Young v. Glanz

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

Deborah Young, as Special Administrator )

of the Estate of Gwendolyn Young, Deceased, )

)

Plaintiff, )

)

v. ) Case No. 13-CV-315-IDJ-JFJ

)

Correctional Healthcare Companies, Inc. )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Despite its desire to do so on occasion, unlike Mercutio, the Court can’t

simply declare a plague on both sides in litigation when deciding matters. In this

case, Defendant Correctional Healthcare Companies (CHC) refuses to accept that

its deliberate indifference killed people in its care. Also, in this case, Plaintiff’s

counsel (Daniel E. Smolen)1 refuses to accept that his repeated, egregious

misconduct throughout the course of the trial has jeopardized his client’s verdict.

As shown below, in an exercise of its discretion and after a thorough and careful

analysis, the Court will not abandon its responsibility to decide who is right and

who is wrong simply because both sides have engaged in reprehensible conduct.

The Court previously denied CHC’s Rule 50(b) motion for judgment as a

matter of law. Dkt. 748. As the Court found, there was an avalanche of evidence

1 The Court’s references to “Plaintiff’s counsel” generally apply to Mr. Smolen, as he was the

trial attorney. But references to “Plaintiff’s counsel” as it relates to arguments in the

response brief also include Robert M. Blakemore because he appears to be the main author.

He was also the main author of the various and sometimes meritless written filings during

trial.

presented to the jury that CHC’s deliberate indifference caused the constitutional

violations inflicted on Ms. Gwendolyn Young, resulting in her pain, suffering, and

death.

But CHC’s currently pending Rule 59(a) motion raises a different issue. Dkt.

733. Specifically, the issue before the Court is whether it is reasonably probable

that the verdict was influenced by the misconduct of Plaintiff’s counsel. See

Osterhout v. Bd. of Cnty. Comm’rs, 10 F.4th 978, 991-92 (10th Cir. 2021). The short

answer is both no and yes. Because of the overwhelming evidence as to CHC’s

liability, CHC’s motion for a new trial as to liability is denied. Likewise, because of

the overwhelming evidence, the Court will not grant a remittitur as to the jury’s

compensatory damage award of $14 million—which is consistent with the verdict in

the strikingly similar case involving Mr. Elliot Williams. Burke v. Regalado, 935

F.3d 960, 980 (10th Cir. 2019); see also Verdict Form – For Plaintiff, Burke v. Glanz,

No. 11 CV 720 (N.D. Okla. Mar. 20, 2017), Dkt. 498. But the Court finds that it is

reasonably probable that the cumulative effect of Plaintiff’s counsel’s misconduct

influenced the jury’s punitive damages award. Plaintiff’s counsel’s misconduct was

repeated and done with impunity throughout the trial in front of the jury, despite

his unbelievable claims of innocence, claims he unfortunately perpetuates in

response to CHC’s motion. And the misconduct continued despite several warnings.

Because of the cumulative effect of this misconduct, the Court grants, in part,

CHC’s request for a remittitur and reduces the punitive damage award to $7 million

from $68 million. This $7 million reflects an amount equal to half of the

compensatory damages, and balances CHC’s continued deliberate indifference to

patients in its care against the Court’s finding that Plaintiff’s counsel’s misconduct

probably influenced the amount of punitive damages. The Court gives Plaintiff until

March 26, 2024, to either accept this remittitur or to have a new trial limited to

determining punitive damages. See Sloan v. State Farm Mut. Auto. Ins. Co., 360

F.3d 1220, 1225 (10th Cir. 2004).

FACTS

As previously stated in other orders, the Court will not detail all the

underlying facts of this case. Briefly, the decedent (Ms. Gwendolyn Young) was

detained at the Tulsa County Jail following her conviction and pending her appeal.

Ms. Young suffered from a myriad of medical issues. CHC contracted with the

Tulsa County Jail to provide medical care for the inmates. During her time at the

Tulsa County Jail, in addition to her other medical issues, including those related to

her blood pressure, Ms. Young suffered a subdural hematoma. There is no dispute

that the subdural hematoma was the ultimate cause of her death, though her death

was not the only injury presented to the jury. Ms. Young’s daughter, Deborah

Young-Powell (Plaintiff), filed this action alleging a variety of claims.2 Ultimately,

the only claim that went to trial was Plaintiff’s § 1983 claim against CHC under a

Monell v. New York Department of Social Services, 436 U.S. 658 (1978), theory.

2 Nothing in this order should be construed in any negative way toward Ms. Young-Powell.

She didn’t do anything wrong. Indeed, she was a model party and a strong witness. Ms.

Young-Powell presented to the jury as smart, kind, strong, and honest, and as a person

anyone would be proud to call a friend or family member. Ms. Young-Powell comes across

as a person everybody would want to have as a neighbor or co-worker. The Court has no

reason to believe that this presentation was anything but accurate.

Following a lengthy and extremely difficult trial,3 the jury returned a verdict in

favor of Plaintiff, awarding Plaintiff $14 million in compensatory damages and $68

million in punitive damages, for a total award of $82 million. Dkt. 707. Following

the verdict, the Court entered judgment in Plaintiff’s favor in the amount of $82

million. Dkt. 725.

During trial, starting with jury selection, Plaintiff’s counsel engaged in

misconduct. The misconduct continued through nearly every stage of the case,

including closing arguments. This misconduct included, but is not limited to,

causing the exclusion of a prospective juror with gratuitous, inflammatory, and

prejudicial statements; violating the Court’s ruling on a motion in limine entered to

prevent introduction of evidence that would violate Rule 403; crying in front of the

3 Nearly all the trial difficulties were caused by Mr. Smolen, including trial delays. The

Court quotes the following portion of the transcript to give a sense of what the Court was

dealing with. This transcript selection relates to a portion in the trial after the Court had

to terminate Mr. Smolen from proceeding despite giving Mr. Smolen more time than was

allotted. Instead of recognizing the Court’s accommodation, Mr. Smolen pouted and

vigorously objected. Here’s the Court’s response:

Look, Mr. Smolen, I don’t know – look, this is my only experience with you and

we’ve had problems from the get-go. And I did start by giving you a time limit

as to how long this case will last and everybody knows how long I am here in

Tulsa. So the case has to be tried within that period of time. So at the start, I

put you on notice that you had four days. The case has been delayed repeatedly

for multiple times for at times significant periods of time. All those delays were

because of your violations of court orders, your misbehavior, your

unprofessionalism, your failure to provide even like the most basic modicum of

professional courtesy to witnesses, to opposing counsel, and to the court. So

all those delays inured to you and harmed your own client.

Dkt. 694, at 145. The Court continued, and in the process noticed that Mr. Smolen was

ignoring the Court: “I even gave you more than the four days. I got a bench warrant for

you, got Ms. Metcalf here. I repeatedly asked you throughout this case --- I’m glad you’re

not listening to me because you haven’t listened to me the entire case.” The unrepentant

Mr. Smolen shot back, “I’m listening.” Id. The Court responded, “No you’re not.” Id.

jury; reading from a hearsay document under the guise of refreshing recollection;

failing to inform Plaintiff’s opinion witness about the ruling on the motion in limine;

allowing the jury to be exposed to a certificate of insurance for CHC; and improper

remarks throughout closing arguments as well as during a witness examination.

