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Ted Frank (Overlawyered) Fact-Checks a Newspaper Article About a Large Tort Verdict,

and seems to find vast and important omissions (and some errors). Here's part of Ted's conclusion:

[I]n this case a complainant did win a small fortune after abusing a lawn mower in an extensively negligent way (if not as colorfully as the fictional hedge-trimmer), yet the story is sold to the public with barely a hint of that negligence as a tale of a "defective mower". It is far more common for a reporter to parrot a plaintiffs' attorney's fictional version of a case than to be fooled by a circulating e-mail account of fictional wacky lawsuits, but somehow the media is more likely to engage in soul-searching over the latter. This is just the story of one case I managed to fact-check with the assistance of about $10 in PACER searches. How many other media reports of lawsuits would yield similar surprises?

Here's the coda: it took me less than an hour of digging to find most of this out (including the name of the case as filed). I did not see any evidence in the piece that the reporter had even contacted the defense attorney for comment, even though the story was a lengthy feature piece, rather than a one-paragraph barebones summary.

te (mail):
Ted Frank thinks a newspaper article is incomplete, so he reads the defendant's experts reports. And, of course, since an experts report filed by one side in litigation is the incontrovertable word of God (at least for Mr. Frank when it is filed by the defendant, it seems) he criticizes the newspaper writer for leaving fact out.

Here's Wal-Mart's expert reports from their first and second experts; before you accuse me of being one-sided, the reason I'm not posting Burnside's accident expert reports is because she did not submit any in the docket

Hmm . . . why didn't Ted Frank contact the plaintiff's attorney to get the other side? This seems to be sort of sloppy one-sided approach that he criticizes the newspaper writer for.

Also, presumably Mr. Frank knows that an expert report may never be seen by the jury. Did Mr. Frank read the transcript of the trial to see what evidence was actually presented to the jury?

Suggesting that an expert report - which may never be presented to the jury - contains "the facts" is just silly.

and ask for a rebuttal?
8.30.2006 2:09pm
alkali (mail) (www):
te writes:

Did Mr. Frank read the transcript of the trial to see what evidence was actually presented to the jury?

Transcripts of this kind are frequently not available online.

As I read that piece, TF is not purporting to claim that he definitively knows what happened in the lawnmower accident; rather, he is pointing out that public records readily available show that there is another side to the story that wasn't presented at all by the reporter. (Presumably te would say something along the same lines with respect to TF's blog post if I asked whether te had read the transcripts.)

Another reason everyone who is interested in lawsuits should get a PACER account so that they can read court documents for themselves.
8.30.2006 2:40pm
e:
He's got a point, but it seems more reasonable to relate the winning side's story than try to equally balance perspectives after the fact-finder has presumably rejected or discounted the losers arguments. Media shouldn't have to re-try cases.
8.30.2006 2:57pm
Richard Aubrey (mail):
The interesting thing is that the reporter didn't seem to see the problem.

SOP, I guess.

Nice to have that confirmed, yet again.

A reporter did something of the kind and made my then-high school daughter look like a doofus. The AP picked it up. The rowback was, of course, nearly invisible and the AP didn't pick that up.

One of these days, I'm going to meet somebody who says he's a reporter. And I'll say, "No kidding. What do you tell your parents?"

Dumb bastards.
8.30.2006 2:58pm
Cheburashka (mail):
Actually, Frank's piece is not even consistent with the expert reports. Examples:

1. Frank claims that there is evidence that Wal-Mart didn't sell the mower, because it was heavily modified. Actually, the issue according to the expert reports is whether Wal-Mart sold the mower in 1998 or in 2000; the "modifications" were little more than a replaced battery and spark plugs, and the defendant did not claim that those modifications played any role in the accident.

2. Frank claims that there was evidence that the lawn was just too steep. Well, yes - but only by two degrees; the "safe" slope according to the manual was 15 degrees, and the lawn was 17 degrees.

So, neither the court rulings nor the press article seems particularly inaccurate.
8.30.2006 3:02pm
MnZ (mail):
te,

Many people don't have faith in the court system because they hear one sided accounts of the case. Suppose this case is overturned on appeal. Someone who has only read the one-sided account might be inclined to assume that the Appeals Court was corrupt or unjust.
8.30.2006 3:03pm
te (mail):

Transcripts of this kind are frequently not available online.

Of course. But he could have called the plaintiff's attorney - I found him as the 1st listing when I Googled his name and "Charleston West Virginia" to get his response to the defendant's expert's report. And he may have been able to get the transcript directly from either the plaintiff's or defense attorney. (I don't know how it works in WV, but in California we usually get at least rough transcripts e-mailed to us at the end of every day of court.)

When I read through the actual newspaper article, it seems that it was mostly a human interest piece about how the injured woman had been affected, etc. If the is a jury verdict it doesn't seem improper to me for the report to accept the "winner's" version of the trial. But if - like Ted Frank - we need to know all of the details - it seems like getting the details should stop at reading expert reports from one side without getting a rebuttal of that.

In short, the newspaper writer may have done a half-assed job in reporting both sides, but Frank's aproach was half-assed, too.
8.30.2006 3:09pm
te (mail):
MnZ

Many people don't have faith in the court system because they hear one sided accounts of the case.

Agreed. But it seems that Frank's approach is to fight inaccuracy with his own propaganda, which doesn't make anything better.
8.30.2006 3:12pm
Hans Bader:
Reporters are sometimes so dumb about the law that they will quote from a complaint as if it were gospel truth just because it was filed in court.

They will write things like "court documents show" or "according to court records" when they are really just quoting unproven, unsupported allegations from a complaint.

They are particularly likely to do this in cases where a temporary restraining order is sought by one person against another. The idea that the underlying allegations might be false (an idea consistent with the presumption of innocence) is simply foreign to some reporters.
8.30.2006 3:25pm
Steve:
Someone who has only read the one-sided account might be inclined to assume that the Appeals Court was corrupt or unjust.

And someone who only read Ted Frank's account might be inclined to assume that the actual result was unjust. Which is the entire point, of course.
8.30.2006 3:30pm
te (mail):
But Franks seems to be criticizing the newspaper report for only getting ½ of the story so, in response, Frank purports to get the other ½. First of all, I don’t know what fantasy world Ted Frank lives in if he thinks that a defendant’s expert report gives an accurate, unbiased version of reality.
But if Frank is at all concerned with reality, why didn’t he try to contact the plaintiff’s attorney to get a response to the lop-sided assertions in the defendant’s expert’s reports? Frank talks about how easy it was to do a pacer search for only $10 and uncover all of the infto from the defense side. Well it was even easier to send an e-mail to the plaintiff’s attorney (free) and here is what he responded. He gave me permission to quote so I am going to intersperse his e-mail with some specific assertions Frank makes. Frank's quotes are in block quotes and snipped I pulled from the plaintiff's attorney are in regular type:

1) There's substantial physical evidence that Wal-Mart didn't even sell the lawn mower.

The mower was purchased from Wal mart because we had a sales receipt.

2) The mower itself had been substantially modified, with a different battery, spark-plugs, paint, as well as labels from local garages, though Burnside testified there had been no modifications.

As far as any alterations to the mower the defendant's expert said that if there were any, such as the question about the seat, they didn't cause or contribute to the accident.

3) Indeed, Burnside's lawn was too steep to be safely mowed with the riding mower, which had extensive instructions for determining whether an area was steeper than 15 degrees.

