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[00:00:01]

One. If she hands him a scalpel saying the same thing that he's on, having heard the disagreement between the participants, is the nurse a party on this special update episode of Dr Death? Did she assist him by handing him the instrument, the deadly weapon that you and Dana? I've got some updates on what's happened since the Dr Death podcast first released a month ago. I'll be back to tell you more about it with a fellow reporter and fellow Texan, David Brown.

[00:00:48]

He's the host of the podcast Business Wars and a former host of Public Radio's Marketplace. We'll be right back.

[00:00:55]

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So there's nothing to lose that's simply safe. Dotcom, Dr.. From wondering, I'm Laura Beil and this is Dr. Death. This is a special update episode from time to time will be releasing new episodes to keep you up to date on the story of Christopher Dench and our medical system. So please subscribe wherever you're listening right now if you want to continue getting new episodes of Dr Death. I've also had a number of people who knew Christopher Dench reach out to me since this podcast first aired.

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I'll be speaking with them over the coming weeks and months and I've got an email after email of people saying you should investigate this doctor or that doctor or this abuse of the health care system. The stories will break your heart today.

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I'm here with David Brown, the host of the podcast Business Wars.

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Laura, I think I speak on behalf of all your listeners who've been riveted by this. How did you hit a nerve here?

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The response was really unbelievable in the beginning. I just wanted to tell a good story and to do it as thoroughly as I could because I thought it was important. I didn't actually anticipate that it would be quite as big as it has and that it would touch people so much. I think because as I've said before, I think it really touched people because the story's not just about Christopher. I think the realization that this could have been any of us was what made this story.

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I think both really hard to listen to and really impossible not to listen to.

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But it's also not over. And I feel, you know, I feel like I'm really lucky to get a chance to talk with you about that next step, the next layer that happens, because I know a lot of listeners want some answers to to where does it go from here? There's been Dr. Duncan's appeals hearing, for example.

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And I think there was a weird story about a billboard in Dallas that disappeared. Something along those lines.

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Yes. The disappearing billboard. Maybe we should begin with the appeals hearing.

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When we ended the podcast, Christopher Dench was in prison. He remains in prison, but he's hoping and his family's hoping that that's not where the story ends. He has filed an appeal. And so over the past year, there have been a lot of motions filed back and forth for him to get a new trial. And so on September 18th, was the hearing in front of the judges.

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We have two matters set for submission this morning. And I'll call the first one, the first one zero five one seven zero zero two three five S.R. Christopher Daniel versus state of Texas. So maybe you can set the scene, describe what the room was like, what the ambience was like, that sort of thing.

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So anybody who's been to a normal civil courtroom kind of pictures, there's the one judge on the bench.

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There's the jury. There's a place for the jury. There's the witness box. There's a place for spectators.

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So the appeals court is is not like that at all.

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At this particular room was was huge. It was a very big room. There are wooden benches for seating, kind of like rows of church pews, but less seating than there normally is in a criminal trial. There's no place for witnesses. There's no place for a jury. It's these three judges up high on the bench. And then there's a lectern for each attorney to make their case. They take turns and they stand in front of the judge and make their case.

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The indictment is the strangest indictment I've ever read, and I've been doing criminal law for 20 years. It alleges the manner and means of the injury in this case by mouth positioning and interbody device and mouth positioning, pedicle screws and amputating left L5 nerve root. So what the state alleges is that during a surgical procedure, my client intended to harm his patients. Now, what about Christopher Duch?

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Was he there? You know, everybody who knew I went to the appeals hearing, that's the first question they had is, was was he there and what did he look like? He was not there. It was only the attorneys. His family was there. His father was there. Some some of his family members, some of the victims were there and and their family members. I saw Barrymore, Geldoff there. I saw Kelly Martin's family there. And I believe the district attorney keeps the families updated about what's going on.

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So if they if they want to go, they can.

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And so the idea here is that the facts have already been established at the trial level. Now we're talking about, as I understand it, really the law, the legal issues.

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Was the trial fair, that sort of thing?

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Exactly.

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Or I think for a lot of listeners who've heard all the evidence that you've presented here, they may be wondering what isn't this just an open and shut case?

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Why isn't it it's not an open and shut case at all. Remember, there's never been a case like this. So this is new ground for. Everyone, you say you've been doing this a long time, you say, did you tell us there's not a single case you're aware of in the state of Texas where a case like this have been brought? Have you looked anywhere else? Has this happened anywhere in the United States, to your knowledge?

