Local News

Tuesday, Dec 11 2012 07:35 PM

Harb civil trial in jury's hands

BY STEVEN MAYER Californian staff writer smayer@bakersfield.com

A $25 million lawsuit against the city of Bakersfield and Hall Ambulance went to the jury late Tuesday afternoon in a case that called into question the actions of police, emergency medical workers and even the now-disabled man whose family brought the lawsuit.

The nine women and three men on the jury listened to weeks of complex medical testimony, the polar-opposite opinions of expert witnesses and disputed versions of key events.

Wednesday morning, their deliberations will begin in earnest.

But on Tuesday, the entire day was taken up by closing arguments from the three primary attorneys.

"This case is about the delay in treatment of a stroke," plaintiffs' attorney Thomas Brill argued. "The defense will try to make it about the stroke itself."

Unlike a criminal case that requires a unanimous verdict, only nine of the 12 jurors must agree on each decision asked of them, Kern County Superior Court Judge J. Eric Bradshaw instructed the jurors.

In addition, he said, the burden of proof is also less stringent than a criminal trial. Rather than requiring proof beyond a reasonable doubt, civil cases require only that the evidence is "more likely to be true than not true," Bradshaw said.

Nevertheless, the burden of proof was on Brill and co-counsel Steve Nichols, the attorneys for 62-year-old Dr. Mohamad Harb, who suffered a ruptured blood vessel in his brain while driving on Nov. 24, 2007.

That evening after a full day of work at Kern Medical Center's pediatric intensive care unit, Harb's Mercedes came to rest at the right side of 24th Street, near Oak Street, flattening a tire against the curb.

First on the scene was former Bakersfield police officer Claudia Payne. Harb had urinated on the sidewalk and vomited on his shirt -- and with the help of other officers who arrived soon after Payne, the confused physician was immediately handcuffed. Depending on whose version is true -- Payne's or Hall paramedic and co-defendant Brian Dumont, Harb was given one, or possibly two, alcohol breath tests, which registered zero.

Brain scans later showed Harb had suffered a life-threatening stroke, yet the first Hall Ambulance crew called to the scene, headed by Dumont, departed without him, leaving Harb sitting on the curb, hands cuffed behind his back, one shoe off and lying in the gutter.

But attorney Mick Marderosian, representing the city and Payne, argued in his summation that despite what he termed the second-by-second "microscopic hindsight evaluation" of events by the plaintiffs, "the burden of proof hasn't been met for either of the defendants in this case."

"They are asking you to guess," he told the jury.

Brill argued that Payne was negligent, that evidence from multiple witnesses indicated she refused to remove Harb's handcuffs for the performance of a neurological test and that she insisted she would transport Harb herself.

"She gambled with Dr. Harb's life," Brill told the jury.

But Marderosian countered that because Harb was not taking blood pressure medication prescribed by his doctor -- despite obvious warning signs and a troubling family health history -- that it was Harb's own negligence that caused harm to himself that night.

"Dr. Harb gambled with his own life," Marderosian argued. "He owns all of the responsibility here."

Brill argued that Harb, a physician, was working to control his blood pressure through diet and exercise -- and that all indications were that he was succeeding.

But in the end, Brill said, Harb's management of his health was irrelevant. If it weren't for the delay in treatment caused by police, and the abandonment of his patient by Dumont, Harb would never have had to undergo surgery, Brill told jurors. And it was that brain surgery that caused a secondary stroke, a medical insult that caused the major disabilities, mental suffering and humiliation Harb now lives with, Brill said, including loss of the ability to be an active, loving husband, an attentive father to his children and a skilled and productive physician.

Jim Braze, the attorney representing Hall Ambulance and Dumont, argued Dumont was following the orders of officer Payne when he left Harb at the scene.

"He was a prisoner, not a patient," Braze said of the handcuffed Harb. "You can't abandon him if he's not a patient."

Braze scoffed at questions by Brill about why the second ambulance declined to use lights and sirens to get Harb to KMC's emergency room, noting that ambulance drivers must make that decision on a case-by-case basis taking into account traffic, public safety and other factors.

"You don't run every call using lights and sirens," Braze told the jury.

Ultimately, jurors must decide whether the city and Payne were negligent and whether that negligence was a significant factor in causing harm to Harb. They will attempt to answer a similar question regarding Hall and Dumont, although the bar is raised to "gross negligence" for those defendants.

They have other questions to answer as well, including how much money, if any, the Harb family should be awarded for lost income, out-of-pocket expenses, and most importantly, the loss of the kind of life they once led.

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