The Clinton Herald, Clinton, Iowa

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October 17, 2013

Jury begins deliberating malpractice case



BLS split reported to Walker by the billing and coding expert retained in the Schultheis case, Douglas Wolfberg. The ratio was revealed to be an off the cuff ratio Wolfberg based on his experience that was not meant to be taken as a national average. While Wolfberg testified it was not meant as a national average, Lamar Blount, an expert Walker retained for his defense, said based on information from the Centers for Medicare and Medicaid Services, the national average from 2005 to 2008 was 64 to 68 percent ALS. Jurors were also reminded of Blount's and billing and coding expert JR Henry's report stating the city had erroneously upcoded 18 percent of its claims from 2002 to 2008, which could have resulted in up to $16 million in civil penalties. Henry testified this week he had mentored Wolfberg, a point Waterman also raised in his closing argument.

The city didn't bring an expert to refute this error rate, Waterman said, asserting if the city's attorneys could have found an expert to say McGovern was right in his billing, they would have. He also criticized the city's False Claims Act expert, Ronald Clark, who had never tried a civil jury case or been involved in a legal malpractice case and did not practice in Iowa. Clark's criticisms of Walker showed a double standard, Waterman said. Clark was only given half the story, Waterman said. Clark testified he hadn't read the report from Henry and Blount, reviewed Sarah Nolan's or Andrew McGovern's testimonies or read a deposition from a Firehouse software expert that said the city's duplicate reports could not have been the result of a software glitch.

Waterman also defended Schultheis, pulling out Schultheis' "glowing" performance reviews from the 18 months he worked at the Clinton Fire Department. Besides a comment on his February 2008 review that Schultheis questioned procedures, his reviews showed a Schultheis very different from the "headstrong," "disgruntled," firefighter the city portrayed him as, Waterman said.

While the city argued Walker should have taken Schultheis' deposition, not taking it was a move that kept Schultheis from learning the "terrible" facts the jury has learned through the legal malpractice case, Waterman said.

"We'd be in the same place we are today, only it would have been a lot worse," Waterman said.

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