From a motion to sanction a medical expert and the lawyers and litigants who sponsored him

"INTRODUCTION At trial, Emory’s hired witness, Dr. Guzzi, testified that Jeni Carswell suffered a cardiac arrest during her “Code Blue” event from 6:26 AM to 6:43 AM. That testimony was false. The Code Blue record shows that Jeni had a strong heart rate and blood pressure during the Code Blue — and that no CPR was ever performed (which it would have been, if her heart had stopped pumping blood). As Dr. Guzzi acknowledged in his deposition, the presence of blood pressure and heart rate means the patient has not gone on to cardiac arrest. As Dr. Guzzi also stated in his deposition, Jeni Carswell “never” had cardiac arrest. His contrary testimony at trial was false, and intentionally so. Emory’s defense boils down to a simple rhetorical move: redefine cardiac arrest as cardiac or respiratory insufficiency. Even for a non-medical person, this should sound suspicious. ... To support their re-definition of cardiac arrest, Emory would need to produce compelling evidence. Despite three months and the virtually limitless resources of Emory and Jones Day, neither the lawyers nor Dr. Guzzi have identified a single piece of medical literature to support their re-definition of cardiac arrest. Dr. Guzzi cites no literature at all. The lawyers cite only one piece of literature, a continuing-education article — which they misrepresent. Despite the vast body of medical textbooks, scientific statements, peer-reviewed journals, etc., Emory cites only this one continuing-education article. From that article, Emory quotes only this passage: “Cardiopulmonary arrest (CPA) is the cessation of effective ventilation and circulation. It is also known as cardiac arrest or circulatory arrest.” Emory relies on the word “effective” in that sentence to support Dr. Guzzi’s statement that insufficient respiratory or heart function constitutes cardiac arrest. But that same continuing-education article refutes Emory’s insinuation. Thus, the article Emory cites goes on to say that a patient in cardiopulmonary arrest has no pulse. Emory did not quote this passage for the Court, although it’s on page 6 of a document that’s only 8 pages long. Given the importance of the issue and the time and resources available, it seems unlikely that Emory’s new, additional, further act of misleading the Court was inadvertent. Dr. Guzzi lied under oath. Emory sponsored the lie. Now, instead of owning up to the falsehood, instead of accepting responsibility or even trying to excuse it as confusion or attempting some other good-faith-mistake excuse — instead of anything resembling honesty, Emory digs in and adds fresh misrepresentations to their prior perjury. . . . CONCLUSION

Emory has created a stress test for the integrity of Georgia courts. Is it OK for powerful litigants to sponsor perjury, or is it not? Is the oath only for the weak? Is it only for fools? George Orwell understood the psychology of the strong dominating the weak. He learned this from growing up in boarding school — where bigger kids made smaller kids engage in rituals of degradation, like forcing them to lick boots, and worse. In 1984, the character Winston comes up against the secret police, who compel him not only to say that 2+2=5, but to believe it. Mercifully, we do not live in an Orwellian state, and though they’re big, Emory and Jones Day are hardly the secret police. But that would make it more degrading to cede to their insistence that “cardiac arrest” does not mean what it means. One might understandably kneel to a torturer — but to a mere hospital company? To a law firm? Yet Emory insists we accept that “This was not a cardiac arrest based on the heart actually stopping….” (Response, 7.) That is QAnon-level absurdity. Yet Emory obtained even a former US Attorney, to sign his name to the absurdity. And we, and Jeni Carswell, and even the Court are expected to bow to Emory’s fraud. No. The stakes on this motion are high, but it would have been so easy — so absolutely free of difficulty — for Emory to have avoided the problem. Emory had only to refrain from a lie they were under no pressure to tell. They had other defenses. Honesty would have required no special courage, just common decency. After trial, in responding to this motion, it would have required some integrity for Emory and Dr. Guzzi to own up to the perjury. Even then, however, it would have required no more than we demand of children. We teach children to own up to their wrongs. Emory/Guzzi are better equipped than a child. Owning up to their false testimony would not have required the moral heroism of a Martin Luther King, Jr. or Dietrich Bonhoeffer. Equally concerning here, though, Emory’s corrupting influence extended to new lawyers with no personal exposure, no reason to sign onto Emory’s deception except the banal incentive of getting the business. Daily, in law offices throughout America, lawyers give clients the bad news that they have no case. As to specific issues, many of us have told clients, “No. I’m not making that argument.” Many of us have withdrawn pleadings or withdrawn from a case, when we learned the client had misrepresented facts, or when we otherwise learned a case or position lacked merit. But there’s something different about Emory. In The Crucible, John Proctor could not sign his name to a false confession, even to save his life — “Because it is my name! Because I cannot have another in my life!” How is it that here, Emory got a former US Attorney to sign his name to their deception? Emory’s Response repeatedly expresses concern for the professional reputations of Dr. Guzzi and the lawyers — appealing to personal collegiality and the all-too-false feeling that of course respected professionals do not commit serious wrongs. But nowhere does Emory express concern for the offense to the judicial system. Dr. Guzzi at least tacitly acknowledges the gravity of the offense. In his affidavit, Dr. Guzzi cloaks himself in umbrage, expressing “deep, personal offense” and saying, “[A]s a veteran, I have taken an oath to protect and defend the constitution of the United States. In my mind, that includes the entirety of the judicial process and I have far too much respect for the court and the judicial process to lie.” This show of piety is empty, but at least it acknowledges that perjury is a grave offense. Emory could not bring themselves even that far. Emory thinks it is safe to lie in Court. Emory thinks thereby to doom Jeni Carswell to a life of disability deepened by privation. This is a hard motion. But either the integrity of the courts means something, or it doesn’t. Either the oath matters, or it doesn’t. Either the courts merit respect, or they don’t. If the latter, then we should abandon the pretense. But if the former, Emory’s sponsorship of perjury must meet fair and proportional consequences — a remedy that shows lying to a court is not safe."