Lawyers get a bad rap out there, but Hunton Andrews Kurth partner John Shely is working hard to make sure the profession deserves every bit of bile it conjures up in regular people. Shely just found himself on the losing end of what some are calling the largest verdict in an individual “bad faith” insurance case in Oklahoma history, with his client forced to cough up over $25 million for its gross mismanagement of a dying woman’s health claim. Having been thoroughly spanked by a jury, Shely’s reaction, as reported by CNN, takes sour grapes to a new level.
[The victim’s husband Ron] Cunningham had another encounter in court. He said Shely, Aetna’s lead attorney, walked up to him and congratulated him after the verdict before telling him he’d lose on appeals.
Of course, he might be correct. Like many right-leaning states, Oklahoma has spent decades gutting the civil justice system in the name of “tort reform,” forcing appellate judges to override juries to ensure liability never actually stings a corporate malfeasor. Oklahoma’s been so aggressive in this lane that the state’s Supreme Court has had to strike down some of the legislature’s reforms as wildly over-the-line. Still, Shely would have good reason to believe his client will end up skating away from its handling of the death of Cunningham’s wife having to pay little more than a rounding error.
The National Law Journal recently named Shely a “Litigation Trailblazer,” an honor “which spotlights 30 litigators nationwide who are making a difference in the fight for justice.”
Well, telling the bereaved that he still planned to rob him of his jury-approved recovery is a curious definition of justice. Still, this was just the icing on a trial that made Shely the clubhouse leader for the Roy Cohn Memorial Award for Legal Jackholery. In the instant case, Ron Cunningham’s wife had a particularly dangerous tumor and her doctors prescribed proton beam therapy to shrink the tumor. Aetna summarily denied the treatment as “experimental.” Having just had my own claim to get a f**king flu shot denied by United Healthcare, I’m now curious if “experimental” was their excuse. In any event, Aetna’s decision forced the Cunninghams close to financial ruin. It’s that stress and financial burden that formed the basis of the jury’s award.
As oncologists point out, proton beam therapy is hardly experimental and is actually covered for pediatric patients — even insurance companies don’t want the bad press of denying that claim — and by Medicare — reason 8,283,366 for a Medicare-For-All plan.
Aetna attorney John Shely said in closing arguments that the insurance giant was proud of the three medical directors who denied coverage, even turning to thank them as they sat in the front row of the courtroom, according to jurors and other witnesses in court.
It was a message that didn’t sit well with the 12 jurors, who found that Aetna “recklessly disregarded its duty to deal fairly and act in good faith with the Cunninghams.”
Thanking the people who denied a dying woman’s claim is not the savviest trial move in the best of circumstances, but after “all three medical directors acknowledged they spent more time preparing for the lawsuit than on Orrana [Cunningham]’s medical case” it’s either insanity or trolling. In either event, Shely’s trial strategy resulted in a 9-3 verdict where at least two of the dissenters only opted out because they thought the jury award was too low.
Shely does make an effort to redeem himself in a quote to the Oklahoman:
“If it’s in our control to change, that’s what we’re going to do,” attorney John Shely said. “Aetna has learned something here.”
Have they? The company claims to be evaluating the appeal that Cunningham claims Shely promised in the aftermath of the verdict. For a company that makes over $3 million every day, there’s not a ton of incentive to learn anything.
But Hunton Andrews Kurth — and the many other law firms who take up similar positions around the country — should learn something here. Part of their duty to zealously represent their clients should involve counseling them that discretion is the better part of valor. That Aetna could take this through a costly trial — probably lose — and then fight a lengthy appeal to cap the damages isn’t worth the public relations nightmare. That’s a lesson that really should be learned.
That, and definitely don’t tell bereaved people you plan to beat them.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.