Beverly Bowers sued Andrew Tillman for negligence. Tillman was driving a truck in Florida that collided with Bowers’ vehicle. Bowers contended that Tillman’s negligence caused painful injuries to her neck and back, including migraine headaches. The defense argued that those symptoms were caused by a preexisting condition.

At her initial trial, the lawyers for both sides engaged in gladiatorial behavior. They were rude to each other, sometimes in the presence of the jury. After five days of trial, the trial judge had enough and granted a mistrial.

The unprofessional conduct continued in the second trial. At the end of the trial, the jury awarded Bowers $58,248 for her past medical expenses and $27,300 in lost wages. The jury determined that her injuries were not permanent and awarded her nothing for future medical care or loss of earning capacity. Remarkably, the jury made no award for pain and suffering.

Bowers moved the trial court for a new trial. She based her motion in part on improper comments made by an expert witness for the defense. The judge denied the motion and Bowers appealed.

Defense Expert’s Comments

Dr. Robert Kowalski testified as an expert for the defense. Prior to trial, Bowers asked the court to exclude any testimony referring to matters outside the record. The court granted that motion. In particular, the court precluded any reference to the content of medical records that Dr. Kowalski had not seen.

The defense had complained that Bowers did not produce her chiropractic records. The court ruled that the defense could not speculate that the records would “show x, y, or z about the Plaintiff” or to argue “we just don’t know because the Plaintiff did not give them to us.”

Notwithstanding that order, Dr. Kowalski testified on direct examination that he believed certain records of Bowers’ chiropractic treatment would support his opinion that her injuries were caused by a preexisting condition. The records were not in evidence and Dr. Kowalski’s suspicions about their content were therefore unsupported.

Dr. Kowalski’s testimony was a blatant violation of the order limiting his testimony. Whether Dr. Kowalski was aware of that order was unclear to the appellate court, but ignorance is no defense. The insurance defense lawyer had a duty to instruct Dr. Kowalski to follow the court’s order. Whether the fault lay with the lawyer or the expert witness has no bearing on whether the improper testimony deprived Bowers of a fair trial.

Bowers objected to the testimony. The court sustained the objection and instructed the jury to disregard the comments. The court denied a motion for a mistrial.

Hidden Medical Record

Bowers originally claimed that certain abdominal symptoms were caused by the accident. She withdrew that claim well before trial. The court entered an order prohibiting reference to her abdominal issues.

Tillman’s attorney assembled a 140-page exhibit that purported to include medical and billing records related to Bower’s injury claims. In the middle of that exhibit, the attorney buried a single page from a urology record that related to the abdominal treatment. Bowers’ attorney did not notice that the page was included in the lengthy exhibit.

During his closing argument, the defense attorney placed the urology record on a screen for the jury to view. The attorney directed the jury’s attention to a urologist’s comment that Bowers’ attorney had referred Bowers to a chiropractor. After Bowers objected, the defense lawyer continued to display the exhibit to the jury until the court ordered him to shut off the display.

No other evidence at trial suggested that Bowers saw a chiropractor at the suggestion of her attorney. The court determined that defense counsel deliberately smuggled an improper exhibit into the compilation of medical records so that he could present otherwise inadmissible evidence to the jury during his closing argument. The court ordered the urology record to be removed from the exhibit, ordered defense counsel not to comment upon it further, and instructed the jury to disregard it.

Appellate Decision

As the appellate court recognized, Dr. Kowalski’s testimony about the presumed content of the chiropractic records bolstered his opinion about a preexisting condition. It was clearly improper to violate an order that was entered to protect Bowers from improper speculation about the content of records that Dr. Kowalski had never seen.

The improper testimony was compounded by defense counsel’s reference to a urology record that he buried in the middle of a compilation of medical records. The appellate court condemned counsel’s “gotcha” tactic and observed that lawyers, as officers of the court, have a special duty “to avoid conduct that undermines the integrity of the adjudicative process.” Defense counsel fell well short of fulfilling that duty.

In her motion for a new trial, Bowers argued that the trial court should take notice of other cases in which defense counsel had engaged in improper trial tactics that prompted a new trial. The trial judge decided that the bar association, rather than the court, should determine whether counsel had engaged in a pattern of misconduct. The appellate court held that the trial court did not err by basing its decision on the case before it rather than other cases in which defense counsel participated.

The ultimate question before the appellate court was whether the expert’s improper testimony, combined with the improper closing argument, deprived Bowers of a fair trial. The jury’s failure to award her any compensation for pain and suffering is strong evidence that the jury believed Bowers was unworthy of compensation. The improper expert testimony and closing argument would be a reasonable explanation of the jury’s conclusion.

The appellate court, however, decided that the trial judge was in the best position to decide whether the improper conduct probably had an impact on the jury. That’s true, but it is likely true that the trial judge didn’t want to preside over another contentious trial involving the same lawyers. The appellate court did not evaluate the trial court’s reasoning. It also failed to offer any alternative explanation for the jury’s failure to award damages for pain and suffering after awarding substantial compensation for medical expenses and lost wages. Whether the appellate court reached the correct result is difficult to determine when the appellate court defers to a decision that it fails to analyze.

Lessons Learned

A lawyer might be tempted to learn from the Bowers decision that introducing inadmissible testimony through an expert witness is the path to victory. A better lesson to learn is that lawyers jeopardize their reputations by engaging in sharp practices.

It isn’t clear whether the expert knew about the order limiting his testimony. It therefore isn’t clear whether the expert knowingly did anything wrong. It is nevertheless a lawyer’s duty to acquaint a testifying expert with limitations that a court has imposed on the expert’s testimony. A lawyer’s failure to do so places a favorable verdict at risk. While the improper expert testimony did not lead to a new trial in Bowers’ case, lawyers should never assume that eliciting improper testimony from an expert witness will have no consequences.