Gastroesophageal reflux disease (GERD), also known as acid reflux, is a long term condition where stomach contents come back up into the esophagus resulting in either symptoms or complications. Symptoms include the taste of acid in the back of the mouth, heartburn, bad breath, chest pain, vomiting, breathing problems, and wearing away of the teeth. Complications include esophagitis, esophageal strictures, and Barrett's esophagus.
My client was charged in a local district court. He had recently taken a buy-out offer from an employer and returned to school to become an RN. He was determined to get away from factory line work and make something of himself, and I thought he was a really great guy. Nothing was remarkable about the driving or the field sobriety tests, but there was enough evidence that he was drunk in this case for the prosecutor to beat my pretrial motions. He was a .13 on the breath test. I hired a breath test expert, Mary McMurray from Wisconsin, to talk about GERD, which my client suffered from, and I had my client's gastroenterologist on call pursuant to a subpoena to testify.
The judge was relatively new, and he was difficult. He made the jurors stay late into the night, and I called my client's doctor throughout the day to update him. The gastroenterologist was actually very cooperative, but he was frustrated that we couldn't scheduled his testimony at a deposition during a convenient agreed upon time. I explained that the judge was new to the bench, and he hadn't quite figured out how he wanted to run his courtroom. At 9:00 p.m., I called my client's doctor and told him that I needed him in court after the judge ordered me to call him. The doctor told me that the judge was insane, he was at home getting ready to go to bed, and there was no way he was driving to court at that late hour. The judge made me continue with the trial without my witness.
Gastroenterologist make about $350,000.00 per year, and they are allowed to sleep at night. It was utterly insane for this judge to order him to appear at 9:00 p.m., which isn't reasonable anywhere. In any event, I continued with the trial. I could have moved to have the doctor arrested, but I figured that if I lost the trial, a circuit court judge would likely reverse the decision. It was a win-win for the defense, even though it was a terrible decision by the judge.
The prosecutor moved to strike my expert's testimony, which wasn't based upon any medical testimony, and I put my client on the stand to avoid this ruling. I had to establish that my client had GERD for Mary's testimony to be relevant or else it would be stricken. I normally do not have clients testify because clients are not professionally trained as witnesses, unlike police officers and other witnesses for the state who do receive formal training and classes on how to testify in court. But my client? He did great! He established that he had GERD, how that condition impacts his life, and how he was experiencing a GERD episode that evening. He also did a stellar job responding to the prosecutor's cross-examination.
In the end, the important thing was that Mary's testimony was considered by the jury. I show the jurors demonstrative evidence--a video regarding GERD and breath testing--which revealed how serious GERD can be in a breath test case. And during my closing argument, I asked the jury, "why does the prosecutor believe that [my client] is guilty?" I lifted my trial case up onto the desk and spoke out, ".13."
The jury came back with a NOT GUILTY verdict.