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So Duncan's appeals attorney is a woman named Kristen Jernigan, and that's her specialty is criminal appeals.

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And she was making a kind of slippery slope argument that what the state wants to do is, in this case, allow district attorneys to prosecute surgeons for their entire career. So if they have a bad outcome first, if they have three bad outcomes in a field that's as risky as neurosurgery, then they're going to put these surgeons on trial for their entire career. We know that they where do you stop?

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Because a lot of these procedures, especially in neurosurgery, they're inherently dangerous and complications are not uncommon in that specialty. So where do you draw that line?

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So I think he describes neurosurgery as tap dancing on a razor blade. So it's a it's a very risky procedure area of medicine that has these sorts of outcomes. So to punish someone and say they intended or they knew they were going to harm someone when they were trying to treat their patient is bizarre. It's frightening to me.

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And we want the doctors who have the knowledge to have the freedom to do what they need to do without looking over their shoulder and perhaps not going the extra mile if they're worried about what the outcome might be. Right.

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This really gets to the heart of whether what happened in the operating room that day with Mary Everett should have been considered a crime.

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The outcomes weren't great. I can see that. But if you really wanted to hurt these patients as a neurosurgeon, you could have found a much less obvious way of doing this if that was really his intent.

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And one of the judges, I thought, ask a really interesting question.

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I've got you that far. He's opened her up and he's starting this procedure. Right? Right. He already knows about the outcomes that he's had. Correct. So either that's sufficient or is not sufficient to say he should have started this procedure. OK, let's say just for the sake of argument, that that's not sufficient.

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If you consider this a crime, if you consider that Christopher Dunn was committing a crime, well, then how complicit are all the people around him?

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You know, it seems like the judge really pressed the state's lawyer hard.

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He did. I mean, all the judges did. They pressed they pressed both sides hard, that that's what made it really interesting. You could tell that they've given this a lot of thought and they're going to have to give it a lot of thought after this. They're obviously thinking through the broader long term implications.

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These are legal implications, medical implications. Were there other things brought up in the appeal?

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Well, the cold blooded killer email this random email from seven months prior in so and that's the email that goes on. It's five pages long. It rambles. But in then he calls himself a cold blooded killer.

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They talked about that email, four pages in the record dry closing argument. And in fact, the prosecutor said the email tells you everything you need to know about what's in his head. They relied heavily on that email, which was outrageously prejudicial and not relevant.

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And so, Christopher Dunamis appeals attorney, is saying that that shouldn't have been admitted, that it was it had nothing to do with Mary efforts case, and it was only admitted to influence the jury.

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And as we heard from both his defense attorneys and from Michelle Segert, the jury definitely did react to it was something that was brought up in opening statement by the state.

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There's this overarching question of why that email was the closest thing we had to bridge the gap for the jury.

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That's Justin Johnson who's handling the appeal for the state.

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Do you think it establishes intent to do serious bodily injury or death to a patient? I think rational jurors could infer from that and other evidence the possibility. Do I think it conclusively conclusively proves it? No, you're wrong. But our burden to get to the first degree felony was knowingly. Well, how did both sides feel about how this first hearing went?

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Well, I couldn't really talk to either attorney. So Mr. Energon is not making statements yet because the case is ongoing. And actually neither is Justin Johnson, because the case is still pending. So I couldn't get a direct reaction from either of those.

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But afterwards, outside the courthouse, I did speak to Michelle Shujaat, who was there watching the appeal.

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It's a little terrifying to sit there and listen to the arguments because the judge is asking such hard questions of both sides and you never know which way they're going to rule. And so the idea or the thought that that they might go against you and you have to try and do all of this all over again is really kind of stops your heart a little bit. You just have to have faith in the process, which is what we do. I just want to be clear about this, Michelle Schuckert, that is what the original lead prosecutor, right?

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Right. She's the one who handled the the entire while she and her team, but she's the one who led the prosecution the first time around.

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So, Laura, what happens next?

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We wait, we wait. Everybody waits. The judges, I'm told they could take up to, you know, six months, a year, 18 months to make their decision. They have a lot of material to go through, a lot of points to consider. And so so we just wait for them to make a decision.

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Do you have any sense of who's going to win this case?

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I don't it's unprecedented. And I, I have no sense whatsoever if he does get a new trial.

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Michelle Schuckert told me, as she has said from the beginning, she's prepared to take him back to trial.

