Expert Witness Testimony Helps Trigger Mistrial
Opining as to the cause of death of a pickup truck driver, an expert witness — in direct violation of the court's instructions — assisted in causing a mistrial that the plaintiff's attorney claims was deliberately done by Ford Motor Company's lead counsel. Ford has now been sanctioned for that behavior.
In Hill v. Ford Motor Co., Ga. 16-C-04179-S2 (2018), Melvin and Voncile Hill died in a rollover accident in the couple's 2002 Ford Super Duty F-250 Crew Cab pickup truck. The Hill family sued Ford claiming that the deaths were caused by weak pickup roof which crushed the couple in the rollover caused by a tire failure.
While Ford redesigned the F-250 roof in 2004, this case is one of some 170 product liability claims against Ford involving roll overs causing roof crush and deaths or injuries with the same model truck. Ford's motivation to push the boundaries of the court's instructions are obvious.
Gwinett County Georgia State Court Judge Shawn Bratton sanctioned Ford after finding it “intentionally, and after several warnings and admonitions, elicited testimony that forced this Court to declare a mistrial.” Bratton had initially instructed Ford's counsel, Alan Thomas, to explain to his expert witness, Dr. Thomas McNish, that “he would not be allowed to give specific cause of death opinions.” When McNish took the stand, Thomas asked McNish “whether he agreed with Plaintiffs' expert's opinion as to the cause of Mr. Hill's death.” McNish then opined, before the jury, his opinion as to the cause of Melvin Hill's death — the very testimony that the court prohibited.
It would be hard to claim that these mistakes were based on inexperience. Thomas, Ford's lead counsel, has been a litigation attorney specialized in defending large automobile manufacturers for over 30 years. McNish, board certified in Aerospace Medicine, has testified in over 80 trials over more than 20 years, and he specializes in product liability litigation.
After both sides accused the other of violating court rulings, Bratton declared a mistrial April 6th. A week later, Ford request that Bratton recuse himself, accusing him of “one-sided rulings,” “abdicating judicial responsibility” and “refusal to at least admonish” opposing counsel for its conduct.
Justice Bratton denied Ford's recusal motion, stating that he found “nothing to show bias stemming from an extra-judicial source.” What he found instead was that Ford's legal team had violated a number of his earlier orders, including barring them from questioning the Hills' seatbelt use, arguing the accident was Hills' fault, and insinuating that the toxicology report on Melvin Hill showed alcohol in his blood when in fact there was none present.
In response to Hill's request for sanctions, Justice Bratton barred Ford from challenging its liability as to design defect, and froom challenging failure to warn claims. Bratton also ordered Ford to pay $10,00 in jury-related costs, and that Tomas show reason why he should not be held in contempt of court.
In issuing the sanctions, Justice Bratton made no comment as to McNish, but the behavior on the stand of expert witnesses does not go unnoticed — by other courts as well.
Expert witnesses don't get disbarred, but if they let their attorneys to far down the path, they can become anathema to the courts.