Rather than confessing error, Plaintiff’s counsel doubles—and sometimes triples—

down, contending that no errors occurred. Plaintiff’s counsel is wrong. He

committed multiple egregious errors that probably influenced the jury to return an

excessive punitive damages award.

STANDARD ON A RULE 59(a) MOTION

Unlike a Rule 50 motion, in determining a Rule 59(a) motion, the court does

not view the evidence in light most favorable to the non-movant; instead, a motion

for new trial may be granted when the district court concludes that the asserted

error substantially and adversely affected the movant’s rights. Henning v. Union

Pac. R.R. Co., 530 F.3d 1206, 1217 (10th Cir. 2008). It’s important to recognize the

precise nature of CHC’s motion for new trial under Rule 59(a). The motion is not

simply a motion for new trial solely because the verdict was in favor of Plaintiff and

that the damages were excessive because of evidentiary errors—although the

motion argues that, too. See, e.g., Hill v. J.B. Hunt Transp., Inc., 815 F.3d 651, 668

(10th Cir. 2016). Instead, CHC’s motion also contends both that the jury reached

the wrong result as to liability and that the compensatory and punitive damages

were excessive because of Plaintiff’s counsel’s misconduct. See Dkt. 733, at 7, 32-35;

Osterhout, 10 F.4th at 991-92; Whittenburg v. Werner Enters., Inc., 561 F.3d 1122,

1127 (10th 2009). According to CHC, the liability verdict and the damage awards

are evidence of the misconduct, as well as the damages being excessive. Dkt. 733,

at 7, 32-35. The excessiveness of the damage awards is itself evidence of the

misconduct. Id. at 32 (citing Whittenburg, 561 F.3d at 1132); see Osterhout, 10

F.4th at 992-93. For this type of motion, the Tenth Circuit considers four factors:

(1) the pervasiveness of the misconduct; (2) the taking of curative action; (3) the size

of the verdict; and (4) the weight of the evidence. Osterhout, 10 F.4th at 991-92;

Whittenburg, 561 F.3d at 1127. But regardless of the specific nature of the motion,

the key is whether the movant suffered prejudice. Henning, 530 F.3d at 1217; Fed.

R. Civ. P. 61.

The decision to grant or deny a Rule 59(a) motion—including whether to

grant a remittitur—is within the vast discretion of the district court. Voda v.

Medtronic Inc., 899 F. Supp. 2d 1188, 1194 (W.D. Okla. 2012) (“The trial court has

great discretion in deciding whether to grant such a motion.”); see also Hill, 815

F.3d at 668; Henning, 530 F.3d at 1217. So, appellate courts review these decisions

under the abuse of discretion standard of review. FTC v. Chapman, 714 F.3d 1211,

1215 (10th Cir. 2013); M.D. Mark, Inc. v. Kerr-McGee Corp., 565 F.3d 753, 762 (10th

Cir. 2009). Appellate courts give trial courts wide latitude in determining these

motions because they are uniquely able to assess the likelihood that prejudice

occurred. Henning, 530 F.3d at 1217.

MORE THAN A WORD ABOUT DISCRETION

Discretion is a zone, not a fixed point. So, it is possible that two different

judges faced with the same facts could reach opposite conclusions with neither one

abusing their discretion. United States v. Williams, 81 F.3d 1434, 1437 (7th Cir.

1996); see Bracey v. Grondin, 712 F.3d 1012, 1020 (7th Cir. 2013) (“That other trial

courts have reached different conclusions on similar facts, however, does not

amount to an abuse of discretion by the district court in this case. Indeed,

discretion by its very nature permits different judges to reach different—but

reasonable—conclusions on the same set of facts.”). This is particularly true with

the discretionary decision to grant a new trial. See Williams, 81 F.3d at 1437.

These axioms of discretion sink Plaintiff’s counsel’s view that because he got away

with engaging in similar shenanigans in the past, see Osterhout, 10 F.4th at 992-93;

Burke, 935 F.3d at 1027-1035, his similar antics are insufficient to grant a new trial

in this case. See Ledien v. Astrachan, 128 F.3d 1051, 1056 (7th Cir. 1997) (“To

disagree with the district court’s decision and to find that the court abused its

discretion are two different things.”).

When a district court is applying its discretion, its decision stands provided it

has a basis in reason. Holmstrom v. Metro. Life Ins. Co., 615 F.3d 758, 779 (7th Cir.

2010). So, the inquiry becomes whether any reasonable person could agree with the

district court’s decision. Lho Chi. River L.L.C. v. Rosemoor Suites, LLC, 988 F.3d

962, 967 (7th Cir. 2021). An abuse of discretion occurs when a decision is arbitrary,

capricious, or whimsical, involves a manifestly unreasonable judgment, prejudice,

bias, or ill will, or a failure to provide a reason for the decision. Pelican Prod. Corp.

v. Marino, 893 F.2d 1143, 1146 (10th Cir. 1990). An abuse of discretion can occur if

the district court fails to exercise meaningful discretion, commits an error of law, or

relies on clearly erroneous factual findings. Farmer v. Banco Popular of N. Am.,

791 F.3d 1246, 1256 (10th Cir. 2015); see also Chamber of Com. of the U.S. v.

Edmondson, 594 F.3d 742, 764 (10th Cir. 2010).

As shown throughout this order, this Court’s decision is not arbitrary,

capricious, or whimsical; instead, the order is based upon reasoned judgment,

applying the proper legal standard and correct factual findings. That different

judges might exercise their discretion differently is of no moment. This judge—

having presided over the lengthy trial and having analyzed all the filings and case

law—exercises his discretion to deny the motion for new trial, deny the motion for

remittitur for the compensatory damages, but grant the remittitur for the punitive

damages.

ALLEGATIONS AND FINDINGS OF MISCONDUCT

Prefatory Comment to Determining Misconduct

As best as the Court can determine, Plaintiff’s counsel approaches trial as

though rules and court orders are mere suggestions, possessing no real force or

consequences when they are violated. This approach leads to the view that counsel

can engage in misconduct with only a remote chance of consequences existing for

misbehavior. The mindset is this. Counsel can engage in misconduct, forcing

opposing counsel to decide whether to object or not object. If no objection occurs,

then the error is waived, but if an objection occurs that is sustained, then any

prejudice is cured. Under Plaintiff’s counsel’s theory, only misconduct for which an

objection was overruled is preserved for appeal. But as any experienced litigator

knows, the likelihood of reversal based on evidentiary errors is as remote as rich

men entering the Kingdom. Smith v. Great Am. Rests., 969 F.2d 430, 437 (7th Cir.

1992).

At least two consequences result from this mindset—both of which existed in

this trial. The first consequence is that counsel simply floods the zone with so much

misconduct that opposing counsel is forced to (a) repeatedly object and look like an

obstructionist, see Teter v. Deck, 274 P.2d 336, 344 (Wash. 2012), and maybe even

seek a curative instruction, which likely does more harm than good by drawing the

jury’s attention to the evidence and argument, see Laudicina v. City of Crystal Lake,

328 F.R.D. 510, 517-18 (N.D. Ill. 2018), or (b) not object and allow prejudicial

behavior to occur and prejudicial evidence to be presented to the jury to avoid

looking like an obstructionist. The second consequence is that jury trials look more

like Thunderdome than a search for the truth. And it is exhausting for trial judges

to try to police what happens in Thunderdome.

