Last week at the DRI conference in New York an especially talented lawyer delivered an especially interesting address. Everything about the speech was riveting and splendid, until she deployed the word “fulsome” in the increasingly popular, albeit wrong, fashion, as a synonym for full or complete. About twenty heads spun around to look at us with glee, knowing we had recently railed against this misuse. How is “fulsome” superior to the simpler, correct words? The interesting, specific meaning of fulsome is being diluted by foolish pomposity. Still, the message conveyed to us by this event was not so much about the increasing misuse of “fulsome” but more about our increasing reputation for crankiness. It is a curse. When someone hands us a draft for editing, we must pass through it at least twice. Only after clearing away the grammatical wreckage can we review for substance. It is undeniably a weakness on our part. A misplaced “only” will throw us off and make us want to drop the draft in the trash bin. It would be wrong to say we “only threw three fits over confusions between ‘uninterested’ and ‘disinterested’ yesterday.” That “only” belongs next to the word it is modifying, which is “three,” not “threw.” When someone writes that the court “found” something, if the reference is to a legal holding rather than a finding of fact, we reach for the red pen and mutter about the decline of the West. The Third Circuit “held,” not “found,” that Levine preemption is a fact issue. Of course, the pernicious thing about the Third Circuit’s Fosamax ruling is that it transformed what should be a holding into a finding. You have probably heard all this before.
Are we fretting too much over silly mistakes? Maybe. Are we being more than a bit pompous? Maybe. Nobody’s perfect. There are probably no fewer than five dopey mistakes in this post.
Mistakes are not always a big deal. That is the lesson of a recent Third Circuit ruling in Estate of Goldberg v. Nimoityn et al., No. 17-2870 (3d Cir. April 13, 2018) (not precedential). The case was a wrongful death med-mal case. The plaintiff claimed that the doctors and hospital erred in delaying placement of a feeding tube. The defendants hired an expert witness doctor who opined that the delay in placing the feeding tube was appropriate. But in that expert’s report there was a mistaken assumption that pneumonia was a factor prompting delay on a certain date when, in fact, the pneumonia diagnosis did not occur until a later date. At trial, the defense counsel fronted the error with the expert and elicited the expert’s testimony that the mistake was a typo and did not, in any event, affect his ultimate opinion that the delay in placing the feeding tube made sense. The plaintiff lawyer objected and explained at sidebar that the fronting of the mistake and the explanation by the expert should be precluded because such testimony wandered beyond the scope of the expert report. The plaintiff lawyer had been salivating over the mistake. He told the court that he had considered raising the issue before trial. But surprise seemed more appetizing. It would no doubt make for a devastating cross. The problem was that the defense lawyer had surprised the plaintiff by ruining the surprise. The district court permitted the defense expert to ruin the surprise, reasoning that the ultimate opinion was the same and there was no material surprise. The case went to the jury, which returned a verdict for the defense. The plaintiff asked for a new trial, again arguing that the defense expert should not have been allowed to fix his mistake and, furthermore, that the expert’s attribution of the mistake to a typo was perjury. The district court agreed that the typo explanation was “disingenuous at best,” but continued to believe that there was no prejudicial surprise. The district court denied the motion for a new trial. The plaintiff appealed to the Third Circuit.
The plaintiff’s main argument on appeal was that the district court erred in failing to exclude the defense expert’s testimony under Federal Rule of Civil Procedure 37(c) (Failure to disclose, to supplement an earlier response, or to admit). The defense expert never supplemented his expert report. The expert’s repair of the mistake in his report landed like a sandbag on plaintiff counsel’s head. So the argument goes. The Third Circuit reviewed the district court’s decision to admit the expert’s testimony under the abuse of discretion standard. The issues were whether the plaintiff was surprised/prejudiced, whether there was an opportunity to cure any prejudice, and whether the defense exhibited any bad faith. The plaintiff lawyer acknowledged that he knew about the mistake, so the surprise element was frail. He was more frustrated than surprised. Further, the plaintiff lawyer did have the opportunity to cross-examine the expert and force him to admit that one of the major bases for his original opinion was a pneumonia diagnosis that did not actually exist. The point was scored, albeit with less drama than the plaintiff lawyer desired. The point is that any prejudice was largely cured. Finally, there was no evidence that the defense acted in bad faith by failing to supplement the report. The mere passage of two years time between issuance of the expert report and the trial testimony did not, by itself, establish a nefarious plan.
The Third Circuit also agreed with the district court that the defense expert’s reference to a typo was implausible, but not clearly perjurious. The plaintiff expert had, after all, admitted the key fact that the pneumonia diagnosis did not yet exist when he thought it had. The expert got an important fact wrong and confessed as much. The opinion does not mention whether the plaintiff lawyer had more than a little fun at cross-examination with the typo whopper. He certainly could have. As has been said more than once, and as we seem to be hearing every day now, the cover-up is often worse than the original offense. Be that as it may, there was no reason to order a new trial just so that the impeachment could have played put just the way the plaintiff lawyer wanted.
There is a certain amount of cleverness in the plaintiff’s argument. But clever is not the same as right. One additional fact that makes us sure the Third Circuit is right in Nimoityn is that the Third Circuit was affirming a decision by district court Judge McHugh. Before he became a judge, Gerald McHugh was one of the preeminent litigators in Philadelphia. We never were in a case with him, and that is probably a good thing, because McHugh probably would have been on the other side of the v, and even more probably would have beaten our brains out. We’ve been in the Penn Inn of Court with Judge McHugh for many years, and his contributions during the question periods have been invariably insightful. Judge McHugh possesses a superabundance of intelligence, integrity, and – well – judgment. He does not make many mistakes. (We cannot think of any.) He did not make one here, and the Third Circuit did not make one in affirming his ruling.