Do You Recall Update

On July 11, 2009, I wrote that using "do you recall" in a question has its advantages. In "Elements of Trial Practice: More than 500 Techniques and Tips for Trial Lawyers," by Peter D. Polchinski, however, he makes a valid point, particularly when examining your own witnesses: "Avoid do you recall, do you remember, do you know or did you notice. Those headers suggest that the witness may not know the answer and they weaken the testimony."

U.S. Supreme Court Employee Trifecta -- High Court Sides with Employees in Two Retaliation Cases and a Discrimination Case in 2011 So Far

On January 24, 2011, the United States Supreme Court ruled in Thompson v. North American Stainless that Title VII of the Civil Rights Act prohibits employers from retaliating against employees who complain of discrimination by terminating the employment of closely related third-parties, such as spouses or family members. Title VII’s anti-retaliation provision covers a broad range of employer conduct and therefore is not limited to discriminatory actions affecting the terms and conditions of employment. It also prohibits employers from taking action that might dissuade a reasonable worker from making or supporting a charge of discrimination. The Court held a reasonable employee would likely be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.

On March 1, 2011, the U.S. Supreme Court ruled in Staub v. Proctor Hospital that if an employee or former employee can show that any of the supervisors involved in the line that lead to the ultimate employment action at issue, had a discriminatory intent or animus in their actions, then the action of that supervisor can form the basis for the employer's liability. It no longer matters that the non-decision-maker did not have power or control over the decision-maker. It also does not matter that the decision-maker made an independent review and analysis of the grounds for the adverse employment action if the supervisor holding the discriminatory animus was anywhere in the line that led up to the ultimate employment action. Employing the so-called “cat’s paw” theory of employment discrimination -- that an employer can be liable for the discriminatory animus of an employee who influences, but does not make, an ultimate employment decision – the Court held that “if a supervisor performs an act motivated by . . . animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable . . . .”

On March 22, 2011, the Court decided Kasten v. Saint-Gobain Performance Plastics Corp. In Kasten, the Court found that oral employee complaints alleging violations of the Federal Labor Standards Act need not be in writing to receive anti-retaliation protection. In a 6-2 decision, the Court interpreted the statutory phrase "filed any complaint" to include oral complaints. Reasoning that a narrower interpretation limited to written complaints would not further the remedial purpose of the Act, the Court ruled that oral complaints could be "filed" for purpose of anti-retaliation protection if properly made. Thus, the Court held that if an oral complaint is “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of [employees'] rights protected by the statute and a call for their protection,” such an oral complaint may be protected by the FLSA.

Putting Medicare on the Settlement Check

Jules Olsman, a well known plaintiffs' attorney in Michigan, recently spoke at the monthly dinner meeting of the Association of Defense Trial Counsel (ADTC), which I am the Treasurer of this year. He handed out the attached memorandum discussing the need -- or rather the lack thereof -- to include Medicare on settlement drafts in personal injury cases. Mr. Olsman relies on three cases in support of his position that Medicare should never be included on a settlement draft: Tomlinson v. Landers, 2009 WL 1117399 (M.D. Fla); Bradley v. Sebelius, 621 F.3d 1330 (11th Cir. 2010); and Azleppa v. Seiwell, 9 A.3d 632 (Pa. 2010).

New Caps on Non-Economic Damages for 2011

The Michigan Department of Treasury has announced that the new caps on noneconomic damages in products liability cases where the product did not cause either death or permanent loss of a vital bodily function for 2011 is $411,300. The indexed cap in cases involving death or permanent loss of a vital bodily function is now $734,500. The cap on noneconomic damages in medical malpractice cases is now $432,000.

Second Circuit Rules that Pharmaceutical Sales Reps -- Some Making $100,000 a Year with Commissions -- Entitled to Overtime

On July 6, 2010, the United States Court of Appeals for the Second Circuit found that current and former sales representatives of a pharmaceutical company were neither exempt outside sales people nor exempt administrative employees.

The Court found that the salespeople were promoting sales of other, not making sales themselves. Thus, these employees primary duty was not making sales away from the employer’s place of business.

The Court also found that the sales representatives only performed low level marketing functions. Even though they had some authority to enter into agreements which bound company and had some discretion, the Court found the employees’ duties were not sufficient to make them exempt administrative employees under the FLSA.

Read the opinion here.