Because of these consequences—as well as basic principles of ethics—the

Rules of Professional Conduct prohibit conduct that results from this mindset.

R.P.C. 3.4(c), (e); 3.5(d). In its discretion, the Court chooses not to refer Plaintiff’s

counsel to any disciplinary body. But the Court hopes Plaintiff’s counsel changes

his mindset before different judges exercise their discretion differently. Counsels’

misconduct eventually catches up with them. See, e.g., United States v. Drummond,

481 F.2d 62, 62-63 (2d Cir. 1973). Plaintiff’s counsel’s “games,” like those he

engaged in during this trial, have been noted by other jurists. Dkt. 733-1, at 46. In

other words, this Court is not alone in being subjected to Plaintiff’s counsel’s

misbehavior and finding it unacceptable, improper, and unprofessional.

Nevertheless, the Court doesn’t believe that Plaintiff’s counsel should benefit

from this mindset and concomitant behavior. Again, sound discretion provides the

best answer. The evidentiary waiver rule is discretionary. First Sav. Bank, F.S.B.

v. First Bank Sys., Inc., 902 F. Supp. 1356, 1361 (D. Kan. 1995). Sure, the failure to

object generally waives the error. Abernathy v. Wendes, 713 F.3d 538, 552 (10th Cir.

2013). But, in the Court’s discretion, the Court can still find error and resulting

prejudice despite the failure to object. First Sav. Bank, 902 F. Supp. at 1361; see

Cadorna v. City & County of Denver, 245 F.R.D. 490, 495 (D. Colo. 2007); see also

A.H. v. Knowledge Learning Corp., No. 09-2517-DJW, 2010 U.S. Dist. LEXIS

111242, at *8-9 (D. Kan. Oct. 19, 2010) (“[T]he general rule is that the failure to

object to requests for production within the time required constitutes a waiver of

any objection. Thus, a court ‘generally overrules objections which are untimely.’

Courts, however, have held that waiver is not automatic, and it is within the court’s

discretion to examine the circumstances surrounding the objections and determine

whether the waiver should be excused based on good cause or excusable neglect.”);

12 James Wm. Moore et al., Moore’s Federal Practice § 59.13[2][c][i][C] (3d ed. 2023)

(“However, older authority suggests that the failure to make a timely objection does

not automatically dispose of a new trial motion if a miscarriage of justice . . . results

from the misconduct.”). And, of course, the Court can still find prejudice despite

curative actions, such as sustaining objections and instructing the jury to disregard

the evidence or argument. Caudle v. District of Columbia, 707 F.3d 354, 363 (D.C.

Cir. 2013); see, e.g., United States v. Sullivan, 919 F.2d 1403, 1425-26 n.32 (10th

Cir. 1990); Cadorna, 245 F.R.D. at 495; see also Teter, 274 P.3d at 344; Underwood

v. Penn. R.R. Co., 215 N.E.2d 236, 238 (Ill. 1962) (“While the trial court did sustain

recurrent objections to the above questions, their prejudicial effect scarcely can be

thought to be erased by this action.”). So, in its discretion, the Court will be more

forgiving when considering misconduct for which there was no objection.

Findings of Misconduct

Before the Court can conduct an analysis of whether a motion for new trial or

remittitur should be granted based on counsel’s misconduct, there must be factual

findings whether misconduct occurred, and if so, the extent of the misconduct. In

its motion, CHC complains of numerous instances of misconduct. The Court finds

that some of the complained of misconduct was not, in fact, misconduct, and that no

prejudice occurred because of other misconduct.4 But, as evidenced in the following

4 For example, CHC complains about what can best be described as an attempted violation

of the Court’s ruling on the motions in limine. But no violation occurred because the

inquiry was stopped by the Court before the question was asked. Additionally, CHC

complains of Plaintiff’s counsel’s misconduct during jury selection. Specifically, at a side

bar examination of a prospective juror, Plaintiff’s counsel made the gratuitous, improper,

and unprofessional statement to the juror that the former Tulsa County Sheriff was

indicted based on the treatment of inmates at the Tulsa County Jail. Obviously, this juror

was tainted by that remark and had to be excused. But no prejudice occurred as a result of

analysis, the Court finds numerous instances of misconduct, including but not

limited to those discussed below. Although standing alone, the incidents of

misconduct might not require a new trial or remittitur, the Court must view the

misconduct collectively—a point Plaintiff’s counsel completely ignores. Osterhout,

10 F.4th at 993; Burke, 935 F.3d at 1034; see Locken v. United States, 383 F.2d 340,

341 (9th Cir. 1967); see generally United States v. Vaughn, 62 F.4th 1071, 1072 (7th

Cir. 2023) (“One persistent error in legal analysis is to ask whether a piece of

evidence ‘by itself’ passes some threshold—to put evidence in compartments and

ask whether each compartment suffices.”). When a counsel engages in persistent,

unabated, and egregious misconduct, in the face of multiple warnings, a court is

well within its discretion to grant a motion for new trial. See Cadorna, 245 F.R.D.

at 495-96.

Violations of the Court’s Ruling on a Motion in Limine

As previously stated, the only claim that was tried to the jury was Plaintiff’s

Monell claim. Among the elements that a plaintiff must prove to establish a Monell

claim is that the defendant possessed a policy, custom, or practice, which was the

this misconduct. The parties and the Court were able to select an excellent juror in his

place. Indeed, this juror—the only African American juror—became the foreperson of the

jury. This juror was fully engaged, filling at least one notebook with entries and asking

insightful questions of nearly every witness. Plaintiff’s counsel’s misconduct may have

resulted in obtaining an extra peremptory challenge, but a fair jury resulted from the

selection process, which is the goal of jury selection. Mu’Min v. Virginia, 500 U.S. 415, 431

(1991). Although the Court doesn’t find these and other instances to be worthy to base a

new trial or remittitur on, these behaviors certainly inform the Court’s views of Plaintiff’s

counsel’s intent and mindset, supporting this Court’s findings of Plaintiff’s fast-and-loose

litigation behavior. His conduct started with jury selection and opening statements and

continued through closing argument, despite the Court’s repeated warnings on nearly a

daily basis.

moving force behind the plaintiff’s constitutional violation. Bd. of the Cnty.

Comm’rs v. Brown, 520 U.S. 397, 404-07 (1997). Very few defendants possess a

policy to violate citizens’ constitutional rights. Grech v. Clayton County, 335 F.3d

1326, 1330 (11th Cir. 2003). Instead, these days, most Monell claims allege

constitutional violations caused by a custom or practice. Id. Custom and practice

claims are normally based upon repeated violations of constitutional rights. See

Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). This requires a plaintiff to prove

up the other constitutional violations as well as the plaintiff’s own claim. Id.

The confluence of these factors puts the district judge in a bit of a pickle. The

district judge must allow the plaintiff to prove up the claim while also attempting to

avoid the admission of relevant evidence that is substantially outweighed by undue

prejudice. Fed. R. Evid. 403.

