Shellie’s Medical Malpractice Nightmare

and her

Fight for Freedom of Speech

Closing Arguments

My attorney Jay Paul Deratany summed up the case for the jury by saying that we were before the court because Dr. Kagan performed a surgery on me that the records show I did not consent to. Dr. Coleman called doing the procedure on me "dangerous." He pointed out that Dr. Kagan was discredited several times, in that his trial testimony differed from his discovery deposition. Jay Paul Deratany did however say to the jury, "nobody is stating that Dr. Kagan is a bad man, or that he's a bad doctor. We are stating simply in this case and in this situation, he made a mistake." Jay Paul Deratany pointed out testimony that didn't seem credible given by Michael D. Cohen M.D., Richard T. Caleel D.O. and John Q. Cook M.D. Mr. Deratany then talked about my pain and suffering and the permanent damage to my body as the result of the operation that Dr. Kagan performed on my breasts and asked for a verdict in my favor.

Mr. Tarpey's closing arguments were brutal and  and I believe to be very misleading to the jury. He started out by saying that Mr. Deratany and whoever else was involved mislead and misinformed my doctors. He then misrepresented the testimony that Dr. Coleman gave.  Anyone that knows how to read can see that by reading Dr. Coleman's testimony.  When Mr. Deratany objected, the judge overruled the objection and told the jury if what Mr. Tarpey is saying varies from their recollection, they are free to disregard what he is saying. Mr. Tarpey then went through points of my testimony where I couldn't recall information to answer his question and said, "You can't have selective memory for some things and not as to others. That's precisely what she's done in this case." The surgery was eight years before my case went to trial. When Dr. Kagan didn't remember every detail of what transpired eight years earlier, he said it was due to the lengthy time frame. Mr. Tarpey found it acceptable for Dr. Kagan to not recall information from eight years ago, but when I had the same problem, according to Mr. Tarpey, I should lose my credibility.

In spite of the fact that Dr. Coleman, Dr. Caleel, and other doctors testified that they likely would not write down my legal complaints, Mr. Tarpey still mislead the jury by saying that it's not in their records because "that conversation didn't happen, Shellie's credibility?" He repeated throughout his closing that I had no credibility. Mr. Tarpey ended with "Dr. Kagan doesn't document anything about the Benelli, Cohen doesn't, Caleel doesn't, Coleman doesn't because she never, never made those complaints." Mr. Tarpey had again misrepresented the evidence, as Dr. Coleman testified that I DID tell him that. Mr. Tarpey then told the jury that up until the time I filed the lawsuit there is no evidence that I complained about having the Benelli performed on me.  Another misrepresentation by Tarpey as stated above, Dr. Coleman testified that I did tell him. His final claim was that I filed the lawsuit because of "disappointed expectations" and that I had no credibility. Who lacks credibility here? He totally disregarded the black and white fact that a Benelli was never mentioned on the Consent to Operate form. The Consent to Operate Form that both Dr. Kagan and I signed that gave him permission to operate on me and spells out exactly what procedure he will perform does not mention the Benelli.

Jury deliberations then commenced after over a week of mostly medical testimony. After deliberating for about 30 minutes, a question was sent to the judge. The attorneys returned to the courtroom and the question was read: "When did Ms. Beverlin file her lawsuit?" That question was shocking as that issue was never testified to during the trial. The only time the jury heard anything about that issue was during Mr. Tarpey's closing argument, which Mr. Deratany objected to at the time as improper and the judge overruled his objection.  As a result of the jury's question Mr. Deratany asked that the judge instruct the jury, "You have no information as to when the lawsuit was filed and that is not a proper matter for the jury to consider." The judge refused Mr. Deratany's request and instead sent back an instruction saying, "You have all the evidence; continue your deliberations," leaving the jury believing that the improper and false statement Mr. Tarpey made during his closing argument as to when I filed my lawsuit was evidence. The jury was obviously considering that information, and the answer was important enough to them to send a question to the judge. The jury was deliberating on a matter that was not in evidence and the judge did nothing about it. Mr. Deratany and I were very concerned by this event. A few days after the trial Mr. Deratany sent an email  to me dated 4/26/02 . He called Tarpey's closing argument "bullshit." Mr. Deratany went on to say in that email that he believes that Tarpey's closing argument "ultimately cost us the case" and that "the jury was against us from the start." deratany closing email