Supplemental Jurisdiction Saves the Day for Amount in Controversy Deficiencies in Multiple Plaintiff Cases

In Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546 (2005), the Court held that “where the other elements of jurisdiction are present and at least one named plaintiff in the action satisfies the amount-in-controversy requirement, §1367 does authorize supplemental jurisdiction over the claims of other plaintiffs in the same Article III case or controversy, even if those claims are for less than the jurisdictional amount specified in the statute setting forth the requirements for diversity jurisdiction.” The Supreme Court concluded that §1367(a) unambiguously overruled its previous holding in Zahn v. International Paper Co., 414 U.S. 291, 294-95 (1973), and held that because several of the plaintiffs satisfied the amount-in-controversy requirement of § 1332(a), and because the claims of the other plaintiffs undeniably arose out of the same case or controversy over which the district court had original jurisdiction, supplemental jurisdiction over the claims of all the named plaintiffs was proper. See also Engstrom v. Mayfield, 195 Fed.Appx. 444, 448, 2006 WL 2456948 (6^th Cir. 2006)(if any plaintiff satisfies the amount-in-controversy requirement of § 1332(a), the claims of other plaintiffs that arise out of the same case or controversy are properly the subject of supplemental jurisdiction).

U.S. Supreme Court Adopts "Nerve Center" Diversity Jurisdiction Test

In Hertz Corp. v. Friend, 2010 U.S. LEXIS 1897 (Feb. 23, 2010), the United States Supreme Court finally resolved a split among the circuits on how to analyze where a corporation’s “principal place of business” is for purposes of diversity jurisdiction. The Court reversed a Ninth Circuit holding that Hertz Corporation was a citizen of California because of the amount of business it did in California compared to other states, including New Jersey, where Hertz claimed was its principal place of business. For example, Hertz operated 273 of its 1,606 car rental locations in California, 3.8 million of its 21 million annual rental transactions took place in California, and approximately 2,300 of its 11,230 full-time employees were located in California. Still, the Supreme Court rejected the Ninth Circuit’s “business activities” test and instead adopted the corporate “nerve center” standard used by numerous other Circuits. The Sixth Circuit, however, applied a "total activities" test, whereby a court had to consider a variety of factors, such as the location of the corporation's nerve center, its administrative offices, its production facilities, and its employees. Gafford v. General Elec. Co., 997 F.2d 150, 163 (6th Cir. 1993). The U.S. Supreme Court concluded that since the headquarters, most of the executives, and the vast majority of the decision-making took place in New Jersey, that was Hertz’s principal place of business. In a unanimous decision the Supreme Court added much needed clarity on how to define a corporation’s so-called “nerve center”—which is now defined as the “the place where the corporation’s high-level officers direct, control, and coordinate the corporation’s activities.”

Statute of Limitations Analysis in Trentadue Extended to Latent Disease Cases

The statute of limitations in negligence and product liability actions is three years. MCL 600.5805(10); MCL 600.5805(13). A claim accrues and the statute of limitations begins to run at the time the wrong was done: “Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues . . . at the time the wrong upon which the claim is based was done regardless of the time when damage results.” MCL 600.5827.

In Trentadue v Buckler Automatic Lawn Sprinkler Co., 479 Mich 378, 388; 738 NW2d 664 (2007), Michigan Supreme Court rejected the application of the so-called “discovery rule” to toll the statute of limitations in personal injury cases except in very specific circumstances specifically set forth by the Legislature (e.g., claims for medical malpractice and fraudulent concealment) and held:
“We hold that the plain language of MCL 600.5827 precludes the use of a broad common-law discovery rule to toll the accrual date of claims to which this statue applies. Here, the wrong was done when Eby was raped and murdered in 1986. MCL 600.5827 was in effect at that time. Accordingly, plaintiff’s claims accrued at the time of Eby’s death. The Legislature has evinced its intent that, despite this tragedy, the defendant-appellants may not face the threat of litigation 16 years later, merely because plaintiff alleges she could not reasonably discover the facts underlying their potential negligence until 2002.” Trentadue at 407 (emphasis added). The Court also ruled that the word “wrong” in the statute means “when the plaintiff is harmed rather than when the defendant acted.” Id at 388 (citing Boyle v General Motors Corp, 468 Mich 226, 231-32, n5; 661 NW2d 557 (2003)(“The wrong is done when the plaintiff is harmed rather than when the defendant acted.”).

