Comments on: “Lawyer sanctioned $1M for allowing smoking reference in med-mal trial”

By: Hugo S. Cunningham

Hugo S. Cunningham — Thu, 13 Nov 2014 12:41:23 +0000

@James–
The Reddit link answers my questions; thanks.

By: James

James — Thu, 13 Nov 2014 04:19:13 +0000

For those interested, Reddit has some good details of the case here. It appears that the attorney's error was that she did not even mention the court's order to the witness.

By: JohnC

JohnC — Wed, 12 Nov 2014 23:13:36 +0000

@Ras

1. So thought Carl Sandburg in the unending poem “The People, Yes.”* But, in actual practice, no, a witness isn’t breaking his oath if he follows the judge’s instructions, etc.

2. The jurors are the fact-finders. The judge is not.

*”‘Do you swear solemnly before the everliving God that the testi- mony you are about to give in this case shall be the truth, the whole truth, and nothing but the truth?’ No, I don’t. I can tell you what I saw and what I heard and I’ll swear to that by the everliving God but the more I study about it the more sure I am that nobody but the everliving God knows the whole truth.”

By: Allan

Allan — Wed, 12 Nov 2014 20:42:42 +0000

Bill,

I think there is more to it than simply being angry at an attorney for an inadvertant misstep by an expert witness. If not, I would be willing to go along with the feeling that the award is too high.

On the other hand, if I am contractually obligated to pay the fees of my opponent’s lawyers, e.g., in a forclosure case or (perhaps) a bankruptcy, would I have much standing to argue that the fees for the opposing attorneys were too high?

By: ras

ras — Wed, 12 Nov 2014 19:58:13 +0000

Two IANAL q’s:

Q1: If the whole truth includes a fact that the judge has ordered suppressed, what’s a witness to do? Disobey the judge or violate his oath?

Q2: Doesn’t suppressing info from a jury, on grounds such as that they would be “inflamed” by it (or whatever), treat the jury as a lesser critter than a judge and thereby infringe (by watering down) the constitutional guarantee to trial by jury?

By: Bill

Bill — Wed, 12 Nov 2014 19:32:17 +0000

I don’t see how the lawyer can be held responsible for the expert mentioning a forbidden topic unless she: (a) asked a question that would be expected to elicit that information; (b) was shown to have instructed the expert to mention it. Her control of the witness is limited, and even a witness trying to obey such strictures may make a mistake.

By: spodula

spodula — Wed, 12 Nov 2014 16:42:41 +0000

According to the EWB, she’s been caught being naughty before, sending a sort of threatening message to the employer of an opposing defendant. (That got her disqualified from the case).

http://blogs.almexperts.com/index.php/2012/09/14/letter-to-experts-employer-gets-defense-attorney-disqualified/

By: James

James — Wed, 12 Nov 2014 15:57:57 +0000

Hugo, if the decedent’s status as a smoker was irrelevant to the issues in the case, which is how it appears from the summary in the article, there is no fraud involved. Here, the question was whether the doctor unreasonably failed to notify the patient about a result, thereby injuring her. Her status as a smoker would likely be unfairly prejudicial in such a context, where the cause of her cancer is irrelevant to the case.

That being said, $1 million sounds extreme. I would think imposing the fees and costs caused by the new trial would be reasonable.

By: Allan

Allan — Wed, 12 Nov 2014 15:29:24 +0000

I have got to think that there is more to this than appears on its face. I would think that the defense attorney’s actions were more the straw the camel’s back than anything else. My guess is that there was a big fight over a motion in limine and the judge had already become frustrated over the issue.

Indeed, the judge ordered a retrial. And, I would think that there were findings to the effect that the attorney instructed the expert witness to mention a forbidden thing. Moreover, she had been sanctioned $45,000 in a previous case, which the judge might have found was not a sufficient rebuke.

That said. $1,000,000 is a lot of money to most of us.

By: Hugo S. Cunningham

Hugo S. Cunningham — Wed, 12 Nov 2014 15:10:34 +0000

Is the jury meant to be entirely shielded from knowledge that the deceased was a smoker? If so, the judge and plaintiff’s attorney are trying to perpetrate a fraud (even if, under current law, they can get away with it).

Or is there a more subtle distinction– only a certain narrowly-defincd type of information is shielded, and for a legitimate purpose?