Supreme Court Revisits Court of Appeals Decision on Improper Closing Arguments, Daubert
Last year I discussed the Court of Appeals decision in Denham v. Holmes in this post. The Court of appeals reversed a Lafayette County defense verdict due to issues related to Daubert, defense counsel's closing arguments and jury instructions. On Thursday the Mississippi Supreme Court affirmed the Court of Appeals in this opinion. But the Court disagreed with much of the Court of Appeals opinion.
As a refresher:
The case involved a car wreck on University Avenue in Oxford. Denham was turning onto the avenue and collided with a pickup truck driven by Holmes. Both vehicles were totaled and the plaintiffs suffered injuries.
The Court disagreed with the Court of Appeals that it was reversible error for the trial court to allow defense counsel to comment in closing on the plaintiff's lack of expert testimony. Plaintiff's counsel referred to the expected testimony in opening, but the trial court did not allow the expert to testify. The Court determined that the comments were proper. The Court reasoned that:
“acting at their own peril, the plaintiffs invited this comment by informing the jury during opening statement that they would provide expert testimony during trial but failing to do so.”
The Court noted:
“The reality of our advocacy system is that the purpose of a party's presentation of evidence and the comments of that party's counsel, throughout the trial, is to aid that party's case, and to 'prejudice' (be detrimental to) the other party's case.”
The Court reasoned that just because an argument hurts the other side's case does not mean that the argument is improper. Although the Court did not mention Rule of Evidence 403, I could see this language being cited in disputes involving that rule.
The Court also disagreed with the Court of Appeals' Daubert analysis. The Court agreed that the trial court should have allowed the plaintiff's accident reconstructionist to testify about his distance and timing estimates. But the Court disagreed that the expert should have been allowed to testify about causation because the opinions were not sufficiently reliable.
Justice Carlson wrote the majority opinion. Justice Kitchens dissented on the Daubert issues and was joined by Justices Dickinson and Randolph.
I was conflicted on the closing-argument issue. They didn't get the expert in because he was excluded by the trial court, so it wasn't "their fault."
Seems like a really good reason for Daubert hearings pre-trial rather than mid-trial. By the time you're delivering your opening argument, you shouldn't have to be wondering whether the court will admit your expert's testimony.
An Evidence Rules amendment that would have required the trial court to rule on Daubert motions at least a minimum number of days before trial was proposed several years ago, but it was not adopted.
I think some judges like to have the expert in front of them before they pass on admitting him or his testimony, but they could do it before voir dire, one would think. Harder to schedule the expert I suppose.