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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

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.


 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.


A Healthy Reminder of Burden Shifting

Posted in Asbestos Litigation

Often times we, as attorneys, need subtle reminders of the power of burden shifting during discovery. We were provided that reminder in a recent, though unpublished, take-home asbestos appellate court opinion which upheld a trial court’s granting of a motion for summary judgment. (Foglia v. Moore Dry Dock Co., No. A142125, 2018 WL 1193683 (Cal. Ct. App. Mar. 8, 2018)

The appellate court in Foglia agreed with the trial court decision that the plaintiffs could offer no admissible evidence that the decedent’s father worked around asbestos-containing materials. Plaintiffs, the Foglia family, brought a wrongful death claim against defendant Moore Dry Dock (“Moore”) on behalf of decedent Ron Foglia. The plaintiffs alleged that the decedent developed mesothelioma based on take-home exposure from decedent’s father, who allegedly worked as an electrician at a shipyard operated by Moore. Decedent admitted during his deposition that he had only “heard” through his aunt that his father worked at Moore.

The trial court excluded this testimony because Decedent admitted he had no personal knowledge of it. The trial court then excluded an affidavit of the decedent’s aunt who also had no personal knowledge concerning the work of decedent’s father. Based on these factual deficiencies, Moore moved for summary judgment, arguing: (1) that it did not owe a duty of care to the family members of its employees; and (2) that the plaintiffs did not provide evidence that decedent was exposed to asbestos via his father’s work at Moore.

While the trial court found that Moore could owe a duty of care to family members of its employees, it held that the plaintiffs had not proffered admissible evidence of decedent’s father’s exposure to asbestos while working at Moore. Therefore, the plaintiffs did not produce admissible evidence to raise triable issues of fact (the evidence proffered was not only considered hearsay, but also found to be factually devoid because there was no evidence that actually indicated the father was exposed to asbestos).

The trial court indicated that Moore had made a sufficient showing based on the plaintiffs’ factually devoid discovery to shift the burden of proof to the plaintiffs regarding the alleged exposure of decedent’s father. Ultimately, the trial court found plaintiffs could not rebut this burden and summary judgment was granted. Plaintiffs appealed this grant of summary judgment.

The appellate court specifically rejected an argument that simply being present at the shipyard could have caused exposure to asbestos because there was no evidence offered by the plaintiffs as to amount of asbestos work done at Moore, of what the levels of asbestos would have been at the shipyard, or that the decedent’s father was near any work involving asbestos. The appellate court further found it was already proven that neither the decedent nor his aunt had any independent knowledge that the decedent’s father worked as a lead electrician on ships or in the shipyard. As such, Moore was not required to have deposed the decedent’s aunt, and the burden of proof had shifted back to plaintiffs after the defendant demonstrated that their discovery responses were factually devoid. As a result the appellate court upheld the trial court’s grant of summary judgment.

Foglia is an unpublished opinion, but it is an important reminder for Defendants to take advantage of the opportunity to question the admissibility of liability evidence that may be offered against them. It is also a reminder that attorneys must remain on alert for the ever important burden-shifting that can take place during discovery.

Ice Resurfacer Poisoning Demonstrates High Summary Judgment Threshold

Posted in Litigation Trends, Products Liability, Rhode Island Courts

In DeLong v. Rhode Island Sports Center, Inc., et al., a former college hockey player successfully appealed a Rhode Island Superior Court decision granting an ice rink’s motion for summary judgment in a case alleging that he was poisoned by an ice resurfacer after finding that circumstantial evidence present in the record was sufficient to raise a factual dispute. 182 A.3d 1129 (R.I. 2018).


The plaintiff alleged that he inhaled noxious fumes that emanated from a malfunctioning ice resurfacer while playing in an ice hockey game at an enclosed arena in February, 2011. However, the plaintiff’s first indication that he had breathed injurious air resurfacing machine air did not come until the following morning when he and a teammate visited an emergency room after coughing up blood, from which doctors deduced that the plaintiff suffered from an acute lung injury as a result of carbon monoxide and nitrogen dioxide poisoning.


