By Hillel Aron
By Joseph Tsidulko
By Patrick Range McDonald
By David Futch
By Hillel Aron
By Dennis Romero
By Jill Stewart
By Dennis Romero
But it turns out there’s a wrinkle in bankruptcy law that says that debts incurred by “willful and malicious injury” to a person or property of another are non-dischargeable under the bankruptcy statute. That is, if Red were conscious during the collision, and could be expected to know that his actions would cause harm, then bankruptcy wouldn’t absolve him of any monetary judgments in a wrongful-death suit. A trial date was set for November 12, 2002 in Austin. Depositions were taken from a dozen people in Los Angeles, and Red was deposed that July in Austin — with both plaintiffs’ attorneys, Nilda Roos and Red himself flying to Austin’s fabled Hill Country for the day. Leaving the deposition, Red attempted to apologize to Nilda Roos, a gesture she refused to acknowledge. “I just continued walking,” she says, “for the simple reason that I observed him in the deposition. In my opinion, he was extremely arrogant, he was bothered by the lawyers’ questions, and he answered in a very arrogant and impertinent way. So I didn’t believe it when he called after me to say sorry. It was just . . .” — she struggles to find the word in English — “. . . diplomacy.”
In depositions and during the trial in November 2002, Baum and Lloreda attacked Red’s medical defense. Although Red told doctors at UCLA immediately after the collision that he had suffered five or six episodes of syncope —the medical term for unexplained fainting — by the time of his police interview in July, that number had shrunk to four or five; in his deposition two years later, it was three, all during bowel movements; and by the time of the trial, three months after that, it was twice during bowel movements and once from a random case of gout. No one (save for an ex-girlfriend who failed to testify in court) has confirmed any of these, nor even remembers Red discussing them at the time. Red places the third episode some time between 1994 and 2000. (In fact, before the accident, the only indication that Red had a history of fainting spells is that when he filled out the form to renew his driver’s license in 1999, he failed to answer the question, “Have you ever had any health or vision problems that could affect your ability to drive?” and later took the Fifth when questioned by police after the accident. According to the case summary by the District Attorney’s Office, it is this omission, specifically, which prevented prosecutors from charging Red with perjury or fraudulently obtaining a license.)
The doctor who Red claimed had been treating him for his condition, Dr. Rubin, had in fact only seen him once, in 1994. Dr. Rubin was unable to produce his notes from that appointment, even though it fell within the seven-year period that the State of California mandates medical notes be kept. Rubin claims the notes were lost in a move, and his “affidavit” was merely a letter that he had written for the price of a standard $225 doctor’s visit. Under rigorous cross-examination, the “recurrent episodes of syncope and transient losses of consciousness” were not substantiated. Rubin’s statement that “extensive cardiovascular evaluations at UCLA and elsewhere have shown no neurological or cardiovascular deficits” referred to Red’s hospital tests after the collision, and would have better read “UCLA and UCLA,” since no other facility was employed.
Rubin wrote several follow-up letters to police clarifying his position. In his deposition, he systematically recanted each of these claims, denying that Red was ever under his care, or that he told police he had ever treated Red for syncope. “I’m a gastroenterologist,” Rubin said. “I don’t treat anyone for syncope.” Rubin was investigated by the Medical Quality Board of California for nine complaints alleging “repeated negligent acts, incompetence, dishonesty and false medical records, insurance fraud, failure to repay insurance proceeds, failure to release medical records, inadequate and inaccurate records and general unprofessional conduct.” In June 2005, Rubin was sentenced to five years’ probation and ordered to complete medical record-keeping and ethics courses and to engage a billing monitor to oversee all financial transactions. In his defense, Rubin says of the letter, “I was trying to help him avoid criminal prosecution. In retrospect, I probably should have let Eric Red twist in the wind.” About the number of demonstrable untruths in it, he says, “Well, that’s what doctors do, they write down what their patients tell them. I’m not a prosecutor. Someone tells me they fainted, I have to believe.” Red, in his most recent statement, says he still suffers from syncope and that the condition is hard to diagnose, yet common. “Other people who suffer from syncope include the current president of the United States,” he says.
In February 2003, Judge Frank Monroe of the U.S. Bankruptcy Court, Western District of Texas, Austin Division, released his findings. In an 18-page memorandum opinion, Monroe ruled the “willful and malicious injury” test fulfilled if [Red] “intentionally” drove his Jeep into a billiard parlor/bar in the early evening at a high rate of speed. “It is hard for one to imagine a more evil action if that was what truly occurred,” Monroe says. As for the medical evidence, he writes, “The statement by Doctor Rubin that Mr. Red had been under his medical care since 1994 is, if not an outright lie, an incredible overstatement of the facts.” Monroe calls Rubin’s letter to police “more evidence of a fabrication of syncope” than actual proof, and further notes, “The question that the court has in mind is whether the three episodes [Red] testified to in this Court were a fabrication as well.” Stopping short of ruling that Red had moved to Austin to intentionally elude a civil judgment, Monroe said the court viewed his move with “great suspicion,” and followed a brief chronology of Red’s bankruptcy filing with the admonition, “Coincidence? Doubtful.” Venturing beyond findings of fact, the opinion addressed Red’s demeanor and credibility, stating, “Mr. Red struck the court as defensive, somewhat combative, and reticent in his testimony on cross-examination,” and calling him “unduly ‘put upon’?” for having to answer questions. The judge found that “Mr. Red’s story is simply not consistent with the facts of what we know happened.” He also finds that Red was “conscious and alert” and “that all of this occurred because of a fit of uncontrollable rage on the part of Mr. Red, the reason for the rage being largely unknown.” Red, in his statement, calls the ruling a “travesty of justice. It was completely unfair that the judge said I showed no remorse. Had anyone asked me how I felt, I would have said how terrible I feel about the deaths, how I think about it every day and how I wish I had never gotten in a car that day in 2000.”