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Frye Makes a Strong Comeback in Florida

Posted in Florida Courts, Litigation Trends

Florida courts have historically relied on the standards set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (“Frye”) to determine the admissibility of expert opinions and testimony.  Though the Florida Supreme Court adopted Frye in the mid-1980s, Florida courts had applied this standard long before then. See Bundy v. State, 471 So. 2d 9 (Fla. 1985); Bundy v. State, 455 So. 2d 330 (Fla. 1984). However, in April 2013, the Florida Legislature stirred things up when it passed a bill that amended Florida Statute § 90.702 to replace the longstanding Frye standard with the standard used in Federal Courts, as announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (“Daubert”). Since the amended statute came into effect, some members of the Florida bar have challenged its validity and advocated that the Florida Legislature overstepped its bounds and infringed on the Florida Supreme Court’s rule-making authority. These challenges resulted in a five-year long debate as to the appropriate standard in Florida to determine whether expert testimony is admissible: Frye or Daubert?

Under the Frye standard, expert opinion and testimony is admissible if it is based on new or novel scientific principles and methodologies that are generally accepted in the scientific community. Whereas under Daubert, general acceptance is not a prerequisite for admissibility. Rather, a trial judge acts as the gatekeeper and determines the admissibility for “any and all scientific testimony or evidence” that is relevant and reliable. While there has been a clear divide within Florida’s legal community between those who are pro-Frye versus pro-Daubert, the five-year-long debate over which standard should be the law and is the law in Florida is finally over.

The Florida Supreme Court recently reaffirmed that “Frye, not Daubert, is the appropriate test in Florida courts” with its narrow (4-3) decision in DeLisle v. Crane Co., No. SC16-2182 (Fla. Oct. 15, 2018). This significant issue came before the Florida Supreme Court after the plaintiff sought review challenging the constitutionality of the amended Florida Statute § 90.702, which adopted the Daubert standard. DeLisle is a personal injury action alleging that the plaintiff’s exposure to the defendants’ asbestos-containing products caused him to develop mesothelioma. The case advanced to trial, where the remaining defendants challenged the admissibility of the plaintiff’s three causation experts’ opinions under the amended Florida Statute § 90.702.  Despite these Daubert challenges, the trial judge admitted each of the experts’ opinions and the jury awarded the plaintiff $8 million in damages. However, on appeal, the Fourth District Court of Appeal reviewed the admission of testimony under the Daubert standard for the plaintiff’s medical causation experts and ruled that the trial court failed to exercise its gatekeeping function under Daubert properly, and therefore erred in admitting their opinions at trial. See Crane Co. v. DeLisle, 206 So. 3d 94, 111-12 (Fla. 4th DCA 2016). The Fourth District Court of Appeal reversed the judgment.

In its decision, the Florida Supreme Court explained that it granted review of DeLisle on two grounds. First, conflict of law. Specifically, the Court details how the Fourth District Court of Appeal’s decision conflicts with the Florida Supreme Court’s decision in Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007), the seminal case that reaffirmed Frye is the standard in Florida “[d]espite the [U.S.] Supreme Court’s decision in Daubert.” Id. at 547. To illustrate this point, the Court highlights a portion of the Florida Legislature’s session that reveals the legislative intent of the amended Florida Statute § 90.702 to “overrule” the Court’s decision in Marsh. See Fla. HB 7015, preamble (2013) (available at www.flsenate.gov/Session/Bill/2013/7015) (“the Florida Legislature intends to prohibit in the courts of this state pure opinion testimony as provided in Marsh”). However, the dissent disputes there being any conflict of law – pointing out that the amended Florida Statute § 90.702 came into effect after Marsh was decided by the Florida Supreme Court, and rebukes any notion that the Court has proper jurisdiction “on the ground that a case applies a statute that displaces previously existing law.” Notably, the dissent is silent on whether the majority’s Frye analysis is correct.

