Mall vs Horton
Sukhdev Mall’s claim against Andrew Horton was one of the first I worked on when I came onto Rizk Law shortly after completing my first year of law school. It was the second trial that I acted as Rich’s assistant. It was a fairly severe car accident that occurred in October of 2013 – a few inches back, and it’s quite likely Mr. Mall would have died.
We brought the case to arbitration in June 2015
The arbitrator awarded Mr. Mall around $44,000 and change. The opposing council appealed. The case went to jury trial in August 2015. It came before a judge who, by his own admission multiple times on the record, had no experience with civil lawsuits and was unsure on many of the evidentiary rulings that make or break a trial. After several rulings we considered to be suspect, the jury returned an award of $2,500, in stark contradiction to the arbitrator’s award. We appealed.
I was with Rich in trial, and I took a lead role in articulating our appeal (with the fantastic help of Don and Rich). The briefs are available if you are curious, but in essence, we had three primary assignments of error that, we argued, led the jury to an absurdly low jury verdict:
1.) Expert Qualifications:
We proffered Dr. Jonathan McClaren, a local chiropractor with recently completed certifications in accident reconstruction and biomechanical engineering, as an expert in chiropractic, accident reconstruction, and biomechanical engineering. Opposing counsel argued, and the judge accepted, that he could not qualify to testify on the latter two areas because he had only recently completed his education on those issues. We argued that Oregon’s qualifications of an expert only require skill, knowledge, experience, education, or training – any deficiency beyond a minimal showing goes to the weight of the evidence and is proper grounds for cross-examination, not refusal to allow the testimony.
2.) Rebuttal Evidence:
The Oregon Rules of Civil Procedure provide that, after the defense has finished its case-in-chief, the plaintiff is allowed to bring up a witness for cross-examination. The judge on that day decided to not allow it, based on 50-year-old case-law raised by the defense that did not, in fact, stand for the proposition he offered it for. We argue and believe that not allowing us to bring on our expert to rebut the testimony of their expert not only defies the general standards of trial practice; it also enabled the defense, who does not have the burden of proof, to color the evidence by having the last word on the evidence.
3.) Eggshell Jury Instruction:
Mr. Mall had prior injuries and a generally weakened spine from normal aging. He is what we call an “eggshell plaintiff”, which means that he is more susceptible to injury than someone without the conditions he has. Oregon law, and the Uniform Jury Instruction 70.06, states that the defendant must “take the plaintiff as he finds him,” meaning he must make the plaintiff whole even if preexisting conditions made him more susceptible to injury. The rationale behind this old, old common law rule is that you shouldn’t be better off for injuring an elderly person than you are for injuring a young, healthy individual. We requested this instruction, and the court inexplicably refused to allow us to have it. Without it, and with the defense speaking frequently throughout the trial about Mr. Mall’s prior knee conditions, back conditions, and putting on an expert that opined that his injuries were all due to normal signs of aging, the jury was not instructed that it should still award to plaintiff even if he had conditions that predisposed him to injury.
In October 2016, when I was a third-year law student with law student certifications to practice in court with a supervising attorney (Rich), I argued this case before the Honorable J. Flynn, J. Sercombe, and J. DeHoog of the Oregon Court of Appeals (J. Flynn is now on the Oregon Supreme Court).
Tomorrow, I find out which if any of these will grant Mr. Mall the right to a new trial. Mr. Mall is a good person who went through a terrible time, and I will probably lose sleep tonight over the practicality of his right to a new trial. On top of that, now as a new attorney, I’m hopeful about establishing these three issues as trial-right guarantees for future practice, so that other attorneys in similar situations won’t be blindsided by erroneous legal rulings.
Alexander Pletch, OSB No. 174384