by David Staats
Things got tense even before the trial started – or maybe I should say before the jury was seated. As soon as the judge sat down and called the name of the case, Mr. Wakefield, who had remained standing, said, “Your Honor, we have a preliminary matter. I filed a week ago my Motion in Limine to Exclude Expert Witness, and this morning Mr. Easey has favored me with his response. And in order to plan the presentation of evidence, and to streamline the same, and to save the Court’s time. the parties request the Court to rule on that motion at this time. And it’s quite a simple matter, Your Honor, in that the intervenor, the Fidelicity Life Insurance Company, through my learned friend Mr. Easey, purported to serve notice of expert testimony only two weeks before trial, which is beyond the time allowed in the case management order and is in any event unfairly prejudicial to the other parties as in such a short time it was impossible to depose that expert witness and for the other parties to secure their own expert witnesses. And we request that the Court grant the motion, and I am authorized to represent to the Court that the defendant, through my learned friend Mr. Dure, does not object to this motion.”
Mr. Dure had discussed this motion with me when Mr. Wakefield had served it. He said that if granted it would severely cripple, if not kill, Mr. Easey’s case by keeping out his psychiatric expert witness. However, we wouldn’t take a position on it. Because, on the one hand, if Mr. Easey won his case by getting a verdict of suicide, then we would in effect win our case; but on the other hand, a jury finding of suicide would emotionally devastate our client and cost her children two million dollars; and on top of all of that, Mr. Dure did not think that Mr. Hargrave had in fact committed suicide.
The judge swiveled his head to look at Mr. Dure, who stood up and said, “Good morning, Your Honor. The defense takes no position on this motion.”
“You’re not supporting the motion?” said the judge.
“No, Your Honor.”
“And you don’t oppose it either.”
“That’s correct, Your Honor.”
The judge turned to Mr. Easey, who was already on his feet.
“Good morning, Your Honor,” said Mr. Easey. “It is a pleasure to be in Your Honor’s courtroom again. I was especially gratified to read recently that Your Honor had received the Horace Poldrum Community Service Award. It was certainly well-deserved, and if I may say so, long overdue. As far as this motion of desperation by the plaintiff is concerned, we all understood at the time of the teleconference with Your Honor a little over two weeks ago, when Your Honor granted the motion of the Fidelicity Insurance Company to intervene, that the case management order was implicitly modified as to Fidelicity. Of course, since Fidelicity joined this case after the existing expert witness deadline, there was no way Fidelicity could meet that deadline, and it was understood that by allowing Fidelicity in the case, the expert deadline, and any other necessary deadline was modified. Of course.
“But instead of diligently prosecuting its case, the plaintiff took things easy for a week and then filed this motion in lieu of getting its own expert. The plaintiff’s lack of commitment to its own case cannot justify cutting off the right of Fidelicity to make a fair presentation of its case, including through indispensable expert testimony.”
Mr. Easey went on for another five minutes. Finally, the judge interrupted him. “Thank you, Mr. Easey. Let me ask you this: when did your client receive the claim for insurance benefits?”
Mr. Easey bent down to consult with Mr. Wright. Straightening up he said, “It was around the middle of July, Your Honor.”
“That’s about the time this case was filed. And you moved to intervene in this case at the end of August,” said the judge. “It seems to me that your client has been the one that was not diligent. Whereas it would have been reasonable for your client to intervene in this case in July or even early August, it would not be reasonable for the defendant to have to retain an expert and depose your expert in the two-week period before trial. I’m going to grant the motion.”
The judge made a little ceremony of flipping up the pages of the motion papers and signing with a flourish the form of Order at the back. Mr. Wakefield gave his client a small smile. Mr. Easey looked as if someone had punched him in the stomach.
Mr. Dure said to me, “Dr. Sadsbury is out of the case.”
The rest of the day was taken up with selecting the jury. Mr. Dure was happy that we got nine women and three men.
* * *
The next day, after opening statements, Mr. Wakefield began his case by calling Blake Culler to the stand. Mr. Culler came into the courtroom wearing a sports jacket and tight pants. He was trim and fit and looked very young. I simply couldn’t imagine him as a killer – but, he was the one with access to liquid nitrogen. Mr. Wakefield used him to start to build his case that the Health Club’s negligence was responsible for Mr. Hargrave’s death. Mr. Wakefield had him testify about the finding of the body on Monday, July 6, and used Mr. Culler’s testimony to introduce a photograph of the dead body in the sauna.
Mr. Culler admitted that he had had no training from Ms. MacCreedy about the effects of alcohol on persons using the sauna. Then Mr. Wakefield questioned him about the champagne celebration on that Friday before the holiday. Mr. Wakefield had him identify one of the glasses that he had brought over from the Great Catch; and had him identify the brand of champagne and read from a label the percentage alcohol content.
“How many of these large glasses of champagne did Mr. Hargrave drink?” asked Mr. Wakefield, stretching out the word ‘large’ in a way that seemed to me way overdone.
“I saw him drink at least one,” said Mr. Culler.