Our expert testified and measured the area where this happened it it was I believe 11 degrees which is in the safe range to mow.

Furthermore, one is supposed to mow on a hill in an up-and-down motion; Burnside says she had her accident making a right-turn uphill after mowing from side-to-side.

This rollover occured while she was headed up hill, which is the way the instructions say to mow, after she made a turn. In this case the mower started sliding backwards and felt like it was going to turn over.

Most importantly, Burnside was aware that her late husband had had two separate accidents where he overturned a riding mower trying to mow that portion of the lawn!

He had rolled a different mower(which is why they bought this one) but on another piece of the property. There had been no previous problems with any mower on the piece of property where the accident happened.

Nevertheless, the court refused to give the jury an assumption-of-the-risk instruction.

We all offered a bunch of instructions(Wal mart offered an assumption of the risk) and the Court reviewed them and told us we could offer only a limited number of instructions and Wal Mart did not offer an assumption of the risk with the limited amount of instructions and did not object to the court not allowing one from the first set.

4) Too, the physical evidence was inconsistent with the story of the mower "rolling over three times."

That is what an eye-witness testified to.

XXXXXXXXXXXXXXXXXXX
I understand that Ted Frank is primarily interested in spouting whatever tort reform information he can to please his corporate paymasters over at the American Enterprise Institute and doesn't really care what happened here. But if you are going to beat the drum for truth and accuracy, you should do a little homework.
8.30.2006 3:48pm
Cheburashka (mail):
Well, the attorney's comment seemed pretty misleading.

One issue that could have been raised in the case (was it?) based on the expert reports was whether the mower had been improperly maintained; it seemed pretty plain that the mower had, in fact, been purchased in 1998 and the repaired several times, and perhaps was long overdue for additional work.

Another is that the 35-feet story (the eyewitness was the plaintiff's son) is plainly bunk.

But both of those issues seems consistent with the conclusion of shared (75/25) responsibility. Perhaps we think the responsibility percentages should have been different, but so what?
8.30.2006 3:58pm
te (mail):
And, just to be clear, the comment after the XXXs in my post was by me, not by the plaintiff's attorney
8.30.2006 4:08pm
bob montgomery:
The mower was purchased from Wal mart because we had a sales receipt.

2) The mower itself had been substantially modified, with a different battery, spark-plugs, paint, as well as labels from local garages, though Burnside testified there had been no modifications.

As far as any alterations to the mower the defendant's expert said that if there were any, such as the question about the seat, they didn't cause or contribute to the accident.


I'd be more interested in hearing his response to the finding that most of the tires were underinflated (or flat) and loose on the rims (!) plus the evidence that the mower had been used on wet ground, contrary to the safety guidelines for that mower.

And the dispute about where and when the mower was bought, and the finding that the mower had had work performed on it, along with minor modifications (including the wrong spark plugs), seem significant in light of the fact that the woman claimed:
a) to have bought a 1998 mower from Wal-Mart in 2000, and
b) they didn't give her an owner's manual, and
c) it had hardly been used before the accident, and
d) it had never had work performed on it.

The whole thing seems fishy to me.
8.30.2006 4:21pm
Cheburashka (mail):
Of course its fishy - its the plaintiff's claims in a tort case.

But even if the plaintiff was lying as to each and every one of those issues, and even if the jury found that she was lying as to each and every one of those issues, they are entirely consistent with the jury's conclusion that she was 75% responsible for her injury.

Remember, the plaintiff's basic but-for theory was this: The mower should have been rigged to shut off very quickly as soon as a human being got off of it.

Mower-self-maulings were at one time quite common, and most mowers now include auto-shutoff safety features precisely because of the high rate of personal injury claims. It is not a dumb claim at all to assert that the mower's safety features were inadequate. While not as common as they were, people still get cut up by their own mowers all the time.
8.30.2006 4:32pm
Cheburashka (mail):
Should have been "that she was 25% responsible for her injury."
8.30.2006 4:33pm
JosephSlater (mail):
I don't have any personal knowledge of this case, so I won't comment on it. As a torts prof., I will say, however, media and popular culture coverage of torts cases in general, if anything, errs on the "tort law is outrageously pro-plaintiff" side. For example, compare what your average beginning 1L (or person on the street) THINKS happened in the McDonalds coffee case, with what ACTUALLY happened.
8.30.2006 4:34pm
The Navigator (mail):
The jist of the post by Frank, I take it, wasn't to debate the merits of the case, but rather to criticize the paper for not reporting the defense's spin on the matter. But here's the thing: the defense lost. There was a big plaintiff's verdict. e above in comment #3 has it right - it's not the media's job to retry cases. There was a factfinder here, and the plaintiff's case survived (I'm certain) a motion to dismiss, a motion for summary judgment, and a trial with the burden of proof. I wouldn't mind seeing articles that placed the legal system into greater context for the lay public - e.g. "there is always a chance that the verdict will be overturned by the court of appeals" - but te is quite right: Frank isn't trying to promote accurate, dispassionate reporting; he's just ticked off that the newspaper found an angle on a case that went to verdict and declined to reprint the defense spin, or to baldly assert that the trial judge made erroneous rulings and overlooked obvious evidence.
8.30.2006 4:38pm
David M. Nieporent (www):
Te,

If you'd stop with your usual "My opponents are evil so the facts don't matter" line of argument, you'd see how little sense the plaintiff's lawyer's story makes. According to the plaintiff's version, the woman was mowing straight uphill, not sideways.

1. How did the mower "roll over" if it was going straight uphill? Did it suddenly leap into the air and do a backflip?

2. How did it roll over "sideways" if it was going straight uphill? If an object is going uphill, wouldn't it slide or roll backwards?

3. How did the woman end up on the hill behind the mower if it was going straight? If you felt the mower was slipping and you jumped off, you'd be next to the mower, not behind it.

4. How did the mower (a) slip, and (b) roll over, if the hill was nearly flat?

And then let's use a little common sense, rather than relying on the rather non-disinterested eyewitness, okay?

A. The mower is not safe to ride side-to-side.
B. The woman rode it side-to-side.
C. If the woman was injured when she rode it side-to-side, she would likely not be able to recover (or her recovery would be significantly reduced).
D. Magically, the mower was perfectly fine, didn't slip, slide, or roll, when she was riding it side-to-side.
E. But as soon as she turned it straight, THEN it rolled over. Wow, lucky her.
F. Yeah. And here's some nice swampland I'd like to sell you. Maybe Joyce Burnside can mow it for you.


Oh, and as for his claim that "we had a sales receipt," somehow that fact did not make it into the pretrial order. Check the list of exhibits. It ain't there.
8.30.2006 4:42pm
Bruce:
The Charleston Gazette is the "mainstream media"? How big does your circulation have to be before you're "mainstream"? Does VC count?
8.30.2006 4:48pm
te (mail):
Nieporent - please feel free to offer whatever speculation you want about the trial and what you believe the facts to be. I wasn't there - haven't read the transcript (and I doubt that you have) so I don't know what evidence went in.

All I know is that the supposedly damaging information uncovered by Mr. Frank's intrepid research was easily rebutted by a quick e-mail to the plaintiff's atty.

The point being that thank god that we have juries who actually hear evidence before they get to offer a verdict - unlike so many after the fact commentators.
8.30.2006 4:51pm
markm (mail):
It sounds to me like Frank already had the plaintiff's side from the newspaper article (short of waiting for transcripts to arrive by mail, probably after paying a per-page charge for them). He spent a few minutes looking for the other side, and found those expert reports. The reporter didn't. Remember, Frank isn't getting paid for researching stories. What do reporters do for their salaries, if it doesn't include a few minutes of research on a feature story? And why should anyone pay for the newspaper if a free story from a web free-lancer is as likely to be complete and accurate?

