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A CIVIL ACTION
By Vin Suprynowicz, Review
Journal, 07-30-00
"It's litigation by attrition ... they stipulate the case
away."
Too many
civil suits are filed, today. We all know that. No bad outcome
is ever written off as a mistake, or an Act of God. Slip on the
floor - sue the floorwax people.
But what of those who really may have been harmed through the
negligence of others? Those who have lost their health to possible medical
malpractice, say, and then seen their life savings frittered away by
lackluster lawyers who spend years shuffling the paperwork - walking away
with a shrug with the money's gone?
Do our courts exist to find the truth and offer justice to such
people? Or are they merely to be tossed aside after being wrung dry
by the lawyers' full-employment system?
Anya Shapiro Duke was born in the Ukraine. Her father, a
Russian Army captain, died of wounds. No antibiotics. Then the
SS came. The man who would become her stepfather helped Anya's
family escape.
After the family reunited in Israel in 1966, Anya moved to southern
Germany, teaching Slavic languages to American Special Forces, including
an enlisted man named Jim Duke, whom she married. The day Anya Duke
became a U.S. citizen - St. Patrick's Day 1983 - "was the proudest day of
her life," Jim Duke recalls.
Jim Duke had already done his tour in the service, with the 11th
Airborne, and gone on to be an Atlanta police officer. Nobody could
have forced him to go to Vietnam. But he did go, after re-enlisting
and earning a green beret.
Sgt. Major Jim Duke mustered out of the service after a stint
teaching at Old Dominion University in Virginia, and the couple moved to
St. George, Utah. Anya taught languages at the university level, and
reopened her successful boutique from Virginia Beach, here in Las Vegas,
retaining the name Anya's A Touch of Europe.
But just as the store opened in 1991, one of her two Siberian
huskies got frisky and bumped Anya's right eye. She noticed a small
black spot in her vision. Her regular eye doctor lacked the
ultrasound equipment necessary to examine for retinal damage, and so
referred Anya to Retina Consultants of Nevada, where she saw Dr. Roger M.
Simon.
"Other than this little black spot in my right eye; my vision was
20/20," Anya Duke says. "I didn't have any changes in my vision, or
any pain...
"They did a procedure that was a trial at the time, the procedures
was not every five years old, and this procedure, putting a gas bubble in
the back of my eye, this procedure was inappropriate, and this is what Dr.
Thornton testified to."
Dr. William R. Thornton, Mrs. Duke's medical expert, practices in
Wyoming and Fort Collins, Colorado. Portions of his depositions will
be admitted at trial; Anya Duke says he is now too ill to testify in
person.
"So (Dr.Simon) did a procedure on the 29th of August of '91.
The next morning he saw me and said I was fine," Anya Duke says. "By
the evening there was a black fluid from the other side going toward my
pupil and I could see it from the outside and at 6:30 p.m. I called him, I
was begging him, I knew that another procedure could be done, a major
surgery at the hospital, I was begging and telling him that I could
see the black fluid coming from the other side of the eye, he was telling
me 'I'll be seeing you tomorrow, my daughter is having a birthday party, I
cannot see you tonight."
Anya Duke lost her business, along with much of her vision - she
contends the problems in her right eye have spread to her left, leaving
her legally blind. She sued. Go down to the courthouse and ask
to see the six-year-old case file, and the staff will roll their
eyes. This case has become something out of Charles Dickens, the
file now circulating in at least three parts, each as thick as a phone
book.
In that decade, the Dukes went through several judges and three to
five attorneys, depending on how you count. Anya's final two
attorneys - Adam Kuttner and Gus Flangas - filed to withdraw from the case
in late 1998.
The Dukes say they spent $100,000 for depositions and legal fees
and court costs before they went broke; Mrs. Duke now represents herself
"in proper person" as the case finally heads to trial Aug. 8, providing it
survives a hearing from summary dismissal before Judge Nancy Saitta at 9
a.m. Monday.
The Dukes describe their case as having been frittered away by the
succession of lawyers. I traveled down to the courthouse with former
District Court Judge Don Chairez to scan the file, asking the judge
whether it was likely that a whole succession of local attorneys had taken
the Dukes' money and then purposely thrown the case.
"You hear that a lot, but what's more likely is that this case has
been stipulated away," Chairez says. "It's very typical. It's
why there's a saying in the legal profession, 'Never take a case from
another lawyer,' because if he's giving it up it means either the client
doesn't pay, or else he's already run it into the
ground."
Chairez checks to see who's representing the defendant. Diane
Carr is with the politically well-connected law firm Alverson, Taylor,
Mortensen, Nelson & Sanders.
