The Court of Appeal of the State of California – Second Appellate District in Osborne v. Todd Farm Service, et al. (5/2/16 – Case no. B260280) affirmed the trial court’s dismissal of plaintiff’s complaint for personal injuries during jury trial as a sanction for repeated violations by her counsel of its in limine orders excluding hearsay and opinion testimony.
In Osborne, plaintiff, a stable maintenance worker, had climbed to the top of a stack of hay bales to throw one of the upper bales down to the ground. When she inserted hay hooks into the bale to move it, the bale gave way causing her to fall 11 feet to the ground causing severe injuries.
During discovery, plaintiff’s counsel failed to make a timely designation of expert witnesses. Instead, after defendants served their designation of expert witnesses, plaintiff served a “supplemental” designation. The trial court granted a motion to strike plaintiff’s supplemental designation as the designation was “not a true supplement but rather what appears to be a calculated attempt to put [defendant] at a disadvantage as to designation of experts.”
Before trial commenced, the defendants who had allegedly grown and delivered the hay, made motions in limine to (1) exclude opinion testimony from plaintiff that she could determine the geographic origin of hay bales by looking at the color and texture of the hay or from offering any other opinions concerning the manner in which hay is cut, harvested, baled, manufactured, stored, and moved based on the order striking her designation of expert witnesses, and (2) precluding plaintiff, on hearsay grounds, from testifying to any statements made by unidentified employees of the delivery company relating to the “identity” or origin of hay delivered to plaintiff’s employer or as to the origin of the hay bale involved in plaintiff’s accident. (There had been several different types of hay on the stack from which plaintiff fell and establishing the identity of the supplier of the hay bale in question was hotly disputed.) The trial court granted both motions. In granting the motions, the trial court admonished plaintiff’s counsel there should be no reference to the origin of the hay bale based on the hearsay.
Plaintiff’s trial counsel disregarded these admonitions in his opening statement. He asserted evidence would show the hay bale which plaintiff’s injuries came from one of the defendants and that plaintiff would testify she knew from where the hay bale came. Defendants objected and the trial court instructed the jury to disregard the comments. The trial court also informed plaintiff’s trial counsel he was violating a previous ruling of the court. Counsel again attempted to introduce the evidence on two more occasions. After each attempt the trial court repeated its admonitions to counsel. Plaintiff’s counsel then twice sought to re-argue his objections to the court’s orders in limine. Both times, the trial court again declined to change its prior ruling.
Finally, during the direct examination of his client, plaintiff’s counsel asked if she knew from where the hay bale came. Plaintiff responded with the name of one of the defendants. The trial court immediately excused the jury and stated that plaintiff’s counsel had engaged in “flagrant misconduct in violation of the [court’s] repeated rulings.” Plaintiff’s counsel argued the exchange had not been planned and that the jury should be instructed to disregard the offending testimony. The trial court instead ordered the case dismissed with prejudice against all defendants “as a sanction against both [plaintiff and her counsel] for flagrant and repeated violations of the Court’s order.” Plaintiff appealed contending the trial court abused its discretion in granting the terminating sanction and erred when it granted defendants’ motions in limine.
The Appellate Court affirmed the trial court’s ruling, holding that “California courts possess inherent power to issue a terminating sanction for ‘pervasive misconduct.’” Further, a trial court’s decision will be reversed only “for manifest abuse exceeding all bounds of reason.” As for the motions in limine to exclude plaintiff’s opinion testimony, the Appellate Court found the trial court properly excluded such evidence based on her failure to make a timely designation of expert witnesses. Further, the Appellate Court stated plaintiff’s layperson’s opinion was properly excluded because no layperson can express an admissible opinion on where hay was grown and baled. Further, the Appellate Court found the trial court also correctly granted defendants’ motion in limine to exclude evidence regarding the source of the hay bales as hearsay.
The Appellate Court also confirmed that a trial court’s authority includes imposing a terminating sanction where a party willfully violates the court’s orders. From its review of the record, the Appellate Court had no difficulty finding that the trial court had revisited and clarified its evidentiary rulings at least three times and that plaintiff’s counsel repeatedly disregarded the orders, thus enabling the court to exercise its inherent authority to compel “obedience to its judgments, orders, and process.”
The Osborne decision serves as a reminder that, as officers of the court, counsel are required to comply with a court’s orders and respect them whether they believe they are right or wrong. Choosing to forge ahead in disregard of a court’s rulings may have grave consequences for both counsel and his or her client. Further, it would seem repeated, willful violations of a court order resulting in terminating sanctions may open counsel to additional issues in the form of a malpractice claim from the client whose case is dismissed based on counsel’s behavior alone.
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