“At least one large glass,” said Mr. Wakefield. “Could it have been two?”
“I don’t know. Maybe.”
“Weren’t you there?”
“I wasn’t part of the group that was drinking.”
“No?” said Mr. Wakefield in an accusatory tone. He went to his table and got a deposition transcript and made Mr. Culler read from a part of his deposition where he had said that he was part of the group.
“I was part of the group at the beginning,” said Mr. Culler, turning red, “but then I wandered away. So I wasn’t a part of the group for the whole time. So I don’t know – didn’t see – what everybody was doing the whole time.”
“How many glasses did Ms. MacCreedy drink?”
“Maybe one.”
“And maybe more?” said Mr. Wakefield.
“It could have been.”
“Ms. MacCreedy had been working in the club all day, right?”
“I think so.”
“So she was tired?”
“I don’t know.”
“She was tired and then started drinking?”
Mr. Dure stood up. “Objection. Leading.”
“Sustained,” said the judge.
Mr. Wakefield brought out that Mr. Culler had to work at the sports bar next door to the health club; that he was due to go on shift at six o’clock, and that he had to work at the health club until six o’clock.
“How was it possible for you to start work at the sports bar at six o’clock when you had to stay at the health club until six o’clock?”
“They’re right next to each other.”
“In fact, they are separated by an alley way?”
“Well, that’s what I meant. I just skip across the alley from one to the other.”
“You must have been in a hurry to do that?”
“Objection, leading,” said Mr. Dure.
“Sustained.”
“Were you in a hurry?”
“Not really. I mean … it’s just across the alley.”
“Did you check on the sauna before you left the health club that evening?”
Mr. Culler reddened. “No,” he said.
“You knew that Mr. Hargrave had gone into the sauna; you hadn’t seen him come out, and you locked up the health club without checking the sauna?” said Mr. Wakefield.
“
Objection, leading,” said Mr. Dure.
“Sustained.”
“But you admit you did not check the sauna?”
“Objection, leading, repetitive, waste of time.” said Mr. Dure.
“Sustained.”
Mr. Wakefield said he had no more questions.
Mr. Easey cross-examined. It was his business to make the death look like a suicide, and apparently his theory was that Mr. Hargrave intentionally drank too much before going into the sauna. “Mr. Culler, based on your testimony, the only amount that you can say for sure that Ms. MacCreedy drank was one glass, isn’t that right?”
“Yes.”
“And as to you, yourself, also, only one glass?”
“Yes.”
“So as between the two of you, you can only be certain that two glasses were drunk?”
“Yes.”
“Now, did you see Mr. Golden or the plaintiff, Mrs. Hargrave, drink any champagne.”
“I only saw the initial round of drinks. So I can only say that they had a glass with which they made the first toast. I can’t even say for sure whether they drank the whole glass.”
“Let me be fair,” said Mr. Easey. “Whether they drank the whole glass or not, their glasses had been filled, right?”
“Right, most of the way. I mean, they weren’t filled all the way to the top.”
“They weren’t filled all the way to the top,” repeated Mr. Easey. “How much of a bottle would those four glasses make?”
“I don’t understand the question.”
“After pouring those four glasses, how much would have been left in a bottle?”
“Oh, I see. Maybe a third?” said Mr. Culler.
“Besides these four persons and Mr. Hargrave, was anyone else drinking?”
“Not that I saw.”
“Now,” said Mr. Easey, “counsel have stipulated that two empty champagne bottles were found in the trash at the health club on that Monday, July 6. Based on what you saw, we can account for two-thirds of a bottle, right?”
“Yes.”
“So we’ve accounted for four persons drinking two-thirds of a bottle?”
“I guess so, yes.”
“And we have not accounted for a whole bottle and one third of a bottle, and we have not accounted for Mr. Hargrave’s drinking?”
“Yes.”
“So, it would be reasonable to suppose, then, that Mr. Hargrave drank the unaccounted for one and a third bottles of champagne?”
Mr. Wakefield leapt to his feet. “Objection!” he shouted. “Lack of foundation! Calls for speculation!”
Mr. Dure did not say anything.
“I’m going to sustain the objection,” said the judge.
“Move to strike!” said Mr. Wakefield.
“The question will be stricken,” said the judge.
Shortly thereafter, it was Mr. Dure’s turn to cross-examine. From what he had told me before trial, he wasn’t going to try to defeat Mr. Easey’s case for suicide, but only the claims of negligence and failure to warn.
First he had Mr. Culler identify the photographs of the warning sign on the outside of the sauna. He introduced these into evidence. He particularly drew attention to the fourth item in the warning sign: “Breathing heated air in conjunction with the ingestion of alcohol, drugs, or medications may cause unconsciousness.”
“That warning sign is prominently posted on the door to the sauna, isn’t that right?” he asked.
“Yes,” said Mr. Culler.
“And it has been there for all the time you have been employed at the Health Club?”
“Yes.”
“And so, obviously, it was there on the day in question when Mr. Hargrave used the sauna?”