Second, the Florida Supreme Court determined that the amended Florida Statute § 90.702 infringes on the Court’s rule-making authority over procedural matters as set forth under Florida’s Constitution. Art. V, § 2(a), Fla. Const. While the Florida Supreme Court acknowledged in its decision that there are some rules of evidence that are substantive law and the responsibility of the legislature, the Court determined that the amended Florida Statute § 90.702 is not substantive as it “does not create, define, or regulate a right.” Rather, “this statute is one that solely regulates the action of litigants in court proceedings” and is therefore procedural – meaning, it was outside the Florida Legislature’s powers to amend Florida Statute § 90.702.

The Florida Supreme Court further explained the reasons Frye is the appropriate standard for Florida courts:

  • Frye relies on the scientific community to determine the reliability of the expert testimony with the “general acceptance” test. This standard eliminates the need for judges with little to no training or experience in a field from determining the admissibility of evidence. Conversely, under Daubert the trial judge acts as the “gatekeeper” that determines the admissibility of expert testimony based on the reliability and relevance.
  • Frye only applies to new or novel scientific evidence. However, Daubert’s application is broader – increasing the areas of expert testimony that are subject to being challenged and possibly hindering a litigant’s ability to prove its case on the merits.
  • Compliance with Daubert is an expensive and time-consuming proposition for litigants and for the courts. Litigants incur attorney and expert witness fees and costs associated with preparing lengthy expert reports and disclosures as well as with preparing and attending depositions. Litigants and the Court further expend resources in connection with Daubert hearings to overcome challenges to opinions and testimony.

Based on the above reasons, the Florida Supreme Court held that the trial court in DeLisle properly admitted the three experts’ testimony – explaining that “the causation of mesothelioma is neither new or novel.” The Court then ordered the case be remanded to the Fourth District Court of Appeals for further remand to the trial court for reinstatement of the final judgment.

Ultimately, there is no question that the Florida Supreme Court’s decision in DeLisle will have far-reaching effects on other cases. It is likely the Court’s decision in DeLisle will pave the way for countless appeals in previously litigated cases in which the Florida state courts have applied the Daubert standard as set forth under the amended Florida Statute § 90.702. Moreover, this decision will have far-reaching effects on current and future litigation matters if the Frye standard is to be applied going forward, as the scope of a litigant’s ability to challenge an expert’s opinions will be restricted to only new or novel scientific evidence.

Following the release of the decision, one of the appellants has moved for reconsideration, requesting a rehearing on two issues implicated by its decision. First, appellant argues that the Florida Supreme Court failed to address in its opinion the trial court’s failure to allow the jury to consider the fault of additional non-parties that contributed to the petitioner’s disease.  On appeal, the appellate court did not resolve this issue on its merits because it found that plaintiff’s medical causation expert’s testimony should have been excluded. However, in a footnote the court indicated that it would have reversed for failure to include the non-party defendants were it not concluding the testimony was inadmissible, as it would have provided the basis for including at least six non-party defendants on the verdict form. Second, the appellants argue whether an actual conflict of law exists between Florida Statute § 90.702 and any rule that has been promulgated by the Court. Pursuant to Florida Rule of Appellate Procedure 9.330(a), the Court has discretion as to whether to grant a rehearing based on the motions filed by the appellants so long as appellants demonstrate that the Court “overlooked or misapprehended” a particular point of law or fact, rather than merely expressing disagreement with the Court’s decision.

Based on the Court’s decision in DeLisle, it is likely the Court will reject the request for reconsideration regarding the existence of a conflict of law, however, the Court may consider the remaining issue on appeal regarding non-parties on the verdict form.

