Appeal from the United States District Court for the Eastern District of Louisiana. D.C. DOCKET NUMBER 89-5100 F. JUDGE Martin L.C. Feldman
Before Politz, Chief Judge, Reynaldo G. Garza and Wiener, Circuit Judges.
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.
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.
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,*fn1 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 lawyers*fn2 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 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 in United States v. McDonald,*fn3 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."*fn4 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.*fn5 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 ...