St. Paul exec carries the day at trial

By Steve Korris | Feb 2, 2006

CHARLESTON – St. Paul Travelers chief executive Jay Fishman put his company on his back and carried it through the Kanawha County courthouse.

Fishman's risk in testifying at a jury trial over medical malpractice insurance paid off Jan. 26, when six jurors decided that his company did nothing wrong.

He took the stand Jan. 12, as a surprise witness. Attorneys for the plaintiffs had not compelled his testimony by subpoena.

Fishman told jurors he came to Charleston because the company did nothing wrong and the accusations upset him.

Charleston surgeons Eric Mantz, Willis Trammell and Todd Witsberger sued St. Paul Fire and Marine in 2002, claiming that it converted a portion of their premium payments to the company's uses.

In pretrial arguments, attorneys for the surgeons claimed that St. Paul's withdrawal from the malpractice market caused the crisis. St. Paul said the crisis caused St. Paul to leave.

Circuit Judge Paul Zakaib Jr., certified the case as a national class action, but later shrank it to a West Virginia class action with a class of about 1,240 doctors.

Former Supreme Court Justice Richard Neely, representing the doctors, predicted last fall that a jury would award at least $45 million in punitive damages.

Both sides agreed that the company's directors voted Dec. 7, 2001, to stop selling malpractice insurance in the United States.

Neely's team needed to convince jurors that people at St. Paul had planned the withdrawal for months before the directors approved it.

Neely's team possessed a consultant's report and an internal e-mail discussing withdrawal months before the board decision. Fishman had not seen either.

Fishman took the stand to tell a simple story. He told jurors he took the job Oct. 11, coming from another company.

He said his predecessor would not consider withdrawing from medical malpractice. He said his predecessor was attached to that line of business and biased towards it.

Fishman said he tried to find a way to stay in the market. He said he kept trying through Dec. 5, two days before the board meeting.

When plaintiff attorney John B. Williams of Washington showed him the consultant's report listing withdrawal as an option, Fishman said it would be ridiculous to pay a consultant and not have him examine every option.

Williams showed him the e-mail, with a name of Kevin O'Brien on it. Fishman said he did not know Kevin O'Brien and did not know if he was involved in decisions.

He said, "This was never presented to me and I am the decision maker."

The plaintiffs never nicked their target, so St. Paul Travelers attorney Neil Dilloff of Baltimore did not have to repair any damage.

Dilloff needed only to connect this wealthy stranger to the jurors, and this he did.

Fishman told Dilloff and the jury his father ran a print shop in the Bronx. He said his sister was the first person in the family to go to college.

He said he went to the University of Pennsylvania and earned a license as a certified public accountant. He described a series of bigger and better jobs.

Sober as a judge, Fishman softly cracked a joke when Dilloff asked if he stayed current on certified public accounting.

Fishman said, "No. My CPA stands for cleaning, pressing and alterations."

The trial would go on for two more weeks, but Fishman had already won.

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