Defense Verdict in the Northwest – Jury Rejects Plaintiff’s Asbestos Related Claims in Western District of Washington

Posted in Asbestos Litigation

Defendants DCo, LLC (formerly known as Dana Companies) and Ford Motor Company (collectively “Defendants”) recently obtained a defense verdict in an asbestos personal injury matter following a nine day trial that took place in the Western District of Washington. Plaintiffs alleged the decedent, Patrick Jack, developed mesothelioma as a result of exposure to asbestos from products manufactured or supplied by the Defendants. Plaintiff passed away at the age of 81. Specifically, Plaintiffs claim that Mr. Jack was exposed to asbestos: (1) during his childhood and teenage years through his father’s work at Union Pacific; (2) through his own work as a machinist and piping inspector during his service in the U.S. Navy from 1955 to 1962 and 1967 to 1973; and (3) through his own work as an automotive mechanic from 1955 to 2001. Plaintiffs* claimed Mr. Jack was exposed to asbestos through his father’s work clothing. Mr. Jack testified at his deposition that after finishing a day’s work, his father returned home dirty and was routinely greeted by Mr. Jack. Further, Mr. Jack testified at his deposition that he remembered being present as his grandmother shook out his father’s clothes before washing them. On occasion, Mr. Jack accompanied his father to work at Union Pacific and recalled witnessing individuals cut cement pipe and handle insulation. Through his own work, Mr. Jack alleged exposure to asbestos from work with automotive clutches and brakes manufactured by Ford, among others, and automotive gaskets manufactured by Victor (a brand associated with DCo, LLC formerly Dana Companies), among other manufacturers. In April 2017, Plaintiffs brought both common law negligence claims and statutory strict liability claims as enumerated in WASH. REV. CODE 7.72 et seq., in which they alleged defective design and failure to warn against a number of entities, in addition to the Defendants, predominantly associated with Naval vessel equipment. However, because Mr. Jack’s alleged exposure predated the 1986 Washington Tort Reform Act, which established proportionate several liability, the Defendants were subject to the pre-existing law which imposes joint and several liability.

The defendant-equipment manufacturers associated with Mr. Jack’s Naval service were no longer in the case at the time of trial. At trial, Plaintiffs relied on expert testimony of Dr. Carl Brodkin (occupational medicine); Dr. Arnold Brody (cell biology), Dr. Ronald Gordon (pathology; lung fiber burden), and Sean Fitzgerald (geology expert who tested Victor gaskets found in Mr. Jack’s garage). As stated above, because the Plaintiffs’ claims were subject to Washington’s pre-Tort Reform law, mandating joint and several liability with set-offs for prior settlements, only Dana and Ford could be included on the verdict slip. The trial began on October 1, 2018 and both Plaintiffs and Defendants were limited to 24 hours each on the record. After both sides presented their respective cases, the jury began deliberations on October 11, and returned with a verdict the next day. The jury found that neither defendant was strictly liable for allegedly manufacturing and or selling a defective product. However, the jury was not able to reach a unanimous decision as to the remaining negligence claim against each defendant. As a result, U.S. District Court Judge James Robart declared a mistrial as to both negligence claims, but reserved judgment until October 24 to allow parties an opportunity to challenge the verdict concerning strict liability. The Court has reported that once the judgment is entered, it will set a new trial date on the negligence claims.

Plaintiffs were represented by Ben Adams of Dean Omar in Los Angeles and Tom Breen of Schroeter Goldmark in Seattle.

______________________________________________________

*Leslie Jack, individually and as the personal representative of Patrick Jack and David Jack, individually.

Summary and Perspectives: Summerlin v. Philip Morris USA, et al.

Posted in Asbestos Litigation

 In Summerlin v. Philip Morris USA, et al., 1581-cv-5255, following a five-week trial before Judge Heidi Brieger, the jury returned a verdict in favor of the plaintiff amounting to $43,100,000. Three defendants remained through verdict; however, the jury found that only R.J. Reynolds was liable. The jury found that defendants, Hampden Automotive and Philip Morris USA, breached the implied warranty of merchantability for selling a defectively designed product, but neither were found to be a substantial contributing cause of Mr. Summerlin’s lung cancer. Plaintiff’s award was allocated as follows: $5,300,000 for pain and suffering; $3,500,000 for loss of consortium; $2,500,000 for loss of services to Joanna Summerlin (Spouse); $1,800,000 for loss of services to Christopher Summerlin (Son); and $30,000,000 in punitive damages.

