... and Justice for All

Because They Just Can't Help Themselves; Why Would the Defense Argue that a Decision Benefiting it was Incorrect?

The Kentucky Supreme Court's recent decision in Banker v. University of Louisville Athletic Association was notable and helpful in at least two respects: emphasizing the role of the jury not an appellate court to find facts and dispelling the mistaken notion that expert medical or scientific evidence was necessary to sustain a claim for emotional distress damages in an employment discrimination or retaliation case, a point we discussed on the Kentucky Employment Law Blog, Does Kentucky Require Expert Medical or Scientific Testimony to Support A Claim for Emotional Distress Damages in an Employment Discrimination or Retaliation Case? and on the website, Proving Emotional Distress Damages In Employment Discrimination & Retaliation Cases - Is Expert Medical or Scientific Proof Necessary?

Banker also called upon the Court to address an award of attorney's fees to the plaintiff's lawyer, Bryan Cassis, who is to be applauded for the perseverance and skill displayed in this case. Although Cassis submitted a attorney's fee petition documenting 678.75 hours worked on the case, the lawyers for the University of Louisville Athletic Association, Craig Dilger and Jeffrey Calabrese, argued that this amount of time was excessive, a point that seems surprising coming from lawyers who spent nearly twice as much time ("approximately 1300 hours") on the case as did Cassis and lost it. But the defense did not stop there.

Cassis had argued to the trial court that the attorney's fees award should be increased because the case was a contingent fee case. The trial court rejected the argument. Nevertheless, having won the issue and apparently not able to help itself, the defense argued on appeal that the trial court had erred. This confused the Supreme Court who remarked:

ULAA's third argument is somewhat confusing. The trial court did, as ULAA notes, look to what a reasonable contingent fee would be in this situation. However, the court did not do so to determine the lodestar amount or to deny ULAA's request for a downward adjustment. It did so as justification for denying Cassis's request for an upward amendment in the lodestar amount, which benefitted ULAA. We are not certain why ULAA is arguing that a decision from which it benefitted was incorrect; however, regardless of ULAA's reasons for making this argument, it is not persuasive. 

Indeed, it is confusing why a party would argue against a ruling that benefitted it. But sometimes the defense just can't help themselves.

Robert L. Abell
www.RobertAbellLaw.com

 

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Can a plaintiff's deposition testimony be a judicial admission causing an expert's opinion testimony to be excluded?

The defective product case recently decided by the Sixth Circuit, Lee v. Smith & Wesson Corp., No 13-3597 (July 29, 2014), is an interesting case. There was a previous post: Is Expert Testimony Inadmissible Because the Plaintiff's Expert's Theory Contradicts the Plaintiff's Testimony?

The plaintiff, Lee, was injured while firing a revolver made by Smith and Wesson that discharged irregularly and caused severe damage to his right eye. He sought to present expert opinion testimony from a mechanical engineer, but the district court excluded it because the expert's theory contradicted Lee's account of the incident. But Lee's testimony was not a judicial admission barring the expert's testimony as the Sixth Circuit explained:

... Lee's deposition testimony, in any event, does not constitute a judicial admission. ...  The purpose of the doctrine is to promote the expedition of trials by allowing parties to rely upon lawyers' admissions. "In order to qualify as judicial admissions, and attorneys statements must be deliberate, clear and unambiguous."

Here Smith & Wesson points to no judicial admission on the part of Lee in his represented status as plaintiff. Instead, Lee has a witness testified as to what he remembered. A tort plaintiff should be able to testify honestly to his memory of what happened and still have his lawyer argue that on the evidence as a whole it is more probable than not that the memory was faulty.

The majority opinion in the Sixth Circuit's 2-1 decision was authored by Circuit Judge John Rogers joined by Senior Circuit Judge Eugene Siler; Senior Circuit Judge Damon Keith dissented.

Robert L. Abell
www.RobertAbellLaw.com

 

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Is Expert Testimony Inadmissible Because the Plaintiff's Expert's Theory Contradicts the Plaintiff's Testimony?

Is an expert witness's testimony inadmissible because the expert's theory contradicts the plaintiff's testimony? Must an expert conform his theory to the factual scenario presented by the plaintiff's testimony? The answer to these questions is "no," as the Sixth Circuit held recently in Lee v. Smith & Wesson Corp., No 13-3597 (July 29, 2014).

This was a products liability case. Plaintiff Mark Lee was injured while firing a revolver made by Smith & Wesson. While target shooting, Lee fired two shots without incident, but, on the third shot, the gun cylinder opened and the blast from the shot did severe damage to Lee's right eye. In support of his claims, Lee sought to introduce the expert testimony of a mechanical engineer, Roy Ruel.

Lee's testimony regarding the incident and Ruel's theory as to how it occurred differed in three respects: "(1) Lee testified that he had no difficulty firing the gun the third time, whereas Ruel stated that the gun did not immediately fire because the cylinder failed to close fully; (2) Lee testified that the cylinder was closed when he fired the gun, whereas Ruel stated that it was open but appeared to be closed; and (3) Lee's demonstration of his grip on the gun showed that he did not touch the thumb latch, whereas Ruel stated that Lee pushed on the thumb latch."  Based on these contradictions, the district court ruled Ruel's expert testimony inadmissible; the plaintiff's stipulated to dismissal and appealed.

The Sixth Circuit reversed. First, a basic rule: "a party is not precluded from proving his case by any relevant evidence, even though that evidence may contradict the testimony of a witness previously called by him." Second, a jury could conclude reasonably that Lee was mistaken about what had happened: "a reasonable factfinder could conclude that Lee thought he had closed the chamber but in fact did not, and instead overlooked the opening, which Ruel suggests was the case in Lee's accident." Third, admission of the expert testimony was directly supported by prior decision, Greenwell v. Boatwright, 184 F.3d 492 (6th Cir. 1999), which upheld the admission of expert testimony despite contradictions between the expert's testimony and eyewitness's testimony, because physical evidence was the basis for the expert testimony.

The majority opinion in the Sixth Circuit's 2-1 decision was authored by Circuit Judge John Rogers joined by Senior Circuit Judge Eugene Siler; Senior Circuit Judge Damon Keith dissented.

Robert L. Abell
www.RobertAbellLaw.com

 

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