Accordingly, the plaintiff filed suit alleging that the ice rink defendants: negligently maintained their facility by allowing noxious fumes to permeate the air; failed to exercise reasonable care; or failed to provide adequate warnings. However, following discovery, the defendants successfully persuaded the trial court to grant summary judgment. “They argued that there were no genuine issues of material fact regarding (1) the existence of a dangerous or defective condition; (2) the notice to defendants of any such condition; and (3) the causal connection between that condition and any injury that may have been sustained by plaintiff.” Id. at 1131.


Specifically, the defendants pointed to: the plaintiff’s deposition testimony that he neither saw nor smelled any unusual fumes while at the ice rink; the lack of scientific evidence as to the air quality in the arena on the night in question; and evidence that the ice rink attendant’s twice-daily notation of the air quality had shown zero carbon monoxide, which the Rhode Island Department of Health confirmed the following day. Moreover, the ice rink’s facilities manager and the ice resurfacing machine driver each testified that neither was aware of any complaints regarding noxious fumes. The trial court, furthermore, intimated that the plaintiff’s “sickness was from another source, independent of the defendant’s facility” because the Department of Health’s testing was “more objective” and because the only people who fell ill were from the college hockey team. Id. at 1133. Based on this, the trial court granted summary judgment ruling that a lack of evidence that a defective condition existed at the sports center on day of the hockey game and it appeared that no one from the ice rink had notice of any such defect, if there was one.


On appeal, however, the plaintiff noted that: (1) the Department of Health does not and did not test nitrogen dioxide levels and did not test carbon monoxide levels until a day after the alleged incident, implying that poisonous ice resurfacer emissions had subsided by the time testing occurred; (2) his teammates and coach stated that they smelled gas in the air the night of the game; (3) the coach executed an affidavit stating that he witnessed the ice resurfacer malfunction and produce visible emissions; and (4) his teammates also ended up suffering very similar symptoms as he did.


Moreover—and perhaps most crucially—the plaintiff revealed that the defendants purchased an electric, non-propane-fueled ice resurfacing machine just months after the incident. As such, the plaintiff sought to take advantage of Rhode Island’s minority approach to the subsequent remedial measure rule. That is, unlike the Federal Rules of Evidence and the majority of states, under Rhode Island law:


When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is admissible.

R.I. R. Evid. 407.


Thus, the Supreme Court held that the trial court could and should have considered this evidence to reject the ice rink’s motion for summary judgement.


In its review of the plaintiff’s appeal, the court clearly indicated that even circumstantial evidence, such as the ice rink upgrading to an electric ice resurfacer, was sufficient to rise to the level of a materially factual dispute and it held that the ultimate determination of whether a dangerous-or-defective-condition existed or whether the ice rink had notice of any alleged defect was best suited for a jury’s review. Additionally, the Supreme Court repeated its caution that “issues of negligence are ordinarily not susceptible to summary adjudication, but should be resolved by trial in the ordinary manner.” Id. at 1137 (quoting Gliottone v. Ethier, 870 A.2d 1022, 1028 (R.I. 2005)).


DeLong is an instructive reminder that summary judgment is a powerful, but drastic tool. Even though a court may be presented with compelling, “more objective” evidence, “the purpose of summary judgment is issue finding, not issue determination.” Estate of Giuliano v. Giuliano, 949 A.2d 389, 391 (R.I. 2008). Conflating these two principles only confuses the ultimate question to be decided on summary judgment—whether, based on the evidence presented, there are remaining issues of material fact and whether the matter should proceed to trial or face dismissal on some or all issues.

Rhode Island Jury Reinforces the Need for Adequate Warnings

Posted in Premises Liability, Rhode Island Courts

In a recent case, a Rhode Island Jury awarded $31.3 million to Brett and Stacie Smith after a 2014 swimming accident in a pond at the University of Rhode Island left Mr. Smith paralyzed from the chest down.  The jury found that the University of Rhode Island was negligent in its failure to post warning signs and to inform its guests that swimming was prohibited.


The Smiths were attending a wedding during the weekend of July 25, 2014, at the Whispering Pines Conference Center.  After the rehearsal dinner, several members of the wedding party decided to go swimming in Louttit Pond.  After twenty or so minutes in the water, Mr. Smith and some others swam to, and climbed atop, a large rock in the middle of the pond.  They dove off and began to swim away from the rock.  While swimming underwater, Mr. Smith struck his head on a submerged rock, causing his paralysis.


