Here is the latest.
Colorado Opinion on Spoliation
The Colorado Supreme Court has issued an opinion in Aloi v. Union Pacific R.R.
This is the opening paragraph of the opinion: “Petitioner Frank Aloi brought a personal injury action against Union Pacific Railroad (UP). Prior to trial, UP destroyed documents relevant to the litigation. As a sanction for spoliation of evidence, the trial court instructed the jury it could draw an inference that the evidence contained in the destroyed documents would have been unfavorable to UP. The trial court gave the adverse inference instruction three times, one time interrupting a crossexamination to provide the instruction. The jury returned a verdict for Aloi, and UP appealed. The court of appeals reversed the trial court’s judgment. The Supreme Court granted certiorari.”
The holding? “We hold that the trial court did not abuse its discretion by providing the jury with an adverse inference instruction as a sanction for the spoliation of evidence where it found that UP willfully destroyed relevant evidence, which otherwise naturally would have been introduced at trial. Second, we hold that the trial court did not abuse its discretion by repeating the adverse inference instruction because the trial court addressed appropriate objections and articulated the reasoning for its decision; nor did the trial court abuse its discretion by interrupting the crossexamination because it acted to remedy prejudice and as a result did not depart from the required impartiality so as to deny the defendant a fair trial.”
No Post Today
Sorry, folks, but I do not have time for a post today. I have an oral argument in the 11th Circuit Court of Appeals in Atlanta on Tuesday and I am busy getting ready. I will post tomorrow morning.
Lanier v. Merck, Round 2, Post 6
Here is a summary of events from Friday in the two Vioxx cases being tried (together) against Merck in state court in New Jersey.
Peer Review Statute Analyzed
The Tennessee Peer Review Law of 1967 was “was passed with the stated intent of encouraging ‘committees made up of Tennessee’s licensed physicians to candidly, conscientiously, and objectively evaluate and review their peers’ professional conduct, competence, and ability to practice medicine.’ The statute further ‘recognizes that confidentiality is essential both to effective functioning of these peer review committees and to continued improvement in the care and treatment of patients.’ Tenn. Code Ann. ㋔ 63-6-219(b)(1). To this end, the statute creates a privilege for certain documents, etc., which are generated or provided during the peer review process.”
Dr. Moore was summarily suspended from his staff privileges in a Chattanooga hospital and sought information from his creditionals file. The hospital refused to provide it, citing the Peer Review Law. The case went to the Eastern Section of our Court of Appeals and the appellate court remanded to case to the trial judge for further action in consideration of the opinion.
Specifically, the appellate court found even though the creditionals file was covered under the Peer Review Law the wording of the statute itself said that “[n]othing contained in this subsection (e) applies to records made in the regular course of business by a hospital or other provider of health care and information, documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any civil proceedings merely because they were presented during proceedings of such committee.”
Lanier v. Merck, Round 2, Post 5
Thursday’s action in the New Jersey cases currently being tried against Merck.
Discovery Order
I was talking with some lawyers lately about an increasing problem of discovery abuse, particularly during depositions. Apparently some lawyers don’t understand the rules or, if they do, they don’t care about them.
Here is an interesting Order entered in a case that put the hammer down on a lawyer who the Court determined had not acted appropriately during depositions. Download file
Do you have any Orders you would like to share? Trial judges need to know that other trial judges have taken aggressive action to stop what they have determined to be inappropriate conduct and the best way to demonstrate that is a copy of an order. If you have such orders, fax or email them to me and I will post them so that other lawyers may utilize them.
Lanier v. Merck, Round 2, Post 4
You know the drill by now – here is an article reflecting what happened yesterday.
An excerpt: “They also got to watch a movie: ”V Squad,” a campy, 12-minute sales-training video played in court, which showed two Merck salespeople dressed as superheroes — each in a black suit, with an orange ”V” on the chest — fending off human ”obstacles” who represented questions from doctors to whom the company pitched its blockbuster arthritis drug.”
A Work of Art
I confess to being somewhat of a law geek. After almost 25 years of practice, I still enjoy reading opinions and getting my head in the books. I readily confess to not doing much legal writing in my practice anymore – I have several bright young lawyers who help with that part of preparing a case for trial. But I still love to read opinions, and still get a real thrill out of an extraordinarily well-written opinion.
This is one. It is written by Judge William Bedsworth on the California Court of Appeals. The opinion involves a probation revocation hearing; the defendant lost and got sent to prison for seven years. To get a feel for the opinion, consider this, the first paragraph of the opinion: “Occasionally, we see a case that “fell through a crack.” This case fell through a chasm. And no one, not the trial attorney, not the prosecutor, not the court – and certainly not the probation officer – can escape some degree of responsibility for the existence of that chasm. When the issue is whether a defendant goes to prison for seven years or to a drug rehabilitation program, someone should be paying attention. In this case, it appears no one but the defendant really was.”
This is the last paragraph of the opinion: “Finally, we must emphasize that if this case is not an utter anomaly, it is a
frightening example of what can occur when all the participants forget how high the stakes are in a probation revocation hearing. We have no problem concluding Gayton’s counsel had the primary obligation to review and present the evidence that might have assisted his cause. But prosecutors always bear some responsibility for the evidence they offer. And when it became clear during the hearing that the facts were so hotly contested, and that the probation officer had neither brought the file nor reviewed it in the last three months, it was perhaps incumbent upon the court to consider issuing an order to produce the file on its own motion. In short, it must be remembered that everyone in this case had a stake in getting at the truth: All failed.”
Lanier v. Merck, Round 2, Post 3
Here is an article that describes the events of the second trial day (after the completion of jury selection) in the two Vioxx trials currently underway in state court in New Jersey.