This case also points up the absurdity of the emphasis tort lawsuits have put on warning stickers and warnings in the manual. It's not just that manufacturers have loaded up their manuals with warnings against every idiotic misuse they could think of until no one reads any of the warnings - but that mower was over 10 years old, had been serviced many times, and was being operated by a new owner for the first time. It's likely that the plaintiff never saw a manual and any warning labels on the mower itself had worn off or been painted over. On the other hand, I knew that driving a tractor sideways on a steep hillside was unsafe before I was 10 years old.
8.30.2006 5:01pm
markm (mail):
"it seems more reasonable to relate the winning side's story." When the winning side was found 25% responsible, I'd wonder about what they left out that made the jury think that they shared any of the blame.
8.30.2006 5:03pm
Houston Lawyer:
Wow, a plaintiff's attorney gives statements supporting his client's case. Must be right then.

As was noted above, reporters are idiots. They report whatever "facts" best fit their world view. Facts they know they can't prove are insinuated.
8.30.2006 5:04pm
JohnAnnArbor:

was easily rebutted by a quick e-mail to the plaintiff's atty.

And we all know those guys never exaggerate, like, lining up tens of thousands of people and saying all of them were affected by asbestos.

Just to pick an example.
8.30.2006 5:07pm
te (mail):

And we all know those guys never exaggerate,

Well, I don't think they necessarily exaggerate any more than defense experts do. Do you?
8.30.2006 5:11pm
te (mail):

He spent a few minutes looking for the other side, and found those expert reports. The reporter didn't. Remember, Frank isn't getting paid for researching stories. What do reporters do for their salaries, if it doesn't include a few minutes of research on a feature story?

Well, if according to what the plaintiff's attorney said the was a contrary argument to every "discovery" that Frank made in the defense documents.

And, since presumably the jury heard all of this - they decided to believe more of the plaintiff. Do you think that the reporter should have regurgitated all of the arguments that had, apparently, been discounted or disregarded by the jury?
8.30.2006 5:13pm
bob montgomery:
As near as I can tell, te, your argument is:

We don't know the facts, but a jury heard them and found for the plaintiff, therefore the plaintiff is in the right.

Well, forgive me, but I don't hold our eminent legal system in such high regard.

A woman who drives a poorly maintained riding mower unsafely across the face of a hill, that was possibly too steep and possibly wet, and then hurts herself in the process, and then proceeds to sue, not the manufacturer of her mower (since they apparently have no money to give her), but Wal-Mart, who *may* have sold her the mower, and tells a bunch of embellishments or what seem to be lies in her statements to the court - she gets $1.8 million out of this? This is justice?
8.30.2006 5:29pm
JohnAnnArbor:

This is justice?

To te and the rest of the trial lawyers, it's justice when the get their percentage of the money extracted from the defendents and/or their insurers. Anything else is "injustice."
8.30.2006 5:40pm
David M. Nieporent (www):
Well, if according to what the plaintiff's attorney said the was a contrary argument to every "discovery" that Frank made in the defense documents.
The pretrial order is not a "defense document." It's a joint document. The plaintiff, contrary to what the plaintiff's attorney said to you in an email, did not identify any "receipt" as evidence in that document.
And, since presumably the jury heard all of this - they decided to believe more of the plaintiff. Do you think that the reporter should have regurgitated all of the arguments that had, apparently, been discounted or disregarded by the jury?
Well, your claim about the jury's decision is false. If they had disregarded all of Walmart's arguments, then she would have recovered 100%. If she only recovered 75%, then the jury believed at least some of Walmart's arguments. So, yes, the article should have at least presented those arguments. It did not. That was Ted's point.
8.30.2006 5:59pm
David M. Nieporent (www):
Frank claims that there is evidence that Wal-Mart didn't sell the mower, because it was heavily modified. Actually, the issue according to the expert reports is whether Wal-Mart sold the mower in 1998 or in 2000; the "modifications" were little more than a replaced battery and spark plugs, and the defendant did not claim that those modifications played any role in the accident.
The point isn't that the modifications played a role; the point is that the modifications, along with the other evidence, call into question whether she purchased it at Walmart. There was no claim that it was sold in 1998. The woman claims she purchased it in 2000, even though it was apparently a 1998 mower, as if Walmart had it sitting around somewhere. She claims she bought it new. And according to the expert, in addition to a sticker showing it had work done on it (which the plaintiff denied), in addition to the battery and spark plugs, it was missing hubcaps. The woman further claims she didn't get a manual. Twice. That strongly suggests that they bought it used somewhere, not from Walmart.
8.30.2006 6:00pm
te (mail):

As near as I can tell, te, your argument is: We don't know the facts, but a jury heard them and found for the plaintiff, therefore the plaintiff is in the right.

No. We don't know what the facts are because we didn't hear the evidence. Most tries are about competing evidence and facts and I think that people - especially lawyers - should be very hesitant to opine about whether a verdict was or was not right unless they know what the evidence was.

You'll notice the original post above talks about "vast and important omissions". When you bother to get the plaintiff's side of it, you see that in every instance those omissions were either irrelevant or wrong.

Of course, the plaintiff's lawyer here has an interest. So does Ted Frank who makes a living carping about the evils of plaintiff's lawyers.

So that puts us back to to the fundamental fact that the jury heard this stuff and made a decision.

A woman who drives a poorly maintained riding mower unsafely across the face of a hill, that was possibly too steep and possibly wet, and then hurts herself in the process, and then proceeds to sue,

This does appear to be Walmart's argument. I guess I don't see why you think it is more believable than the plaintiff's version.

I don't know WV law, but in many jurisdictions, sellers of dangerous products bear the same liability as manufacturers of the products.


This is justice?

I don't know. But it seems to me that both sides had their arguments and the jury heard the evidence and found one more credible than the other.
8.30.2006 6:01pm
te (mail):

The pretrial order is not a "defense document." It's a joint document.

Frank cites to the defense expert reports.

The plaintiff, contrary to what the plaintiff's attorney said to you in an email, did not identify any "receipt" as evidence in that document.

Why do you believe he is required to? Even if he was and did not - do you have any reason at all to believe that plaintiff did not produce evidence of a receipt at trial?


Well, your claim about the jury's decision is false. If they had disregarded all of Walmart's arguments, then she would have recovered 100%.

That's just absurd. I never said they disregarded "all" of Walmart's arguments. My wild guess would be that the jury thought that the product was defective since it didn't shut off after 5 seconds as required by the ANSI standards AND that the plaintiff was also negligent somehow - and then pegged it at 75/25.


If she only recovered 75%, then the jury believed at least some of Walmart's arguments. So, yes, the article should have at least presented those arguments.

So what is your proposed rule of journalistic ethics here? Anytime one writes a human interest story that references a jury verdict that the reporter is required to go back and summarize the defense and plaintiff's points from court documents?
8.30.2006 6:08pm
te (mail):

That strongly suggests that they bought it used somewhere, not from Walmart.

And the purpose of a trial is to have a jury listen to the evidence - including the evidence that "strongly suggests" something and decide who they believe.

