Bufford v. Rowan Companies, Inc. ( 1993 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-3090
BILLY G. BUFFORD and CHERYL BUFFORD,
Plaintiffs-Appellants,
versus
ROWAN COMPANIES, INC. and NELSON
VIDRINE,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
(June 16, 1993)
Before POLITZ, Chief Judge, REYNALDO G. GARZA and WIENER, Circuit
Judges.
POLITZ, Chief Judge:
Billy Bufford and his wife Cheryl appeal an adverse judgment
on jury verdict and the denial of their post-judgment motion in
their suit for damages for injuries allegedly sustained by Billy
Bufford in the workplace. Concluding that the Buffords did not
receive a fair trial we reverse and remand for a new trial.
Background
Bufford was employed by Rowan Companies, Inc. as a mechanic on
an oil drilling vessel. He alleged that his supervisor, Nelson
Vidrine, intentionally pushed him, causing him to fall over a
three-foot railing onto the deck, injuring his neck and back. The
Buffords brought the instant action for damages against Rowan and
Vidrine. Vidrine filed a counterclaim contending that the Bufford
claims were fraudulent.
The case was tried to a jury. Defendants' theory was that the
Bufford case was a "copycat" lawsuit. Specifically, defendants
contended that the Buffords got the idea of staging an accident, or
exaggerating a minor mishap, from a former co-worker, Ray Pearson.
Pearson previously had settled a suit against Rowan for on-the-job
injuries. One of the ways in which Bufford purportedly "copied"
Pearson was by using the same lawyers. Defendants repeatedly
referred to this fact.
The jury returned a verdict for the defendants, finding that
Vidrine neither battered Bufford nor negligently injured him and
that the Buffords' claims were fraudulent. The district court
entered judgment for the defendants on the Buffords' claims but
granted a directed verdict on Vidrine's counterclaim because he
offered no proof of damages. After their motion for judgment as a
matter of law or a new trial was denied, the Buffords timely
appealed.
Analysis
2
This is one of those rare cases in which the actions of the
trial judge combined with the conduct of defendants' counsel to
impugn the integrity of plaintiffs' counsel in such a way as to
prejudice the plaintiffs' case in the eyes of the jury. The
damaging aspersions began with the opening statement and consisted
of more than isolated remarks. Indeed they were an integral part
of the defense, building toward a crescendo at the end of the
trial, unfortunately amplified by the trial court. We are
compelled to the conclusion that plaintiffs' substantial rights to
a fair trial were impaired,1 and that the district court abused its
discretion in denying the requested new trial.
In his opening statement defense counsel stated that Bufford
engaged the same lawyers as Pearson, and thus completed "the
copycat nature of the claim." Bufford testified that when his
injuries worsened he asked Pearson for the name of a doctor.
Pearson responded by telling him to contact his lawyers2 for a
medical referral. On cross-examination, defense counsel made much
of the fact that Bufford had contacted Pearson's attorneys before
he visited a doctor and saw only those doctors to whom he was
referred by his lawyers. On cross-examination, Bufford's
1
Improper comments from the bench or by counsel will not
warrant reversal unless they so permeate the proceedings that they
impair substantial rights and cast doubt on the jury's verdict.
Dixon v. International Harvester Co., 754 F.2d 573 (5th Cir. 1985).
2
Pearson actually referred Bufford to Stanley Jacobs. As
the district court explained to the jury, Jacobs worked with
Lawrence D. Wiedemann. Wiedemann was Bufford's lead counsel at
trial and also worked on Pearson's case.
3
orthopedic surgeon acknowledged that he had received other
referrals from plaintiffs' counsel. A co-worker testified that
prior to his accident Billy Bufford had said that if he ever needed
a lawyer he would use Pearson's attorney. Finally, in closing
defense counsel reiterated that the Buffords had used the same
lawyers as Pearson while arguing that their claim was a fraudulent
imitation of Pearson's.
That a personal injury claim is fabricated or exaggerated is
a perfectly legitimate and valid defense. The proof of such may be
by direct or circumstantial evidence; defendants are afforded a
broad latitude to attempt to prove this defense. What is not
permitted is an unsupported, irresponsible attack on the integrity
of opposing counsel. When such unprofessional conduct rears its
unethical head in a courtroom, it is the duty of the trial court to
suppress same, quickly and unqualifiedly, and to instruct the
offending counsel to cease and desist. The court must take great
care not to exacerbate the situation or to give the impression to
2the jury that it approves or condones any unjustified impugning of
the ethical standards or integrity of an officer of the court
practicing before it.