Plaintiff was represented by Michael Shepard of the Shepard Law Firm, Boston, MA and Jerome Block of Levy Konigsberg, New York, NY. Philip Morris USA was represented by Bill Geraghty of Shook Hardy Bacon, Miami, FL; R.J. Reynolds was represented by Mark Belasic and Kaitlin Kline of Jones Day, Cleveland, OH; and Hampden Automotive was represented by David Governo and Vincent DePalo of Smith Duggan, Boston, MA.

Plaintiff’s claimed that Mr. Summerlin’s lung cancer and subsequent death was caused by his exposure to asbestos-containing brakes supplied by Hampden Automotive and as a result of smoking cigarettes manufactured by Philip Morris USA and R.J. Reynolds. By way of background, Mr. Summerlin was diagnosed with lung cancer on March 25, 2015 and passed away on October 16, 2015. Mr. Summerlin had a cumulative 125 pack-year smoking history, comprised of: Kool cigarettes, from approximately 1957 through 1982; Salem cigarettes, from approximately 1982 through 1984; and Marlboro Menthols, from approximately 1985 until he stopped smoking in August of 2009.

Mr. Summerlin alleged that he was exposed to Hampden Automotive’s asbestos-containing refurbished brakes while working as an automotive mechanic at New England Brakes, located in Boston, MA, from 1959 through 1964. Evidence presented at trial by the plaintiff suggested that Mr. Summerlin performed brake repairs with asbestos-containing brakes on three to four vehicles every day over a six-day work week. Specifically, Mr. Summerlin claimed that Hampden Automotive failed to warn him of the hazards of working with asbestos-containing brakes during the course of his employment as a mechanic. Moreover, Mr. Summerlin alleged that his exposure to asbestos through his work with Hampden Automotive’s brakes was a substantial contributing cause of his lung cancer and death. The jury found that Mr. Summerlin should have been warned of the potential dangers associated with working with an asbestos-containing product because Hampden Automotive, during the relevant time period, should have been generally aware of the potential hazards associated with the use of asbestos. Accordingly, the jury found that Hampden Automotive breached the implied warranty of merchantability, because its brakes were defective due to the lack of a warning concerning asbestos. However, the jury ultimately concluded that exposure to Hampden Automotive’s brakes was not a substantial contributing cause of Mr. Summerlin’s lung cancer and subsequent death, concluding that Hampden Automotive was not liable for Mr. Summerlin’s injuries.

Additionally, Mr. Summerlin alleged that both Philip Morris USA and R.J. Reynolds breached their implied warranty of merchantability through the sale of defectively designed cigarettes. Also, Mr. Summerlin claimed that R.J. Reynolds breached its warranty of merchantability by failing to adequately warn consumers of the dangers of smoking prior to July 1, 1969, the date the amended Federal Cigarette Labeling and Advertising Act mandated cigarette warnings. Moreover, Mr. Summerlin claimed that R.J. Reynolds fraudulently misrepresented health and safety information related to the hazards of their cigarettes, which could have aided him in rendering an informed decision pertaining to his choice to smoke. Mr. Summerlin did not, however, allege against Philip Morris USA either the claim of breach of implied warranty of merchantability pertaining to warnings or the claim of fraudulent misrepresentation because his personal smoking timeline and federal legislation pertaining to warnings rendered both inapplicable. Accordingly, though the jury found that both Philip Morris USA and R.J. Reynolds breached their implied warranty of merchantability through their sale of defectively designed cigarettes to Mr. Summerlin, it found that only R.J. Reynolds’ defective design was a substantial contributing cause of the plaintiff’s injuries. Furthermore, only R.J. Reynolds was found negligent in the design of its cigarettes, and the jury concluded that such negligence was also a substantial contributing factor to plaintiff’s injuries. Lastly, the jury found that R.J. Reynolds made false statements and concealed material facts about the dangers of smoking with the intent to induce Mr. Summerlin to use its product. Ultimately, the jury found that Mr. Summerlin’s reliance on R.J. Reynolds’ false statements substantially contributed to his illness and death. As such, these determinations lead the jury to find R.J. Reynolds liable.

