For Randall Duchesneau, most days start around 5 a.m., when he wakes in his hospital bed, switches on his computer, and scans his emails and the news.
But where most people glide through morning rituals as if on remote control, Duchesneau’s routine is a physical and emotional minefield.
Duchesneau is quadriplegic and able to do very little by himself. Just after he wakes, his mother, Kum, pops into his room on the first floor of their tidy, clapboard-sided house in Blue Bell. There she first massages his legs and feet to ward off spasms, and the tendency of his legs and toes to curl if they go too long without stimulation.
Then, she laboriously turns her 31-year-old son from side to side, slipping on first one pants leg and then another. She empties his catheter bag, helps feed him, brushes his hair and teeth, and then slings him over her shoulder, counts to three, and grunts as she hoists his upper body from the bed along a plywood board and onto his wheelchair.
She does the same thing with his legs. All in all, it takes Duchesneau two hours to get out of bed.
For this, Duchesneau mainly blames Cornell University. Duchesneau was a student there on Oct. 12, 2006, when, while practicing back flips, he fell and broke his neck. After months in the hospital, he sued Cornell, alleging that it had failed to provide spotters and safety equipment that might have prevented the accident.
Midway through the trial, Cornell made its only settlement offer, $9 million, but Duchesneau’s lawyer, Kenneth Rothweiler, said that was insufficient. Lifetime care costs, he estimated, would reach as high as $50 million. A few days later, he threatened to raise Duchesneau’s demand for at least $16 million by $5 million a day until Cornell settled.
It didn’t work.
After a four-week trial in federal District Court in Philadelphia, a jury found for Cornell, deciding that it had done nothing wrong. Duchesneau had expected vindication on the last day of the trial. Instead he left the courtroom in shock.
Now, Duchesneau is suing Rothweiler and his Center City firm, Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck, alleging that Rothweiler rejected Cornell’s offer without his consent, that he and his firm exaggerated the amount Duchesneau might recover, and that Rothweiler failed to share the results of a mock trial exposing risks in the case.
Huge verdicts in favor of injured plaintiffs typically win notoriety and attention, and plaintiffs’ firms tout them to attract new clients. Duchesneau’s lawsuit shows what can happen when a personal injury case is tried to a verdict and the plaintiff leaves with nothing.
Although Duchesneau collected on a $3 million Cornell insurance policy, that has not come close to covering his medical and nursing care needs, says his new lawyer, Clifford Cohn, who has built a legal practice suing other lawyers for malpractice.
The upshot is that Duchesneau’s mother, a Korean immigrant, has become his primary caregiver, waking three to four times a night to turn her son in bed to prevent potentially lethal bedsores. She feeds him, clothes him, and takes him to physician appointments. Quadriplegics are constantly vulnerable to life-threatening health problems and bodily malfunctions, such as a spike in blood pressure or spontaneous choking, so someone must always be nearby.
When Kum must go out on an errand on her own, relatives come to watch Duchesneau, or, as a last resort, she takes him to nearby Plymouth Meeting Mall, where he window shops and waits in his wheelchair until she returns.
What grates on Duchesneau is that costs for experts and other aspects of his case reached at least $680,000. That amount was charged to a separate settlement that Rothweiler made with Tumbl Trak, the maker of a trampoline-like platform that Duchesneau was on when he fell, according to Cohn.
“I feel cheated, I feel like in the television shows [about the law], things work out and justice is done, but I don’t feel like that really has happened in my case,” said Duchesneau, who was 21 when the accident occurred. “I kind of got screwed over in so many ways. I just feel that there was a better way to go about this, and the fact that so many people made money off this case, instead of the system working to benefit me, it is benefiting all these other people.”
Rothweiler, a prominent plaintiffs’ lawyer in Philadelphia and a legal analyst on Fox 29, disputes Duchesneau’s account, saying that he kept his client fully informed and that it was Duchesneau’s decision to reject Cornell’s offer. Like most other personal injury lawyers, Rothweiler collects no fees unless he wins.
“There were multiple conversations with him,” Rothweiler said. “He gave me the authority to settle the case for $16 million or more.”
