O.C. Judge overturned malpractice verdict due to lawyer’s boasting.
When his medical malpractice trial concluded in April, Dr. Essam Quraishi left an Orange County civil courtroom in victory. Swiftly and unanimously, 12 jurors had decided that the gastroenterologist had not been responsible for the death of a patient.
That was before his lawyer, Robert McKenna III, appeared in an online celebration video, bragging of his work and saying the case involved “a guy that was probably negligently killed, but we kind of made it look like other people did it.”
Citing McKenna’s remarks, the judge who presided over the trial has vacated the verdict, ordering the case back to court. “I think I have to protect the system and say plaintiffs deserve a new trial,” Orange County Superior Court Judge James Crandall said at an Aug. 4 hearing.
The case involves Enrique Garcia Sanchez, 49, a forklift operator who was admitted to South Coast Global Medical Center in Santa Ana in November 2017. He had severe abdominal pain from alcohol-related pancreatitis.
Quraishi inserted a feeding tube that accidentally pierced Sanchez’s colon and led to a fatal infection, according to the lawsuit filed by Sanchez’s family. Central to the family’s case was the death certificate, which blamed the death on sepsis and peritonitis due to a tube-perforated colon.
Sanchez’s family asked for $10 million. In the gastroenterologist’s defense, McKenna pointed to errors by other hospital staff and argued that Sanchez died from other causes. He told jurors to disregard the death certificate, derided the “personal-injury industrial complex,” and claimed the suit was a form of “extortion.”
Shortly after winning the case, McKenna gathered with colleagues at an office celebration and invited a legal partner to ring a victory bell. A video of McKenna’s boastful comments was posted to his firm’s social media page, but quickly removed amid backlash in online legal forums.
McKenna apologized for what he called his “imprecise” remarks, and said they were “intended purely as an internal briefing to our staff” that he did not know would be posted.
In a hearing to decide whether a new trial was warranted, Crandall said he found the celebration video “extremely important.”
“When he says on video a ‘guy was probably negligently killed,’ probably is more likely than not. Then he goes on to say, ‘But we kind of made it look like other people did it,’” the judge said. “That seems like an admission of negligence. Seems like an admission the plaintiff should have prevailed.”
Jorge Ledezma, the attorney for the Sanchez family, said McKenna had improperly pointed the finger at other medical personnel as culpable in Sanchez’s death, contrary to an agreement not to do so, and later bragged about it on tape.
“Well, bragging isn’t a great irregularity,” Crandall said. “He’s a lawyer. But here’s the problem: bragging that justice wasn’t done, that’s what bothers the court.”
In ruling that the plaintiffs deserve a new trial, the judge also pointed to a three-week break he allowed midtrial that might have affected jurors’ recall of information. In addition, he said the jury foreman had failed, during jury selection, to mention that he had spent two years as an insurance agent, which in itself might have been enough to warrant a new trial.
The judge said McKenna was “an excellent lawyer” with a reputation for “honesty and integrity,” adding: “But good men make mistakes. The pope goes to confession.”
Noting that Sanchez was from El Salvador, the judge also expressed concern about McKenna having used the phrase “Welcome to America” in his closing argument.
“Remember he shouted ‘Welcome to America’ when he’s talking about the personal injury machine,” the judge said. “I just think that can only be interpreted as some emotional plea to arouse anti-Hispanic sentiment.”
The judge said the jury, which reached a verdict in 26 minutes, did not ask to see exhibits and apparently “didn’t go over the evidence,” but instead seemed to make its decision as “the result of some emotion.”
McKenna, a Huntington Beach attorney and a founding partner at Kjar, McKenna & Stockalper, a prominent firm, did not respond to requests for comment.
McKenna no longer represents Quraishi. At the hearing the doctor was represented by Kenneth Pedroza of San Marino, who said McKenna’s videotaped remarks were intended as hyperbole.
“It was a bragging session,” Pedroza said. “My words, not his. Right? And we all do it. The stories get bigger and better every time we brag.”
Pedroza said the “Welcome to America” remark was a reference to the American tort system with its multimillion-dollar plaintiff demands.
Another attorney representing Quraishi, Scott Nelson, said in an emailed statement to The Times that his client “vehemently disagrees with the court’s decision to grant a new trial,” which he said resulted from “false statements” made by McKenna “for the sole purpose of self-aggrandizement.”
Nelson said Quraishi’s treatment of his patient in this case “met the highest standards of care,” and that the doctor has received death threats following media coverage of the controversy. Nelson said Quraishi will challenge the ruling for a new trial.
“His former attorney’s attempt to make himself appear as a hero by misrepresenting the facts of the case, and the tremendous harm this has caused Dr. Quraishi, is the story here,” Nelson said.