What I did last fall

The attached transcript is a snapshot of the federal trial I defended last fall in Philadelphia, from the start of jury selection on September 7, through the return of verdict on December 8, 2016. The complete transcript, including the testimony of more than 50 witnesses, covers thousands of pages. By the time I brief the appeal, I will likely have read all of it. Complex litigation tends to take over your life for years at a time. My involvement in this case began on February 5, 2015, and will likely last for two more years minimum. My current record is a class action I defended for a large insurance company, which began in April of 2008 (I had just become a partner at White and Williams) and did not end until November of 2014. During those six years, my daughters went from elementary school students to upperclassmen in high school, and I suspect they will long remember “the PMA case” as the litigation I defended for so long.

In the federal trial that ended last December 8, I presented two extremely well-credentialed, articulate, and personable experts who explained to the jury the solid medical reasons why they disagreed that the drug-related death in the case could be classified as an opioid-related death. The interactions between the five controlled substances found in the decedent’s system post-mortem are unpredictable, and one of them, cocaine, can be lethal even in relatively small doses. Given the decedent’s use of crack on the afternoon he passed, and his prior development of serious heart problems caused by years of cocaine abuse, our experts agreed that if one had to assign blame to a single drug for causing this death, cocaine was the leading candidate.

Despite all this, the jury convicted my client of a drug delivery resulting in death, while acquitting my client of a myriad of less serious charges spread throughout the indictment. When I spoke with ten of the 12 jurors after the verdict, they congratulated me on a job well done, but remained mainly silent on their reasons for convicting on the “death count.” Was it a reaction to pervasive media coverage of the “opioid epidemic” throughout the trial, or was it possibly a sympathetic response to the decedent’s spouse, who came before the jury as a person devastated by her own addictions? We will never know, and this is one of the risks and mysteries of trying cases. Juries can be motivated, despite numerous instructions to the contrary, by things that never come into evidence.

US v Bado November 28 16




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