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We're going to keep fighting. I mean, either way, if there's a variety of issues that they could decide to either uphold or overturn the case on, if they overturn any of those issues, we can appeal to other courts. We can ask them to reconsider. And at the end of the day, if we have to retry, well. Dr. Death is brought to you by simply safe home security, simply safe is everything you need in a security system and nothing you don't before, simply safe home security companies were getting away with a lot.

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[00:14:54]

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That's promo code. Dr Pod visit Madisen Dash read Dotcom now to find your perfect shade. I'm David Brown of Business Worse, the podcast from Thundery, and I'm with Laura Beal, who is the host of this podcast, which is called Dr. Death. It's become an incredible sensation. And Laura, I guess we can't put it off any longer. Shall we talk about Billboard Gate finally?

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Yes. Yes. A real it was it was a real cover up here in Dallas. Tell us a little bit about what actually happened.

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So Wonder Wonder decided to take out a billboard to advertise the podcast. And I have to say, I wasn't involved in this decision. But when we took out a billboard for the podcast and decided what better place to put it on a main thoroughfare right across the street from Baylor, Plano, which is the hospital that was a major player in the Christopher Dunwich story, the first hospital where he operated in Dallas.

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And the billboard lasted, I think, six to eight hours before it suddenly went black.

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Six to eight hours was as long as the billboard was up. I believe that was the the lifespan of the of the billboard, because we only know now I live on the other side of town. So I have to say, I never saw the billboard. I live completely, you know, I never saw it, but it was on Twitter. So we saw it on on Twitter and some people started tweeting about the billboard. I remember when that said that is the definition of shade and had a picture of that billboard and then that same person a few hours later tweeted, the billboard is gone.

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Your call has been forwarded to an automated voice messaging system, at the tone, please record your message. When you finished recording, you may hang up or press one for more options. Hey, Brian, it's car over at wonderingly.

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So karro Chuck Larson with the Wonder marketing team called Clear Channel to try to see what was going on.

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So this morning I received a call from the VP of Sales from Clear Channel in L.A. and he told me that we cannot place a billboard at that location with any material that has to do with Dr Death. And I said and asked, you know why? You know, because I read the terms and conditions and he told me that it's not in the fine print, which, OK, whatever. But he says the copy creative that they have, they do have inless exceptions that, for example, anything that has to do with adult content can't be around X amount of feet from hospitals or schools, et cetera.

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Were they referring to? I don't know, because to be honest, I. I don't know what they consider an adult content. I mean, it's a Clear Channel policy about adult content. I have to say on my way to the studio today, I passed to Clear Channel billboards advertising alcohol. So I and I don't know if this is a proximity to hospital.

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I don't know because it's an internal it must be an internal Clear Channel policy, because I did check with the city of Plano to see if they had any ordinances that prohibited particular content around hospitals. And the people at the city of Plano told me, no, we don't regulate billboards. In fact, we can't by law regulate the content of of billboards. So this is something internal to to Clear Channel.

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That is really odd. But that's not the end of the story. Right.

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And then Hernan Lopez, who's Wonderings CEO, he got on the phone with Clear Channel two and he asked them directly.

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So they had asked him, the Beyler have anything to do? Did they ask for the removal of the billboard? And very quickly, he said he did. They didn't directly ask for the removal of the billboard and just left it at that. So to me, the war directly was delling. Right.

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So so this it did get coverage in our local paper, The Dallas Morning News. So they ran one story. They ran the first story that people complained, and then they followed up with another story saying, no, it wasn't the complaints, it was this adult content and that's why it was removed.

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Did Baylor, Plano ask to have this billboard taken down a big company?

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It's a big company that buys a lot of billboards. And I I don't know. There's an interesting series of coincidences because the billboard, the day the billboard went up, everyone who works for Baylor, Plano got a letter from Baylor President Jerry Garrison.

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And in that letter, it mentions the podcast and it mentions the billboard and it instructs the employees to contact the public relations team.

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If if anybody has any questions about the podcast or what's happening.

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And it tells them to keep positive and focus on patients.

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But this letter and I've seen it because a copy made its way to me, it interestingly, it doesn't dispute at all any of the facts that were reported in the podcast, but it did mention the billboard by name.

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So so we still don't actually know exactly why the billboard was taken down.

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But I'll tell you, a couple of people who really want to know, in addition to those of us here associated with the podcast, I had a follow up conversation this week with Dr. Randall Kirby, who was in the podcast a lot.

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He was one of the surgeons who was really leading the charge to try to stop Christopher Dench.

