EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, June 8, 2012

Ridley Scott's Prometheus, An Origin Story For The Rules Of Evidence & The Largest Sexual Harassment Award in U.S. History

Has any director come out of the starting gate more surely than Ridley Scott? In 1977, the Brit, then known primarily for commercials, made his big screen debut with "The Duellists." Based on a story by Joseph Conrad"The Duellists"

is narrowly focused on a longstanding feud between two officers in Napoleon's army. Harvey Keitel plays Feraud, a plebeian, hot-tempered lieutenant who develops such a hatred for the more aristocratic D'Hubert (Keith Carradine) that he challenges him to several gun duels over two decades that end in injury to both but never death.

Often described as a companion piece to Stanley Kubrick's "Barry Lyndon," "The Duellists" is an engrossing cocktail of obsession and honor. It is also my favorite Ridley Scott film and sports a 90% fresh rating at Rotten Tomatoes. Scott's next two films? "Alien" and "Blade Runner," frequently cited as among the best and most influential horror and science fiction films of all time.

So, what other directors can match up to Scott with their first 3 feature (non-TV) films? The best comparison would be Stephen Spielberg, who also debuted with a smaller, quality film ("The Sugarland Express") and then followed it up with two movies -- "Jaws" and "Close Encounters of the Third Kind" -- which are considered among the best and most influential horror and science fiction films of all time.

Who else belongs in the same conversation? Off the top of my head, here would be the rest of my top 10, in no particular order:

Wes Anderson, with "Bottle Rocket," "Rushmore," and "The Royal Tennenbaums;"

•The Coen Brothers, with "Blood Simple," "Raising Arizona," and "Miller's Crossing;"

Paul Thomas Anderson, with "Sydney," "Boogie Nights," and "Magnolia;"

George Lucas, with "THX 1138," "American Graffiti," and "Star Wars;"

Rob Reiner, with "This is Spinal Tap," "The Sure Thing," and "Stand by Me;"

Roman Polanski, with "Knife in the Water," "Repulsion," and "Cul-de-sac;"

Terrence Malick, with "Badlands," "Days of Heaven," and "The Thin Red Line;" and

Quentin Tarantino, with "Reservoir Dogs," "Pulp Fiction," and "Jackie Brown."

I'm sure that I'm missing some others (Preston SturgesTim BurtonSpike JonzeSpike Lee, and David O. Russell, to name a few), and I only included directors if I saw each of their three first films. So, tying back to yesterday's post, François Truffaut, who directed "Fahrenheit 451," had "The 400 Blows," "Shoot the Piano Player," and "Jules et Jim" as his first 3 films. And while all of Truffaut's first three films were lavished with critical praise, I've never seen Piano Player.

If you asked 10 people which of the above directors had the best first three feature films, you could easily get three different responses. But if you asked those 10 people which of the above directors had the most influential first three films, the answer is likely to be Scott or Spielberg, both of whom had 2 (literal) monster smashes that still reverberate in modern cinema. Scott's new film, "Prometheus," which opens today, is a return to his roots, serving as a sort-of prequel to "Alien." And, according to Scott, the film was inspired by the myth of Prometheus:

"We named the ship Prometheus as a reference to the character in Greek mythology who alternatively gave fire to man or shaped man’s image from clay," Scott explains. "In either case, he was instrumental in changing the entire evolution of mankind. He also angered the gods in a big way and suffered mercilessly for it. All three aspects of the myth have analogies in our story." 

In this sense, Scott is no different from many players in the American justice system, who often make reference to the myth of Prometheus.

In Energy Ass'n of New York State v. Public Service Com'n of State of N.Y., 653 N.Y.S.2d 502 (N.Y.Sup. 1996), the Supreme Court of New York, Albany County, described the issue before it as follows:

In mythological times fire was the exclusive property of the gods. When Prometheus, a Titan, broke the monopoly of the gods and brought the gift of fire to mankind, so incensed were the gods that they causedPrometheus to be chained to a great rock where during the day an eagle devoured his liver. During the night his liver regenerated and the process continued until Prometheus was freed by Hercules.

We turn now to the real world. Fire no longer belongs to the gods, but to the People. The overriding issue of this case is the mode to be followed by the People for generation, transmission and distribution of fire, transmogrified in the context of this case into electric energy—monopolistic or competitive, or some gradation in between.

