Cheap Shots in Trial are OK?
The Court of Appeals concluded 2010 with a decision that bothers me. Here is the Court's opinion in Triplett v. River Region Medical Corp.
Facts:
This was a Warren County medical malpractice case against a hospital, doctor and CRNA. River Region got out on summary judgment and the case was tried in May 2008 before Judge Frank Vollor. The case was tried to a defense verdict and the appeal ensued.
One of the issues on appeal was whether the trial court should have ordered a mistrial after defense counsel dropped this bomb in opening statement:
“a doctor from Viginia is the only one, apparently, [that Triplett's heirs] could find in the whole United States to testify against [River Region].”
Plaintiff's counsel objected and the trial court sustained the objection and advised the jury to disregard the statement. The next morning plaintiff's counsel moved for a mistrial and the trial court denied the motion.
Tim Porter, Patrick Malouf and Johnny Givens with Porter and Malouf in Ridgeland represented the plaintiff. Gene Parker and Penny Lawson of Vicksburg represented the defendants.
Court of Appeals Decision:
On appeal a unanimous Court ruled that the motion for mistrial was untimely because under Mississippi law the objection and motion must be made contemporaneously with the improper remarks. That didn't really seem fair to me so I did a little research and have come to the conclusion that the Court of Appeals is getting the law wrong on this.
My Take:
First, defense counsel's statement was way out of bounds. The Court could have at least acknowledged that.
More importantly, the Court's decision does not explain the rationale for the contemporaneous objection rule. But the Mississippi Supreme Court did explain the rule in 1997 in Herrington v. State, 690 So. 2d 1132 (Miss. 1997). There the Court explained that “contemporaneousness is critical because it allows the judge to avert a mistrial, if possible, by admonishing the jury to disregard the utterance.”
Given the rationale for the rule, it would seem that a contemporaneous objection alone should be enough to preserve the issue. Case law from other jurisdictions supports this conclusion.
A New Jersey District Court ruled in Lyles v. Flagship Resort Development Corp., 371 F. Supp. 2d 597 (D. N.J. 2005) that a contemporaneous objection alone is enough to preserve an issue. The Court observed that the law of the Third Circuit is that an objection alone without a motion for mistrial preserves an issue.
In my opinion the Court of Appeals got this wrong. If the reason for the contemporaneous objection rule is that it gives the judge the opportunity to admonish the jury to disregard the improper statement, then the reason for the rule does not apply in this case. There was a contemporaneous objection and the trial court did admonish the jury. If the reason for the rule does not apply, then the rule should not apply. That's basic common sense.
What really bothers me about this decision is that this involved what appeared to be a planned cheap shot. While I agree that a trial court should not grant a mistrial for every improper statement that attorneys make in trial, I believe that trial courts should err on the side of granting a mistrial when the statement appears to be a planned cheap shot. Otherwise, what disincentive do lawyers have for making cheap shots?
There was also an issue in the case whether a juror employed by a law firm who represented the hospital should have been struck for cause. The trial court did not and the Court of Appeals affirmed. I also disagree with these rulings.
Having worked at large law firms, I can say without reservation that staff members—at least the ones with a clue—understand where the firm's bread is buttered. Lawyers and their firms are loyal to their clients—-the law requires it—and a law firm employee should not be on a jury deciding the case of one of the firm's clients.
This reminds me of the trial where the plaintiff's lawyer brought up Pearl Harbor in a trial vs. a Japanese defendant, which I thought happened locally 15 or 20 years ago, but I can't find it on Westlaw.
... I do admit to some curiosity whether this esteemed blog is going to address that premises-liability case from the last MSSC handdown, which included a couple of issues of first impression and drew a spirited dissent from Kitchens.
I had always heard the Pearl Harbor reference was made by Judge Cox. The defendant (a Japanese company) asked for a continuance on the eve of trial and Judge Cox said he would give them as much time as the Japs gave the US at Pearl Harbor.
I have heard the proposal that an entire book of Judge Cox anecdotes be collected and published, all proceeds going to the Miss. Volunteer Lawyers Project.
Some of the anecdotes would of course be quite offensive, but the book would generate $$$ that would benefit quite a few members of ethnic groups Judge Cox liked to offend.
My old friend Gene Parker made the comment? No surprise there. My first case against him, circa 1993, he misprounced by name. That's acceptable with a name like Teeuwissen. But he called me Hussein. We've had many battles over the years and he certainly can push the envelope. Not surprised about the juror. That has happened to me also. I will say this about Parker: he'll respect you if you fight back. He deserves some credit for making me a much better trial lawyer. As hard as we've fought,I actually like him.
On the premises case, it's a 41-page opinion. I keep hoping that another blogger will write about it first and I can just add my two cents.
Well, with Bardwell offline, there's fewer folks to do it, alas.
Get the judges a new clerk. McMillin is not a surgeon:
Dr. Lamar McMillin, the physician who performed the surgery,