William Buckley once said that he would prefer to be governed by the first 400 names picked out of a phone book as opposed to the faculty of Harvard. (Probably mangling that quote)
I would prefer to have facts determined by 12 people rather than commentators in legal blogs who don't have a clue about what the actual evidence was.
8.30.2006 6:11pm
David M. Nieporent (www):
Frank cites to the defense expert reports.
And to the pretrial order, something you "forgot" to mention.

Why do you believe he is required to? Even if he was and did not - do you have any reason at all to believe that plaintiff did not produce evidence of a receipt at trial?
I'm beginning to think you don't know what a pretrial order is.


So what is your proposed rule of journalistic ethics here? Anytime one writes a human interest story that references a jury verdict that the reporter is required to go back and summarize the defense and plaintiff's points from court documents?
Well, yes. (And calling it "human interest" doesn't mean the standards for a news story don't apply.) Or -- and here's a thought -- he might talk to both sides in the case. (Note that there's not even a perfunctory attempt here, no "Walmart declined comment.")

You keep trying to claim that the reporter isn't obligated to report both sides because the jury believed the plaintiff, so the reporter is entitled to presume that the "winner's version" is correct. But your claim is simply false. The jury partly believed the plaintiff. They partly did not. Even if your theory that a reporter is ethically entitled to substitute a jury verdict for objective reporting is valid, it's inapplicable here. The jury partly believed Walmart/disbelieved her.
8.30.2006 6:38pm
te (mail):

I'm beginning to think you don't know what a pretrial order is.

I've written enough proposed pretrial orders to know that usually each section often has a "defendant's" version and then a "plaintiff's version." And lo and behold, the "no receipt" thing is in the defendant's version. Plaintiff does not address it.

I am sure your expertise in drafting of proposed pretrial orders far outstrips mine, but I never understood them to be a tit of tat recital of every contested fact.

And, anyway, presumably Walmart's attorneys weren't drunk or incompetent and they managed to point their assertions re the lack of a receipt out to the jury. Wonder why the jury wasn't persuaded?

You keep trying to claim that the reporter isn't obligated to report both sides because the jury believed the plaintiff, so the reporter is entitled to presume that the "winner's version" is correct. But your claim is simply false.
8.30.2006 7:24pm
te (mail):
Sorry for the double post . . .

You keep trying to claim that the reporter isn't obligated to report both sides because the jury believed the plaintiff, so the reporter is entitled to presume that the "winner's version" is correct. But your claim is simply false.

Your analysis is overly simplistic. The jury may have believed every word that plaintiff said and still determined that she was 25% at fault. Allocation of fault related to but not synonymous with credibility.

And, while it seems you dislike the verdict, it is what it is. Same as when someone is convicted of a felony, they are a felon. The report isn't obligated to write "Convicted felon XYZ" and then add "(who strenuously denied his quilt at trial and produced several eyewitnesses who placed him in another county when the robbery took place, and who contended that the DNA evidence against him was tainted)"
8.30.2006 7:28pm
srp (mail):
Some of us understand that juries are not psychologically reliable triers of fact in product liability cases. What is their incentive to override their emotional sympathy for an injured person in favor of a large, impersonal corporation? The answer is that they have none. Systematic skepticism about jury verdicts in favor of sympathetic injured people and against large impersonal organizations is just common sense.
8.30.2006 7:56pm
David M. Nieporent (www):
I've written enough proposed pretrial orders to know that usually each section often has a "defendant's" version and then a "plaintiff's version." And lo and behold, the "no receipt" thing is in the defendant's version. Plaintiff does not address it.
1. You're only looking at the narrative recital. Both parties identify the question of whether she bought the mower at Walmart as a disputed question. (See 7.I.A.1 and B.1.)

2. I don't know why you're looking at those sections, rather than at the exhibits section of the order (You know, the place where they list their exhibits?) since my point was not whether the fact was disputed, but whether the attorney was telling the truth when he said he had the receipt to prove it.
I am sure your expertise in drafting of proposed pretrial orders far outstrips mine, but I never understood them to be a tit of tat recital of every contested fact.
Well, I hope your clients don't read that. Or I hope you don't practice in federal court. (Relevant language from the Local Rules applicable here: "in all cases, for each party, a single listing of the contested issues of fact; and a single listing of the contested issues of law, together with case and statutory citations;")

Wonder why the jury wasn't persuaded?
Well, I can't answer that. Maybe Walmart put on a bad case. Maybe she was very credible. Maybe they saw deep pockets and a terrible injury and just didn't care. But I can point out that if juries didn't sometimes make mistakes, we wouldn't have JNOV.

I didn't say (neither did Ted, for that matter) that she definitely didn't buy it at Walmart. Just that it was disputed and there's evidence she didn't, and that there's evidence that the plaintiff's attorney was not being candid in his email.

Your analysis is overly simplistic. The jury may have believed every word that plaintiff said and still determined that she was 25% at fault. Allocation of fault related to but not synonymous with credibility.
Yes, that's true; I was oversimplifying in a blog comment. But that misses the overall point here: the article in question (the actual topic of this blog entry) does not portray her as 25% at fault. It doesn't portray her as having done anything wrong. If you're relying on the jury's findings (or, rather, if you're arguing that the reporter is entitled to rely on the jury's findings) then one must rely on all the findings, not a misleading subset of them.

If someone is convicted of a felony, he is indeed a felon. But if he's convicted of some counts and acquitted of others, one shouldn't simply repeat the government's narrative of how he has done all of these bad things without even noting that he was acquitted of some of their charges. And if he presented an alibi which pertained to some of the charges, and he was acquitted of those charges, then the reporter certainly should note that.

You want to turn this discussion into a referendum on the trial. And I do think there were problems with the trial. But while Overlawyered often presents cases where it believes the lawsuit is frivolous, in this instance, the point of the blog post was that the media do a poor job reporting on cases. There'd be no reason to believe she was contributorily negligent, from that hagiography that the reporter provided. But she was, and that should have been noted.
8.30.2006 8:18pm
Christopher Cooke (mail):
The title of Mr. Franks' blog entry is "Fact-checking the mainstream media (lawsuit division)." Yet, he points out no conclusive evidence that the reporter misreported any facts. Indeed, all he does is recite the defense expert's report, which the jury heard and presumably largely disregarded (not entirely, as the jury found the plaintiff 25% at fault). So, I am not sure what Mr. Frank's point was, other than to create suspicions about the correctness of the jury's verdict, by rehashing the losing defense arguments. Maybe Mr. Franks and Wal-Mart are right, and the plaintiff should have lost, but the jury didn't think so, and the judge didn't think so, and Wal-Mart, apparently, didn't feel too confident in its case, as evidenced by the fact that it dropped its appeal after a mediation session at the 4th Circuit, which is hardly a vote of confidence by it (an appeal costs much less than the $1.8 million verdict, so why didn't it let the 4th Circuit rule if it thought it had a good one?) I presume that Wal-Mart decided it had only fact issues, not decent legal ones, which is why it dropped the appeal. If so, that would explain why the judge denied the motion for judgment as a matter or law, and presumably the JNOV motions. In short, I am not "troubled" by this case, at least not by what I have read so far.
8.31.2006 12:37am
Ted Frank (www):
Christopher, there are book-length treatments of cases where the plaintiff lost. E.g., A Civil Action. That the legal system makes a determination does not mean that there are not interesting facts beyond the final decision.