In this case, the Court balanced these competing interests and allowed

Plaintiff to present evidence on three other matters. Dkt. 654, at 4-6. In doing so,

the Court was fulfilling its duty under Federal Rule of Evidence 103(d) to conduct a

jury trial so that inadmissible evidence is not suggested to the jury by any means.

Fed. R. Evid. 103(d).

CHC was understandably concerned about the jury learning of other

litigation against it as being irrelevant, unduly prejudicial, or bad character

evidence. Fed. R. Evid. 401, 403, 404(b). So, CHC filed a broad motion in limine to

exclude this type of information from being presented to the jury. Dkt. 610, at 4-5.

In relevant part, CHC’s motion stated the following:

It would be a violation of the Federal Rules of Evidence to put evidence

of other lawsuits and other conduct of any of the Defendants into this

case. * * * Accordingly, Defendants urge this Court for a ruling

prohibiting Plaintiff from forcing Defendants to defend against other

unrelated litigation at this trial, as this would constitute trial by

ambush. Allowing Plaintiff, Plaintiff’s counsel, or Plaintiff’s witnesses

to introduce evidence of other litigation (including but not limited to

separate, unrelated cases filed against these defendants, such as the

cases of Elliott Williams, Gwendolyn Young, Gregory Brown, Bridget

Revilla, Michael Moritz, Charles Jernegan, and Charles Ray) would

distract the jury from the issues at hand, would confuse the jury as to

what the claims are in this action, and would effectively allow Plaintiff’s

counsel to put forth evidence from their highly publicized and high

profile unrelated litigation, in an improper attempt to sway and inflame

the jury in the instant action against the defendants.

Id. (emphasis added). CHC’s concern appeared to be based, at least in part, upon

its counsel’s dealings with Mr. Smolen in other cases in which CHC’s counsel

believed Mr. Smolen engaged in misconduct. Dkt. 733-1, at 86. CHC’s concern

proved to be justified.

Plaintiff’s response didn’t address the specifics of CHC’s motion. Instead, it

generally argued that evidence of other violations was necessary to establish a

Monell claim. Dkt. 613, 8-11. Indeed, even after analyzing Plaintiff’s counsel’s

response, the Court was unsure of exactly what Plaintiff’s counsel was seeking to

present to the jury. Dkt. 654, at 3-4. Being evasive is not a virtue when addressing

a court. Indeed, it is a sign of a lack of candor.

In fulfilling its responsibility to ensure that inadmissible evidence was not

“suggested to the jury by any means,” the Court granted, in part, CHC’s motions in

limine to exclude claims or lawsuits against CHC. Id. Specifically, as to other

litigation—in contrast with evidence of other conduct—the Court recognized the

undue prejudice can arise from this type of evidence. So, the Court ordered that, “If

the plaintiff seeks to produce evidence of other litigation, she must first raise [the]

issue with the Court and other counsel outside the presence of jurors to explain the

relevance of the litigation itself.” Id. at 4.

It should go without saying that violating a court’s order on a motion in

limine is error. Repeatedly violating a court’s order on a motion in limine amounts

to misconduct that can result in a new trial. French v. Clarksville Stave & Lumber

Co., No. 11-386, 2014 U.S. Dist. LEXIS 6871, at *12 (E.D. Ky. Jan. 20, 2014) (“[I]f

counsel repeatedly violates the court’s in limine ruling and such misconduct results

in prejudice, there may be a basis for a new trial.”); Teter, 274 P.3d at 344; Cody v.

Mustang Oil Tool Co., 595 S.W.2d 214, 216 (Tex. Civ. App. 1980); R.P.C. 3.4(c).

In its motion for new trial, CHC argues that Plaintiff’s counsel violated the

Court’s ruling on the motion in limine at least three times: (1) in opening

statements, (2) in making an objection, and (3) allowing Plaintiff’s opinion witness

to reference other litigation. Dkt. 733, at 10-14.

Opening Statement Violation

After the Court had already scolded Plaintiff’s counsel for his misbehavior

during jury selection and the jury was finally empaneled, opening statements

began. And it didn’t take long for Plaintiff’s counsel to violate the Court’s ruling.

During opening statements, Plaintiff’s counsel told the jury the following: “The first

reason this promise was made in 2012 was because that in 2010 and 2009 there

were a rash of deaths in the Tulsa County Jail and the Tulsa County Sheriff’s

Office’s risk manager, a gentlemen by the name of Josh Turley, and the Tulsa

County DA’s Office took note of a very public suit in Oklahoma County where CHC

was being sued by the Oklahoma County Sheriff’s Office.” Dkt. 674, at 8.

Defense counsel immediately objected. A side bar quickly ensued.

At the side bar, Plaintiff’s counsel gave a bizarre and incredible argument as

to why he had not, in fact, violated the Court’s order on the motion in limine. In

response to the motion for mistrial, Plaintiff’s counsel again doubles down and

reiterates the same silly interpretation of the Court’s order. According to Plaintiff’s

counsel, the Court’s order was limited to “inmate lawsuits.” This reading isn’t

reasonable and can’t be squared with the wording of the Court’s order: “If the

plaintiff seeks to produce evidence of other litigation, she must first raise [the] issue

with the Court and other counsel outside the presence of jurors to explain the

relevance of the litigation itself.” Dkt. 654, at 4 (emphasis added). Nothing

whatsoever limits the order in any way to “inmate lawsuits.” And, when put in

context of the motion in limine itself with its concern about and attempt to exclude

other litigation including but not limited to several other cases as well as highly

publicized and high-profile unrelated litigation, Plaintiff’s counsel’s view is even

more comical.

The Court sustained the objection and instructed the jury that opening

statements were not evidence, but not before expressing its displeasure to Plaintiff’s

counsel that the case “started with a skunk in the jury box.” Dkt. 674, at 15;

Cardorna, 245 F.R.D. at 495 (“Stated differently, ‘you can throw a skunk into the

jury box and instruct the jurors not to smell it, but it doesn’t do any good.’” (quoting

O’Rear v. Fruehauf Corp., 554 F.2d 1304, 1309 (5th Cir. 1977)).

Telling the jury in the opening statement about the high-profile Oklahoma

County Sheriff’s Office’s litigation against CHC that caught the attention of the

Tulsa County Sheriff’s Office and the Tulsa County DA’s Office was a patent

violation of the Court’s order on the motion in limine prohibiting evidence of other

litigation without first raising the issue with the Court and defense counsel outside

the presence of the jury. Sustaining the objection and instructing the jury was an

insufficient cure, especially when Plaintiff’s counsel continued to violate the Court’s

order. Cardorna, 245 F.R.D. at 495. No reasonable attorney would think that the

Court’s order gave carte blanche to Plaintiff’s counsel to tell the jury in opening

statements about this other litigation because it was not an “inmate lawsuit.”

Objection Violation

Undeterred by the Court’s vivid warning, Plaintiff’s counsel again violated

the Court’s ruling on the motion in limine with a gratuitous, prejudicial speaking

objection in front of the jury. Plaintiff’s counsel’s action in this regard not only

violated a specific Court order but also violated established rules of professional

trial advocacy. See, e.g., Cardorna, 245 F.R.D. at 492-93 (granting motion for new

trial in part based upon counsel’s editorial comments made during objections);

Howard v. Offshore Liftboats, LLC, Nos. 13-4811, 13-6407, 14-1188, 2016 U.S. Dist.

