Applying "Fair Trial" Considerations In Civil Cases

What factors are considered in assessing whether a party has received a "fair trial" in a civil matter? The Seventh Circuit recently explained that it differs little from those used in the case of a criminal defendant. In considering the issue, the circuit identified relevant factors to consider, in Stollings v. Ryobi Technologies, Inc., __ F.3d __ (7th Cir. Aug. 2, 2013) (No. 12-2984)

In a civil trial that the defense suggested was a "joint venture" between the plaintiff's expert and plaintiff's lawyer to force manufacturers like the defendant to purchase the expert's technology, the circuit applied a five-factor test to examine if plaintiff's diversity products liability trial had been derailed into reversible error. In applying these fair trial factors, the circuit was rapidly drawn into assessing the soundness of the evidence.

Changing Trial Focus From Defendant's Product To Plaintiff's Attorney

In the case, plaintiff Stollings "lost an index finger ... in a table saw accident." He sued the saw's maker, defendant Roybi Technologies, contending the saw was defectively designed and easily could have been remedied. Plaintiff's jury trial was unavailing, as the verdict went for the defendant. In appealing this result, the plaintiff contended that the trial court erroneously admitted evidence, such as newspaper articles, to support the defense theory that "attack[ed] ... the motives of" Strolling's trial attorney, making plaintiff's attorney the issue rather than whether defendant's saw was defective.

The Seventh Circuit vacated the judgment for the defendant and remanded, finding that the plaintiff had been deprived of a fair trial. The defendant's theory, which was made clear to the jury, was that the plaintiff's attorney was in cahoots with the plaintiff's expert witness -- a sort of "joint venture" to force saw manufacturers like the defendant to license the expert's safety technology for saws. The circuit examined whether the defense "attack on the motives of his counsel—exacerbated by the admission of hearsay evidence and an improper summation ... was improper and sufficiently prejudicial to deprive him of a fair trial." The circuit agreed that it did.

Unfair Trial Factors Same For Criminal And Civil Cases

In making this determination, the circuit employed a set of five "factors have been developed in criminal cases ... to determine whether prosecutorial misconduct prejudiced a defendant." However, the circuit explained that the five factors were "equally valuable in evaluating civil trials, at least when timely objections are made, as they were here." The five factors cited by the circuit included:

  1. Magnitude: the nature and seriousness of the argument,
  2. Opened Door: whether the statement was invited by the opposing party,
  3. Rebuttal Possible: whether the statement could be rebutted effectively,
  4. Curative Instructions: whether an effective curative instruction was given, and
  5. Impact: the weight of the evidence.
Stollings, __ F.3d at __ (citing United States v. Klebig, 600 F.3d 700, 720–21 (7th Cir. 2009) ("In assessing the effect of improper remarks on the fairness of the trial, a court should consider the nature and seriousness of the remarks; whether the remarks were invited by the conduct of defense counsel; whether the district court sufficiently instructed the jury to disregard the remarks; whether the defense could counter the improper remarks through rebuttal; and finally, whether the weight of the evidence was against the defendant.")).

The Relevance Problem

One consideration which reflected on all five factors was the circuit termed as the lack of relevance of the evidence for the defense contention of a "joint venture" by the plaintiff's attorney and the expert to force manufacturers to license the expert's safety patent:

Ryobi's argument that plaintiff's counsel brought this suit as part of a joint venture with [expert witness] Gass to force Ryobi to license Gass's technology was improper. The first problem with this argument is that it is not relevant to any issue in dispute. The suggestion that the case was an intellectual property case “masquerading as a personal injury case” did not bear on whether Ryobi designed and sold a defective product. How does a statement about [plaintiff] counsel's motive help a jury decide whether there was an injury? A duty? A breach of that duty? Or causation?

The argument worked by directing the jury's focus away from the elements of the case to an extraneous and inflammatory consideration. It said to the jury, don't let Stollings's lawyers trick you into finding Ryobi liable for his injury because this case is really not about Stollings, it's about Gass and his technology. Such an argument aimed at a party's counsel is improper and risks depriving the party of a fair trial.

The second problem is that no admissible evidence supported the argument. Ryobi based its accusation solely on an article about Gass published in the Oregonian newspaper, and the article was inadmissible hearsay. The article reported: “Gass says he has been approached by lawyers looking to launch product liability suits that ultimately could force companies to license his technology.” Ryobi used the article to assert that Gass said he was working with product liability lawyers to force manufacturers to license his technology. This is classic hearsay: an out-of-court statement offered to prove its truth—that is, that Gass made the statement. Federal Rule of Evidence 802 plainly prohibited admission of the article for this purpose.
Stollings, __ F.3d at __ (citing Gruca v. Alpha Therapeutic Corp., 51 F.3d 638, 645–46 (7th Cir. 1995) (remanding for new trial; improper for products liability defendant to highlight negligence of third party when third party's conduct was not at issue in case); Davis v. FMC Corp., 771 F.2d 224, 233 (7th Cir. 1985) (same); United States v. Xiong, 262 F.3d 672, 675 (7th Cir. 2001) (noting attacks on counsel “can prejudice the [opposing party] by directing the jury's attention away from the legal issues”); Chicago Firefighters Local 2 v. City of Chicago, 249 F.3d 649, 654 (7th Cir. 2001) (newspaper article was inadmissible hearsay when offered as proof of article's contents)).

Assessment

The Stollings case highlights relevant factors to assess on review whether a civil trial was fair based on challenged error. As the Seventh Circuit noted, these factors are similar to factors used in criminal cases:

These factors have been developed in criminal cases like Klebig to determine whether prosecutorial misconduct prejudiced a defendant. The factors are equally valuable in evaluating civil trials, at least when timely objections are made, as they were here. If there is any difference in the harmless error determination between criminal and civil trials, it is in the strength of the showing required to demonstrate that an error is harmless, not in the relevant considerations.
Stollings, __ F.3d at __.

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