“Yes.”
Mr. Dure next had Mr. Culler identify the champagne bucket that was found in the sauna and introduced it into evidence. “Is this the champagne bucket that you brought over to the health club from the sports bar?”
“No.”
“Do you know how it got in the sauna?”
“How what got in the sauna?”
“This champagne bucket,” said Mr. Dure.
“The champagne bucket?”
“Yes,” said Mr. Dure, sternly. “How did this champagne bucket --” and he held it up so that everyone could get a clear view of it – “get into the sauna where it was found on Monday morning, July 6, with Mr. Hargrave’s dead body?”
“I don’t have any idea.”
Mr. Dure put the bucket down on the clerk’s table. Addressing Mr. Culler again, he asked, “You work as a bartender, isn’t that right?”
Mr. Culler had been leaning forward, but now he sat back in the witness chair. “That’s right.”
“You know how to make various mixed drinks?”
Mr. Wakefield objected. “Irrelevant.”
The judge told the lawyers to approach the bench. I went up with Mr. Dure. The judge scooted his wheeled chair over to the end of the bench away from the jury, and the court reporter hurried over with his stenograph machine.
“How is this relevant, Mr. Dure?” asked the judge.
“It is laying a foundation for questions about this witness’s familiarity with certain ingredients or a certain ingredient that potentially could explain the death of Mr. Hargrave,” said Mr. Dure.
“We’ve heard nothing about any such thing during pre-trial proceedings,” interjected Mr. Wakefield.
“I have no idea what Mr. Dure is talking about,” said Mr. Easey.
“How will this anticipated testimony make any material issue in the case more or less probable?” asked the judge.
“What caused Mr. Hargrave to die is a material issue,” said Mr. Dure. “I don’t want to be more explicit, because if I say now what I expect the witness to say, but Your Honor sustains the objection, then I won’t be able to ask the question, but the witness will find out what I suspect and the element of surprise will be lost.”
“That’s outrageous!” said Mr. Easey in an offended tone, as if Mr. Dure had suggested something obscene.
The judge let his head sway from side to side for a moment, then said, “The major reason to exclude irrelevant evidence is to avoid wasting time. I’m going to cut the baby in half this way: I’ll let the witness answer the pending question, and I’ll allow Mr. Dure one more question on this topic. Unless he hits pay dirt, then he’ll have to move on. Objection overruled.”
After the sidebar conference broke up, Mr. Culler said he did know how to make mixed drinks.
Mr. Dure asked, “At the sports bar, you do sometimes make drinks using liquid nitrogen, don’t you?”
“Sometimes.”
“Did you bring any liquid nitrogen to the health club on July 3?”
Both Mr. Wakefield and Mr. Easey objected, but the judge said to Mr. Dure, “You’re doing okay so far. I’ll allow the question.”
“No,” said Mr. Culler.
“A dry hole,” said the judge. “Move on to something else.”
“No further questions,” said Mr. Dure.
Next, Mr. Wakefield put on his medical expert. A solidly built man about 50 years old, with short gray hair and dressed in a conservative business suit took the witness stand. An expensive, blue tie made him look like a business executive. Mr. Wakefield used this witness to introduce the Medical Examiner’s report which concluded that Mr. Hargrave had died of a heart attack. Then he had the doctor testify that the heart attack was caused by the Health Club’s negligent failure to adequately monitor the sauna.
Mr. Easey on cross-examination forced the doctor to admit that everything to which he had testified would also be true if Hargrave had committed suicide by intentionally imbibing excess alcohol before going into the sauna; the physical condition of the corpse would have been the same in either case.
Mr. Dure cross-examined. “Doctor, you have testified that Mr. Hargrave’s death was caused, to a reasonable degree of medical probability, as you say, by the fact that he stayed too long in the sauna,
and that had the health club more closely monitored the use of the sauna, the death would not have occurred, did I understand you correctly?”
“Yes, you did.”
“But you have also admitted, that his death could have been due to his ingesting an excessive amount of alcohol?”
“That’s right,” the doctor testified. “And if I may say so, that seems to me to also be a fault of the health club for permitting him to take excessive alcohol on the very premises.”
“I move to strike the witness’s answer after “That’s right” as non-responsive and as opinion testimony outside the witness’s expertise,” said Mr. Dure.
“Motion granted,” said the judge. “The jury will disregard the witness’s remark except for “That’s right.”
“Now doctor, you do not know in fact how long Mr. Hargrave had been in the sauna before he died, isn’t that right?”
“No, no I don’t.”
“As far as you know, he could have died ten seconds after he entered the sauna?”
“Well, there’s just no way to know. You have to form a medical opinion based on the facts available.”
“In your expert opinion, how often was the Health Club supposed to have checked the sauna?”
“That might vary, perhaps according to the age and experience of the clientele. I would certainly think that every ten minutes would be reasonable.”
“If Mr. Hargrave had died ten seconds after entering the sauna, as you admit might have happened, then checking the sauna every ten minutes would not have prevented his death, isn’t that right?”