While recently other plaintiffs have tried to verdict cases against both tobacco and asbestos product manufacturers, this case represents the first trial in Massachusetts in which a plaintiff alleged that both asbestos exposure and smoking together synergistically contributed to cause a plaintiff’s injury. The jury ultimately found, however, that only Mr. Summerlin’s cigarette smoking substantially contributed to cause his lung cancer. While it is certainly a positive development for asbestos defendants that the jury determined that Mr. Summerlin’s alleged daily asbestos exposure over a five year period was not sufficient to be considered a substantial contributing factor to the development of his lung cancer, it should be troubling to those same defendants that the jury found that Hampden’s failure to warn about the potential hazards of asbestos during the late 1950s and early 1960s, a time period long before there were any medical reports concerning disease in automotive mechanics, resulted in a breach of the implied warranty of merchantability.

New Jersey Appeals Court Rules on Admissibility of Evidence in Proving Apportionment Claim

Posted in Asbestos Litigation

 On June 29, 2018, a New Jersey state appeals court ruled that a superior court improperly allowed a jury to consider evidence, not represented at trial, in allocating damages among nine defendants in an asbestos case. The state appeals court ordered a new trial in Rowe v. Bell & Gossett Company to address the issue of re-apportioning the $1,500,000.00 jury verdict.

Throughout Ronald Rowe’s thirty-plus year career working as an automobile mechanic, and repairing and servicing boilers, Rowe claims he was exposed to asbestos from a variety of sources. On April 27, 2015, a jury found that Rowe’s exposure to hardened cement manufactured by Universal Engineering Co., Inc. (Universal), was a substantial factor causing Rowe’s mesothelioma. The jury also found Rowe’s exposure to asbestos from the products of the eight defendants that previously settled the case to be a substantial factor causing his mesothelioma. The jury allocated twenty percent of the damages to Universal and apportioned the remaining eighty percent among the eight defendants that had previously resolved the case.

Donna Rowe appealed the April 27, 2015 jury verdict on behalf of her husband who died of mesothelioma on April 8, 2015. In one of several points raised on appeal, Donna Rowe argued that Universal relied on improperly admitted evidence in proving its apportionment claim. At trial, the court allowed Universal to admit settled defendants’ answers to interrogatories. The trial court reasoned that because Universal asserted cross-claims against the settled defendants, the answers to interrogatories were admissible, even if those interrogatory answers were served in an unrelated matter, outside New Jersey. The judge also allowed Universal to read sections of depositions of corporate representatives of the settled defendants, to help substantiate Universal’s apportionment claim. The trial judge relied on Universal’s representation that the representatives of the eight settling defendants were outside the jurisdiction of the court and unavailable for trial.

The Superior Court of New Jersey, Appellate Division agreed with Donna Rowe, ruling that the trial judge erred in admitting evidence pertaining to the settled defendants, which was not exempt from the general prohibition against admission of hearsay.  When addressing the answers to interrogatories, the appeals court noted that both N.J. Court Rule 4:16-1(b) and N.J.R.E. 803(b)(1) only allow statements “against” the statement-maker. Here, the appeals court noted, the evidence pertaining to the settled defendants was offered only against the plaintiff, and not against the settled defendants.  The appeals court reasoned, that the jury’s determination as to the settled defendants would only impact the plaintiff’s recovery against Universal. The appeals court went on to label the settled defendants’ “party” status as irrelevant in determining the evidentiary issue at hand. The appeals court re-iterated its focus on against whom the answer to interrogatories were offered in determining the admissibility of such evidence.

In its analysis, the appeals court also recognized the rationale for allowing the admission of interrogatory answers and deposition testimony against a statement-maker. When in a courtroom, the statement-maker has a fair opportunity to respond to this evidence. When the trial court allowed Universal to admit evidence concerning the settled defendants, Universal “transform[ed] statements of [the] settl[ed] defendants into unrebuttable admissions to be used against a party that did not make those admissions.” See Rowe v. Bell & Gossett Co., No. A-4530-14T2, 2018 N.J. Super. Unpub. LEXIS 1560 (Super. Ct. App. Div. June 29, 2018).