I don't know whether the defense expert reports are correct. They make arguments that seem plausible, based on physical evidence, and that the plaintiff never responded to in writing in court documents. In short, either the defense experts are lying about physically observable evidence (which I concede is possible, but I haven't seen any indication of, and the negative pregnant in drahthaar@gmail.com's correspondence with the plaintiff's attorneys seems to indicate otherwise) or the plaintiffs are lying (but then why did they tell their ER doctors a different story than they told the jury?). The jury may have believed the eyewitness evidence over the contradictory physical evidence, which wouldn't be the first time, but it hardly makes the decision correct. SRP's analysis is spot on.

If there was a battle of the experts, it's an example of a case where a neutrally appointed expert could have been used: are trials truth-seeking affairs, or are they reality-tv game shows where the best and most sympathetic performance wins?

Wal-Mart had more than $1.8 million at stake in the appeal, because the judge awarded several years of pre-trial interest. A victory on appeal would mean a new trial in West Virginia, perhaps in front of the same plaintiff-friendly judge who couldn't be bothered to write down any reasons why Wal-Mart's motions were denied.

Drahthaar@gmail.com criticizes me for not calling the plaintiff's attorney. But I already had the plaintiff's attorney's story in front of me in a three-web-page newspaper article. I acknowledge that I only did an hour of research on this story. But the point of my post is that I found out more about the case between 9:30 and 10:30 pm (including every substantive document about the evidence in the case on the docket) than the reporter did in the course of one-sided reporting. Writing about cases on Overlawyered is a hobby. If I get a chance later this week, I'll contact attorneys to try to dig up what someone else claims to be the plaintiff expert report. The transcript is not available on-line except to court personnel, but I don't need the transcript to determine that there was more to the story than was reported.

Cheburashka: the plaintiff claims that the mower was purchased new in 2000, and used a grand total of sixteen times before an accident where it failed to comply with ANSI standards. The physical evidence wasn't consistent with any of those claims, which makes one suspect that the plaintiffs aren't telling the truth in other regards. David Nieporent gives a very good list of counter-evidence that by itself is persuasive, and even that list is incomplete.

I find it extraordinarily disturbing, but not at all surprising, that Joseph Slater teaches torts and thinks of the McDonald's coffee case as anything other than the tort system run amuck. It makes me fear for the legal profession that a generation of law students is being taught that Stella Liebeck v. McDonald's is an aspirational case, rather than an embarrassment. But I've written plenty about this case at Overlawyered, and won't rehash the debate here.
8.31.2006 9:56am
JosephSlater (mail):
Since I was called out by name, I will repeat that the McDonald's coffee case is indeed an excellent example of how folks that want you to think that the tort system is absurdly pro-plaintiff have left people with impressions favoring that view, and often in a misleading way. This is not some conjuring of my personal pro-plaintiff imagination. There's a good summary of the case in the casebook from which I (and many others) teach [Dobbs, Hayden, Torts and Compensation, p. 14-15].

In short, the coffee was hot enough to inflict third degree burns, and plaintiff was permanetnly disfigured. McDonald's intentionally kept its coffee hot enough to inflict such burns and knew of at least 700 people who had been burned. Plaintiff originally asked for $11,000 to cover her hospital bills, but McDonald's resused. In the trial, the jury found that McDonald's was reckless and malicious in keeping the coffee unnecessarily hot when it was aware it could do great harm. The jury also found plaintiff was partly at fault, but it awarded $ 2.7 million, designed for deterrence (it was the equivalent of two days of sales of McDonald's coffee), but the judge reduced the punitive award to $480,000, leaving a total award of $640,000.

One can debate various aspects of this case. I don't intend to any further, because my point involved what popular perceptions of the tort system are. It is clear to anybody that teaches torts that students start out thinking this case is incredibly "outrageous"; they then learn more about the actual facts, and realize that it's a quite a bit more nuanced. The first part of this process is a testament to the abilities of people like Mr. Frank to get their message across that the tort system is "out of control" in a pro-plaintiff way.
8.31.2006 11:15am
Ted Frank (www):
Professor Slater regurgitates ATLA's version of the McDonald's coffee case with little care whether it's an accurate statement of the facts or the law, much less sensible public policy, thus proving my point if that's what he communicates to his law students.
8.31.2006 12:07pm
Steveo987 (mail):
Ted-
You should probably stop the Google-bombing, lest you look like a propagandist.
8.31.2006 12:34pm
te (mail):
Frank writes:

Writing about cases on Overlawyered is a hobby.

Hardee har har. Frank is a paid corporate mouthpiece over at the American Enterprise Institute. For him to suggest that he just writes about these things as a hobby is a hoot.

But, on to the substance, such as it is. I ask why he didn't bother to contact the plaintiff's attorney. His response: The plaintiff's side was already presented in the newspaper article. Think about that for a minute and let the idiocy sink in. Frank's whole beef is that the newspaper reporter didn't do enough homework and presented incomplete facts. But, apparently, this sloppiness and inaccuracy was limited only to not reporting facts about the defendant's version (which was rejected by the jury, by the way.)

Frank completely misses the point anyway. He regurgitates the defendant's expert's opinions. That is why he should have contacted the plaintiff's attorney - to get a response to those assertions. To criticise some journalist for being sloppy while doing such laughably half-assed reporting himself is just silly.

Of course, everyone knows that Frank is just trying to earn his keep as a propagandist for tort-reform and that he dosn't give a crap about what really happend in the case or in the reporting.
8.31.2006 2:04pm
te (mail):
And, finally, notice how wonderfully content free his post actually is.

He trumpeted the fact that there were modifications to the lawnmower. The plainiff's atty said that the defense expert conceded that none of these alleged modifications had anything to do with causing the accident. Frank doesn't address that.

So much for his attempts at being a reporter.
8.31.2006 2:06pm
JosephSlater (mail):
Professor Slater (me) was actually simply quoting the summary of the case from a leading Torts casebook, as indicated in the original message.

Again, the point is not what anybody should think once they know all the facts. The point is that most students are much more likely to have in their heads a version of the case which is much more exclusively pro-defendant before they encounter any actual description of it. That's because -- again -- folks like Mr. Frank are extremely effective in getting their versions of cases into the media and popular consciousness.
8.31.2006 2:16pm
Ted Frank (www):
1. Professor Slater: When I google "McDonald's coffee case," eight out of the top ten links regurgitate ATLA propaganda falsely claiming the case is reasonable. Yet somehow, it's reformers who are guilty of "getting their version of cases into the media and popular consciousness," even though Professor Slater, who teaches the subject, seems utterly unaware that thirteen out of fourteen reported cases alleging theories identical to Liebeck threw out the case because of its violations of fundamental principles of tort law. Reformers happen to be correct that the Liebeck case is an outrage; that there are tort-law casebooks and professors that suggest otherwise proves my point where the bias is in the academy. (Compare: How many tort-law professors spend time debunking the myth of the exploding Ford Pinto?)

2: TE/TD/drathaar@gmail.com misses the point once again about modifications to the lawn-mower. The plaintiff falsely claimed that the mower was bought new, used only 16 times, and had never been modified. The modifications are evidence that the mower wasn't purchased at Wal-Mart and the plaintiff's story is false.

I uploaded and linked to every substantive document filed in the case. TE/TD/drathaar@gmail.com's claim that this is one-sided ignores this fact. And I never claimed to be a reporter, so TE/TD/drathaar@gmail.com's accusation that I have failed to be one seems rather irrelevant, even if one accepted his premises that I failed to give a balanced presentation by recounting everything that was found in the docket.

