It was the Ohio Supreme Court's turn last week to do what Michigan appellate courts have done several times over the past few years - wipe out a multi-million dollar verdict for one of Geoffrey Fieger's clients.
This time, it was a $30 million jury award for a 20-year-old man who was born with a damaged brain and other serious problems.
The reason the OSC brought the curtain down on the verdict? In part, it was Fieger's "theatrics" in the courtroom.
Now, the trial judge wasn't exactly blame-free either. As recounted by the OSC, the trial judge let Fieger's expert testify, over defense counsel's objection, about medical-care costs far in excess of the figure the expert provided in a written report. And then there was the judge's in-the-hallway off-the-record instruction to jurors, some of whom admitted they saw a newspaper article about the trial. The judge's on-the-spot attempt to unring the bell: he told the jury to disregard what they had read.
When the defense team demanded a new trial, the judge readily agreed. The OSC noted the trial judge's acknowledgement that his miscue with the expert allowed the jury to think about, and award, $15 million in economic damages. And the newspaper article? The judge said he had read it, too, and he could easily see how some of the jurors may have been itching to give Fieger's client a record-breaking award.
Another big influence on the jury, the trial court and the OSC agreed, was the man from Oakland County, Michigan and the way he conducted himself in court.
The OSC echoed the trial judge's observations that: Fieger was discourteous; there were plenty of theatrics; he interrupted defense counsel; he put his own words into the witnesses' mouths; he mischaracterized evidence to mislead the jury and he brought the forbidden issue of attorney fees into play.
In closing argument, the OSC said, Fieger dwelled on a spoliation-of-evidence claim, even though the trial judge had earlier thrown it out. And he cast the case as an epic struggle between a poor black guy and rich, powerful corporate interests.
In the end, the OSC said the jury did pretty much what Fieger asked: it looked at its $15 million economic damages award on the verdict form and wrote another $15 million in the space for punitive damages.
After the trial judge entered the order for a new trial, the plaintiff's team moved to disqualify him. Apparently, the trial judge had had enough and voluntarily recused himself from further proceedings.
Up in the Court of Appeals of Ohio, Eighth District, the
majority and dissenting opinions reveal that none of the judges were concerned about the trial judge's extracurricular handling of the newspaper article. The majority said Fieger hadn't objected and defense counsel apparently had a private chat with the trial judge about the article. They weren't about to reward a claimed error that defense counsel instigated.
The majority characterized Fieger's performance as zealous representation. "While we agree that plaintiff's attorney does not appear in the transcript to be the most likeable person, we do not find that his conduct rises to the level to justify the granting of a new trial." In contrast, the dissenting judge spent 27 pages detailing what she called Fieger's "manipulative trial technique" and "the extent of his outrageous melodrama" in his closing argument, which, she said, was enough by itself to warrant a new trial.
The majority said the defense team was not contesting liability on appeal, only the super-sized verdict. Because there was sufficient evidence to support the jury's liability finding, there was no need for a new trial. The majority conceded that there were problems with the expert testimony on damages.
Remittitur would be the correct remedy. And, "the trial court is in the best position to determine whether a damages award is excessive."
The OSC said the appeals court was looking at the wrong thing. It's not about whether there was sufficient evidence to support the jury's verdict. It's all about the trial court being in the best position to determine whether the jury's verdict "was excessive and given under the influence of passion or prejudice" and whether counsel's misconduct "tainted the verdict." The OSC ruled that if there's competent, credible evidence to answer "yes" to these inquiries, as there was in this case, the trial court does not abuse its discretion by ordering a new trial, and that decision "should remain undisturbed."
A dissenting justice sided with the lower appeals court majority on the issue of remittitur.
He also had this to say:
To order a retrial because of the obnoxious behavior of an attorney does our system of justice no favors - such behavior must be dealt with as it occurs, not after a judge decides that a party may have benefited from it.
The verdict should be knocked down to $10 million, the dissenter said. That's a lot closer to the evidence of economic damages.
And he closed with this zinger:
Should the plaintiff refuse the remittitur, he would be entitled to a new trial. Before that trial, it would be wise for the trial judge to deny any motion for admission pro hac vice filed on behalf of Mr. Fieger.
The case is
Harris v. Mt. Sinai Medical Center.
