Texoma v. Cheetam
A Case of Criminally
1. Sam Powers – Surviving
2. Jessie Spano – Attorney
3. Kelly Kapowski –
1. Duey Cheetam –
2. Ricki Belding –
3. Dr. Pat Spock – Doctor
for Insurance Company
Statement of Stipulated Facts – Page One
On or about July 1, 2006, Bobby Powers was walking his bicycle in the
crosswalk in the intersection of Main and First street in the city of
Republic in Texoma when he was hit by a vehicle driven by Mario
Lopez. As a result of the collision, Bobby Powers suffered a closed
head injury. During the course of recovery, Bobby Powers underwent
physical therapy and medical testing. His family filed a lawsuit after
hiring Jessie Spano as Bobby’s attorney. The lawsuit was brought by
Bobby’s parent, Sam Powers, as next friend for Bobby Powers. As the
lawsuit lingered on, the insurance company hired an attorney named
Duey Cheetam, who is the defendant in this case. Cheetam, at some
point in time, requested an independent medical examination be
performed to determine the nature and extent of Bobby Powers’
injuries. As a result of the independent medical examination, Bobby
Powers’ case was settled for the sum of $100,000. Four days after
signing the final paperwork to settle the case, Bobby Powers’ condition
deteriorated as he suffered a brain hemorrhage known as a myocranial
infarction (fictional medical condition). As a result of the hemorrhage,
Duey Cheetam is charged with criminally negligent manslaughter in the
death of Bobby Powers. The State of Texoma alleges that Duey
Cheetam had information that would have prevented the death of
Bobby Powers, and Cheetam knowingly or recklessly withheld such
information from Bobby Powers which resulted in the death of Bobby
Powers. The law of criminally negligent manslaughter has been
provided. The relevant penal code sections have been provided
together with the Texoma Rules regarding Ethical Attorney Conduct. If
a lawyer violates such rules, he or she may be subject to a grievance
and disciplinary action by the
Texoma Bar Association.
Breech of confidentiality is
grounds for disbarment.
The exhibits are authenticated.
They are a summary autopsy
report, a memo from Dr. Spock
to Belding, and an e-mail from
Belding to Cheetam.
Prosecution Witness Statement
– Sam Powers - Page One
My name is Sam Powers. I am
30 years old, and I work as an
On July 1, 2006, my son Bobby
Powers was hit by a car driven
by Mario Lopez. I hired Jessie
Spano to represent my son in
the claim against Mr. Lopez.
Bobby was taken to the hospital
from the scene of the accident
and received emergency room
care. He never really fully
recovered. Since I did not have
health insurance at the time, I
was not able to get Bobby all of
the medical care he probably
The litigation dragged on for
almost one year. All along we
had been demanding to settle
the case for $100,000 based upon the advice of our attorney. The
emergency room diagnosis was a concussion. He continued suffering
headaches for about 8 months. I probably should have had him seen
by someone. We just didn’t have the money and hoped the insurance
company for Lopez would pay the claim quickly. At some point and
time, my attorney contacted me to have Bobby appear in a doctor’s
office for an independent medical examination performed by Dr. Pat
Spock. I went with Bobby, and Dr. Spock did a brain scan and within a
few days of the independent medical examination, I was called by my
attorney and informed that we had settled the case for $100,000,
which was the amount we had been demanding since September of
2006. I felt that it was peculiar that the insurance company did not try
to negotiate the settlement at that point; they just agreed to pay what
we were demanding. We signed the paperwork on May 5, 2007, and
on May 9, 2007, Bobby died. He wasn’t feeling well and complained
about vision problems, and about 3 hours later he was gone.
We later learned that the attorney for the insurance company, the
insurance adjuster, and the doctor all had information that they failed
to disclose concerning the condition of my son. I believe that all three
were responsible for my son’s death. They killed my son.
About six months prior to the car wreck, Bobby had fallen off the
monkey bars at the elementary school. He suffered a concussion then
also. He complained of headaches from that day forward, until his
Signed the 15th day of March, 2008.
Prosecution Witness Statement – Jessie Spano – Page One
My name is Jessie Spano. I am 42 years old, and I am a practicing
attorney in the State of Texoma. I have been licensed for 20 years.
I was hired by Sam Powers to pursue a claim for Bobby Powers
resulting from an automobile accident. Bobby Powers was struck by an
automobile driven by Mario Lopez. I filed a lawsuit, and we began
pursuing the claim. We had demanded $100,000 to settle the claim
based upon Bobby’s diagnosis and injury. It appeared that Bobby had
suffered a closed head injury that did not seem that serious. The
doctors reports and medical records indicated that he would get better
over time and with therapy. He went through therapy and progressed
The insurance company contacted me in late April 2007 and requested
that an independent medical examination be performed. We agreed
and sent Bobby to Dr. Pat Spock’s office for the procedure. They did a
brain scan and within a few days they contacted me to settle the case
for $100,000. I asked to look at the results of the brain scan and they
asked, “Why? We are willing to pay your demand.” So we accepted the
payment. Four days after accepting the settlement, Bobby died from
sort of condition in his head.
