Attorney Barry Cappello launched an aggressive counter-attack on orthopedic surgeon Alan Moelleken, who took Cottage Health System and three neurosurgeons — Cappello’s clients — to court, charging they’d engaged in an antitrust conspiracy to exclude him from treating patients seeking emergency trauma care for spinal damage. Moelleken, who owns five clinics throughout the state and a surgery center in Santa Barbara, is a spinal specialist and claims he lost $5 million in business because of this exclusion.

Cappello noted that Moelleken’s gross revenues actually grew by more than $5 million during the period this conspiracy allegedly occurred and questioned, often derisively and caustically, how Moelleken could claim he’d been damaged. “Couldn’t you say we helped you?” he asked Moelleken on the witness stand during the third week of testimony. Where Cappello peppered Moelleken with rapid fire questions, Moelleken — who has also carved out a niche sidelight as an expert witness — conditioned his answers almost uniformly with “possibly,” “potentially,” and “probably.”

Where Moelleken argued he’d been unfairly denied access to emergency spinal patients by the “good ol’ boys club” that holds sway at Cottage, Cappello countered that when Moelleken was briefly on the hospital on-call list for orthopedic care, Moelleken had proven unreliable and did not provide back-up. In fact, Cappello charged Moelleken once refused to treat a patient with a broken bone, didn’t find a replacement doctor, and expressed satisfaction for causing Cottage grief. When Moelleken denied the charge with his customary conditional language, Cappello retorted, “So you’re saying you ‘probably’ didn’t do this?”

The trial is scheduled to last until March 29.


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