Overlawyered is a hobby. I wrote for Overlawyered for years before my first day at AEI. If I told Walter Olson I was not going to write for his website any more, it would have no adverse consequences with my employer.

TE/TD/drathaar@gmail.com/[**] continues to make ad hominem attacks (in violation of Volokh Conspiracy comment rules) while hiding behind anonymity. I leave to others the irony of this. [**: I removed te's IP address, which strikes me as irrelevant to the discussion. -EV]
8.31.2006 3:00pm
te (mail):

The modifications are evidence that the mower wasn't purchased at Wal-Mart and the plaintiff's story is false.

What nonsense. These modificaitons include things like different spark plugs. So if you replace the spark plugs that proves you didn't buy the mower at Wal-Mart. Thank god we have juries who hear this other than people like Frank who are so desperate to promote their employer's agenda that they ignore reality.

I uploaded and linked to every substantive document filed in the case. TE/TD/drathaar@gmail.com's claim that this is one-sided ignores this fact.

Uh, my claim is that you should have called the plaintiff's attorney since instead of just parroting parts of the defendant's report. Nice try at dodging the issue.
8.31.2006 3:08pm
Ted Frank (www):
1) It's worth noting that the plaintiff's attorney's e-mail has at least two lies: "Wal Mart did not offer an assumption of the risk with the limited iamount of instructions and did not object to the court not allowing one from the first set." This is absolutely false on both claims. See page 9 of the motion for new trial, linked to from the Overlawyered post.

2) Thus the jury didn't reject the defense claims—they never considered the defense claims because the judge twisted the instructions to prevent Wal-Mart from making its defense.

3) Spark plugs do not need replacement after sixteen uses. And it's not just spark plugs that's evidence of extensive use, as you're well aware.

4) Plaintiff's attorneys don't answer the phone at midnight, which is when I wrote the post, and I had no reason to contact the plaintiff's attorney to make the point in my article. I uploaded and linked to every single substantive document he filed with the court, and already had access to the press release the reporter published. My point was to show how much information could be divined in an hour with very little effort, to show that even a relatively lazy reporter could find out that there was more to the story than he was reporting. Nice use of "parrot": this isn't even the pot calling the kettle black, it's the pot calling the stainless steel refrigerator black.
8.31.2006 3:41pm
te (mail):

"Wal Mart did not offer an assumption of the risk with the limited iamount of . . . This is absolutely false on both claims.

It's just amazing how you continue to quote from documents filed by the defense as if they contained the word of God. You do realize that there is a teensy-tiny chance that maybe those documents contain arguments and shadings that are favorable to the defendant? You do realize that right?


the judge twisted the instructions to prevent Wal-Mart from making its defense.

Sounds like a dandy appellate issue if true. Heck sounds like grounds for reversal right there. Wondwer why Wal-mart dropped its appeal given the fact that it so absolutely crystal clear to someone like you - who has only a glancing familiarity with the case. Imagine how persuasive Walmart's attorneys would be given their greater familiarity with the facts of this case and the many hours they could spend honing their legal arguments on this point. Well guess we will never know since the dropped the appeal. Maybe you should write Walmart and offer your services as a consultant since its attorneys are obviously missing just absolutely devasting facts that you can so easily discern.

Spark plugs do not need replacement after sixteen uses. And it's not just spark plugs that's evidence of extensive use

Oh, before you were saying that these new spark plugs somehow proved that they didn't purchase it at Walmart. So you are dropping that now? And you have moved on to claiming that it indicates that the plaintiff's may have underestimated the amount of times they used the mower. Wow - now there is another explosive discovery. No doubt any jury hearing that would demand that the plaintiff be tarred and feathered. Saying you only used a lawnmower 15 or 20 times when you have IN FACT used it more than that. Just curious here, Mr. Frank, in you capacity as an expert on how often riding lawn mower spark plugs need to be replaced, how often would you say they should be replaced? What if the lawn mower sat for several months unused?

I am just thinking of all the time we could save if the court had appointed an "independent expert" like you apparently - to help it sort out this issue.

4) Plaintiff's attorneys don't answer the phone at midnight, which is when I wrote the post, and I had no reason to contact the plaintiff's attorney to make the point in my article.


I uploaded and linked to every single substantive document he filed with the court, and already had access to the press release the reporter published. My point was to show how much information could be divined in an hour with very little effort, to show that even a relatively lazy reporter could find out that there was more to the story than he was reporting. Nice use of "parrot": this isn't even the pot calling the kettle black, it's the pot calling the stainless steel refrigerator black.
8.31.2006 3:57pm
te (mail):
sorry for the double post . . .

Plaintiff's attorneys don't answer the phone at midnight, which is when I wrote the post, and I had no reason to contact the plaintiff's attorney to make the point in my article.

Were you on a deadline so that you couldn't wait to post in the morning. Oh, no, wait you are not a reporter and you only do this as a hobby. But your comment is wonderfully telling: True, you didn't need to get the other side of the story to "make the point" in your article which was just a regurgitation of the defendant's expert's opinions. Your point has nothing to do with what happened or what was true. You were just trying to make sure that the (disproven) defense contentions were out there.

Nice use of "parrot": this isn't even the pot calling the kettle black, it's the pot calling the stainless steel refrigerator black.

Maybe you should get some rest, if you think that sentence makes any sense.
8.31.2006 4:00pm
JosephSlater (mail):
Mr. Frank:

Googling proves nothing about what the conventional wisdom on a topic is. You should be happy that I'm telling you that the conventional wisdom about the McDonald's case I encounter both in and out of the classroom is, in broad-brush, consistent with your conclusion about the case -- at least until students actually learn more about it.

As to the substance, I'll just say you are correct that your problem is not really with me, but rather with the way casebook authors and others more expert in torts than I understand the case.
8.31.2006 5:12pm
David M. Nieporent (www):
Hey, TE, once you're done learning what belongs in a pretrial order, maybe you ought to go back and re-read this thread, so you stop making false claims like:
You were just trying to make sure that the (disproven) defense contentions were out there.
As we've already discussed, the jury believed at least some of the defense contentions.


And Ted was debunking the McDonalds case back in the old Usenet days, long before Overlawyered existed. While he was still in law school, IIRC.
8.31.2006 5:13pm
te (mail):

Hey, TE, once you're done learning what belongs in a pretrial order,

Oh I get it - you are trying to be insulting. It might sting a bit if you had a clue about what you are talking about. If you will go back and read your own post above wherein you qouted from some local rules that you supposedly know, you will see that all that was required is that there be a succinct description of what disputes there are. The pretrial statement noted that there was a dispute about whether the lawnmower was purchased at Walmart. Do you understand that?

But for some bizarre reason, you belive that the fact that the receipt was not included as an exhibit in the pretrial statement is somehow clear cut proof that 1) no such receipt exists and 2) that it was not introduced at evidence.

You don't have a clue about what evidence was or was not presented at trial.

And - just so we are all clear hear - if this is a matter of such godawful importance - the missing piece of evidence that will just blow this case wide open (ala some Perry Mason rerun that is apparently running in your head) you might want to pause to ask yourself why this massively important missing receipt didn't affect the jury verdict. I guess it could be a) you don't have clue what you are talking about or b) it was some wild eyed jury who, despite their sitting through several days of evidence, lack you powers of discernment since you were able to figure out all of the facts of this case from reading 3 or 4 documents posted by your friend Mr. Frank. Oh, and of course the Judge was in on it, too.

As we've already discussed, the jury believed at least some of the defense contentions.

