A Mississippi appeals case [access to Lexis required] is a poster child for ethics sanctions against a plaintiff’s lawyer and his paid “expert” witness.
In 1993, defendant was passing on the left when plaintiff made a left turn into a driveway and was struck by defendant. Plaintiff was treated for minor injuries. She later asserted that she suffered from post-traumatic stress disorder and that she no longer enjoyed sex, had no friends and her grades had suffered.
A Bolivar County Circuit Court jury awarded Ireland $1 million in 2000 despite the lack of any real physical injury. The Court of Appeals reversed that judgment and remanded for a new trial, finding that a deceased doctor’s letter should not have been admitted. A mistrial was declared in the second trial after it was learned that plaintiff had been untruthful about her medical history and psychological condition.
Plaintiff claimed not to have an interest in sex, yet she had been treated for sexually transmitted diseases 41 times and took birth control pills for six years. She also had been pregnant twice. She had sexual relations on the same day she testified as to her loss of sex drive. She also visited a casino 89 times, including once nine days before trial.
At the third trial, plaintiff’s expert, Dr. Rodrigo Galvez, opined that plaintiff suffered from post-traumatic stress disorder. The trial court found that plaintiff could no longer pursue claims under which she had given untruthful testimony and failed to comply with discovery. However, the trial court did not impose any sanctions and permitted Galvez to testify despite his reliance on plaintiff’s previous false statements.
Even after Galvez learned of the misstatements, he did not change his diagnosis. Rather, he opined that the misstatements were part of the post-traumatic stress disorder.
The appeals court found that Galvez’s opinion was not based on sufficient facts or data because it was at odds with the facts introduced at trial about plaintiff’s sexual activity and improving grades. Galvez also admitted that he had nothing but plaintiff’s word as a basis for his judgment of her pre-accident psychological condition.
“Consequently, the record fails to contain any information that could tend to show [plaintiff] suffered any psychological injury stemming from the accident, aside from her verbal representations, which even her expert witness stated were not factually accurate,” the appeals court said. “Therefore, the circuit court erred in denying Gilbert’s motion for directed verdict or JNOV.”
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