The Law Is A Ass #457: We Play Blind Man’s “Bluff City Law”
You may not remember Bluff City Law , as the legal drama only aired on NBC in the fall of 2019 for all of 10 weeks. It starred Jimmy Smits as Elijah Strait, the head of a plaintiff’s law firm in Memphis, Tennessee. (Apparently Memphis is nicknamed Bluff City, I’m guessing more for its geographic location than the Poker playing ability of the river boat gamblers who once trod her streets.) It also starred Caitlin McGee as Elijah’s estranged daughter Sydney. Why were they estranged? Doesn’t matter. Seriously, if people cared why they were estranged, the show would have lasted more than 10 episodes.
What is important is that Elijah and Sydney teamed up to try a lawsuit on behalf of Edward Soriano, a public school groundskeeper who was suing giant chemical consortium Amerifarm for covering up the fact that their weed killer Greencoat caused his cancer. I’m assuming the show ran the standard disclaimers somewhere, but I can assure you that any similarity between this story and the weed killer Roundup were about as coincidental as the similarity between Barack Obama’s presidential portrait and Barack Obama.
As is always the case in shows like this, the case didn’t go well for the Soriano side. As Amerifarm had won sixty-eight Greencoat lawsuits to date, things must have been going wrong for lots of plaintiffs’ attorneys. But we’re only interested in what things went wrong in the Soriano case.
The Straits called three expert cancer witnesses. Amerifarm objected on the grounds that the witnesses might be experts on cancer, but they never studied Greencoat, so couldn’t prove it caused Soriano’s cancer. The judge sustained the objections and none of the experts testified.
For some reason, the Straits never argued their experts would testify about what caused cancer in general, then their next witnesses, who did study Greencoat, and would link up general cancer theory with Greencoat to show it caused Soriano’s cancer. To be fair, I have to confess the reason the Straits didn’t make this argument wasn’t as nonspecific as “for some reason.” There was a very specific reason they didn’t make this argument.
They had no follow up witnesses!
Let me say that again so it can sink in like concrete galoshes in Lake Michigan; the elite plaintiffs’ law firm that was trying to prove a chemical company’s weed killer caused Edger Soriano’s cancer had no expert witnesses who had studied the weed killer so could testify that Greencoat caused cancer. I’d hate to see the firm’s Yelp reviews.
Fortunately the Straits had a TV trope on their side; internet-savvy investigators who didn’t even have time to finish saying , “Let me see if I can hack this site,” before announcing, “I’m in.” The investigators found Dr. Nancy Deemer, a former research chemist for Amerifarm whose tests proved Greencoat was “five hundred times more carcinogenic than cigarettes.”
Amerifarm objected to Dr. Deemer’s testimony because the plaintiffs wanted Dr. Deemer to testify “about the results of tests that there’s no record of. It’s impossible for us to impeach her testimony and it’s prejudicial to the point of farce.” Elijah pointed out that the reason there were no records is that Amerifarm destroyed the records. The judge ruled that Elijah made “a compelling argument. However with no way to support or impeach what Dr. Deemer would say I must side with the defense,” and wouldn’t let Dr. Deemer testify about any tests she had performed.
Funny, I remember law school teaching that everyone had the right to cross-examine witnesses, but I don’t remember any lesson saying everyone had the right to be able to impeach a witness. Sometimes witnesses don’t have anything in their background that allows them to be impeached. That doesn’t mean that the witnesses can’t be called as witnesses, it only means opposing counsel will have a harder time in its cross-examination.
Moreover, if Amerifarm didn’t want anyone to see certain test results so destroyed the very records its attorneys needed to impeach a witness, that kind of violates the centuries-old legal principle that one must have clean hands to come into equity. Arguing that, Dr. Deemer shouldn’t be allowed to testify, because we destroyed the tests we need to impeach her is kind of like Jeffrey Dahmer arguing he shouldn’t be tried for murder, because he couldn’t cross-examine the victims.
Sydney asked Dr. Deemer a simple question, was there anything she wanted to say to Edgar Soriano and his family? Dr. Deemer looked the Sorianos in the eye and said she wanted to tell them she was sorry. Then as the defense objected and the judge sustained the objection and ordered the jury to disregard Dr. Deemer’s testimony, Dr. Deemer continued by saying “This did not have to happen. They knew that this was dangerous. They came to my lab.”
Later, the jury returned its verdict. It found in favor of Edgar Soriano and awarded him 1.4 million dollars in compensatory damages and 45 million dollars in punitive damages.
So, yay! Happy ending.
Except, no. Wouldn’t happen. Not in any court in the land. But you knew that already. Why else would I even be here today, if that verdict weren’t complete garbage?
In the first place, the jury would never even have deliberated in this case. The Straits offered no evidence that proved Greencoat or Amerifarm caused Soriano’s cancer. Literally, no evidence. The court didn’t allow any of their expert witnesses to testify and ordered the jury to disregard Dr. Deemer’s testimony.
In every civil trial, the defense will, as a matter of form, move for something called a directed verdict after the plaintiff has presented its case. When, as in this trial, the plaintiff offered no evidence to prove its case, the judge will grant the directed verdict and direct the jury to return a verdict in favor of the defense. So Soriano would have lost right after the Straits presented his case.
Even if, for some unfathomable reason, the judge allowed a case in which the plaintiffs offered no evidence to go to the jury and the jury returned a verdict in favor of the plaintiffs, after the verdict the defense would move for something called a JNOV, from the Latin phrase non obstante verdicto, or Judgment Not Withstanding the Verdict. It’s a motion in which the defense argues that despite the jury’s verdict, it is entitled to a judgment in its favor as a matter of law.
In this case, Amerifarm would again, and correctly, argue that the Straits didn’t offer any evidence linking it or Greencoat to Soriano’s cancer, so the judge would be required to grant the motion, overturn the verdict, and return a verdict in Amerifarm’s favor. So Soriano would have lost again after the jury verdict.
And if for some reason the trial judge didn’t grant the JNOV, Soriano would have lost on appeal. A court of appeals would have reversed that verdict faster than I could figure out how to pronounce non obstante verdicto.
When all was said and done, Amerifarm would have been 69 and 0, because the Straits hadn’t said or done anything. Not only would Amerifarm have won, Sydney might then be brought up on disciplinary charges for her improper question to Dr. Deemer. And then Soriano would have sued the Straits for malpractice.
So I guess there’d be was a happy ending, after all. Because a malpractice suit against the Straits? That case Mr. Soriano would win.