The record shows that [minor plaintiff] was afflicted with TEN on January 5, 1998, when she was first examined by [treating physician] and before she was given Children’s Motrin by her mother.Slip op. at 12 (emphasis added).
[Gram] testified that she “went to the medicine cabinet and  saw Children’s Motrin.” After reading the label on the box for dosage instructions [and presumably nothing else], she “yelled over the balcony to [mom] that I was going to give [minor plaintiff] . . . Cold Formula3 Children’s Motrin and [everybody at the party] were all talking and music and everything. I just assumed [mom] heard me.Slip op. at 8 (footnote omitted). Yeah, right. Turns out that this type of Motrin wasn’t even on the market back then. Id. at 8 n.3.
- “[Minor plaintiff’s] medical records do not mention anyone giving her Children’s Motrin in [the time period Gram testified about]. This is highly significant because the [treating physicians] urgently sought any information of this nature from family members, including [Gram], when [minor plaintiff] was first admitted to that hospital.” Slip op. at 15.
- The only supposed “corroboration” for Gram’s story was “inadmissible . . . hearsay” that one doctor supposedly heard from another doctor who had since died. Id. at 15-16. The deceased doctor's written records did not document the information supposedly conveyed. Id. at 16.
- “[Plaintiff mom] did not discover [Gram’s] role in this case until October 2006” – eight years after the fact. Id.
- Gram’s providential testimony appeared only after the timing problem threatened plaintiffs’ case. “[Gram] testified that when [plaintiff mom] called her about this, [Gram] told her: ‘Don't you remember that I gave [minor plaintiff] the Children's Motrin [earlier?]' Plaintiffs thereafter filed an amended complaint and amended interrogatories, and [plaintiff mom] gave another deposition, imparting this new information.” Id. at 16-17.
- Mom and Gram tried to blame the court for the eight-year gap. “[T]hey both responded in a manner that suggested they were legally prevented from doing so. This was not the case.” Id. at 17. There was no “gag order” or “other legal bar” during Gram’s eight years of silence. Id.
- Gram couldn’t keep her story straight. “At her deposition, [Gram] testified that she had given [minor plaintiff] one dose; at trial, she testified that she probably gave her two doses.” Id.
Zundel thus carries a lesson (beyond those implicated by Ethical Rule 3.3(a)(3)) – that we on this blog shouldn’t take everything we do here too seriously. The law in all its wonders is great as far as it goes. But sometimes, perhaps more often than our posts make it appear, cases turn on the original and still most basic function of a jury trial: determining who’s telling the truth.