So this is an instance where the wild-eyed drunken jury was actually correct?
8.31.2006 5:31pm
David M. Nieporent (www):
And - just so we are all clear hear - if this is a matter of such godawful importance - the missing piece of evidence that will just blow this case wide open
Who said it was important for the substance of the case? She could simply testify as to whether she bought the thing at Walmart; if the jury chose to believe her, despite the holes in the evidence, that's up to them. It's of "godawful importance" only for evaluating the credibility of the plaintiff's lawyer in his email correspondence with you, when he claimed he had it.

As for the part of the rules I quoted, that was just to explain to you that what you "never understood them to be" was in fact what pretrial orders are. (You're ALSO required to present a list of ALL exhibits to be presented at trial.)


So this is an instance where the wild-eyed drunken jury was actually correct?
No; as I tried to explain to you yesterday, this thread isn't about whether the jury was correct. It's about whether the reporter did a good job in covering the story, in only presenting one side. Your argument is that he's entitled to rely upon the jury's verdict in only presenting the winner's side. I'm saying that if that is the case, if he's relying upon the verdict, then he should be required to present the full story of the verdict, how they found she was 25% responsible, rather than presenting the story as if she were a purely innocent victim.
8.31.2006 7:14pm
te:

Who said it was important for the substance of the case?

You seem to be the one fixated on it. Not me.

(You're ALSO required to present a list of ALL exhibits to be presented at trial.)

Didn't you just say this wasn't important to the substance of the case? Again, I do hope you will enlighten Walmart's attorneys about what they apparently missed.

It's about whether the reporter did a good job in covering the story, in only presenting one side.

It seems the "story" was that this woman was injured by a riding lawnmower and she has been having a difficult recovery.

Why you believe that a reporter is required to rehash arguments by defendants that have (for the most part) been disbelieved by the jury is puzzling.
8.31.2006 7:46pm
Christopher Cooke (mail):
I will concede that Mr. Frank's quoting from the defense expert's reports gave a new and interesting slant to this case not found in the newspaper article. I won't concede, because I haven't reviewed the trial transcript, that a miscarriage of justice occured.

Also, I find it mystifying for Mr. Frank to make the following claim unless he has reviewed the trial transcript and the jury instructions (and West Virginia tort law):

"Thus the jury didn't reject the defense claims—they never considered the defense claims because the judge twisted the instructions to prevent Wal-Mart from making its defense."

There are different types of "assumption of risk" among US jurisdictions. Which type did Wal-Mart seek instructions on? Express? Implied? What support did Wal-Mart have in West Virginia law or in the facts at the trial for its proffered instructions? Unless you can intelligently answer these questions, based on the record and the law, you are just making uninformed assumptions (sorry for the pun).

The fact that the jury did find the plaintiff 25% at fault suggests that it was instructed on the doctrine of comparative fault. In some jurisdictions, you don't get an "express" assumption of risk instruction (which means plaintiff recovers nothing) except in very limited circumstances, such as a skier at a ski resort who breaks his leg skiing, and wants to sue the ski resort (California Supreme Court upheld and applied express assumption of risk to deny recover in this situation). The fact pattern here doesn't suggest this was an "express" assumption of risk situation, so it seems unfair, without more, to say the judge "twisted" the instructions (although it may reveal something of Mr. Frank's biases that he would assume that such a thing had happened without any more evidence than the defense's expert reports).

Mr. Franks cites A Civil Action as an example of an interesting case even though the plaintiff lost. As I recall, the plaintiffs (a class action) settled with one defendant (Beatrice) for seven figures, and lost on liability with respect to the other defendant (WR Grace) who, it turned out, suppressed highly relevant and damaging evidence that it should have provided during the discovery phase. Grace later was indicted and pleaded guilty when the EPA/DOJ brought criminal charges against it for the same dumping of toxics. So, I agree that was an interesting case, but hardly comparable to what has been described here.

As for David N and TE's raging debate about the sales receipt and the significance of its omission from the pretrial order and exhibits list, I think you may be debating about nothing. The receipt may in fact have been introduced at trial (as the plaintiff attorney suggests). I personally have revised my exhibits lists multiple times, even once during a trial, without consequence. If, for example, the receipt was found after the plaintiff submitted the pretrial statement, the judge likely permitted the plaintiff to use it so long as the plaintiff's counsel provided a copy to defense counsel as soon as he found it. I repeat, I doubt see how you can really judge this case without reviewing the trial transcript. That is what good reporters do (or they watch the trial), that is what appellate counsel and courts do, and there is a good reason for it.

Finally, as to why Wal-Mart dropped its appeal, I hardly find "prejudgment interest" to be the likely motivation. How much was that, $200,000? Maybe $400,000? So, WalMart saved $500K by settling (assuming its briefing costs and oral argument attorneys' fees to be around $100K). That is not very much for a company like Wal-Mart, and much less than the $1.8 million it agreed to pay to settle. I assume if Wal-Mart had good legal issues (e.g., the judge improperly refusing to give the assumption of risk instruction, because such an instruction was warranted under the law and by the evidence), Wal-Mart would have been much smarter to proceed with the appeal, and then talk to the plaintiff about settlement, either after victory at the 4th Circuit (hardly a pro-plaintiff court), or after the plaintiffs' counsel was beaten up during oral argument. The odds are good that the plaintiffs' attorney and client, would have accepted much less than $1.8 million if they had lost the appeal, and faced the prospect of having to try the case again.
9.1.2006 1:53am
David M. Nieporent (www):
There are different types of "assumption of risk" among US jurisdictions. Which type did Wal-Mart seek instructions on? Express? Implied? What support did Wal-Mart have in West Virginia law or in the facts at the trial for its proffered instructions? Unless you can intelligently answer these questions, based on the record and the law, you are just making uninformed assumptions (sorry for the pun).
Read the defense's post-trial motion for judgment as a matter of law/for a new trial. (Linked to in Ted's post.) It lays this out.
9.1.2006 2:59am
Philistine (mail):
The Plaintiff's brief noted "West Virginia has also modified its assumption of risk doctrine to comport with comparative negligence, so that assumption of risk only bars a plaintiff's recovery if his degree of fault equals or exceeds the fault or negligence of other parties. King v. Kayak Mfg. Corp., 387 S.E.2d 511, 517, 518 (W. Va. 1989)."

Which left them in the somewhat odd position of arguing that they needed a new trial because "It is quite conceivable that if the assumption of the risk instruction had been offered, the jury’s assignment of fault would have raised from 25%, to over 50%, thus, barring any recovery."

Pesonally, I think a fair case could be made that that argument is actually frivolous.
9.1.2006 1:43pm
Philistine (mail):
Sorry, in the first paragraph—that should be "The Defendant's brief noted...."
9.1.2006 1:44pm
Christopher Cooke (mail):
Philistine:

good catch. Yes, I for one am dubious that the anything other than harmless error could have resulted from the judge's refusal to give an assumption of risk instruction, if the quote you offer from the defendant's brief is an accurate summmary of West Virginia law. So, the jury finds the plaintiff only 25% at fault, in which case it could not have legally found the plaintiff barred under the assumption of risk doctrine (assuming it followed the instructions). That may explain why one classic legal issue for an appeal---instructional error by the trial court--was not perceived as a winner by Wal-Mart's appellate counsel.