I was curious afterwards to find out what the defense attorney,
insurance company, and the doctor all knew that led to the decision to
settle the case suddenly after over six months in litigation. It seems
they had information that they failed to disclose to us at the time we
settled the case.
It is my understanding that my colleague, Duey Cheetam, is charged
with criminally negligent manslaughter. Cheetam could have and
should have revealed the
confidences of his client to
avoid the death of Bobby. Our
state rules regarding ethical
lawyer conduct provide two
exceptions to the actions -of
Cheetam in hiding behind the
attorney-client privilege. I
believe a fraud was being
committed, and now we are
certain that revealing the
confidence would have
prevented an imminent death.
Signed the 15th of March, 2008.
Prosecution Witness Statement – Kelly Kapowski, M.E. – Page One
My name is Kelly Kapowski. I am 50 years old. I have been a licensed
physician for 21 years in the State of Texoma. My specialty is that I am
a forensic medical examiner.
As a result of the death of Bobby Powers, I was asked to perform an
autopsy. A summary of my autopsy report is provided as part of this
case. In performing the autopsy, it was discovered that Bobby Powers
died as a result of a myocranial infarction. Myocranial infarction is a
condition in which the blood vessels in the brain area become
damaged due to a trauma. It is common to see such injuries in
persons that have had a head trauma or a concussion. I have seen this
condition as a result from athletes playing football and skate boarders
hitting their heads. After I determined the cause of the death, I
requested all medical records pertaining to Bobby Powers. It is further
my opinion that the brain scan procedures did not proximately cause
the death of Bobby Powers.
In the initial review of emergency room records that were produced by
Jessie Spano, the records were of such poor quality that we were
unable to see the evidence of thinning of the vessels in the brain area.
However, when I reviewed the records provided to me by Dr. Spock, it
became immediately clear Bobby Powers had a condition in the brain
area that needed immediate and urgent attention. It is my opinion that
if Bobby Powers had received immediate and urgent attention he would
have had a 90% chance of survival. He would have had to undergone
immediate brain surgery. It is also my opinion that the problem with
his head was caused by the automobile accident which occurred on July
1, 2006. Without surgery, it is my opinion that the risks were such that
Bobby would have definitely had a myocranial infarction within one
year of the July 2006 accident.
If brain surgery had been
performed on Bobby Powers,
there was less than a 10%
chance he would have died
during the surgery. The cost of
such a procedure would have
been approximately $100,000.
I believe the condition observed
on the records provided to me
by Dr. Spock were of such an
emergency and imminent
nature that hesitation in telling
the family about the condition
I believe Duey Cheetam is
criminally negligent in failing to
alert the family of the grave
condition of Bobby Powers.
Signed this 15th day of March
Defense Witness Statement – Duey Cheetam – Page One
My name is Duey Cheetam. I am an attorney licensed to practice in the
State of Texoma since 1980. I am 52 years old. I was hired by
Badhands Insurance Company, specifically by insurance adjuster Ricki
Belding, to defend the insurance company and Mario Lopez in a lawsuit
that was brought by Sam Powers. As a result of the lawsuit and the
ongoing investigation of that lawsuit, I defended the insurance
company the best that I could. During the course of that investigation,
it is common for a defense attorney to request an independent medical
examination. We requested that of Sam Powers and Bobby Powers.
The independent medical examination was performed by Dr. Pat Spock,
the company’s doctor.
On or about April 30, 2007, Dr. Pat Spock advised me that Bobby
Powers likely had an aneurism developing in his brain area. The likely
cause of the aneurism was due to the trauma suffered on or about July
1, 2006. Dr. Spock further advised that Bobby Powers needed
reasonably urgent medical attention or he would die if the vessel burst.
During this meeting, I called Ricki Belding. I told Ricki Belding that we
had a duty to tell attorney Jessie Spano. Ricki advised me that I
represented the insurance company, and that I was not free to divulge
such information. Ricki informed me that if I divulged such
information, he would see to it that the state bar would take my bar
Dr. Spock estimated that it would cost $200,000 in medical treatment
to perform brain surgery to correct the problem in Bobby Powers head.