In Board of County Com'rs for Prince George's County v. Brown, 253 A.2d 883 (Md. 1969), the Court of Appeals of Maryland alluded to "Prometheus Bound" by noting that "[t]he members of Bowie Volunteer Fire Department and Rescue Squad, Inc....determined that Prometheus should not be wholly unbound in their community [and] decided to build a new firehouse." In a dissenting opinion that also referenced "Prometheus Bound," Judge Tamm in Gichner v. Antonio Troiano Tile & Marble Co., 410 F.2d 238 (D.C. Cir. 1989), made a pretty good argument/origin story for what would become the Federal Rules of Evidence by asserting that

The evil in the system is, of course, that as heresies have a habit of turning into newly minted dogma, the individual subjective ruling becomes ‘case law’ and is the spring-board from which the next ad hoc ruling springs, like Prometheus unbound, into what we, most inaccurately, define as the law of evidence.

In Antoci v. Antoci, 2002 WL 31266121 (Cal.App. 2 Dist. 2002), the Court of Appeal, Second District, Division 7, found that 

Having been given little assistance by counsel in this case as to authorities on point (perhaps with the reason that there are none) we are chained to a bare rock like Prometheus and forced to grope for a solution.

In Gunderson v. ADM Investor Services, Inc., 43 F.Supp.2d 1058 (N.D.Iowa 1999), the Northern District of Iowa declared that  

the pleadings in this longstanding case have become reminiscent ofPrometheus' liver.

And, in what I would guess to be the quote most applicable to Ridley Scott's new film, the Sixth Circuit in United States v. Laton, 352 F.3d 286 (6th Cir. 2003), cautioned that

Prometheus may have thought twice before handing down the gift of fire to humans had he imagined that those whom the mere mortals chose to steward the precious flame would use it to decimate the very mechanisms employed to control its power.

In this post, though, I want to address Gilbert v. DaimlerChrysler Corp., 685 N.W.2d 391 (Mich. 2004), which involved (at least at the time) "the largest recorded compensatory award for a single-plaintiff sexual harassment suit in the history of the United States." That award was $21 million, given as a result of the plaintiff claiming, inter alia, "that [Chrysler]'s failure to deal adequately with sexual harassment in her plant led to a permanent change in her "brain chemistry" and a relapse into substance abuse and depression" that would "soon lead to her untimely and excruciating death." 

At trial,

Plaintiff's counsel referenced the strength of those who were affected by the Holocaust. He also referenced Prometheus and Zeus, and stated that the myth of the eagle pecking at Prometheus's liver for all eternity reminded him of plaintiff's ordeal. He compared plaintiff to Rosa Parks and Arthur Ashe, as well as a dog that was kicked and abused every day. He even referred to plaintiff as a pioneer.


One of counsel's tactics...was his repeated attempts to equate plaintiff with the victims of the Holocaust. This association began during the testimony of plaintiff's expert, Steven Hnat, when Mr. Hnat testified that plaintiff's psychological state was akin to that of concentration camp survivors. Plaintiff's counsel further developed this theme during his closing argument:

Never again. Never again. That is a line now used by the sabreurs [sic; sabras] in Israel, the land of Israel, to mean that the unspeakable horrors that were perpetrated on the people of Israel, on the Jews, must never be forgotten and must never happen again. Never again. Never again.

On the Chrysler's appeal, the Supreme Court of Michigan found that

This recurring rhetorical theme was especially virulent given the context of plaintiff's trial. In 1998, Chrysler had merged with Daimler Benz AG, a German automobile manufacturer. The merger was highly publicized-particularly in metropolitan Detroit, where plaintiff's trial was held. And if any of the jurors had failed to hear about the merger through media outlets, they were privy to the news once plaintiff's counsel pointed out during  his closing argument that Chrysler was under German ownership:

Daimler-Chrysler may be powerful, but, my God, they are going to have to recognize, hopefully today by your verdict, that not only must they face justice in this case, they must obey the law.

We are a nation of laws, not powerful individuals. We are a nation of laws...

And, I can assure that verdict will be heard from the floor of that plant on Jefferson to the board room in Auburn Hills or Stuttgart....

Once they hear in Auburn Hills and in Germany about Linda...it will stop.

This was all too much for the Supreme Court of Michigan, which reversed, finding that 

counsel's closing argument had a clear rhetorical aim of making defendant's German ownership a critical issue in the minds of the jurors. By associating plaintiff with those who had endured inhuman treatment in concentration camps, counsel likened defendant DaimlerChrysler-which, as the jury was informed, was partially under German ownership-with the Nazis. This argument was an attempt to incite the jury to heap upon the defendant the moral outrage that is now reserved for the Nazis and those who assisted them in carrying out the Holocaust. It was, in other words, a naked appeal to passion and prejudice and an attempt to divert the jury from the facts and the law relevant to this case.

Meanwhile, Justice Cavanagh dissented from the reversal, finding that

When reviewing the closing argument in context, it is obvious that plaintiff's counsel was arguing that plaintiff was courageous and determined. Contrary to the majority's assertion, plaintiff's counsel was no more likening plaintiff to the Holocaust victims than he was likening her to a figure in Greek mythology being pecked by a bird.



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