LEXIS 64837, at *1-13 (E.D. La. May 17, 2016). This was a misconduct twofer.

Again, the Court’s order on the motion in limine stated “If the plaintiff seeks

to produce evidence of other litigation, she must first raise [the] issue with the

Court and other counsel outside the presence of jurors to explain the relevance of

the litigation itself.” Dkt. 654, at 4 (emphasis added). But during cross

examination of one of Plaintiff’s witnesses, the following exchange occurred:

CHC’s counsel: How many times did you meet with plaintiff’s office to

discuss your findings, your interpretation, your opinion, your testimony,

anything like that?

Mr. Smolen: Objection just as to time frame. She’s testified in two cases.

Dkt. 682, at 88-89 (emphasis added).

Again, CHC’s counsel objected based on the Court’s ruling on the motion in

limine. And, again, the Court held a sidebar and once again told Plaintiff’s counsel

that he needed to be more careful, giving yet another warning—this time

highlighting the possibility of a mistrial. The Court also instructed Plaintiff’s

counsel on Trial Advocacy 101, telling him not to make speaking objections,

especially ones that violate a court’s pretrial ruling.

As to the gratuitous speaking objection in which Plaintiff’s counsel told the

jury about two other cases—which is “other litigation”—Plaintiff’s counsel basically

ignores that this was problematic. Plaintiff’s counsel is wrong in this regard. White

v. McKinley, No. 05-0203-CV-W-NKL, 2009 U.S. Dist. LEXIS 30244, at *10 (W.D.

Mo. Apr. 6, 2009) (“Speaking objections serve to pollute the trial with improper

argument, coaching of witnesses, and jury confusion.”). Speaking objections like

this are improper and unprofessional. United States v. Clay, No. 22-1841 KG, 2023

U.S. Dist. LEXIS 73771, at *3 (D. N.M. Apr. 25, 2023) ([‘[C]ounsel should not make

speaking objections.”). Plaintiff’s counsel claimed to have tried cases in federal

courts all over the country, yet he also claimed to be ignorant about this basic trial

advocacy principle. One doesn’t even need to try cases all over the country to know

that speaking objections are improper. As nearly every law student who takes trial

advocacy knows, Professor Mauet instructs students that they must not engage in

speaking objections. See Thomas A. Mauet, Trial Techniques and Trials § 10.9 (10th

ed. 2017) (“Making a speaking objection with the jury listening is by itself

improper.”). Not surprisingly, this instruction is backed up by case law from across

the country. See, e.g., Cole v. Hutchins, No. 4:17-cv-553-DPM, 2021 U.S. Dist.

LEXIS 115767, at *3 (E.D. Ark. Jun. 22, 2021) (“Avoid speaking objections during

the trial.”); R.D. v. Shohola, Inc., No. 3:16-CV-01056, 2019 U.S. Dist. LEXIS 199839,

at *11 (M.D. Pa. Nov. 19, 2019) (“[C]ounsel’s statement when making objections

should be succinct and verbally economical, stating the basis of the objection and

nothing more.”); In re EpiPen, No. 17-md-2785-DDC-TJJ, 2018 U.S. Dist. LEXIS

210972, at *24 (D. Kan. Dec. 14, 2018) (“The court wouldn’t tolerate a speaking

objection like this one during a trial.”); Guar. Co. v. Wall, No. EDCV 13-1893-

GW(OPx), 2013 U.S. Dist. LEXIS 202466, at *12 (C.D. Cal. Oct. 22, 2013) (“No

speaking objections. If an attorney wishes to make an objection, say the word

‘objection’ and the word or phrase that delineates its basis (e.g. ‘hearsay,’ ‘lack of

foundation,’ etc.).” (emphasis in original)). As with other warnings throughout the

trial, the Court had to instruct Plaintiff’s counsel more than once against making

speaking objections. Dkt. 747-2, at 3; Dkt. 682, at 88. Indeed, these other warnings

occurred after nearly identical conduct. Dkt. 747-2, at 3. The fact that Plaintiff’s

counsel’s speaking objection additionally violated the Court’s ruling on the motion

in limine only makes it more improper.

As to violating the motion in limine order, Plaintiff’s counsel makes two

arguments. Neither is persuasive. First, Plaintiff’s counsel contends that Mr.

Smolen’s improper speaking objection was too vague to have violated the order.

This argument is an attempt to sanitize the record in this case. In the context of

this particular witness in Plaintiff’s case-in-chief, Plaintiff’s counsel’s speaking

objection allowed the jury to infer that there was other similar litigation. It was his

witness, whom Plaintiff’s counsel had clearly used before against CHC in other

litigation. A simple, proper objection along the lines of “Objection. Foundation.

Time frame.” would have addressed any concern. It was improper to include the

gratuitous “She’s testified in two cases.”

Plaintiff’s counsel’s second argument again ignores his misbehavior. Instead,

Plaintiff’s counsel attempts to shift the blame to CHC’s counsel for using the term

“cases” in questioning a witness. Plaintiff’s argument is meritless for several

reasons. First, Plaintiff’s counsel misconstrues and attempts to sanitize the record,

again. Plaintiff’s counsel focuses on CHC’s counsel’s (Mr. Chapman) use of the word

“case” in questioning a witness. Mr. Chapman’s questioning of the witness did, in

fact, use the word “case.” But context matters. Mr. Chapman’s questioned the

witness about his investigation into two incidents. In context, the term “case”

meant this particular witness’ investigation of incidents. Unlike Mr. Smolen’s

improper speaking objection, which obviously referenced litigation, Mr. Chapman’s

use of the word “case” did not indicate litigation. Next, Plaintiff’s counsel makes

what can best be described as a “reverse opening the door” argument. Initially, the

purpose of allowing evidence after a party “opens the door”—correctly referred to as

“curative admissibility”—is to cure the introduction of inadmissible evidence by a

party. United States v. Regents of N.M. Sch. of Mines, 185 F.2d 389, 391 (10th Cir.

1950). Curatively admissible evidence allows a party to rebut a false impression

created by the introduction of inadmissible evidence. Paolitto v. John Brown E. &

C., Inc., 151 F.3d 60, 66 (2d Cir. 1998). It’s a rule of fairness. United States v.

Morales-Quinones, 812 F.2d 604, 610 (10th Cir. 1987). Here, it was Plaintiff’s

counsel who introduced inadmissible evidence through his own speaking objection.

CHC was the prejudiced party in these circumstances. To allow an equitable

concept to benefit the party who engaged in misconduct turns the rule on its head.

And, again, the Court had just sustained an objection, held a sidebar, and

instructed the jury to disregard Plaintiff’s counsel’s improper statement in opening

that violated the same pretrial ruling. On the heels of that event, Plaintiff’s counsel

then told the jury about the other “two cases.” And, to the extent the concept of

“opening the door” even applies, just because a party cracks open the door doesn’t

mean the other side gets to drive a truck through it. Baer v. Neal, 879 F.3d 769,

787 (7th Cir. 2018). Finally, of course, the Court’s order barred Plaintiff from

introducing evidence, not CHC. Mr. Chapman wasn’t violating the pretrial ruling.