Dr. Spock also informed me that the change for recovery from brain
surgery of this type for a 7 year old child was 90%. The decision was
made to settle the case as fast as we could and then encourage Bobby
Powers to go to a specialist when it was over. We had not figured out
how we would get Bobby Powers to a specialist, but we knew we
wanted the case to be settled
before we did that to avoid the
cost to the insurance company
of an additional $1,000,000 to
settle Bobby’s case. On May 1,
2007, I called Jessie Spano and
got a signature on the
settlement papers. I then
requested a check, and in the
process of trying to get the
checks issued and documents
finalized and sent to the court,
I was informed that Bobby died
due to myocranial infarction. I
do not believe that this is my
fault. I believe that Bobby
Powers would have died
whether I revealed the
information or not. I do not
believe that I was the cause of
Bobby’s death. I believe that
the cause of death was the fact
that he was involved in a
pedestrian automobile accident
on July 1, 2006. Therefore, I
should not be held criminally
I received a message from Dr.
Spock regarding the
seriousness of Bobby’s
condition. That was followed
up with the e-mail from the
insurance adjuster to me
basically threatening me if I
told Bobby’s family. As a
lawyer, I felt obligated to
maintain my client’s
confidences. I feel bad that
Bobby died, but he might have died
Defense Witness Statement –
Duey Cheetam – Page Two
anyway. I did not cause the
death, and I am not sure I could
have prevented it even if I had
told what I knew.
Signed this 15th day of March
Defense Witness Statement – Ricki Belding – Page One
I am Ricki Belding. I am an insurance adjuster, and I have worked for
the Badhand Insurance Company for 40 years now.
I was the adjuster on the case of Bobby Powers, as a result of being
assigned to the case, I investigated facts and details of this case. Mr.
Powers hired Jessie Spano to file a lawsuit. When the lawsuit was filed,
I hired our attorney, Duey Cheetam, to defend the insurance company
in the case. During the course of the investigation, we had our doctor
perform an independent medical examination. As a result of the
independent medical examination, it was determined Bobby had a
serious situation with his head. I questioned our doctor about the
corrective measures needed and was informed that brain surgery
would be required. Since Bobby had lasted almost 10 months without
a problem, we figured that he would last a few more weeks. I learned
that the cost of brain surgery could reach $200,000. That would result
in a cost to my insurance company that I was not willing to accept. We
gambled and thought that little Bobby would be okay. It seems we
were wrong. But was it really our fault? Bobby’s parents should have
sought better medical care.
Although I do not believe the situation was imminent, we felt it was
important enough to get this case settled as fast as we could. We
immediately settled the case and intended to have Bobby Powers
checked out after everything was said and done. Unfortunately, Mr.
Powers died prior to the final settlement of the paperwork. We do not
believe the situation involving Mr. Powers was imminent such that he
could not have waited a few weeks to have the treatment necessary.
We did intend to tell Mr. Powers of his condition. We just never got
around to it.
I have not been offered
immunity from prosecution for
my testimony. I do not believe
any of us did anything wrong
considering the circumstances.
Signed this 15th day of March
Defense Witness Statement – Dr. Pat Spock – Page One
My name is Pat Spock. I am a medical doctor, and I am licensed to
practice medicine in the State of Texoma since 1996. In the course of
my work as a medical doctor, I had been hired by Badhand Insurance
Company to perform independent medical examinations. I was asked
to review the file of Bobby Powers. Bobby Powers was a 7 year old
child who was involved in an auto pedestrian accident in July 2006.
On or about April 26, 2007, I reviewed the file of Bobby Powers and
performed a brain scan. After reviewing the brain scan, I detected a
noticeable problem with the results. Bobby Powers seemed to be
suffering from bruising and potential rupturing of the vessels at the
base of the brain stem. I informed Ricki Belding and Duey Cheetam
that Bobby Powers had a significant and serious condition that needed
immediate attention. I sent a short memo to Ricki. A copy of the
memo has been provided as part of this packet.
Ricki asked if the condition was such that it could not wait a few
weeks. I explained that since the condition had probably been present
since the day of the accident, there was no telling how long it would
last. We decided that it would be best for our company to try and
resolve the claims of Mr. Powers and then inform the family of the
condition of Bobby Powers’ head. Duey Cheetam was informed to
immediately settle the claims of Mr. Powers and notify the opposing
attorney that the claims would be settled for what they demanded.
Apparently, after the paperwork was signed and finalized, but before
the Powers family was informed of the situation, Bobby Powers
suffered a myocranial infarction resulting in his death.
I understand that Duey Cheetam is charged with criminally negligent
manslaughter. I do not believe that Duey Cheetam was criminally
negligent in this matter. He could not have known how fast the
aneurysm would occur. He
could not have prevented the
aneurysm from occurring
unless he had told the family
immediately. I understand that
as an attorney he had
obligations not to disclose
certain information that he
learned in the course of his
attorney-client relationship. He
should be excused for his
actions in this matter. In
addition, the cause of the death
was the automobile accident in
July of 2006, not Cheetam’s
failure to inform.