In the instant case, the underpinning of the "copycat" defense
was that the Buffords' attorneys distorted minor injuries into
major ones and prosecuted baseless claims. This was the obvious
implication of defendants' use of the fact of the Buffords'
selection of Pearson's attorneys as evidence that the Bufford
claims were fraudulent. This court addressed a similar situation
4
in United States v. McDonald,3 where a prosecutor offered testimony
and critically commented that defense counsel was present in the
defendant's house for several hours during which the prosecutor
claimed that the defendant was destroying incriminating evidence.
In reversing the conviction, despite the prosecutor's disclaimer of
intent to malign defense counsel, we said: "Unfortunately, it is
difficult, if not impossible, to sanitize the comments so as to
remove the taint. Inherent in the comments is the barb that the
lawyer caused, aided in or, at the very least, tolerated the
destruction of evidence."4 A similar, equally improper inference
arose in the case at bar.
If the defendants had proof that the Buffords' attorneys
fomented fraudulent lawsuits, they were entitled to present it.5
Such proof could include appropriate circumstantial evidence from
which reasonable inferences might be drawn. Relying on the
identity of counsel as the basis for contending that the Buffords'
claim was fraudulent, however, went beyond the pale of appropriate
trial advocacy. That unwarranted inference may not be drawn.
In reversing the conviction in McDonald we warned that "No
3
620 F.2d 559 (5th Cir. 1980).
4
620 F.2d at 564.
5
Indeed, if an attorney has unprivileged factual knowledge
that another attorney has engaged in unethical conduct, he is
obliged to report the violation to the proper authorities. ABA
Model Rule 8.3(a); Rule 8.3(a), Louisiana Rules of Professional
Conduct.
5
prosecutor . . . may impugn the integrity of a particular lawyer or
that of lawyers in general, without basis in fact, as a means of
imputing guilt to a defendant."6 We and our colleagues in other
circuits have applied a similar stricture in civil cases.7 By
maligning opposing counsel, defendants impaired the Buffords'
presentation of their case. "[S]uch tactics unquestionably tarnish
the badge of evenhandedness and fairness that normally marks our
system of justice. . . ."8
We are distressed by the fact that the trial judge
inadvertently exacerbated the situation. The court appropriately
exercised firm control over the trial. Comments to counsel were
6
620 F.2d at 564.
7
See, e.g., Winter v. Brenner Tank, Inc., 926 F.2d 468
(5th Cir. 1991); Hall v. Freese, 735 F.2d 956 (5th Cir. 1984);
Fineman v. Armstrong World Industries, Inc., 980 F.2d 171, 207 (3d
Cir. 1992) ("test is whether the improper assertions have made it
reasonably probable that the verdict was influenced by prejudicial
statements" about opposing counsel), cert. denied, _____ U.S.
_____, 113 S. Ct. 1285 (1993). We must note in passing that the
Fineman panel included the then-longtime chairman of the Committee
on Codes of Conduct of the Judicial Conference of the United
States, Judge Stapleton, and the then most senior member of that
committee in length of service, Judge Fullam. That committee is
charged with the responsibility for rendering advisory ethical
opinions to all judicial officers and judicial employees of the
United States.
8
Bruno v. Rushen, 721 F.2d 1193, 1195 (9th Cir. 1983),
cert. denied, 469 U.s. 920 (1984) (habeas relief granted where the
prosecutor inferred that a witness changed her story to the
defendant's advantage as a result of her meeting with defense
counsel and also hinted that the fact that the defendant had hired
an attorney was probative of his guilt).
6
occasionally somewhat acerbic, but usually were evenhanded.9 The
error occurred when, during a sidebar conference and supposedly out
of the hearing of the jury, the judge threatened to jail
plaintiffs' counsel for what apparently was considered to be an
inappropriate retort by counsel to the court's admission of certain
evidence.10 According to two affiants, the jail threat apparently
was overheard by the jury.11
9
Cf. United States v. Williams, 809 F.2d 1072 (5th Cir.),
rev'd in part on other grounds, 828 F.2d 1, cert. denied, 484 U.S.
896 (1987).
10
THE COURT: Well, I'm going to permit it. The
objection is overruled.
