The Ballad of the Loaded, Bored, Jerky, Defendant

One of the main areas of my practice is in medical bill collections. Our firm represents dozens of hospitals and health care providers in New York.  I’ve probably conducted over five hundred trials and arbitrations. The basic premise is almost always the same: Patient is admitted into the hospital on an emergency basis, his or her life is saved, (ok, so I’m being hyperbolic), but because patient does not have active insurance coverage, patient is left liable for the bill.

Most of our cases are settled, with lump sum payments, payment arrangements, or with implead insurance carriers who would rather settle the case than bear the cost of litigation.  But every so often, a case comes down the pike where the patient is financially affluent (loaded), has nothing but time on their hands (bored), and is looking for a fight (jerky).

Along came one day, with a gentleman (and I use the term purely axiomatically), who I shall refer to as Mr. Pester.  Pester was delivered by ambulance to the hospital for an emergency appendectomy, and subsequently admitted as an inpatient in the hospital for three more days.

Pester was a man in his late forties, unmarried, without children, not covered by any insurance, unemployed, and had not worked in years.  Yet, he lived in an extraordinarily affluent neighborhood in New York, and was driving a Lexus.  You do the math. Pester’s bill was just about $8,000.00.  But Pester never paid his bill.  He refused to pay the hospital’s billing department.  He wouldn’t speak to the hospital’s collection agency. He denied owing any money when our collector spoke to him.  So, we commenced suit, and he answered pro se, with a mere “General Denial”. Pester was the very model of a loaded, bored, and jerky Defendant.

In New York, when a pro se Answer is filed, the Court automatically places the matter on the trial calendar, without the necessity of any Notice of Trial, or Note of Issue.

Now, while most of the judges in this particular court, are rather reasonable, to my chagrin when Pester’s case came up on the calendar, the sitting judge was a judge I will refer to as The Honorable Judge Obtuse.  (Judge Obtuse had held me in “contempt” on a prior occasion, and ordered me to withdraw a motion, based upon his fervent belief that I post-dated an Affirmation, when it was dated April 16, 2003. Despite the fact that the Motion was heard on April 19, 2003, Judge Obtuse thought that it was still 2002, and thus, my affirmation was “facially defective”.  Yes, that makes just as much sense as it did to me at the time, as it makes to you reading it.)

Soon, the trial date was upon us.  We appeared in Court at 9:30 AM, ready to go. Pester and Judge Obtuse were both also ready at 9:30 AM, a rarity in New York!

I gave my opening statement, and called my first witness.  I laid a proper foundation, admitted the hospital bill, and the billing records.  That took all of seven minutes.  Then began Pester’s cross examination.

The pro se defendant then began to testify, apparently unaware that cross examination involves the asking of questions.  His litany of wrongs included man-handlings by the paramedics, rude nurses, and the ever-popular “over-billing”.  I quickly objected to the lack of questions in his so-called cross examination, but was smacked back into place by Judge Obtuse’s lecture on proper foundations for objections, which, incidentally, lasted longer than my entire case-in-chief.  Of course, the subtle point that this was cross examination, and not testimony, was somehow lost.

Pester’s cross-examination-testimony-soliloquy continued with my client sitting quietly on the stand, boiling over like a glass cup on an open flame.

Every time I tried to speak up, Judge Obtuse cut me off, and told me that Pester was entitled to speak.  I tried to object a few more times, but each time, Judge Obtuse quickly overruled me, and I quickly learned my lesson.  So it was that Pester rambled on until 1:00 p.m., when the Judge broke for lunch.  When we returned at 2:30 p.m., Judge Obtuse made my witness go back on the stand, and told Pester to ask her questions.  Pester declared, “I have no questions for her.”  Thankfully, the torture was over.

Judge Obtuse asked if I had any other witnesses, and I rested. But then, the judge turned to Pester, and said, “Now, it’s your turn.”  (I don’t know what Judge Obtuse was considering the last three hours to have been, but apparently, it wasn’t enough.)

Pester essentially reiterated all his points, and by the time he was finished, it was 4:00 p.m.  Judge Obtuse asked if I had any cross examination of Pester, and against my better judgment, I said, “Yes.”  The judge adjourned the trial until the next day.

The following morning, we began at 9:30 a.m., and I commenced my cross examination.  Without going into detail, a few points were clear.  First, Pester felt that his bill was overcharged.  He stated that he recalled going into the operating room at 10:45 a.m., and when he awoke in recovery, it was 2:30 p.m.  However, the bill charged him for three hours in the operating room, and two hours in recovery.  I quickly established that Pester wasn’t wearing a watch in the operating room, and couldn’t possibly have kept such accurate track of time.

“How did you know what time it was, Mr. Pester?”

“I looked at the clock at the wall.”

To my luck, the clock on the wall in the Courtroom happened to be a good hour and twenty minutes slow.

“Mr. Pester, can you tell me what time the clock in the Courtroom right here is showing?”

The Judge interrupted. “I know where you’re going with this counselor, move along.”

“Judge, I am showing that there’s no way that the Defendant could know the time so accurately. Moreover, the time charged for the rooms in the hospital, aren’t based upon to-the-minute calculations the second the patient is wheeled in, but are rounded off, and include prep time.”

The Judge responded, “I know that counselor. Do you think I’m an idiot?”

Committing perjury, I said, “No.”

Later, I addressed an issue where Pester claimed that he was not administered most of the drugs on the bill.

“So, how did you know what drugs were given to you? Are you a doctor?”

“I made specific note of each and every drug, and asked the nurse, before I took anything.”

“Do you have those notes with you?”

“Yes. They are in my head. I made mental notes.”

So, I asked, “Were you conscious the entire four day stay in the hospital?”

The Judge cut me off, “That’s argumentative. The question is stricken.”

I stared at the Judge incredulously, with eyes as wide as Jabba the Hutt’s when Luke Skywalker had the gall to demand the release of Han Solo.

“Didn’t you have an IV in you? How would you have known if a drug was administered to you while you were sleeping?”

The Judge cut me off again. “Enough counselor. I am sanctioning you with a slap on the wrist to stop your theatrics.” (It briefly crossed my mind that If he wanted theatrics, I could break out into an a capella rendition of “A Puzzlement” from “The King and I”.)

“Your honor, I object to your prohibition of my cross.” I quickly sat down, and tried to remember how to properly spell “Reversible Error”.

The Judge then let Pester “re-direct” himself.  Pester once again spoke about his incredible eidetic memory that would make Monet, Mozart, and Marilu Henner blush.

Strategically, and furiously, I sat quiet.  So, the judge chimed in, “Wait a second. How did you mentally note each and every drug you got?  Didn’t you sleep while you were in the hospital?”

Ah, yes, the very line of questioning that Judge Obtuse forbid me from asking, he was now asking.  Unfortunately, the Judge decided to spend at least two more hours spewing his ire at Pester’s lame story.  Finally, at 4:00 p.m. on Day Two, we were done. I waived closing statements, and the Judge reserved his decision.

A good five months later (clearly, the 60 day rule for judges’ decisions is merely a suggestion) I received a four page decision, granting me judgment.  Ecstatically vindicated, we prepared a judgment, and submitted it to the Court.

A week later, my secretary came up to me.

“Tim, we got something in on the Pester case.”

“A judgment’s entered already?”

“Nope. A Chapter 7 notice.”


Timothy Wan is a partner at Smith Carroad Levy & Wan in Commack, Tim is especially happy because two years after the case described above, Judge Obtuse was removed from the bench with cause.


(Originally published in Debt3 Magazine, September 2008)