Dealing with a Seriously Impaired Plaintiff at Trial

A minority of states do not engage in the analyses outlined above. These states seldom or never permit the exclusion of a plaintiff from any phase of trial. In Pennsylvania, a plaintiff has the right to attend his or her trial, absent an overwhelming reason to the contrary. A plaintiff will not be excluded because of his or her injuries, particularly where the plaintiff's behavior at trial is not disruptive. See Marks v. Mobil Oil Corp., 562 F. Supp. 759, aff'd 727 F.2d 1100 (1983). In Indiana, the State Constitution provides an inviolable right to a jury trial in a civil matter, which courts have held “includes the ancillary right to be present in the courtroom during the liability and damage phase of trial.” Absent waiver or extraordinary circumstances, a plaintiff will not be excluded from the courtroom during trial. Jordan v. Deery, 778 N.E.2d 1264 (2002). In Oklahoma, absent a voluntary waiver, a plaintiff can only be excluded from the courtroom during trial in the case of “extreme circumstances.” The reasoning behind this is that a party's physical appearance is not a proper basis for exclusion from the courtroom (and does not amount to an “extreme circumstance” permitting exclusion), and juror sympathy does not guarantee that the jury will disregard the law to reach a verdict based on sympathy alone. See Cary v. Oneok, Inc., 940 P.2d 201 (1997).

In next month's issue, we will discuss methods for diminishing the emotional impact on the jury of the courtroom presence of the seriously impaired plaintiff.

Lori G. Cohen, a member of this newsletter's Board of Editors, is a shareholder with Greenberg Traurig, LLP. She focuses on litigation and trial work for the pharmaceutical and medical device industries, products liability, and medical malpractice. She has been recognized by the National Law Journal as one of 'The 50 Most Influential Women Lawyers in America.' At the time of this writing, Sarah L. Goldberg was an associate with the firm.

Few cases inspire more sympathy than those involving a seriously impaired plaintiff. Such cases can be daunting to defense counsel because of the potential for juries to allow sympathy to overshadow their legal duty to consider the facts of each case objectively.

The laws vary among states in terms of whether and when an impaired plaintiff can be present in the courtroom during the trial of his or her case. In some states, plaintiffs' lawyers must establish the right of their clients to be in attendance during trial when defense counsel challenges that right. In other states, defense counsel is not afforded this challenge, as the exclusion of a plaintiff from any phase of trial (absent waiver by the plaintiff) is never permitted. In those situations in which a seriously impaired plaintiff is permitted in the courtroom, certain strategies may be employed throughout the course of the trial in order to minimize the risk of juror sympathy influencing the outcome of a case.

Differing State Laws: The Liability Phase

State laws vary regarding the presence of a seriously impaired plaintiff in the courtroom during the liability phase of trial. Among the states that permit the exclusion of a plaintiff during the liability phase, there are varying criteria for the courts' consideration when determining if proper grounds for exclusion have been established.

Most states agree that a plaintiff's physical condition alone ' no matter how sympathetic ' is not enough to keep the plaintiff out of the courtroom during trial; instead, the analysis is focused on factors such as whether the plaintiff's impairment prevents him or her from assisting in or understanding the proceedings, or whether the plaintiff's presence would prevent the jury from performing its duties under the law. A minority of states, however, do not permit the exclusion of a plaintiff during any phase of his or her trial.

In Helminski v. Ayerst Laboratories , 766 F.2d 208 (1985), the Sixth Circuit Court of Appeals outlined the analysis that has been followed by a number of states. The Helminski court held that in order to exclude a plaintiff from the liability phase of trial, the defendant must establish at a hearing that “the plaintiff's presence would prevent or substantially impair the jury's performance or its fact-finding task.” Id. at 217. Proving that the plaintiff has a mental or physical injury does not satisfy the requisite showing of prejudice; the defendant must prove that the plaintiff's conduct or appearance is likely to prevent the jury from performing its duty. The Helminski court was careful to point out that at this stage of the evaluation, the plaintiff's ability to comprehend the proceedings or assist counsel is not the relevant inquiry. Instead, “the issue is whether the party's presence will unfairly prejudice the proceedings in his favor.” Id. at 217. However, if the court determines that the plaintiff's mere presence would be prejudicial, it must then consider whether the plaintiff can understand the proceedings and aid counsel. If the plaintiff can comprehend the proceedings and assist counsel in any meaningful way, the plaintiff “cannot be involuntarily excluded regardless of prejudicial impact; in such a case, cautionary instructions will protect the interests of the defendant in a fair trial.” Id. at 218. The Helminski court also determined that neither the due process clause of the Fifth Amendment nor the guarantee of a jury trial under the Seventh Amendment is violated by excluding a plaintiff from a civil trial; if the plaintiff is represented by counsel, his or her rights are protected.

In some states, the propriety of excluding a plaintiff from the courtroom is determined by whether or not the plaintiff is so impaired that he or she would be unable to understand the proceedings or to assist counsel in any meaningful way. In New York, although the physical condition of a plaintiff is not, in and of itself, enough to justify exclusion from the courtroom, when the plaintiff is both physically and mentally incapable and the mental incapacity prevents the plaintiff from assisting counsel in any meaningful way, it is within the court's discretion to exclude that plaintiff from the liability phase of trial. See Caputo v. Joseph J. Sarcona Trucking Co. , Inc., 204 A.D.2d 507 (1994).

In Oregon, a plaintiff who is unable to comprehend the proceedings, meaningfully participate in them, or assist his or her lawyer in the presentation of a case may be excluded from the liability portion of a bifurcated trial if the court determines that the party's presence would be unfairly prejudicial. “The preferred method is for the trial court to hold a formal hearing and personally view the party before it makes a ruling on whether to exclude that party from the liability phase of trial.” Bremner v. Charles, 312 Or. 274 (1991).

In terms of bifurcation, the Supreme Court of Minnesota has held that “the separation of issues for purposes of trial would be an effective way of permitting a plaintiff whose appearance is relevant to the issue of damages to be present when and if that question is decided and to be absent when evidence relevant to legal responsibility is being presented to the jury.” Dickson v. Bober , 269 Minn. 334, 338 (1964).

In some states, courts must go through a programmed analysis when determining whether a plaintiff can be excluded from the courtroom. In Maryland, the trial court has discretion to exclude a plaintiff from the liability phase of trial where, after a hearing and opportunity to observe the plaintiff (either in person or by “other reliable means”), the court determines that: 1) the plaintiff is severely injured; 2) the plaintiff attributes those injuries to the conduct of the defendant; 3) there is a substantial prospect that the plaintiff's presence in the courtroom may cause the jury to side with the plaintiff out of emotional sympathy rather than on the evidence; 4) the plaintiff is unable to communicate or participate in the trial in any meaningful way; and 5) the plaintiff would be unable to comprehend the proceedings. See Green v. North Arundel Hospital Assn., Inc. , 366 Md. 597 (2001).

Other states have less formatted criteria for determining whether exclusion of a plaintiff from trial is proper. In California, the general principle is that there are some circumstances where the trial judge may exercise discretion to exclude the plaintiff from the courtroom, the primary situation being when the plaintiff is unable to assist counsel in the liability phase of a bifurcated trial. See Province v. Center for Women's Health and Family Birth , 20 Cal. App. 4th 1673 (1993).

States That Do Not Engage in the Analysis