Closing Argument – Counsel is Given Wide Latitude When Making Inferences from the Evidence in Addressing an Examining Physician’s Bias and Credibility Based on History of Testifying 3 or 4 times a year for plaintiff’s law firm

The following decision presents an interesting issue on the characterization of examining physicians used in negligence cases to address causation and injuries.  There are treating physicians, and there are “examining” physicians with the latter tending to fall in the camp of insurance lawyers and companies.  However, in this case the insurance defense lawyer made some interesting closing remarks to the jury.

 

Warsow v. Don Mohler and Kentucky Farm Bureau
COA NPO (NonPublished Opinion) 2/14/2014
Graves Circuit Court, Trial Judge Timothy C. Stark
COA Panel:  Acree, Jones and Vanmeter (All concur)

ACREE, CHIEF JUDGE: The question presented for our review is whether certain statements made by the defendant’s attorney during his closing argument impermissibly introduced information outside the record, thereby prejudicing the jury and resulting in an unfavorable verdict for the plaintiff. Finding they did not, we affirm.

The question presented for our review is whether certain statements made by the defendant’s attorney during his closing argument impermissibly introduced information outside the record, thereby prejudicing the jury and resulting in an unfavorable verdict for the plaintiff. Finding they did not, we affirm.

The argumentative language and opinion from the Insurance Defense lawyer representing Mohler attacked the bias of Plaintiff’s examining physician:

During a jury trial, Warsow presented the testimony of an examining physician, Dr. Emily Rayes-Prince, as evidence of the nature and extent of some of his injuries. Mohler’s attorney conducted cross-examination of Dr. Rayes-Prince, the following portion of which is relevant to the issue on appeal:

Q. Over the course of your practice in Paducah, do you have any idea how many – on how many occasions you’ve evaluated patients on behalf of [the] law firm [representing Warsow]?

A. Oh, I may do three in a year, three or four in a year.

Q. Okay. And you’ve practiced here for approximately 10 years or so?

A. No. No, not quite that long. And in my own practice, it’s been 7 years.

Q. Seven years?

A. Yeah.

Q. But over the course of those 7 years or so, you’d estimate that you evaluate someone on behalf of [the] firm [representing Warsow] maybe as many as three times per year?

A. Yeah. Not much more than that. -2-

Q. Okay, is there a way to describe for the jury how much or what proportion of your practice consists of performing medical evaluations?

A. Oh, less than 20 percent. Probably 10 or 15 percent.

Q. Okay. And of that 10 or 15 percent, is there a way to describe for the jury what percentage of the people you see are on behalf of plaintiffs in litigation versus defendants in litigation?

A. It’s probably about 60/40. Q. And 60 for plaintiff?
A. Yes.

During his closing argument, counsel for Mohler represented to the jury that Dr. Rayes-Prince’s testimony was unreliable because she was biased. He stated:

There, in my opinion, there are serious issues with Dr. Rayes-Prince’s credibility, not the least of which is that she – I won’t say she’s on staff with [the law firm representing Warsow], but her testimony is that she evaluates people . . . that [the] firm is representing three times a year, not much more than that, she testified, and has done so for the last seven years. [The law firm representing Warsow] uses Dr. Rayes-Prince a lot. . . . [emphasis added by this blog!].

In the opinion of THIS commentator –

The unusual rule of thumb is  that expressions of counsel’s opinion are considered by most trial practitioners as a “weak” expression as opposed to a direct and authoritative pronouncement.  However, in this case when counsel essentially slammed the examining physician, I can see why it actually was a stronger expression and gave counsel some wiggle room.  However, the problem with expressions of opinion by counsel on the evidence and bias of witnesses are interwoven with the old saw of counsel is allowed “wide latitude” to address the evidential inferences.  What I see is counsel expressing an opinion on credibility is now a witness themselves expressing an opinion in front of the jury coming from a putative witness beyond the pale of cross-examination and in a form that would be impermissible if he or she were a witness.

When the line is crossed and distinctions blurred and the rules fail to regulate conduct, the result is that litigants and lawyers alike lose confidence in the administration of justice.  “In my opinion” in court is the verbal equivalent of chalk screeching on the blackboard resonating in the minds of the jurors.

However, there is no evidence of an objection to the opinion, just simply the insurance lawyer arguing matters not in evidence; and there is no evidence of an objection to expressions of an opinion either.

Thus, someone crossed the line, and in the absence of an objection to “opinion” there was no need to give an admonition and the “opinion” portion of the argument apparently waived.  Beyond waiver, and looking at what would have cleared the air, one must agree that a simple admonition (whether requested of the judge or given by the judge sua sponte), I would submit “in my opinion” that an admonition should have been given at a minimum.  The trial judge’s failure to employ this simple remedial measure paid a price in the expense of the appeal, an appearance of justice denied, and a little tarnish on the system.  Just a simple admonition.   Just my two cents, and please be advised, my quick Westlaw ™ research found nothing to help on this point which amounts to nothing more than a suggested trial tactic when insurance lawyers decide to become witnesses and express opinions without being subject to cross-examination.

Please note: I reserve the right to delete comments that are inappropriate, offensive or off-topic.

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