Cardiac Arrest

Cardiac Arrest is the story of Howard Root and Vascular Solutions, Inc. and their five-year ordeal fighting with the federal government and the legal system.

Accused of misbranding (basically saying a device can do something while the FDA didn’t approve the company to say that device can do it) a minor option of one of their products, VSI spent $25 Million to defend their name against an obvious instance of prosecutorial misconduct. The lawyers and investigators for the government wanted someone in jail and weren't choosy about who it was or what they did to get them there.

The prosecutors had plenty of exculpatory facts (exculpatory means facts that prove the accused didn’t do what they are accused of doing) to show that there was no wrongdoing in action or intent. There was no injury to anyone by the use of this product either. There was no crime, no harm, yet the government wanted someone’s head (metaphorically) on a pike.

Proving the point that government is nothing more than a blunt cudgel, the government also had to threaten almost every one of their witnesses with their own prosecution if they didn’t testify for the government.

With unlimited resources, a plethora of vague (and conflicting) laws and regulations, a DOJ system that rewards prosecutors for the number and quality of the scalps on their belt all add up to the fact that most people don't stand a chance if the government wants to put you in jail. Never mind our justice system started out as "investigate a crime and find who did it," while today the theme is "Pick a person you don't like, investigate them until you find something they did that breaks a law, then prosecute them and put them in jail."

The reason why the legal fees ran $5 Million a year is very simple: it’s all a show.

I have been on stage in plays and I have done stand-up comedy, so I can say I am somewhat knowledgeable on this subject. All of the legal maneuvering for the judge and jury is like a play. In a play, you have to deliver every line exactly, your actions, placement and everything else has to be exacting and consistent from performance to performance. Doing stand-up, your timing between set-up and punchline has to be so exact that you can measure it with a micrometer while at the same time appearing to be totally off-the-cuff.

In a trial, a good lawyer never asks a question they don’t already know the answer for it. In order to ask the right question, there can be hours of research that have to done, other witness statements that have to be checked against and way more. Lawyers (good ones anyway) have to have an eight-decimal eye for accuracy. This requires an extreme OCD personality type who can read a 20 page deposition and pick out a single three-word phrase out of it that breaks the armor of the opponent’s position.

Then there are the practice trials, with people paid to be jurors in mock trials that the defense team practice on before the real trial. This helps the defense team find what combination of demographics a person would be to be most sympathetic to the defense.

A team of lawyers (prosecution or defense) can be compared to a bullpen of baseball pitchers, where a single lawyer is like a relief pitcher who is meant to strike out one batter (or witness). There are opening pitchers, relief pitchers and closing pitchers. There are also paralegals who make sure that the proper evidence is presented at the proper moment are also essential to prove a positive impression to the jury. All this time, effort and experience costs money. $500 - $1,000+ an hour per lawyer kind of costs. Root and VSI went through several law firms over the five years from accusation to verdict, yet pretty much had 10-20 lawyers on the clock constantly.

As the trial opened and proceeded through the prosecution presenting evidence and testimony to prove their case to the jury that Root and VSI were guilty of what they were accused of, several things became clear. Namely, the prosecutors were inept because their own witnesses had to be almost treated as hostile witnesses (A witness so declared can be asked leading questions, you can’t do that with a non-hostile witness) and the same witnesses for the prosecution happily testified against the prosecution and for the defense. This happened to the point where Root made the decision to not present their case at all because the prosecution had not proven their case and in fact proven Root and VSI had violated no laws or regulations. This also screwed up the prosecution because the prosecution through cross-examination would have tried to bring facts out from the defense witnesses to prove the prosecution’s case. I’m sure they were counting on doing just that. So a good portion of defense evidence supporting the prosecution never came to light.

The not guilty plea by the jury was not a foregone conclusion. A deadlocked jury would have meant a retrial and millions of dollars more spent on more lawyers and defense. Or, the company could have surrendered, submit to onerous oversight and let its’ CEO go to jail for years, all for which was basically a minor paperwork error.

In the end, the government still won. VSI was out $25 Million in capital that could have been spent to develop and sell more medical devices to help more people. Then you have the fact that since Root was out of the day-to-day operations of the company for most of that time, even more devices were not developed or improved. Root also made the decision to “transition out” of the CEO position of a company he founded and loved because it was made painfully clear that for any innocent mistake, error of judgement or misunderstanding of a policy by any employee, the responsibility for that mistake, real or imagined, was going to be laid on his head. He would be held responsible, no matter what.

Every other company also saw this as a warning that any time a company upsets the government for whatever reason (including no reason), that company will be bankrupted defending itself. Is this any way for any citizen of any country to live, constantly scared to death that any mistake they make (and sometimes they don’t even have to make a mistake) will result in them losing everything?

Think about that.

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