PLAINTIFFS' COUNSEL: I object, and I think
it's reversible error.
THE COURT: Mr. Wiedemann, I must tell you
that it's my job to try a case as best and as
fairly as I can given the issues that are in
the case. If I commit reversible error, the
Fifth Circuit will remind me of that, sir, and
not you. Get back to work.
PLAINTIFFS' COUNSEL: I'm sure they will.
THE COURT: Get back to work before you end up
in jail.
PLAINTIFFS' COUNSEL: My job is to protect my
client.
THE COURT: You have one more warning and then
you are going to be very sorry.
PLAINTIFFS' COUNSEL: I'm going to protect my
client when I have to.
THE COURT: You may be doing it from jail.
PLAINTIFFS' COUNSEL: I may be, but I'm going
to.
THE COURT: Last time. Now, get back to your
chair.
11
One affiant was attorney Jacobs. The other was an
attorney also seated in the audience. Both affiants were more
distant from the sidebar conference than the jury and heard the
reference to jail.
7
We need hardly remind that a trial judge should never sanction
an attorney in the presence of the jury. The power and influence
of the bench is so pervasive that even a strong display of
displeasure with counsel may create prejudice for the client's
cause.12 Such obviously was not the intent of the judge in the case
at bar for the comment came during a sidebar conference which, by
definition, normally is out of the hearing of the jury.
Unfortunately, here the sidebar comments were not so insulated.
Viewed against the backdrop of the claim that plaintiffs'
counsel fomented and prosecuted fraudulent claims, the likelihood
that the jury overheard the trial judge threatening counsel with
jail created an unacceptable risk of a tainted verdict. The jury
may well have thought that plaintiffs' counsel was facing such
punishment for engaging in fraud. The conclusion necessarily
flowing therefrom would be that the Buffords' claims were
fraudulent.13
The situation was further worsened when the trial court
prevented Buffords' counsel from countering defendants' aspersions.
The most direct response to the challenge to counsel's integrity
12
Williams, supra; Newman v. A.E. Staley Mfg. Co., 648 F.2d
330 (5th Cir. 1981).
13
Defendants maintain that we should review for plain error
because plaintiffs' counsel did not object to the court's threat to
jail him. That contention is frivolous. Plaintiffs' counsel
objected by stating that he was protecting his client. Defendants,
however, criticize the statement as evidence that counsel was
"irrationally . . . determined to have the last word. . . ." We
are not persuaded.
8
would have been evidence and argument that Pearson had a legitimate
claim. Counsel attempted to so argue during his rebuttal comments,
after repeated references to Pearson's case in defendants' closing
argument. The trial court, however, cut counsel off, announcing in
front of the jury that it was shortening his allotted time to avoid
"the risk of any more intemperance." In this the trial court erred
for not affording plaintiffs' attorneys a meaningful opportunity to
defend their professional reputations.14
On remand, we leave to the trial court in the first instance
the decision whether the case should be referred to another judge
for retrial. Time is a great healer.
Because of the foregoing disposition we briefly address two
other issues raised on appeal. With reference to the question of
the admissibility of the tape recording and videotape we invite the
attention of the court and counsel to our intervening decision in
Chaisson v. Zapata Gulf Marine Corp.,15 with the caveat that the
mandate has been stayed and the ultimate disposition thereof should
be noted.
Finally, the plaintiffs contest the admission of a co-worker's
testimony that Billy Bufford solicited his assistance in
transporting drugs. Fed.R.Evid. 608(b) forbids the use of
extrinsic evidence of a specific instance of conduct to attack a
14
See O'Rear v. Fruehauf Corp., 554 F.2d 1304 (5th Cir.
1977) (error not to allow counsel to rebut false impression created
by opposing counsel in closing argument).
15
988 F.2d 513 (5th Cir. 1993).
9
witness's character for truthfulness. It does not bar, however,
extrinsic evidence offered to contradict a witness's testimony
about a material issue in the case.16 The co-worker's testimony
therefore is inadmissible unless defendants identify specific
contradictory testimony on a material issue.
REVERSED and REMANDED.
16
See United States v. Lopez, 979 F.2d 1024 (5th Cir.
1992), cert. denied, _____ U.S. _____, 61 U.S.L.W. 3772 (May 17,
1993) (No. 92-1624); United States v. Opager, 589 F.2d 799 (5th
Cir. 1979).
10