Before addressing Rowe’s additional points on appeal, the court conceded that Universal may, on retrial, produce sufficient proofs to enable it to satisfy the requirements of the New Jersey Comparative Negligence Act and thus, still potentially benefit from apportionment. The New Jersey appeals court seems to imply that if Universal presents proofs against the statement makers, and adequately demonstrates the unavailability of witnesses, a jury may properly use evidence concerning the settled defendants to evaluate the apportionment of the $1,500,000.00 jury verdict.

On July 18, 2018, Hilco, Inc., the successor-in-interest to Universal, filed a notice of petition for certification with the New Jersey Supreme Court. As of August 16, 2018, the case is pending certification by the New Jersey Supreme Court.

 

Trial Publicity: Public Statements Made by an Attorney during Court Proceedings have Limits

Posted in All Practice Areas

Talk is cheap…until lawyers get involved.

“Lawyers: are persons who write a 10,000 word document and call it a brief.” – Franz Kafka

Mouthpiece: n. old-fashion slang for one’s lawyer. Burton’s Legal Thesaurus, 4E. (2007). Retrieved August 8, 2018, from https://legal-dictionary.thefreedictionary.com/mouthpiece

There are thousands of sated comedians in the world who make a living off the caricature of loquacious litigators. Indeed, it is probably a fair statement that attorneys like to talk. Attend any bar event anywhere in the country and, more likely than not, you will find a group attorneys exchanging war stories. Lawyers, especially trial attorneys, relish opportunities to reminisce about trials won, how incomprehensible it is that they lost a “slam dunk” motion, or the occasional client they never want to see again.

Most of the time, idle attorney chatter over rubber chicken bar association dinners is entirely benign. However, public statements made by an attorney during a trial or the pendency of case that may go to trial is consequential all of the time. This is because, as Chief Justice Rehnquist observed, “a lawyer’s extrajudicial statements pose a threat to the fairness of a trial due to an attorney’s special access to information.” Gentile v. State Bar of Nevada, 501 U.S. 1031, 1071 (1991). In theory, an attorney’s comments on the scope of evidence or a case’s merits could predispose a jury pool and, thus, unintentionally (or deliberately) prejudice a judicial outcome.

The fear of such prejudice is so strong because its impact is so damaging to the confidence of the administration of justice that the American Bar Association, through the ABA Rules of Professional Conduct (which serve as a model for the ethics rules of most jurisdictions), actually imposed guidelines curtailing a lawyer’s freedom of speech in certain circumstances. For example, under Model Rule 3.6, lawyers are prohibited from making “an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” ABA Model Rule 3.6(a). The rule goes on to describe certain statements that a lawyer may make. A lawyer may state: (1) the claim, offense or defense of the case; (2) public information; (3) that the investigation of the matter is in progress; (4) the scheduling or result of an event in litigation; (5) a request for the public’s help in obtaining information; (6) “a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest;” and (7) certain comments with respect to criminal cases. See ABA Model Rule 3.6(b). A lawyer also is permitted to make statements that he believes are necessary to protect a client from the substantial undue prejudicial effect of recent publicity. See ABA Model Rule 3.6(c). Model Rule 3.6 has been adopted, with or without changes, by most jurisdictions.

Courts recognize, however, that there is a constitutional balancing act between limiting an attorney’s speech rights and ensuring unbiased adjudications. Towards that end, the United States Supreme Court has held that a jurisdiction’s restrictions on attorney speech are permissible only when they are no greater than necessary to protect “the integrity and fairness of a State’s judicial system.” Gentile, 501 U.S. at 1075. This constitutional struggle most recently was highlighted by President Trump’s former lawyer, Michael Cohen, in a case involving a non-disclosure clause of a settlement agreement between the chief executive and an alleged adult film paramour.

