Following is the transcript of the discussion in chambers about how to tell the jury that the neurologist has settled. This happened during the trial, enabling the ’empty chair’ defense. (see chapter)
TUESDAY, JANUARY 21, 2003 – 8:53 A.M.
THE COURT: Today is the 21st of January, 2003. We’re on the record here. The parties are all present. The jury has not been brought back into the Courtroom since the weekend recess. The Court wanted to take up the issue that we left on Friday that Doctor Neurology had settled out of the case. The Court gave the parties over the weekend to formulate a request as to how the jury is informed of Doctor Neurology’s absence.
Do the plaintiffs — what’s the suggestion from the plaintiffs?
MR. O’NEIL: Your Honor, our suggestion is that they just be advised that he has settled out of the case and just basically leave it at that. The reasons, among others, is that, one, he’s obviously not here; secondly, what the jury would have expected as to advocacy with Neurology, Doctor Neurology, will not be taking place. The attorney for Doctor Neurology is now the attorney for the E.R. and they should know that he has changed hats along the way here. There is some case law that says settlement can be put in if it’s not for the sake of establishing liability. Among other things, it’s to explain why a party is not there; to explain why some evidence may be produced, or, not produced. Now, here we’ve produced evidence against Doctor Neurology, that evidence that would come up against him, and the jury was here. By way of defending him is not going to be present. The jury may have a concern that when looking at the preponderance for the E.R. that they’re here and they fought it out with Doctor Neurology. Nobody fought anything out. So, gee, compared to Doctor Neurology, the hospital has got conflicts of evidence and things like that. I think that on the whole it just would be fairer and it would decrease confusion to the jury and the jury would still have to follow the Judge’s instructions as to the negligence of these defendants that were a proximate cause of the damages.
THE COURT: Okay. Mr. Huffman, on behalf of your clients?
MR. HUFFMAN: Well, your Honor, all of the things that the plaintiff is talking about are the very reasons why the Court should not do that, should not embark upon talks about settling Dr. Neurology out, and evidence against this person is not evidence against others. All that does is just simply terribly complicate the whole matter. The jury needs simply to be told, “Ladies and gentlemen of the jury, this litigation,” or, “Doctor Neurology is no longer involved in this litigation. You should not come to any,” — however you want to say that. “You should not come to any conclusions, or, you should not draw any conclusions from that fact. We’re ready to continue the trial.” That’s all they need to know. There’s no need to get this thing all complicated. Obviously Mr. O’Neil would like to have them say ‘settled the case’ because then that is an implication, the very implication that the civil rules — the very implication for the reason for the civil rule. There shouldn’t be any mention of settlement, Judge, any more than to say, for instance, if I got up and said, “Judge, I think what you ought to tell them is that the defendant (sic) has dismissed the case as to Doctor Neurology.” That wouldn’t be fair. It isn’t fair to create this innuendo, this wonderment in the minds of the jury. It’s the simpler the better. “Ladies and gentlemen, Doctor Neurology is no longer involved in this litigation. We’re prepared to go to trial.” I mean, simple is best, Judge. Let’s don’t get complicated.
THE COURT: Okay. Mr. Morgan, you’re still here. You’re now officially assisting —
MR. MORGAN: Assisting Mr. Huffman.
THE COURT: Okay.
MR. HUFFMAN: He’s not assisting me, Judge. He’s co-counsel.
THE COURT: Co-counsel? Okay.
MR. MORGAN: Which, I guess, means I’m assisting.
THE COURT: Well, as co-counsel, I guess, or as former counsel of Doctor Neurology, do you want to have any input in this issue about how Doctor Neurology’s absence is handled?
MR. MORGAN: In thinking of what the jury should be told, your Honor, I thought maybe just to indicate to the jury something along the lines of what you were saying – “Ladies and gentlemen, you know, Doctor Neurology is no longer a party to this case.” I think you had indicated that you were going to list reasons. But, I would not. I would just say, “He’s no longer a party to this case. That could be for a variety of reasons. You’re not to speculate as to why he’s no longer a party. The case is now going forward against the remaining defendants.”
THE COURT: Do you want, Mr. Huffman, Mr. Morgan, and Mr. O’Neil, do you want me to introduce you now as co-counsel for Doctor Madison and —
MR. HUFFMAN: I don’t think that’s necessary, Judge.
MR. O’NEIL: Your Honor, that has to be necessary.
THE COURT: I mean, you’re still here. I could just indicate that Mr. Morgan is still going to be here as co-counsel for the remaining doctors. Is that fair enough?
MR. O’NEIL: For Doctor Madison and the other doctor.
THE COURT: I mean, the concern I would have is that if I tell them that Doctor Neurology is no longer in the case they’re going to wonder why his lawyer is still here. So, if I just say that you’re here as co-counsel for Doctor Madison.
MR. HUFFMAN: Fine.
THE COURT: Okay. The Court — I’ve studied on this a little bit. In looking over Evidence Rule 408, and I tried to find cases where this specifically came up and I couldn’t find anything specifically on point. But, I thought the best way to handle it would be just to indicate, and this is what I’m going to read – “Doctor Neurology is no longer in this case. You are not to speculate as to his absence or infer anything from the fact that he is no longer in this case. The defendants remain. You are to continue to consider the case as it relates to them.”
MR. HUFFMAN: How about making it ‘as to them only’?
THE COURT: And then I’ll put in there that Mr. Morgan is remaining as co-counsel for the remaining defendants.
MR. HUFFMAN: Fine.
THE COURT: Anything else we need to talk about before we bring the jury in for the day?
MR. MORGAN: Your Honor, — oh, did you have something, Joe?
MR. O’NEIL: Your Honor, just to make sure we have an objection for the record.
THE COURT: Yea, okay. Your objection is noted.
MR. MORGAN: I’m not sure if they’re calling their economist first this morning. Are you guys?
MR. O’NEIL: If he’s here, we would.
But, we’re not sure he’s quite ready.
MR. MORGAN: Okay. If he is, I would just put an objection on the record relative to his testimony to anything that has to relate to life expectancy in terms of, well, life expectancy as it relates to the loss of income and any life expectancy testimony as it relates to, or, associated with the Life Care Plan and the costs associated with the Life Care Plan just based on the testimony of the physical medicine doctor that there hasn’t been any life expectancy testimony. He indicated he was not a life expectancy expert and did not consider the fact that Mrs. Flood had been a smoker. He was simply testifying that her ailments as a result of her illness did not reduce her life expectancy. So, I would just put an objection in to any testimony, therefore, as it relates to any life expectancy testimony and then the costs and conclusions he draws as a result of that.
THE COURT: Do the plaintiffs care to respond to that?
MR. O’NEIL: I think we’re really splitting hairs. The doctor indicates that he knows of all of her medical issues involved in this case and these issues do not reduce her life expectancy and he would expect her life expectancy to be normal. Now, if there’s some weird other disease that she’s got that somebody doesn’t know about, well, that’s a different issue. She, certainly from this process, has a normal life expectancy from what’s been testified to and there is absolutely nothing contrary to that.
THE COURT: Okay. Since I don’t exactly know what the economist is going to testify to, I’ll take that under advisement and see what the testimony is. If you want to raise that at the time of his testimony, just do a quick Bench conference on that and then I’ll rule on it at that point. Anything else?
MR. O’NEIL: No.
THE COURT: Ready to go? All right. Is everybody here?
BAILIFF: Yes, sir.
THE COURT: Why don’t we all just step out and take about five minutes to gather our thoughts and then we’ll get going.
(WHEREUPON, Court was in recess.)