The case focused on whether the defendants owed Mr. Smith a duty of care.  The plaintiffs argued that a duty existed for the defendants to post warning signs indicating that swimming was not allowed or describing the potential danger.  Conversely, the defendants argued that no duty existed as Mr. Smith assumed the risk of his injuries and that the potential dangers were open and obvious.


At trial, the major issue primarily focused on whether it was reasonably foreseeable that individuals would swim and be injured in the subject pond.  The plaintiffs put forth evidence that the management of the property had outlawed swimming in the pond due to potentially dangerous conditions, but did not install signs that forbade swimming on the property or warned of the dangers that the pond possessed.   The plaintiffs argued that this failure constituted negligence, as it was foreseeable that: 1) people would swim in the pond; 2) the very nature of the property lent itself to swimming as it promoted access to the outdoors, specifically, the water as well as numerous outdoor activities; and 3) the pond had a dock and a canoe launching point which encouraged people to use the water.


The defendants asserted two main defenses: 1) Mr. Smith assumed the risk of his injuries; 2) the condition was open and obvious. In Rhode Island, assumption of the risk is an affirmative defense that absolves a defendant of liability regardless of the defendant’s own negligence.  Loffredo v. Merrimack Mutual Fire Ins. Co., 669 A.2d 1162 (R.I. 1996).  To prevail on the assumption of the risk defense, defendants need to show that a plaintiff voluntarily encountered an unreasonable risk and appreciated its unreasonable character.  Id.  In examining this subjective standard, one must look at what the particular plaintiff saw, knew, understood, and appreciated.  Id.  As for the open-and-obvious defense, a property owner in Rhode Island is not liable for injuries that a guest suffered while on an owner’s premises when that guest was engaging in an open and obvious danger. Bucki v. Hawkins, 914 A.2d 491, 496 (R.I. 2007).


In an attempt to establish these defenses, the defendants endeavored to elicit testimony from Mr. Smith that he was aware of the potential dangers associated with swimming in an unfamiliar body of water.  The goal was to demonstrate that he assumed the risk of his injuries, as he knew it was possible that he might strike his head on an underwater obstacle.  Additionally, the defendants argued that the dangers associated with swimming in an unknown body of water should be open and obvious to the reasonable person.  In particular, they asserted that a reasonable person is well aware of the dangers associated with diving into shallow water or with swimming in an unfamiliar body of water.


At the conclusion of a three-week trial, the jury rejected both defenses.  In particular, the jury found Mr. Smith did not assume the risk of his injuries as the pond was deep, the submerged rocks were not visible, and he saw other swimmers in the group safely emerge after traversing the water. For similar reasons, the jury concluded that the dangers, as described, were not open and obvious.


This case once again reinforces an important reminder to property owners in Rhode Island: it is imperative to warn of known dangers, no matter how unlikely they are to be encountered or how open or obvious the condition may seem to be.


Delaware Supreme Court Finds Duty To Warn For Product Manufacturers And Employer Defendants In Take Home Exposure Case

Posted in Asbestos Litigation, Delaware Courts, Employment Litigation, Professional Liability

Ramsey v. Georgia Southern University Advanced Development Center, et al., No. 305, 2017, C.A. No. N14C-01-287 ASB (Del. June 27, 2018).


On June 27, 2018, the Supreme Court of the State of Delaware issued a fifty-seven-page opinion in the above-mentioned case, creating new precedent for Delaware employer liability in secondary or “take-home” asbestos cases. Below is a summary of both the relevant factual and procedural background, as well as Chief Justice Strine’s opinion.