I have agreed to testify in this
case in exchange for complete
immunity from prosecution for
any criminal acts that may have
been committed by me.
Signed this 15th day of March
Texoma Lawyer Rules of Ethical Conduct – Page One
Anything learned in the course of representation is privileged, and
can’t be revealed except:
1. When the lawyer has been expressly authorized to do so in
order to carry out the representation.
2. When the client consents after consultation.
3. To the client, the client’s representatives, or members,
associates, and employees of the lawyer’s firm, except when
otherwise instructed by the client.
4. When the lawyer has reason to believe it is necessary to do so
in order to comply with a court order, a Texoma Disciplinary
Rule of Professional Conduct, or other law.
5. To the extent reasonably necessary to enforce a claim or
establish a defense on behalf of the lawyer in a controversy
between the lawyer and the client.
6. To establish a defense to a criminal charge, civil claim or
disciplinary complaint against the lawyer or the lawyer’s
associates based upon conduct involving the client or the
representation of the client.
7. When the lawyer has reason to believe it is necessary to do so
in order to prevent the client from committing a criminal or
8. To the extent revelation reasonably appears necessary to rectify
the consequences of a client’s criminal or fraudulent act in the
commission of which the lawyer’s services had been used.
9. To the extent necessary to prevent death or imminent bodily
injury to any person.
Texoma Penal Code Excerpts – Page One
10.05 Criminal Negligence
A person acts with criminal negligence, or is criminally negligent, with
respect to circumstances surrounding his conduct or the result of his
conduct when he ought to be aware of a substantial and unjustifiable
risk that the circumstances exist or the result will occur. The risk must
be of such a nature and degree that the failure to perceive it
constitutes a gross deviation from the standard of care that an
ordinary person would exercise under all the circumstances as viewed
from the actor’s standpoint.
A person acts recklessly, or is reckless, with respect to circumstances
surrounding his conduct or the result of his conduct when he is aware
but consciously disregards a substantial and unjustifiable risk that the
circumstances exist or the result will occur. The risk must be of a
nature and degree that its disregard constitutes a gross deviation from
the standard of care that an ordinary person would exercise under all
the circumstances as viewed from the actor’s standpoint.
A person commits an offense if he recklessly causes the death of an
19.06 Criminally Negligent Manslaughter
A person commits an offense if he causes the death of an individual by
Exhibit One – Autopsy Report of Bobby Powers – Page One
Autopsy Report of Bobby Powers
Office of Chief Medical Examiner
Republic County Medical Examiner’s District
Republic County, Texoma
200 Feliks Gwozdz Place, Republic, Texoma 88888
PHONE (555) 437-3323
FAX (555) 437-3324
Name: Bobby Powers
Case No: 981110T
Approximate Age: 7 Years
Height: 42 inches
Weight: 38 pounds
We herby certify that on the tenth day of May 2007, pursuant to Statute
49.25 of Texoma Criminal Code, an autopsy on the body of Bobby
Powers was performed at the Republic County Medical Examiner’s
Office in Republic, Texoma, and upon investigation of the essential
facts concerning the circumstances of the death and history of the
case, we are of the opinion that the cause of death was as follows:
I. Sudden death associated with:
a. Myocranial Infarction secondary to trauma, 7/06
Mr. Bobby Powers was 7 years
of age at the time of his death.
He had been involved in a
in July of 2006. The collision
left damage to the brain stem
which ruptured causing the
CAUSE OF DEATH:
Sudden myocranial infarction
death due to trauma.
Kelly Kapowski, M.D.
Exhibit Two – Electronic Mail Communication – Page One
Date: Friday, April 27, 2007 (6:32 p.m.)
Subject: Bobby Powers
Bad news from the doc. Bobby is going to die very soon if he doesn’t
have brain surgery. Doc said he called you and told you the urgency of
it. We need it settled like yesterday. Pay whatever they ask for. Do
not share with their attorney the results of the independent medical
exam. It is privileged by the attorney client and/or as attorney work
product. If they find out, they will want $1,000,000. I don’t think it is
our obligation to tell them ever. We will address the disclosure issue
once the case is settled and we have the signatures.
Exhibit Three – Memorandum – Page One
From: Pat Spock, M.D.
To: Ricki Belding
Re: Independent Medical Exam of Bobby Powers
Just finished the exam and received the brain scan results. SERIOUS
problem. If Bobby is not put in surgery immediately, vessels in his
head will rupture and he will probably die. We need to inform him. I
have left a message with our attorney. I cannot believe that a person
in his condition has lived this
long with that condition. He is
on borrowed time. Call me as
soon as you can. If you want
me to inform the family, I will.