Friday, September 5, 2008

The Fortune Cookie

A case decided yesterday by the Mississippi Supreme Court serves as a reminder to me of why I became a lawyer: to participate in a trial where you uncover a truly great piece of evidence with which to cast severe doubt on the justness of the cause of the other side. The case arose out of what appeared to be a rather minor fender bender. The defendant was backing out of a space and hit plaintiff's car as she was pumping gas. Plaintiff, who was employed in a casino, appears to have viewed the accident as a jackpot. She stopped working and sued, alleging excruciating pain that had caused temporary and total disability.

As the case progressed, the defense conducted several days of videotaped surveillance and hit their jackpot: a videotape of the plaintiff riding several roller coasters at Six Flags, New Orleans. Plaintiff then asserted that she had been rather miraculously cured by a recent series of epidural steroid injections. She recast her claim to concede that she was fully cured as of the date of the video and sought to exclude it from evidence. The trial court granted her motion and the jury returned a plaintiff's verdict limited to medical bills and lost wages. The trial court added some additional amounts.

The court here held that the exclusion of the videotape was reversible error. A reasonable juror could have disbelieved plaintiff's trial testimony regarding the nature and extent of her injuries and suffering after viewing the tape. Plaintiff's trial narrative was tailored to keep the video away from the jury.

The park has been closed since Hurricane Katrina. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2008/09/the-fortune-coo.html

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Comments

The trial court decision excluding the video is curious.

Posted by: W.R. Chambers | Sep 6, 2008 4:02:02 PM

I agree, but note that there is a dissent that would hold that the trial court did not abuse its discretion in excluding it.

Posted by: Mike Frisch | Sep 7, 2008 5:40:25 AM

take note that there is a dissent that would hold that the trial court did not abuse its discretion in excluding it.

Posted by: Repair Credit | Jun 21, 2010 4:12:15 AM

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