The plaintiff’s spouse, Robert Ramsey, worked for Haveg Industries, Inc. at its industrial plant for twenty-four years. From 1967 to 1979, Mr. Ramsey regularly handled asbestos-containing products manufactured by Georgia Southern University Advanced Development Center and Hollingsworth and Vose Company as part of his job as a maintenance worker at Haveg. Throughout this period his wife, Plaintiff, Dorothy Ramsey, washed Mr. Ramsey’s asbestos-covered clothing. Mrs. Ramsey eventually developed lung cancer, from which she subsequently died in 2015. Her estate sued the manufacturers of the asbestos products, alleging that the cancer was caused by Mrs. Ramsey’s exposure to her husband’s asbestos-riddled clothing. In granting the appellee manufacturers’ motions for summary judgment and dismissing the claims, the Delaware Superior Court relied primarily on two previous Delaware Supreme Court cases, Riedel v. ICI Americas Inc., 968 A.2d 17 (Del. 2009), and Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162 (Del. 2011), in which the Delaware Supreme Court held that an employer owed no duty to non-employees, including their spouses, for failure to adequately warn of the dangers of handling clothing exposed to asbestos, minus a special relationship between the employer and the non-employee, because the failure to warn was nonfeasance rather than misfeasance. Mrs. Ramsey appealed, arguing that in distinguishing an employer from a manufacturer: 1) a manufacturer of asbestos products creates the danger of asbestos-related harm and therefore commits misfeasance by failing to warn foreseeable victims; and 2) to the extent the holdings in Riedel and Price would block recovery on take-home claims against manufacturers, those holdings should be overruled. The appellant defendants argued that Riedel and Price controlled, and prevented Mrs. Ramsey from recovering from manufacturers because they are even further removed from an employer’s spouse than the employer itself. Additionally, they argued that allowing such claims would impose upon manufacturers an essentially limitless duty to warn that would be both impractical and unfair.


The Supreme Court acknowledged the compelling arguments on each side, but ultimately agreed with Mrs. Ramsey. First, the Court held that manufacturers owe a duty to warn to reasonably foreseeable users of their products, stating that “[b]ecause the risk of harm from take-home asbestos exposure when laundering asbestos-covered clothing is reasonably foreseeable, a plaintiff in Mrs. Ramsey’s position has a viable claim against a manufacturer . . . . Ramsey. at p. 44 of 57. However, the Court limited this duty by stating that the “sophisticated purchaser” defense would cut off a manufacturer’s liability to ultimate end users once the manufacturer has warned the employer of the risk of harm, stating that such an approach would establish “a fair and efficient accountability system . . . by limiting the duty of asbestos product manufacturers and employers in take-home asbestos exposure cases to providing fair warning about the dangers of laundering to those with whom they have the most proximate relationship. Manufacturers may discharge their duty by warning employers, and employers may discharge their duty by warning employees.” Ramsey, p. 39 of 57.


The Court did not end its analysis there, however, recognizing that, without “further alteration to [Delaware’s] jurisprudence, manufacturers would face liability in circumstances when employers would not.” Id. at p. 50 of 57. Thus, the Court overruled, to the extent necessary, its holdings in Riedel and Price, finding that employers commit misfeasance, rather than nonfeasance, when exposing their employees to dangerous asbestos products. The Court differentiated between the classic case of nonfeasance – a passerby failing to save a person from harm not of the passerby’s making – from employers who have created the risk of harm to both the employee and the launderer of the employee’s clothes by putting them in contact with asbestos. In such a case, the Court stated that “[o]nce an employer has engaged in misfeasance, recognized principles of tort law impose upon it a duty to ‘act reasonably, as a reasonably prudent man (or entity) would,’ which ‘encompasses protecting against reasonably foreseeable events.’”  Id. at p. 55 of 57 (citation omitted).  In other words, the Court held that a household member who claims exposure to asbestos through laundering the clothing of an employee, may sue the household member’s employer for a failure to warn, though recovery may be denied if the employer can demonstrate that it took steps to warn the employee, protect the employee and address potential harms associated with asbestos exposure.


While the Court clarified that “plaintiffs in cases like this will be of the most foreseeable kind: those who for many years laundered the dirty clothes of the employee with whom they shared a household,” it also acknowledged Defendants’ concern that “claims from plaintiffs with more momentary exposure to and tenuous relationship to an exposed employee [may be] filed in the future.” Id. at p. 56 of 57. The Supreme Court’s holding in Ramsey, although attempting to limit the scope of its impact, has likely opened the door to a new array of take-home asbestos claims against manufacturers and employers, which were previously unavailable under Delaware law. However, it is important to note that this holding will not affect asbestos claims filed in Delaware where the alleged asbestos exposure took place outside of the state and Delaware substantive law does not apply.


If you have questions regarding the Delaware Supreme Court’s opinion in Ramsey or litigation in general, we invite you to contact The MG+M Law Firm’s Wilmington, Delaware office.