• January 13, 2015

nuclear_fireball1 bomb explosionIf your client were sued for a car accident in which he rear-ended someone, you think you might be interested in evidence that the injured plaintiff “had a history of vision problems; suffered from dizziness, paranoia, and hallucinations while driving; had been instructed not to drive at night; and had been hospitalized hours before the accident” (which occurred at night, of course)? During the pendency of the lawsuit, the plaintiff dies and you, defense counsel, discover that plaintiff’s personal representative in the lawsuit had actually called police before the accident that night out of concern about plaintiff driving at night…And then you find out that plaintiff’s counsel held on to this information several months after a court order requiring production.

The U.S. Court of Appeals for the Eighth Circuit affirmed dismissal of Comstock v. UPS Ground Freight due to the plaintiff’s, plaintiff’s representative’s, and plaintiff’s counsel’s apparent discovery misconduct. Between the three of them (and then some (hello? supervising senior lawyer?)), you kind of have to wonder who was primarily responsible for this litigation disaster. It looks as if plaintiff’s counsel was a junior lawyer at a firm that specializes in personal injury/car accident cases. Rookie error? We’ll never know. But errors or omissions in civil discovery in Comstock v. UPS Ground Freight appear to have converted what, in theory, could have been a case with some settlement value into a case with serious negative value. It is obvious from the Eighth Circuit opinion that plaintiff’s counsel had invested some money into the case (hiring, for example, an accident reconstruction expert (but then failing to produce all of the expert’s test results, as required).

Practice pointer: if the case is strong enough to sign up, it must be strong enough to withstand good faith civil discovery. If it is not strong enough for that, better to take a pass.

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