On January 20, 2021, the California Court of Appeal, Second District, Division Six (Ventura), in Plascencia v. Deese (B299142), vacated a $30 million non-economic damages award in a highway fatality case because: (1) the award did not properly apportion non-economic damages among everyone at fault in violation of Proposition 51; and (2) the amount of the award appeared to have been influenced by plaintiffs’ counsel’s misconduct and prejudicial remarks during closing argument.
In Plascencia, the plaintiffs sued several defendants for the wrongful death of their daughter arising from a highway fatality accident. All the defendants settled or were dismissed before trial except the trucking defendants. The highway fatality was caused when one defendant driver made an illegal U-turn on a highway as she left another defendant’s fruit stand. The plaintiffs’ daughter swerved to avoid the U-turn driver, lost control of her car, and crashed into the back of the trucking defendants’ diesel tractor-trailer. The truck driver had parked the truck on the side of the highway near the fruit stand, which the trucking defendants’ expert conceded fell below the standard of care.
Before trial, the State of California, the U-turn driver, the owner of the U-turn driver’s car, the owner of the fruit stand, and the owner of the fruit stand parking lot all settled. Thus, the trucking defendants were the only remaining defendants at the time of trial. The trial court issued an in limine order precluding the trucking defendants from presenting evidence on the comparative fault of the settling defendants other than the U-turn driver, because in response to contention interrogatories, the trucking defendants had asserted that the U-turn driver was the sole cause of the accident, and did not mention any other defendants.
During closing arguments, plaintiffs’ counsel accused the trucking defendants and their attorney of lying, presenting a fraudulent defense, and delaying settlement. Referring to the truck driver, plaintiffs’ counsel told the jury that “You can’t stone him to death” but you can “make him pay.” Plaintiffs’ counsel also violated an in limine order prohibiting counsel from invoking the Golden Rule, when plaintiffs’ counsel asked the jury to “imagine” it was “your daughter” and “some guy broke a rule . . . and your daughter is taken away.” The jury awarded $30 million for non-economic damages, finding the trucking defendants 40 percent at fault and the U-turn driver 60 percent at fault.
On appeal, the court concluded that the award violated Proposition 51, which makes a defendant liable only for that defendant’s share of fault as compared with everyone at fault. Here, the trial court precluded the jury from considering the comparative fault of the defendants who settled before trial, other than the U-turn driver. The plaintiffs argued that the trucking defendants were estopped from asserting the comparative fault of the settling defendants, based on the trucking defendants’ contention interrogatory responses. The Court of Appeal disagreed, reasoning that a party has no duty to amend or supplement his or her interrogatory answers, the plaintiffs knew the comparative fault of the settling defendants was a contested issue but did not move to compel further discovery responses, no published opinion has stated that terse responses to contention interrogatories trump a Proposition 51 proportionate fault defense, and there must be a willful violation of an existing order before an issue-evidence conclusion order is made.
The Court of Appeal further concluded that the $30 million verdict was so large that it shocks the conscience and suggests passion or prejudice on the part of the jury. Indeed, plaintiffs’ counsel’s ad hominem attacks were designed to impugn the integrity of the trucking defendants’ counsel, although the trucking defendants’ counsel did not lie or commit fraud by exercising the right to trial. Additionally, plaintiffs’ counsel’s encouragement to “make him pay,” inferred that the trucking defendants’ failure to settle the case caused the plaintiffs’ grief, which is not recoverable in a wrongful death action. The Golden Rule argument that the jurors should imagine it was their daughter that was taken away was similarly prejudicial. While the trial court had denied the trucking defendants’ motion for new trial, finding that the issue of misconduct was waived because the trucking defendants’ did not object, the Court of Appeal disagreed. Indeed, even in the absence of an objection, an appellate court cannot refuse to recognize misconduct when the instances of misconduct are flagrant and repeated. Here, the record left no doubt that the misconduct was carefully contrived and calculated to arouse and inflame the jury to award a large verdict.
The jury in Plascencia was undoubtedly influenced to award large amounts of damages in excess of what the law and facts warranted. This case illustrates the importance of defense motions in limine to ensure that plaintiff’s counsel do not violate the Golden Rule, make reptile arguments, etc. Motions in limine can be helpful to educate the court early on, or to call the court’s attention to moves that you expect your adversary to make that are objectionable, even if the court decides to reserve its ruling on those particular issues until they present themselves at trial. For example, whether or not opposing counsel has suggested during depositions that the defendant’s conduct is a danger to the community and should not be tolerated or that the defendant should be punished for its action or inaction, a motion in limine asking the court to prohibit counsel from making these “send a message” arguments are best addressed in limine rather than the middle of trial with a witness on the stand. Here, the court issued an in limine order that counsel not violate the Golden Rule, yet plaintiff did so anyway. Plaintiff’s counsel argued that defense counsel did not object during the closing when plaintiff’s counsel violated the Golden Rule, but the in limine motion and order assisted in preserving the issue for appeal. Indeed, a pretrial motion in limine may eliminate the need for a subsequent objection, but this is an exception to the general rule and does not obviate the need to stay vigilant and make objections for violations of in limine orders throughout trial. As such, with skilled defense counsel who are keenly aware of the boundaries of the law as well as strategies by plaintiff’s counsel to exceed those boundaries, such excessive awards can be prevented and challenged on appeal.
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