A plaintiffs lawyer’s “steady stream of insults” and “reprehensible attacks” prejudiced a New York jury that came out with a $40.1 million asbestos verdict earlier this week, according to a motion for new trial filed by the defendant, The Goodyear Tire & Rubber Co.
All during trial, Daniel Blouin, a New York shareholder at Simmons Hanly Conroy, resorted to “incurable character assassinations” and “outrageous remarks” about Goodyear, its lawyers and its experts, according to the motion, filed on Tuesday after a jury came out with its verdict, all for compensatory damages.
At one point, the motion says, Blouin called two defense expert witnesses “jukebox witnesses” paid to speak, and accused defense counsel of trying to “assassinate” his client, an 81-year-old veteran diagnosed last year with mesothelioma.
“At this point it must be clear to the court, as it is to Goodyear Tire, that such behavior is Mr. Blouin’s modus operandi,” wrote defense attorney James Lynch, of New York’s Lynch Daskal Emery. “Plaintiff’s counsel’s goal was to leave the jurors with an unfairly negative impression of Goodyear Tire, right before shifting to the phase of their summation on the emotionally charged topics of recklessness and damages and to leave it fresh in their minds during deliberations.”
Goodyear had complained about Blouin before.
On July 30, New York Supreme Court Judge Lucy Billings denied a prior request for a mistrial on the same grounds, but warned Blouin to be more careful about his conduct, according to a transcript excerpt.
She told Lynch, “I have admonished Mr. Blouin repeatedly in the jury’s presence.”
“He doesn’t listen,” Lynch replied.
“I understand. I’m equally frustrated by his conduct,” the judge said.
Blouin initially did not respond to a request for comment, and his firm declined to comment. But a day after the story ran, he sent the following statement: “The case was decided by a judge and jury. It is unfortunate when an attorney loses a case and feels the need to undermine the court system with personal attacks in the media. Although the court has already denied the defendant’s motion to dismiss in this case, we will further oppose any additional motions.”
Blouin worked on the case with firm shareholders Jim Kramer and Laurence Nassif, both in New York, and Timothy Thompson of Alton, Illinois.
At the July 30 hearing, according to the transcript, he had his own complaints about Lynch. Throughout the trial, he said, Lynch had “called me arrogant, outrageous, speaking nonsense, being ridiculous. Screaming in the courtroom. So, has my advocacy been zealous? Yes absolutely. Has it crossed the line a couple of times? I believe so. And I apologized to you and the jury for it.”
Lynch and a Goodyear representative did not respond to requests for comment.
The trial involved plaintiff J. Walter Tidwell, who claims his asbestos exposure came from gaskets made by Goodyear that he used while working on boilers in the U.S. Navy.
According to the new trial motion, as jurors left the courtroom one day, Blouin accused Lynch of trying to “assassinate” his client. Blouin also insinuated in front of jurors that Lynch was wasting Tidwell’s time during cross-examination.
And at closing arguments on Monday, Blouin made a “vicious attempt to disparage my partner, Bernard Daskal, by grossly mischaracterizing” his remarks that damages were “not intended to be lottery awards.”
Blouin told jurors “when I hear Goodyear equate what Walt has gone through to winning the lottery, I have to stop for a minute. Winning the lottery?” Then, according to the motion, Blouin showed a PowerPoint slide with the heads of two defense expert witnesses on an island “pasted onto insulting caricatures.” It added that the slide said, “The defense experts. They are all alone on an island. They are jukebox witnesses. They put in their coins and they play the music.”
Lynch was not impressed.
“A new trial is required in the interests of justice because it is impossible for Goodyear Tire to receive a fair consideration from the jury, due to the cumulative effect of plaintiff’s counsel’s improper behavior, culminating in the outrageous remarks (and the accompanying slide in the presentation) made during summation by plaintiff’s counsel, Daniel Blouin,” Lynch wrote in the motion.
At the July 30 hearing, according to the transcript, Lynch said a mistrial was required because Blouin’s statements were part of a “pattern to make us look bad in front of this jury.”
“They’re really bad, your Honor. I’ve never seen anything like this in 35 years of practicing law,” Lynch said.
“Unfortunately, I have, but rarely,” the judge responded.
Instead of saying “objection,” for instance, Lynch said Boulin “blurted out, ‘This is outrageous’ in an attempt to besmirch me in front of the jury.”
“Making comments like that in front of the jury, even after your Honor time and time again has admonished him not to do it, is so over the top, so prejudicial,” Lynch told the judge. “So, all of those comments have put my client in an incredibly bad light, have put me in a bad light when all I was trying to do was my job. It is totally improper for a lawyer to make those disparaging comments during a trial.”
The judge told Blouin, “You’re basically on probation here,” according to the transcript, “and if there is any more such conduct, you are going to be out the door, all right.” She then told Blouin this was her “last warning” and added: “I will be more proactive, even without a request in admonishing Mr. Blouin’s conduct, because unfortunately, I am not confident that it will end.”