And, as Plaintiff’s counsel does repeatedly, he argues that this one particular

error didn’t prejudice CHC. But the Court doesn’t look at each violation in

isolation. It’s the cumulative effect of Plaintiff’s counsel’s misbehavior that is the

focus. Osterhout, 10 F.4th at 993; Ventura v. Kyle, 825 F.3d 876, 886 (8th Cir. 2016)

(granting new trial based upon cumulative effect of counsel’s misconduct);

Whittenburg, 561 F.3d at 1133 (same); Cadorna, 245 F.R.D. at 491 (considering the

totality of the circumstances in granting a new trial based upon counsel’s

misconduct).

Opinion Witness Violation

At this point, a reasonable attorney would’ve been very circumspect about the

Court’s order on the motion in limine. But Plaintiff’s counsel wasn’t. Violating

rudimentary aspects of trial preparation, he failed to inform his opinion witness

about the Court’s rulings on the motions in limine. As a result, the opinion

witness—through no fault of his own—violated the Court’s order during the

following exchange:

Mr. Smolen: How many cases have you given expert opinions in?

Dr. Allen: Well, so the cases that sort of made it furthest, there was the

Williams case with you then and there was these cases but centering

today on Ms. Young.

Dkt. 684, at 623.

Again, CHC’s counsel objected, and the jury was removed from the

courtroom. After admitting that the Court had told him at least four times that he

needed to be careful, Plaintiff’s counsel claimed he was trying to be—even though

he never showed the opinion witness the order or explained the order prohibiting

testimony regarding other litigation.5

Counsel have a duty to inform witnesses of court rulings on motions in limine

before the witnesses testify. State v. Santos-Vega, 321 P.3d 1, 11 (Kan. 2014) (“The

importance of compliance with orders in limine has been underscored by our

caselaw imposing a duty on prosecutors to instruct their witnesses about the

existence and contents of such orders as a guard against improper testimony.”); see

People v. Phillips, 291 Cal. Rptr. 3d 8, 49-50 (Cal. Ct. App. Cal. 2022); see also David

Hricik, Agnor’s Georgia Evidence § 14.2 (Nov. 2023) (“When a trial court grants a

motion in limine to exclude evidence from trial, the lawyers have a duty to inform

their clients and witnesses of the court’s ruling so they will not violate the order by

mentioning the evidence in front of the jury during their testimony.”). And, with

witnesses who are clients, the duty to inform them of pretrial rulings is also found

in the Rules of Professional Conduct. R.P.C. 1.4. The failure to properly prepare a

witness can be an ethical violation. ABA Comm. on Ethics & Pro. Resp., Formal Op.

508 (2023) (“Many would condemn a lawyer’s failure to prepare a client or witness.

Failure to do so competently or diligently can constitute an ethics violation.”).

Sometimes, courts will remind counsel of their responsibility to inform witnesses of

pretrial rulings on motions in limine. State v. Hughes, 451 A.2d 372, 374 (N.H.

1982) (“[W]e would nevertheless caution prosecutors to take all such steps as are

5 The irony is not lost on the Court that Plaintiff’s counsel castigates CHC for misconduct

by, in part, failing to correct behaviors after being placed on notice, yet Plaintiff’s counsel

himself continued to engage in misconduct despite numerous warnings and instructions to

be careful.

necessary to prepare their witnesses in advance of trial to prevent the presentation,

in the presence of the jury, of facts excluded by pretrial order.”). And, occasionally,

some judges—like the great Magistrate Judge Sidney I. Schenkier—will even go so

far as to include language in the order on the motion in limine. See, e.g., Rothwell v.

City of Chicago, No. 10 C 1338, 2011 U.S. Dist. LEXIS 125413, at *12-13 (N.D. Ill.

Oct. 31, 2011) (“All counsel are responsible for advising witnesses of these rulings,

and to take all reasonable steps to ensure that the witnesses do not offer testimony

or comment on any matters barred by these rulings.”); Zitzka v. Village of

Westmont, No. 07 C 949, 2011 U.S. Dist. LEXIS 115922, at *35 (N.D. Ill. Oct. 7,

2011) (same); Nichols v. Johnson, No. 00 C 7785, 2002 U.S. Dist. LEXIS 7745, at

*23 (N.D. Ill. May. 1, 2002) (same); see also Shelangoski v. Rexco Equip., No. 20-cv-

56-MR, 2021 U.S. Dist. LEXIS 210875, at *5 (N.D. Iowa Oct. 1, 2021). Counsel

sometimes even stipulate to their responsibility to inform witnesses of pretrial

evidentiary rulings. See, e.g., Apodaca v. Eaton Corp., No. 2:20-cv-01064-TL, 2023

U.S. Dist. LEXIS 32384, at *6 (E.D. Wash. Feb. 27, 2023). But, truly, none of this

should be necessary.6 What’s the point of a court entering pretrial rulings on

evidentiary issues if counsel don’t inform the witnesses about the scope of their

testimony? How else would the process work? Are witnesses somehow to divine

pretrial rulings on motions in limine before they hit the witness stand? Requiring

6 The undersigned’s good friend and former law partner, Jeremy Margolis, often preached

the concept that there are certain things in life that go without saying. For example,

according to Jeremy, people should not have to be told not to build fires in their living

rooms nor should they have to be told not to put spaghetti in their pockets.

counsel to inform witnesses of pretrial rulings on motions in limine is based not

only on common sense but also on counsel’s various ethical duties.

The opinion witness’ response referenced “the [Elliot] Williams case with you”

and “there was these cases.” Dkt. 684, at 623 (emphasis added). By this point in

the trial, the jury had heard evidence regarding Mr. Williams. But the Court had

repeatedly attempted—through the ruling on the motion in limine and other

actions—to prevent the jury from hearing about litigation relating to that event.

Those efforts were incinerated by the opinion witness’ response. Likewise, the

Court had barred evidence of other litigation from being presented to the jury, but

the opinion witness’ response referenced “these cases,” allowing the jury to draw the

inference that other litigation against CHC had been filed. Again, the opinion

witness is not to blame in this regard. The duty and responsibility rested with

Plaintiff’s counsel, who recognized that he was already on “thin ice.” Despite the ice

cracking under his feet, Plaintiff’s counsel did not take reasonable—or even

minimal—efforts to inform the opinion witness about the Court’s pretrial ruling.

That’s misconduct. And it’s misconduct that prejudiced CHC.

In response, Plaintiff’s counsel again ignores, deflects, and shifts blame.

Plaintiff’s counsel repeats his same meritless argument regarding CHC’s counsel’s

reference to “case” and the related “reverse opening the door” contention. These

arguments are just as hollow in this context.