In Bearup v General Motors, 2009 WL 249456 at 7 (Mich App), the Michigan Court of Appeals extended the Trentadue analysis to cases involving latent injuries caused by exposure to toxic substances years earlier. Plaintiffs argued that symptoms alone were not sufficient to put them on notice of their injuries or the cause of their injuries. According to plaintiffs, their cause of action did not accrue until they received medical diagnoses. The Michigan Court of Appeals, however, held: "The period of limitation in a product liability action is three years. MCL 600.5805(13). This three-year period “runs from the time the [claim] accrues,” which is defined as “the time the wrong upon which the claim is based was done regardless of the time when damage results.” MCL 600.5827. To determine whether the statute of limitations has expired, the circuit court must first identify both “the wrong upon which the claim is based,” and the date the “wrong” was done. Our Supreme Court has explained that this calculation is intended to yield “the date on which the plaintiff was harmed by the defendant's negligent act, not the date on which the defendant acted negligently.” Stephens v Dixon, 449 Mich. 531, 534-535, 536 N.W.2d 755 (1995); see also Trentadue, supra at 388, 738 N.W.2d 664 (“The wrong is done when the plaintiff is harmed rather than when the defendant acted.”) (internal quotation omitted). After determining the date on which the plaintiff sustained the injury underlying a claim, the circuit court must determine whether the plaintiff filed a lawsuit within three years of that date."

"I Don't Recall"

It's easy to get sloppy when asking questions, but there's a big difference between asking a witness whether "they recall" something and asking whether it happened. Likewise, if a witness starts answering questions by saying that she "does not recall." follow up by asking, "So you can not say whether the light was red or green, is that correct?" If someone does not recall or you ask them if they remember something rather than whether it did or did not happen, you expose yourself to having that witness' recollection refreshed later on. It's a difference that matters.

Junk Science Checklist: Seven Factors Courts Must Consider in Michigan

In Michigan, trial courts are required to consider seven factors in assessing the admissibility of expert testimony:

1. Whether the opinion and its basis have been subjected to scientific
testing and replication.
2. Whether the opinion and its basis have been subjected to peer review
publication.
3. The existence and maintenance of generally accepted standards
governing the application and interpretation of a methodology or technique and
whether the opinion and its basis are consistent with those standards.
4. The known or potential error rate of the opinion and its basis.
5. The degree to which the opinion and its basis are generally accepted
within the relevant expert community.
6. Whether the basis for the opinion is reliable and whether experts in that
field would rely on the same basis to reach the type of opinion being proffered.
7. Whether the opinion or methodology is relied upon by experts outside
of the context of litigation.

MCL 600.2955(1). See also MRE 702.

Mastering Blind Cross-Examination

Most litigators fear cross examining a witness they have not deposed. Fear not. In an article entitled "Mastering Blind Cross-Examination," appearing in the ABA's "Litigation News," Mark A. Neubauer writes:

"The easiest way to control a witness is through the use of exhibits. Accordingly, use your documents to weave your testimony on blind cross-examination. What is the witness to do? Deny that he wrote the document? Deny that the document she wrote is a true statement? It almost doesn’t matter what the witness’s response is. What does matter is getting the witness’s own words in writing into evidence before the judge or jury.

For example:

Q: You wrote this letter, didn’t you?
A: Yes.
Q: And when you wrote that “I cannot justify paying so much for senior staff when we are missing our budget,” you believed that to be a true statement, didn’t you?

What is the witness to say? He lied when he wrote it? By reading the statement into the record, you are driving home its content in a far more effective way than by just authenticating the document."

There are a number of other very helpful tips in this piece, including this admonition:

"So throw away those deposition transcripts. Save your clients thousands of dollars of reporters’ fees. Instead, cross-examine your witnesses the old-fashioned way—blindly, which, like Lady Justice herself, isn’t really so blind after all."

Over 1,000 Litigation Articles

Litilaw is a legal article research portal that has collected over 1,000 recent articles of interest to litigators. All articles are full-text, written by lawyers and have been published as part of continuing legal education (CLE) seminars, in legal journals, or comparable forums.

