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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 of cross-examination in Winfred D. v. Michelin North America.

(Random comment: Can we all use first names 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 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 doctors 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 Michelin’s lawyer to introduce evidence that while the plaintiff was still 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 applied to the 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 the warranty claim. (For a Maryland lawyer, seeing a 9-3 verdict is just strange!) On appeal, Plaintiff’s product liability lawyers argued that the court should have excluded admitted evidence regarding Plaintiff’s private life.

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 only on inadmissible evidence, a new trial was warranted.

Trial courts have a lot of discretion to determine what is relevant, but I think the nuances of his personal relationships—however disturbing—are not fair game. I believe this, although I think cheating on your spouse is evidence that you are a dirtball.  But not necessarily a dirtball with no credibility in a personal injury case.  Malcolm Gladwell talks about how inconsistent people are.  Some are great, honest family people who lie like crazy and have no ethics at work.  And the inverse can also be true.

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 that different judges rule differently. 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.”

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