In his response brief, Plaintiff’s counsel also claims that “[t]he Court

recognized that there was no intent to violate the in limine Order on Mr. Smolen’s

part.” In at least two ways, this is categorically wrong and misrepresents what the

Court stated. The Court never recognized that Mr. Smolen lacked the intent to

violate the order. First, the Court stated that there was no intent by the witness—

Dr. Allen—to violate a court order. He couldn’t have the intent because Plaintiff’s

counsel failed his basic responsibility to inform Dr. Allen of the order and instruct

Dr. Allen of the contents of the order. Second, the Court stated that it understood

Plaintiff’s counsel’s argument that he claimed there was no intent. Dkt. 733-1, at

46. The Court did not state that it found Plaintiff’s counsel lacked intent.7 Indeed,

because of the record of Plaintiff’s counsel’s misconduct generally and specifically

with regard to the ruling on the motion in limine a reasonable person could easily

draw the inference that Plaintiff’s counsel intended for Dr. Allen to testify about

other litigation in violation of the Court’s pretrial ruling. Plaintiff’s counsel’s

misrepresentation of the record is just more evidence of his mentality that he can

play fast and loose in litigation without any significant consequence. It takes a

significant amount of temerity to misrepresent a judge’s statements to the very

same judge.

Plaintiff’s counsel also assumes that the jury already knew that litigation

resulted from Mr. Williams’ death. Of course, there’s no evidence to support that

assumption. But even if that assumption were correct, then this assumption means

that the jury’s verdict was based upon evidence not introduced—indeed, that was

7 Just because the Court understands an attorney’s argument doesn’t mean the Court

agrees with it or that the Court will grant a motion based on the argument. Indeed, the

Court also told CHC’s counsel that it understood some of their arguments but nevertheless

denied CHC’s motion based on those arguments. See, e.g., Dkt. 733-1, at 37.

specifically prohibited from being introduced—at trial, which would be a basis to

grant a new trial.

Having addressed these instances of misconduct, it is reasonable to draw the

inference that Plaintiff’s counsel simply disagreed with the Court’s pretrial ruling.

So, he decided to ignore it. And that inference is reasonable even in light of his

repeated feigned apologies and his inaccurate assertions that he didn’t violate court

orders.

Plaintiff’s Counsel’s Crying

Another basis for CHC’s motion for a new trial was Plaintiff’s counsel’s

alleged crying during trial. Before the Court can even address the legal issue, it

must first define “crying” and then resolve the factual dispute of whether Plaintiff’s

counsel cried—as properly defined—during trial.

Like nearly every issue in this litigation, the parties dispute the meaning of

“crying.” CHC’s view is that “crying” is to shed tears because of sadness. In

contrast, Plaintiff’s counsel’s view is that “crying” means bawling. In Plaintiff’s

brief, her counsel even go so far as to put “cry” in quotation marks. CHC’s counsel’s

definition is more accurate.8 Plaintiff’s counsel’s attempt to define the term

misunderstands the concept of subsets. Bawling is a type of crying.9 All bawling is

8 See, e.g., Cry, Cambridge Dictionary,

https://dictionary.cambridge.org/us/dictionary/english/cry (last visited Feb. 27, 2024); Cry,

Merriam-Webster, https://www.merriam-webster.com/dictionary/cry (last updated Feb. 22,

2024).

9 The definition for “bawl” even includes the word “cry.” See Bawl, Merriam-Webster,

https://www.merriam-webster.com/dictionary/bawl (last updated Feb. 22, 2024).

crying, but not all crying is bawling. Having said that, Plaintiff’s counsel was not

bawling. The factual issue is whether he was crying.

CHC points to three instances when it believes Plaintiff’s counsel cried or

almost cried before the jury. In making these factual findings, the Court is at a

disadvantage because it was difficult to see Plaintiff’s counsel’s face. But what was

said and not said when the issue arose sheds light on whether Plaintiff’s counsel

was, in fact, crying. One alleged instance of crying occurred during opening

statements. An occurrence of “almost crying” happened during closing arguments.

And the third instance of almost crying allegedly occurred when Plaintiff’s counsel

examined Ms. Young-Powell.

After opening statements, CHC’s counsel objected and asserted that

Plaintiff’s counsel “appeared to be . . . almost crying.” Plaintiff’s counsel denied

“crying.” But then Plaintiff’s counsel admitted that he may have had a tear in his

eye. In response to the motion for new trial, Plaintiff’s counsel again twice admitted

to having “a tear in his eye.” Plaintiff’s counsel also didn’t dispute having a tear in

his eye when he was later confronted about crying. Dkt. 747-2, at 9. So, at a

minimum, Plaintiff’s counsel admitted to having a tear in his eye during opening

statements. That’s crying.

During closing arguments, after already warning Plaintiff’s counsel about

controlling his emotions so as to not cry, on its own, the Court attempted to

intercede so that the jury would not be exposed to Plaintiff’s counsel’s tears. In its

motion, CHC notes that Plaintiff’s counsel was on the edge of tears. CHC doesn’t

assert that Plaintiff’s counsel cried in closing arguments. In response, Plaintiff’s

counsel strangely accuses CHC of falsely arguing that he cried in closing. But CHC

did no such thing. This is just another example of Plaintiff’s counsel’s

misrepresentations.

As to the third instance, again, the Court didn’t see Plaintiff’s counsel shed a

tear. But what everybody in the courtroom saw—including the jury—was Plaintiff’s

counsel dramatically and theatrically placing a box of facial tissues on the podium

in front of him during the examination. Plaintiff’s counsel admits to placing the

tissue box on the podium. Dkt. 694, at 118. This box of tissues was not for Ms.

Young-Powell, because the Court already provided her with one. As Plaintiff’s

counsel admitted, this box of tissues was for him. And he made sure the jury saw

that. Whether Mr. Smolen shed a tear on this occasion is a distraction. He

conveyed the same emotionally charged message to the jury by his actions: “I

believe my client is truthful because I’m going to cry with her. Moreover, the

testimony you are about to hear will inflame your passions just as it will inflame

mine.” The Court finds Plaintiff’s counsel’s actions in this regard even more

egregious because it was premeditated and controlled. He knew exactly what he

was doing and why he was doing it. There was no aspect of spontaneity about what

he did. And, rather than placing the tissue box on the podium before the jury

entered the courtroom, Mr. Smolen waited until the jurors entered and took their

seats, so that they could get a full view of his antics.

Having found that Plaintiff’s counsel did, in fact, cry on at least one occasion

and essentially expressed the same emotions to the jury through his theatrical and

dramatic use of the box of tissues, the Court must next determine whether this is

legally improper and then, if so, whether CHC was prejudiced by Plaintiff’s

counsel’s actions.

The parties have provided the Court with little legal authority regarding the

propriety of counsel crying before a jury. CHC’s counsel cited general propositions

that there are limits to pleas of passion and that restraints must be placed on those

attempts. Dkt. 733, at 14 (citing Whittenburg, 561 F.3d at 1128). CHC’s counsel

helpfully also cited a New Jersey case that granted a new trial based, in part, on the

plaintiff’s attorney’s crying during direct examination. Id. at 15 (citing Carey v.

Lovett, 132 N.J. 44, 63, 65 (N.J. 1993)). Plaintiff’s counsel offered no authority on

this topic, instead choosing to erroneously argue that Plaintiff’s counsel didn’t cry.

Courts have found that crying is improper and prejudicial. See People v.

Dukes, 146 N.E.2d 14, 17 (Ill. 1957). But a single uncontrolled showing of emotion

with attempts to hide the emotion from the jury has been excused. See Brown v.