David, thanks for the link about the briefs.
9.1.2006 2:07pm
Christopher Cooke (mail):
Having read through the brief, the motion for a new trial seemed a bit weak. For example, the JNOV was premised on plaintiff using the mower contrary to express instructions and the manual, which meant that it was not used in its "intended" manner so, ergo, no strict product liability claim. the plaintiff, however, testified she didn't get the manual or instructions (acknowledged in the Wal-Mart's brief). Wal-Mart said its practice was to give them to customers when it sold the mower. That is clearly a fact question for the jury. To this, Wal-Mart only asserted, without citation to any legal authority, that the plaintiff's denial cannot help her on the strict products liability claim. Why not? Is there some caselaw, in any of the 50 states that says so? Shouldn't the defense counsel have cited such cases, if they exist?

The assumption of risk argument was, essentially, that the plaintiff knew this mower would likely tip over if used on this section of her hill and essentially recklessly used it anyway. This was premised on her husband's two prior lawn mower accidents, in which the lawn mower tipped over. But, apparently, the husband used a different mower when he had his prior accidents. Indeed, these accidents supposedly were one reason why the plaintiff's husband bought this mower, so it wouldn't tip over (according to the plaintiff's attorney). I can see the court's rationale for rejecting this instruction in such a situation (although, if I were the judge, I would probably give it anyway).

I will say, however, that I can see why Wal-Mart might feel it was screwed (I share David's skepticism about how the mower could have rolled over if it was going up hill, as the plaintiff supposedly testified, and not sideways), but in this case, if it happened, it was by the jury (who maybe accepted factually implausible explanations), and not by the judge.

As for Ted Frank's blog, I do agree that many reporters overly simplify legal issues. Sometimes this is from laziness, or a desire to write concisely, or ignorance. Also, reporters are humans who have biases, just like jurors.
9.1.2006 2:33pm
Ted Frank (www):
The assumption of risk argument was, essentially, that the plaintiff knew this mower would likely tip over if used on this section of her hill and essentially recklessly used it anyway. This was premised on her husband's two prior lawn mower accidents, in which the lawn mower tipped over.

To be fair, it was also premised on mowing a wet lawn that hadn't been mowed for eighteen months, as well as mowing side-to-side.

Philistine's conclusion of the meaning of West Virginia law contradicts the WV Supreme Court's conclusion from the same King case, where the court gave an instruction that recognized that assumption of the risk is separate and different from contributory negligence. So the Wal-Mart argument isn't as nonsensical as he portrays it to be; they were simply repeating the language from the WV Supreme Court opinion.

The Burnside judge also failed to instruct on product misuse.

I'm less persuaded by the Wal-Mart argument about material product alteration, which appears as a throwaway at the end of the brief, since it does not appear to be supported by the expert reports. But the reason the expert reports don't support the theory that seat replacement was material is because the lawn mower consistently shut off after five seconds. In other words, the "defect" was never reproduced. We are to believe that substantial modifications to the lawn mower were made, the lawn mower failed to comply with ANSI once because of an original-manufacturing defect that never manifested itself again, and that the modifications to other parts of the mower had no effect on that. I don't see how the plaintiff's even got to trial on that theory, but I haven't seen the plaintiff expert report.

Separately, I recommend Walter Olson's analysis of A Civil Action.
9.1.2006 7:02pm
Christopher Cooke (mail):

We are to believe that substantial modifications to the lawn mower were made, the lawn mower failed to comply with ANSI once because of an original-manufacturing defect that never manifested itself again, and that the modifications to other parts of the mower had no effect on that. I don't see how the plaintiff's even got to trial on that theory, but I haven't seen the plaintiff expert report.


Why aren't these are all fact issues, for the jury to decide so long as the plaintiff testified that the mower did, in fact, fail to shut off after 5 seconds when the accident occurred.
9.1.2006 7:54pm
21 (mail):

I don't see how the plaintiff's even got to trial on that theory, but I haven't seen the plaintiff expert report.

Which might fairly be translated as "I haven't reviewed the transcript of this trial and have not even reviewed basic documents that would set forth the plaintiff's position, but nonetheless I know enough to know that the case should not have made it to trial."
9.1.2006 8:04pm
Ted Frank (www):
CC: Why aren't these are all fact issues, for the jury to decide so long as the plaintiff testified that the mower did, in fact, fail to shut off after 5 seconds when the accident occurred

Because if (and it's a big if) the plaintiff's theory of the case is physically impossible, then it ceases to be a jury question under Rule 56. I don't get to sue a knife manufacturer by claiming that a manual knife leapt into the air and injured me if I can't demonstrate what defect in the knife caused it to magically leap into the air.

21's "translation" is not remotely fair. "I don't see how the plaintiff's even got to trial on that theory, but I haven't seen the plaintiff expert report" means precisely that: I don't understand how the plaintiffs to construct a scientifically plausible explanation for the facts, but because I have not seen the plaintiffs' expert report, I acknowledge that it's possible that they had a theory that legitimately survived Daubert. I don't claim that the case shouldn't have made it to trial. That's my suspicion, but I have an open mind on the question subject to additional evidence. Perhaps the defense experts were lying through their teeth (and if so, I find that highly objectionable, and an example of the failing of the litigation system if they suffer no consequences for it). All I know is that someone was lying, and that there is no physical evidence in the publicly-available record that the mower violated ANSI standards. As I said on Overlawyered, some of these questions are basic questions of math (was the lawn 11 degrees or 17 degrees?) and physics (is the plaintiff's claim of a lawn mower taking more than five seconds to do a 1200-degree tumble thirty feet feasible?) and ineluctable fact (did Wal-Mart sell two-year-old heavily used mowers in 2000?) that could have been resolved with a Rule 706 expert rather than the reality-tv-style game-show rules of a battle of the experts.

I've seen enough juries rule in favor of physically impossible theories that the jury verdict alone isn't dispositive in my eyes, especially when skilled attorneys ably use voir dire to remove skeptical jurors from the pool. The jury verdict is further illegitimate when a judge manipulates jury instructions to prevent the defense from fairly presenting its case. The jury may have been right, but if so, it was despite the system rather than because of it.
9.1.2006 11:35pm
Luke 1152 (mail):

I don't understand how the plaintiffs to construct a scientifically plausible explanation for the facts,

What pompous nonsense. You were not at the trial. You have not read the transcripts. You have not read any of plaintiff's expert's writings. You do not have any idea what this trial was about or what the facts were. Excuse me if I find your professed puzzlement less an indictment of the flimsy state of plaintiff's evidence and more of an indicator that you don't hesitate to opine about things you
know nothing about.

As I said on Overlawyered, some of these questions are basic questions of math (was the lawn 11 degrees or 17 degrees?)


and physics (is the plaintiff's claim of a lawn mower taking more than five seconds to do a 1200-degree tumble thirty feet feasible?) and ineluctable fact (did Wal-Mart sell two-year-old heavily used mowers in 2000?) that could have been resolved with a Rule 706 expert rather than the reality-tv-style game-show rules of a battle of the experts.
9.2.2006 6:25pm
Luke 1152 (mail):

As I said on Overlawyered, some of these questions are basic questions of math (was the lawn 11 degrees or 17 degrees?)

Or, one part of the lawn could have been flat and there could have been a hill that varied from 11 to 17 degrees, depending where you measured it or a thousand other possibilities. But knowing the answer to that would require knowing what the evidence was, which you don't


that could have been resolved with a Rule 706 expert rather than the reality-tv-style game-show rules of a battle of the experts.

Again, since you freely admit not having read the transcript or attended the trial statements like this are just asinine.
9.2.2006 6:30pm