Famous Trials

Professor Doug Linder, at the University of Missouri-Kansas City (UMKC) School of Law, has compiled an amazing array of materials involving some of the most famous trials in history. From the "Trial of Socrates" in 399 BC to the "Lenny Bruce Obscenity Trial" in 1964 to the 2006 "Trial of Zacarias Moussaoui" of 9/11 fame, everything from trial exhibits to transcripts to photographs are just a click away. Check it out.

Caps on Non-Economic Damages are Unconstitutional in Georgia and Constitutional in Michigan?

On Feb. 9, 2009, a lower court found Georgia's caps on non-economic damages in medical malpractice cases unconstitutional on three grounds:

(1) “[I]t invades the right to a jury trial” guaranteed by the Georgia Constitution “by usurping one of the fact-finding responsibilities of the jury;”

(2) The statute violates the Separation of Powers Doctrine by “encroach[ing] upon the judiciary’s constitutional right and prerogative to determine whether a jury’s assessment of damages is either too excessive or too inadequate within the meaning of the law;” and

(3) "[I]t violates the Equal Protection Clause of the Georgia Constitution by differentially and dramatically impacting those most seriously injured, low-income individuals."

Nestlehutt v. Atlanta Oculoplastic Surgery, P.C., d/b/a Oculus, Fulton County State Court, Civil Action File No. 2007EV002223-J (Feb. 9, 2009).

In 2004, the Michigan Supreme Court found tort reform provisions applicable to auto insurance constitution. It said:

"Damage caps are constitutional in causes of action springing out of the common law because the Legislature has the power under our Constitution to abolish or modify nonvested, common-law rights and remedies." The went on to say that "economic legislation, such as the measure we deal with today, has consistently been held to be an issue for the political process, not the courts. * * * It is into this mainstream that we again steer our economic regulation jurisprudence."

Phillips v. Mirac, Inc., 470 Mich 415 (2004). Still, only four Justices signed the majority opinion, and one of those Justices is no longer on the bench.

The Document Speaks For Itself, But I Can't Hear It

You've all heard this one, "Objection, the document speaks for itself." But is it a legitimate objection? Not if it's being used to keep your witness from reading from a document already admitted into evidence. Remember, reading from a document in evidence is one way of publishing the evidence to the jury. After all, once admitted the jury is entitled to read the exhibit. A judge will stop you if you misread or mischaracterize the contents, but otherwise there is nothing wrong with reading from a document. See, e.g., Miller v. Holzman, Civil No. 95-1231, at 4-5 (D.D.C. 2006) and James W. McElhaney, "The Cleveland Exception to the Hearsay Rule and Other Courtroom Oddities," 1 Rev. of Litig. 93, 96-99 (1980).

Offering Exhibits at Trial

Some judges, prodded by your opponent, can make introducing exhibits into evidence a painful and embarrasing experience. The basics are outlined in this excellent primer published a few years ago by the Utah State Bar: "Trial Basics: Using Exhibits," by Francis J. Carney.

Experts in State and Federal Courts -- FRE 703 vs MRE 703

For those that practice in both state and federal courts, it is worth reminding litigators that the Federal Rule of Evidence governing the circumstances under which experts' opinions are admissible and Michigan's corresponding rule are significantly different. FRE 703 provides that the "facts or data" relied upon by an expert need NOT be admissible. Since 2003, however, MRE 703 says just the opposite, namely that the opinion of an expert must be based on facts or data that are not only admissible, but also actually admitted into evidence. LITIGATORS BEWARE!

U.S. Supreme Court Rules That FDA Approval Does Not Shield Drug Maker

The United States Supreme Court has upheld a $6.7 million verdict for a woman who had to have her arm amputated after an anti-nausea drug hit an artery and caused gangrene. Even though the drug carried a warning of this rare complication and the FDA approved not only the drug but also the warning, Justice John Paul Stevens, writing for the majority, said that the drug maker could "unilaterally strengthen its warning." Click here to read the opinion.

Got a Car Accident Case? Use Google Earth!

Several legal blogs have mentioned attorneys using Google Earth to show jurors the scene of the accident. It costs nothing and is an outstanding resource. Download it from this link and try it: http://earth.google.com

Michigan's Indexed Caps on Noneconomic Damages Increase to $401,500 & $717,000

The Michigan Department of Treasury has announced that the new caps on noneconomic damages in products liability cases where the product did not cause either death or permanent loss of a vital bodily function for 2009 is $401,500. The indexed cap in cases involving death or permanent loss of a vital bodily function is now $717,000.