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So the whole medical staff at Baylor playing who got an email saying there's going to be bad advertisements and podcasts and everything within six hours, we're sending the email out. The billboard was covered up. So I think the entire medical staff of Baylor playing on wants to figure out what happened.

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And he is really determined to find out what happened to the billboard. So much so that when I was talking to him, are you there?

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He called up Mike Lyons. Harder to find in bin Laden. Not that name sounds familiar.

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Mike Lyons was also on the podcast. He's a plaintiff's attorney who was in one of the episodes. The two the two of them are friends. He gets Mike Lyons on speakerphone and I'm listening to them discussing legal strategies of how they could compel Clear Channel to give.

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A sworn statement about what actually happened and while this is going on, I asked them why they cared. I mean, other than being sources in the story, they're not associated with wonder at all. It's really not their issue.

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I never saw the billboard, but the billboard doesn't bother me. What bothers me is it's kind of emblematic of what the allegations were in these lawsuits. Right. You know, a cover up and ensuing cover up to people from telling the truth. And that's what concerns me. Laura, I want to be clear about something.

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Was this billboard gay? You know, the disappearing billboard and all of that? I mean, it sounds like it could have been a really calculated marketing strategy. I think a lot of people might wonder, you know, yes.

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So this was on Twitter. This was the big discussion when the publicity came out about the billboard that it was all part of a wonderings evil plan to marketing strategy to get more publicity by taking down the billboard, I assure you, wonder you had nothing to do with the removal of the billboard. We are as mystified as as everyone else, but obviously the show's gotten a lot of attention from it.

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Right. And I know right conversations and certainly read emails and read news stories about this.

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Right. So the irony of all this is that probably the removal of the billboard got way more publicity because of the discussion of it, because of the Dallas Morning News stories, it was way more widely noticed than it would have been if the billboard would simply have been left alone. I want to say to on the people who contacted me, and it's not even been people who knew him, but people reaching out, there was a very moving email that we got from some stranger who just wanted to express sympathy and support for Jerry Summers.

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This is Christopher Identies best friend, who was left a quadriplegic. And so I forwarded that message to a friend of of Jerry's. And he sent me a note this morning that he had read it to him and that he was very moved by it and actually got very emotional hearing, the hearing, the email.

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Laura, this has been terrific to get up to speed on where we stand right now.

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But I know that listeners and I know you've been hearing a lot from them, they still have a lot of questions about what they heard in the course of the podcast. And I understand that in your next episode, you're going to give me an opportunity to ask some of those questions, is that right?

[00:25:30]

Absolutely. It'll be good to talk.

[00:25:32]

And so that's next week on Dr. Death.

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Well, did don't case in Slam from one tree.

[00:25:43]

This is a special update episode of Dr. Death, an investigative miniseries about the system that failed to protect 33 patients in Dallas. We'll be back next week with a special Ask Me Anything episode. In the meantime, I want to thank my colleague David Brown and recommend the podcast. He hosts Business Wars. You'll hear a trailer right after this and a link to subscribe on the episode notes. So, David, you're the host of the Business Wars podcast, which war are we talking about right now?

[00:26:18]

Well, right now we are covering something that well, it's another Dallas based story. We're talking about American Airlines and its challenger, Southwest.

[00:26:28]

It's a terrific, terrific story because it brings in all of these personalities, these larger than life personalities.

[00:26:35]

And we're talking about a couple of companies that I think most people have, at least in one form or another, a kind of relationship with maybe sometimes a love hate relationship.

[00:26:46]

But it's a fascinating story. Netflix beat estimates once again adding five million subscribers in the quarter. Adidas reads Nike poaching its top three designers in the battle of the ridesharing services. Lyft strikes Uber where it hurts every day.

[00:27:22]

Business is at war. Blue chips versus disruptors. American giants versus Chinese competition. Founders versus corporate raiders. Sometimes the prize is your wallet. Sometimes it's your attention. And sometimes, well, it's just the fun of beating the other guy.

[00:27:41]

Corporate raider Carl Icahn sets his sights on Blockbuster.

[00:27:45]

I'm David Brown, former host of Marketplace, and I'm hosting a brand new podcast about business. It's unlike any other business show you've ever listened to, will go deep into the stories of the most iconic business wars of all time, Nike versus Adidas, Netflix against Blockbuster and HBO, McDonald's versus Burger King. They get real. They get personal. They mean business from wondering this is business wars. Subscribe today on Apple podcast or your favorite listing app.