Protect Your Client's Right to Tell the Whole Story


In any personal injury case plaintiff's counsel wants to focus the jury on the culpability of the defendant remaining at trial, as well as the damages, and little else. They argue that evidence related to the historical or situational "context" or other participants in the process is unnecessary and irrelevant. Judges like to move a trial along. Defense counsel should resist this effort. In defending any occupational injury case, consider the role of the plaintiff's employer. Generally speaking, the employer has the primary duty to protect its workers. Don't let your opponent take the employer out of the story. Here is what happened to Exxon.

In a trial last year, Exxon tried to tell the jury about the plaintiff's employer, a shipyard, so its responsibility for protecting workers could be fully understood. The trial judge agreed with the plaintiff, who claimed that Exxon caused his exposure to asbestos and his fatal mesothelioma, and excluded evidence about the shipyard. The jury awarded the plaintiff over $17 million for claims made under the Longshore and Harbor Worker's Compensation Act (LHWCA). Exxon appealed from the verdict. In Exxon Mobil Corp. v. Minton, No. 111775 (Va. Jan. 10, 2013), the Supreme Court of Virginia reversed a judgment against Exxon Mobil Corporation because the lower court precluded Exxon from offering evidence of a shipyard's knowledge of asbestos hazards.

Exxon argued that the trial court's ruling to exclude evidence that the Shipyard knew of the relevant hazard (and had asbestos controls in place) left the jury with a false and prejudicial impression that Exxon was the only entity with the ability to protect the plaintiff. Under the LHWCA, a vessel has the duty to intervene if the vessel had actual knowledge of an unsafe condition and the shipyard was "obviously improvident" in failing to remedy the condition. The Supreme Court of Virginia agreed with Exxon and held that evidence of a shipyard's knowledge is crucial because under the LHWCA a shipyard has its own duty to provide a reasonably safe place to work and to take safeguards necessary to avoid injuries and a vessel owner may rely on that responsibility. Further, the shipyard is presumed to have a higher level of expertise than the vessel owner, and only upon a showing that the vessel owner could not rely on the employer or its expertise, does a duty to intervene arise under the LHWCA.

In essence, the lower court prevented Exxon from telling its own story. In order to mount a successful defense, a party must have the opportunity to present its whole story and the related themes. Today's jurors are unlikely to side with any party who does not offer them the information that they would consider important. We recently conducted a jury study and co-authored an article entitled "The Generation X and Y Factors" (attached as Attachment 1) analyzing the resonance of power themes with modern jurors. For more information on techniques to effectively communicate with modern jurors, please contact David Governo ([email protected]) or Melissa Tarab ([email protected]).

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