Specifically, the United States District Court for the Central District of California, denied Michael Cohen’s ex parte application for a restraining order in Clifford v. Donald J. Trump, et al. CV 18-02217 SJO (FFMx) (order denying defendant Michael Cohen’s Ex Parte Application for a Restraining Order). In Clifford, Defendant Michael Cohen applied for a restraining order on June 14, 2018 against the plaintiff’s attorney, Michael Avenatti. Id. Cohen sought to prevent Avenatti from making statements regarding:

(1) the character, credibility, or reputation of a party and/or their respective counsel; (2) the identity of a witness or the expected testimony of a party or witness; (3) the contents of any testimony, admission, or statement given by a defendant or that person’s refusal or failure to make a statement; (4) the identity or nature of physical evidence expected to be presented or the absence of such physical evidence; (5) the strengths or weaknesses of the case of either party; and (6) any information the lawyer knows or reasonably should know is likely to be inadmissible as evidence and would create a substantial risk of prejudice if disclosed.” Id.

 Cohen’s application cited to over 170 television appearances and 439 public tweets by Avenatti discussing the alleged facts and circumstances of the case. Id. Cohen described how Avenatti previously commented that Mr. Cohen “has a history of thuggish behavior” and “is going to be indicted within the next three months” for “bank fraud, wire fraud, campaign finance violations” or “a whole host of potential criminal conduct.” Id. Cohen also accused Avenatti of speculating about the outcome of the case.

Interestingly, a few months earlier, the Southern District of New York in a related action, admonished Avenatti’s conduct, prompting Avenatti to withdraw his application to be admitted pro hac vice in the SDNY action. Id. The New York federal court told Avenatti that:

If you participate here, you would not be able to declare your opinion as to Mr. Cohen’s guilt, which you did; you would not be able to give publicity to documents that are not public. It would change your conduct…I don’t want you to have some existence in limbo, where you are free to denigrate Mr. Cohen and I believe potentially deprive him of a fair trial by tainting a jury pool.

Id.

 Yet, Cohen’s application was denied. The Central District of California noted that the Supreme Court hesitates to restrain prior behavior and the Defendant failed to clearly demonstrate why a drastic measure was warranted. Id. The court went on to describe Cohen’s application as overly broad and the court recognized that there were less restrictive alternatives than issuing a restraining order. Id. The court concluded that while Avenatti is subject to the Rules of Professional Conduct and the local rules of the court, “[u]nless or until Defendant can demonstrate that Mr. Avenatti’s statements are substantially likely to impact his right to a fair trial in this action, [ ] a prior restraint is impermissible.” Id.

For now the Cohen-Avenatti dispute seemingly has resolved in Avenatti’s favor. Avenatti’s extrajudicial comments, however, almost certainly again will become a stormy legal issue as the Clifford case proceeds. To this point, cases that do not involve alleged bawdy hijinks prove instructive. Recently, Johnson & Johnson argued, in part, before the Missouri Court of Appeals that a $55 million dollar verdict against it in an asbestos talc case should be overturned. See Ristesund v. Johnson & Johnson, et al., 2017 WL 5885587. Johnson & Johnson contended that the evidence established that the jury pool was tainted through the statements of plaintiffs’ counsel which created “intense publicity in the city of St. Louis [and included] information about prior talc trials and information that the court had ruled inadmissible in this case….”  Id. at 119. Johnson and Johnson’s appellate brief went on to describe that the jurors had open discussions on an earlier talc verdict. Id. at 121. Although the Missouri Court of Appeals vacated the Ristesund verdict on other grounds, extrajudicial case comments from the plaintiffs’ counsel provided the defense an appellate argument—which could have been a mortal, self-inflicted wound.

Whether an attorney represents presidents, peelers, or asbestos plaintiffs, one message should be universally held: be careful what you say about your case outside of court. It is not worth having to challenge a restraining order or appeal just to have an interesting anecdote to share with your colleagues over a rubber chicken bar association dinner.