, like getting the evidence of the guy that went into the room that you just talked about. To us, that’s a home run. That’s all my God. And I always tell her, I can’t transfer my excitement to you because it’s like, you don’t even know what the hell, you know, it’s a big deal or not.

Tim Cronin (18:35)
to say this more like yeah, we’re having chicken. Yeah, dinner. Right. Or an alcohol john and john will go great.

Dan Ryan (18:45)
I’ll tell a quick Grant Davis story. That’s okay. I love Grant. He’s a great guy. You know, it was early in my career. I don’t know how long he’d been out, but he was trying to case it from John Riley in the city. And he asked Myer Cord, could you come down and like help us pick a jury and all that stuff? And Myer Cord had something to do, so he sent me and I went down there and I helped Grant and whatever. The defense lawyer, I can’t remember who it was, but he was a real jerk. And Grant…

I’m sure part of his success is he’s just a nice guy. Really good guy. And that translates to the jury and they know, and he’s an honest guy, you know, and he wins the case. Okay. And before the case, he had made a demand and they rejected it. And so we get after the case, we’re getting ready to do post-trial stuff and the defense lawyer says, do you, you you want to make another demand, you know, whatever. And so the defense lawyer thought the demand that we made prior to trial, that’s what was on the table. And so Grant was going to tell him that.

John Simon (19:40)
We won dude!

Dan Ryan (19:41)
Yeah. And that’s what the defense lawyer said. We made a bigger demand because you guys are going the wrong way. That’s right. Yeah. They ended up paying them, but we had to fight for that too. Great lawyer though. The thing you talked about talking to other lawyers, I mean, I do that all the time. And John, primarily I call, but there’s other lawyers I call too. You know, my friend John Fortman and some other people.

Tim Cronin (19:47)
I have a judgment.

John Simon (19:48)
⁓

We’d like our judgment.

Dan Ryan (20:08)
Even Tom Casey, who was my old partner, who doesn’t practice anymore because the biggest thing that I’ve learned and taught myself is you need to listen. Okay. You don’t know all this crap and you need to listen. And so when you’re asking these people their opinion, listen to them and try and, know, and go about it that way because not listening and asking the question ain’t going to get you anywhere. You know, so I mean, there’s, there’s plenty of times when I’ve talked to John or other lawyers.

Here’s the idea I’ve got, or here’s the situation. ⁓ you don’t want to do it that way, Dan. You want to do it that, you know, and I.

John Simon (20:44)
I do that all the time. That’s the thing that’s really the people outside of our profession probably don’t realize is, you you think of the plaintiffs bar, not just around Missouri, St. Louis, everybody just drops things and goes out of their way to help you or help you find an expert or an issue. You know, I really don’t run into attorneys who aren’t willing to stop and help you and talk to you.

Dan Ryan (21:11)
I always used to tell people that I was in the part of the class that made the 50 % above, you know, the top 50 % possible. Okay. I was in the lower 50%, but the funny thing was I worked at a plaintiff’s, you know, as a clerk and whatever, and had a plaintiff’s trial lawyers with them and the guys that were, you know, law review and the guys with all the, you know, the high, they started calling me and asking me questions. And it’s like,

What the hell man? It’s like, are you asking me questions for? I’m, you know, I’m the slug that was on the bottom. You’re asking me, you know, so I thought that was kind of funny.

John Simon (21:41)
and

Tim Cronin (21:50)
And I don’t think it’s just limited to the plaintiff’s mean, I have a lot of close friendships I’ve developed on the defense bar. And oftentimes when I’m struggling with an issue or, even if it’s, think my case is so good, I can’t lose. can always lose. Yeah. I’ll like my brother does a lot of defense work and then, but I have other good friends I’ve had cases with we fought, but we’re good friends on the defense side and I’ll run by issues with them just to see like, ⁓ that’s how they’re probably going to.

side. And that’s like more valuable than an echo chamber of like one of my buddies on the plaintiff side is like, you got him. Yeah, like what? That wasn’t very

Dan Ryan (22:28)
Well,

the people I call like John and other people, they don’t tell me what I want to hear, which is why I keep calling. They tell me what I need to hear, you know? And so, like I said, if you listen, you’ll be a little more.

John Simon (22:41)
Only if all of our clients would do that.

Tim Cronin (22:47)
Well, Dan,

thank you again for coming on. It’s always a pleasure, man. Always good to see you. You know, we’ll invite you back some other time or, or you’re doing guns and hoses again anytime soon. We are.

John Simon (22:59)
this year.

Dan Ryan (22:59)
I saw that.

Tim Cronin (23:01)
Usually

good to see it that we didn’t COVID kind of through that for a loop for a while. But anyway, thank you again for coming on. It’s a pleasure. This has been another episode of The Jury is Out. I’m Tim Krohme.

John Simon (23:12)
I’m John Simon. We’ll see you next time.

Announcer (23:17)
The jury is out is brought to you by the Simon Law Firm. At the Simon Law Firm PC, we believe in the power of pooling resources in order to create powerful results. We often lend our trial skills and experience to lawyers around the country to achieve better results for their clients. Our attorneys welcome the opportunity to work with you on your case, offering vast resources, seasoned litigators, and a sterling reputation. You can contact us at 314-241-2929.

And if you enjoyed the podcast, feel free to share your thoughts with John, Tim, and Erich at comments at thejuryisout.law and subscribe today because the best lawyers never stop learning.

 

Continue Reading