"Yep. (Bruce J.) Alverson is Harry Reid's former law
partner. Oftentimes the defense firms are the bigger, more powerful
firms and they paper you to death. It's litigation by attrition, and
they stipulate the case away. So based on the procedural posturing
that these lawyers have gone through here, I don't want to say this lady
is going to lose her case, but it's almost a done
deal."
Stipulating the case away?
"A lot of attorneys take on too many cases. The other firm
files motion after motion to throw out this evidence, to disallow that
expert witness."
Anya Duke saw her expert witness's statement about damage to her
left eye thrown out. The consent form she signed before her surgery
- which she says would show she was not properly warned about the risks -
has also been disallowed.
"When that attorney gets to court and the judge asks why he hasn't
responded to every motion he doesn't want to stand there in front of his
client and say, 'I got too busy, your honor, and I didn't get around to
that,'" Chairez explains. "So instead he says, "Oh, the reason we
didn't respond to that one, your honor, is that the plaintiff stipulates
to that motion.'"
The motion to exclude another defendant or another piece of
evidence is thus granted without objection, often without the client
understanding what's happened. Later, when she hires a new attorney
and tries to get that material back into the case, she'll be told, "It's
too late to revisit that matter."
"The whole reason for the procedural technicalities," Chairez
notes, "was to make sure that people would not be ambushed at trial, but
what's ended up happening is that the unwary are being ambushed prior to
trial. It's winnowing the case down to nothing; you chip away and
you chip away."
Karin Huffer, a family therapists, works for the Clark County
School District as well as maintaining a specialized private counseling
practice. She is author of the book "Overcoming the Devastation of
Legal Abuse Syndrome" (Fulkort Press, 1995), a psychological trauma which
she identifies as a form of Post-Traumatic Stress
Disorder.
Ms. Huffer refers to cases like Anya Duke's as her "Cases from
Hell".
"Anya found me at a book-signing, and brought pictures of herself
as she used to be and a lot of facts about her case, and I agreed to see
her at that time. Legal Abuse Syndrome comes from being out-powered
for such a long period of time, your health jeopardized, your beliefs
shattered, that you come away with symptoms similar to someone who has
served in combat.
"What she can't let go of, and this is true in Legal Abuse Syndrome
in many cases, is that there is no justice. She's an immigrant and
her husband was a Green Beret. These are people who believe in
America and freedom and liberty and justice for all. She can adjust
to the loss of the eyesight; what she can't adjust to is the fact that
there may not be justice for her, after her husband put his life on the
line for all of those beliefs and all of those
ideals..."
The American Bar Association reports 70 percent of civil actions
don't finish up with the plaintiff's original attorney, and, "The ABA
tells us that 70 to 90 percent of the people in this country now can't
afford to use their legal system," Huffer says. Many, like Anya
Duke, end up broke and carrying their own case at the end - at precisely
the time when a skilled trial attorney would be most
valuable.
Anya is very bright, so she believes she can go pro se. She
does it awkwardly but she's doing it the best she can... Many people's
health breaks, and Anya is of deep concern to me because if she doesn't
feel some sense of justice..." Huffer trails off.
Huffer says she's written letters to the court advising that Anya
needs an advocate who can read for her, who can help her with the
language." She speaks seven languages but English is not her best
language. But the judge did not allow that. Then she took in
the vision assisted device, and the judge didn't allow that, either.
They forget that the Americans with Disabilities Act
exists."
Anya seems desperate, I point out. She'll catalog her misfortunes
for 30 minutes at a time, seemingly at the point of ears. Many
people must shy away from the directness of that; we're taught there's
something unseemly about harping on one's misfortunes - that we should all
just get on with life.
"Some of that is cultural, I think," Huffer says. "The way
she was raised, I get the feeling she was taught to be very aggressive at
whatever she was working on. I find her the same way; she's a good
nitrogen and she's aggressive. But again, how does that interfere
with her rights? Does a judge have to like a person in order to give
her a forum, or do we have a right to go into that court and put on the
best case we can and tell the truth the best way that we
can?
"The trauma would not exist if Dr. Simon were allowed to say 'I'm
so sorry that you are in this situation that you are in, I don't think I
did anything wrong, but I'm so sorry." But instead we get the
attorneys playing all these legal games and treating her like
sport..."
Anya Duke, Huffer goes on, is "one of many who are just deeply
disillusioned, who have put their lives on the line or left their natives
lands to come here to the land of freedom and justice. Where they
realize it doesn't exist, that's a grieving process. What do you
tell any veteran who tries to use the court system, who figures he fought
for that, that it would be there for him to find justice if he ever needed
it?"
"It's pretty much destroyed us financially and emotionally," says
Jim Duke. "I'm still of the old school, where my word and honesty
and God and country still mean something to me. But they've just
basically ruined us."
The doctor and his attorney did
not return repeated phone calls.
WORKING TOGETHER TO ATTAIN
FAIRNESS | 