At its core, the dispute centers on what Rothweiler and his partner, Dan Jeck, told Duchesneau about Cornell’s settlement offer and, failing a settlement, what they said about prospects for winning a favorable jury verdict.
The trial began Oct. 1, 2012. On Oct. 12, lawyers for Cornell emailed Rothweiler with an offer of $4 million in cash and an annuity with a lifetime payout of about $11 million. Rothweiler’s team valued the offer at just under $9 million, representing its so-called present value, or the amount that Duchesneau would need to invest and generate a total payout of $20 million or more over his lifetime.
What happened next is hotly disputed. Rothweiler says he had earlier received instructions from Duchesneau that he would accept nothing less than $16 million, and that Duchesneau was informed of the offer.
The day after Cornell made its offer, Rothweiler responded in an email: “Gentlemen, my client has instructed me to obtain a jury verdict.”
Cohn says that this claim is false and that Rothweiler had not told Duchesneau that he would reject the offer. He points to an email that Rothweiler sent later in the day, asking Jeck whether Duchesneau was aware of the offer.
“Did you tell Randy about the offer?” Rothweiler’s email asks. “What was his reaction?”
Jeck responded: “He is fine with moving forward.”
Cohn disputes that interpretation and insists that his client never signed off on anything.
Duchesneau’s lawsuit also accuses Rothweiler of failing to heed red flags that emerged during mock jury trials for the plaintiffs’ team. Those trials, involving 44 people role-playing as jurors, showed that while the majority believed Duchesneau was owed compensation from Cornell, a substantial minority concluded that Duchesneau was at fault. Several cited Duchesneau’s experience as a gymnast and a break dancer who also was a member of his high school cheerleading squad and should have known the risks.
A key finding was that while most jurors would have decided in favor of Duchesneau, some would have been persuaded to find for Cornell if it emerged during the trial that Duchesneau had signed a waiver in advance of his workout agreeing not to sue Cornell.
In fact, Duchesneau had signed a waiver, and although his lawyers persuaded U.S. District Judge Darnell C. Jones to preclude its introduction, Cornell’s defense lawyer suggested during the trial that Duchesneau might have signed such a release.
The remark drew an angry protest from Rothweiler, who accused Cornell’s lawyer of trying to influence the jury improperly. Jones also protested and gave Rothweiler the option of moving for a mistrial immediately, or waiting until the case was over.
The decision seemed to give Rothweiler and his client two bites at the apple: Try the case to its conclusion, and if that did not work, ask for a do-over. After the jury ruled against Duchesneau, Rothweiler did just that. But in a second blow to the plaintiffs’ team, Jones ruled against the motion, finding that since the jury had concluded emphatically that Cornell had done nothing wrong, it did not matter if Duchesneau had waived the right to sue.
After the trial, the Legal Intelligencer paraphrased Rothweiler in an article as saying he knew he would lose if the jury believed his client had signed a waiver, based on the mock-jury findings. Rothweiler says he was misquoted, but Cohn has made the article a primary exhibit in the lawsuit, arguing that Rothweiler should have asked for a mistrial the moment the waiver issue arose.
Absent a settlement, Duchesneau’s lawsuit is likely to be tried next year and ideally, its outcome will be decided by the facts in the case and by the law. But for Duchesneau, the case is about more than legal procedure, it’s about his life.
After the accident, Duchesneau, once a violinist who as a young man toured the world with the Long Island Youth Orchestra, returned to Cornell and finished his senior year. He then went on to Yale University, where he earned a master’s degree in public health policy and management. His mother had moved into a dormitory room next door so she could help care for her son.
Absent adequate financial support, he has no choice but to rely on his mother for care indefinitely. Any hope of living independently would be unimaginable, and his goal of launching a career, perhaps in health policy, remains a distant dream.
“I always had this hope and belief that things would work out for me in the end, and when the first case didn’t work out, that was very devastating,” he said. “I was very, very depressed, but this is the one life that I have, so I do have to make the best of it.
“There are two ways of looking at this,” he said. “What does it take to keep me alive, and what does it take to make me a productive member of society?”