Is Cheating on Your Wife Relevant in Personal Injury Cases?

The California 2nd Court of Appeals issued an interesting opinion addressing the question of just how much of a plaintiff’s personal life is fair game on cross-examination in Winfred D. v. Michelin North America.

(Random comment: Can we all use first names in cases where there are the remotest of privacy issues in question like this court does? If you are killed and your family brings a wrongful death claim or even if you are a doctor accused of medical malpractice, should someone’s Google legacy really be their name in a legal case that might include personal details? Who opposes this?)

Plaintiff in this case suffered a catastrophic brain injury when his tire split while driving a cargo van. Plaintiff’s treating doctors testified that the accident left the Plaintiff, a college graduate, with the functional skills of a 4th grader. One of his doctor’s testified that Plaintiff was “incompetent” to give testimony in that “his memory is flawed,” and he says things that he believes to be true which may not be because of his brain injury. Awful, right?

At the trial of this case in Los Angeles County, the trial judge allowed the Michelin’s lawyer to introduce evidence that while plaintiff was married to his first wife he married another woman without telling her he had not divorced his first wife. Then, he eventually divorced his second wife; and he thereafter had an affair with a third woman, having two children with her. The trial court ruled that this conduct was relevant to plaintiff’s credibility and the cause of the accident.

The jury returned a verdict in favor of Defendant Michelin, voting 9-3 on the breach of warranty claim. (For a Maryland lawyer, seeing a 9-3 verdict is just strange!) On appeal, Plaintiff’s product liability lawyers argued that the evidence admitted regarding Plaintiff’s private life should have been excluded.

The California appeals court said that Plaintiff’s lawyers’ opening statement comment that Plaintiff was “living the American dream” did not open the door, as the trial court suggested, to the fact that he was unethical in his personal or private affairs. The court concluded that because Michelin’s lawyers painted Plaintiff as a “liar, cheater, womanizer, and a man of low morals” based almost exclusively on inadmissible evidence, a new trial was warranted.

Trial courts have a lot of discretion to determine what is relevant but I think pretty clearly that the nuances of his personal relationships – however disturbing – are not fair game. I understand why and agree that the trial court should have a lot of discretion in determining what is relevant because relevancy is so fact specific. The clear downside to the frustration of lawyers is different judge’s have different rulings. I tried a case recently where the judge accused me of seeking to “try the case in a vacuum.” The problem is that one reasonable judge’s “vacuum” is another reasonable judge’s “let’s just stick to relevant facts.”
Click here for the full opinion.

  • The downside of discussing a case without using participants’ names (“John A. sued Mary M….”) is that it tends to make the commentary invisible to those who come after who share an interest in the case’s legal or public significance. For better or worse, when people want to learn more about a noteworthy lawsuit they tend to search on the names of the parties.

  • Ron Miller

    How about fictitious names? My issue is that you and I putting our names out there on the Internet and public domain. The doctor accused of malpractice, the guy who dies in an awful accident that gives rise to litigation, they did not put themselves out there. Names being in the public record at the courthouse I think is no big deal. The Interent is different.

    If you Google Miller & Zois, you will find an absolutely annoying post criticizing our Lawyer Help Center (offering sample pleadings, motions, etc.) because it does not offer any information about our fees. Setting aside the fact that we do post the retainer agreement we use in every case, this issue is completely unrelated to the Lawyer Help Center. But I have to live with this because we have put ourselves out there. But the accidental tourist plaintiff or defendant is not putting themselves out there and it would be nice if they were afforded just a little more protection.

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