Festus Sherman had survived civil war in Liberia, lived in refugee camps, immigrated to the United States to join his family, and eventually became an American citizen. Two months after receiving his citizenship, he experienced a mental-health crisis and was admitted to an inpatient psychiatric hospital.
While Mr. Sherman stood at the nurses’ station, another patient slowly wrapped a pair of socks around his hands, paced around him, and ultimately punched him hard in the head—all while two staff members sat a few feet away.
The attack caused a large subdural hematoma, emergency brain surgery, seven weeks in the hospital, four weeks in rehabilitation, and lasting cognitive deficits.
The case presented several significant challenges:
- The defense had a strong “unpredictability” argument. Psychiatric patients can become aggressive without warning, and the assailant had been assessed as calm shortly before the attack. The defense also argued that EMTALA required the facility to admit him.
- Our client had a difficult “before.” His records included a prior psychiatric hospitalization, bipolar disorder, reported confusion, and difficulty navigating complex situations. A treating neurosurgeon later wrote that he had made a “remarkable recovery” and was “back to his neurologic baseline.”
- Less than two weeks before trial, our own treating physician undermined a $1.5–$2.1 million life care plan. We ultimately abandoned the life care plan and chose not to introduce approximately $250,000 in medical bills.
- We worked up the case with five experts, but ultimately tried liability without calling a single liability expert. We persuaded the court that the case was ordinary negligence, not medical malpractice: staff simply were not paying attention.
- A CMS investigation became critical evidence in the workup. The report documented records, surveillance footage, and staff interviews that helped reveal what the facility knew before the assault.
- We had to prove substantial damages without relying on medical bills or a life care plan. The damages case focused instead on our client’s loss of independence, dignity, family role, and sense of self.
- We made deliberate choices about what not to show and say. We played the assault video only twice, did not give the jury a damages number in opening, and used big-data focus group results to help guide trial strategy.
The jury returned a unanimous verdict of $5 million in compensatory damages and $10 million in punitive damages, placing 90% of the fault on the facility.
Afterward, the jurors told us what actually mattered to them—some of it very different from what we expected.