State, 777 S.W.2d 466, 471 (Ga. 2015). There are good reasons to prohibit counsel

from crying before the jury, particularly when examining a client. First, crying

inflames the jury’s passions instead of focusing the jury on the law and evidence.

Second, crying with a client while she testifies is essentially vouching for the

witness. And vouching is improper, even in civil trials. Draper v. Rosario, 836 F.3d

1072, 1084 (9th Cir. 2016); 75A Am. Jur. 2d Trial § 575 (“It is improper for counsel

in a civil action to vouch for the credibility of witnesses, and such remarks generally

result in a reversal of the judgment.”). Vouching conveys counsel’s personal beliefs

as to the credibility of a witness to the jury. Draper, 836 F.3d 1084. Vouching for

witnesses, including clients, has no place in a court of law. Id. (citing Spicer v.

Rossetti, 150 F.3d 642, 644 (7th Cir. 1998)). Indeed, vouching can violate rules of

professional conduct. R.P.C. 3.4(e).

In this case, after opening statements, the Court specifically admonished

Plaintiff’s counsel about controlling his emotions after he cried before the jury. He

either couldn’t or wouldn’t. The Court then told counsel that if he couldn’t control

his emotions, then a different attorney should do the closing argument. Plaintiff’s

counsel eschewed that direction and barreled forward. As discussed in more detail

later, Plaintiff’s counsel didn’t control his emotions during closing argument. And

Plaintiff’s counsel’s dramatic and theatrical placing of the tissue box on the podium

was neither uncontrolled nor an attempt to hide his emotions from the jury. That

action was designed, among other things, to tell the jury that the testimony it was

about to hear was credible and emotionally painful.

Plaintiff’s counsel’s actions prejudiced CHC. Plaintiff’s counsel clearly played

upon the jury’s emotions and told it which witness he thought was credible.

Standing alone, shedding a tear one time in the heat of an emotional moment

would not amount to misconduct and a basis for a mistrial. But that’s not what

happened here. Plaintiff’s counsel’s actions need to be placed not only in the context

of his emotional plays to the jury but also in the context of all the other misconduct.

The Display of the Certificate of Insurance

A reasonable person might draw the inference that Plaintiff’s counsel

improperly introduces issues of insurance as a standard operating procedure

because he’s done it before. See, e.g., Burke, 935 F.3d at 1020-21.

In this case, Plaintiff’s counsel had proposed an exhibit on his exhibit list

that was a certificate of insurance. But even before trial started, the Court warned

counsel about attempting to introduce evidence of insurance. The rationale for this

warning is not only Federal Rule of Evidence 411, but also common sense. In

warning counsel, the Court didn’t mince words.

Plaintiff’s counsel eventually withdrew the exhibit from his exhibit list. But

for an unexplained reason, Plaintiff’s counsel kept CHC’s certificate of insurance in

the trial exhibit presentation program. To this day, Plaintiff’s counsel has never

adequately explained why an exhibit that was removed from the exhibit list

remained in the electronic exhibit presentation program.

During trial, Plaintiff’s counsel asked his exhibit technician to put an exhibit

on the screen for the jury to see. Instead of the exhibit requested, the exhibit

technician loaded CHC’s certificate of insurance and placed it on the screen. The

exhibit was not published very long. The exhibit technician claims it was published

for less than a second. The Court strongly disagrees. The certificate of insurance

was published on the screen for longer than that—around two seconds, maybe as

long as five seconds. Regardless of how long CHC’s certificate of insurance was on

the screen, it was published long enough for two things to occur: (1) for CHC’s

counsel to immediately object, and (2) for the members of the jury to read

“Certificate of Insurance” in big letters across the top of the document. At the trial,

the Court specifically found that CHC’s certificate of insurance was on the screen

long enough for the jurors to read what it was. As mentioned elsewhere in this

order, the jurors were very attentive, often leaning forward in their seats to get

better views at various exhibits throughout trial. And, as science has established, a

person can recognize an image, including text, in less than two seconds. See Kalanit

Grill-Spector & Nancy Kanwisher, Visual Recognition: As Soon as You Know It Is

There, You Know What It Is, 16 Psych. Sci. 85, 152 (2005) (measuring the ability to

recognize what’s in pictures when exposed to them for 33, 50, and 68 milliseconds).

The jury was once again removed from the courtroom while the Court heard

arguments on CHC’s motion for a mistrial because of Plaintiff’s counsel’s display of

CHC’s certificate of insurance. As he does in the response to CHC’s motion for new

trial, Plaintiff’s counsel offered a variety of responses to the motion for mistrial—

none of which are particularly persuasive. For example, Plaintiff’s counsel claimed

it was an inadvertent mistake. (The exhibit technician has fallen on his sword in

this regard.) Plaintiff’s counsel also asserts without evidence that the jurors

couldn’t read the certificate of insurance. This is factually false. The Court

specifically found that they could have, and certainly, CHC’s counsel was able to

read the exhibit to allow him to object. Moreover, the exhibit was published long

enough for the exhibit technician to recognize that the certificate of insurance was

on the screen and then remove it. As to the critical issue of prejudice, Plaintiff’s

counsel basically states that the exhibit and the reference to insurance was a one-

off, insufficient to require a new trial. Again, Plaintiff’s counsel adamantly refuses

to recognize that the issue for the Court to address on a motion for new trial is the

prejudicial effect of the cumulative errors and misconduct. Ventura, 825 F.3d at

886; Whittenburg, 561 F.3d at 1133.

The Court then questioned why CHC’s certificate of insurance was even in

the exhibit program, allowing for the possibility that it might be published to the

jury. The exhibit was withdrawn and it was unduly prejudicial and inadmissible.

And, as explained later, it was completely irrelevant for another reason. Plaintiff’s

counsel’s answers were and are simply not credible. Plaintiff’s counsel contended

and continues to contend that CHC’s certificate of insurance was relevant because it

went to damages, specifically punitive damages.

Plaintiff’s contention that CHC’s certificate of insurance was relevant to

punitive damages is wrong both factually and legally. Factually, as CHC

established and made known to Plaintiff’s counsel, the insurance had been

exhausted—there was no insurance left under the policy. Plaintiff’s counsel doesn’t

dispute this fact—a fact that submarines his contention. He just ignores it.

Legally, the argument is meritless for at least three reasons. First, as the Court

raised at the time of the motion for mistrial, many jurisdictions prohibit insurance

that covers punitive damages as being against public policy. Alan I. Widiss, Strong

Medicine or Poison Pill?: Liability Insurance Coverage for Punitive Damages?

Discerning Answers to the Conundrum Created by Disputes Involving Conflicting

Public Policies, Pragmatic Considerations and Political Actions, 39 Vill. L. Rev. 455,

466-72 (1994) (surveying conflicting authorities). The great state of Oklahoma is

one of those jurisdictions that finds public policy prohibits insurance coverage for

punitive damages. Dayton Hudson Corp. v. Am. Mut. Liab. Ins. Co., 621 P.2d 1155,

1160 (Okla. 1980); see Magnum Foods v. Cont’l Cas. Co., 36 F.3d 1491, 1497-98

(10th Cir. 1994). Tellingly, Plaintiff’s counsel had no evidence that the insurance

policy under the certificate of liability covered punitive damages. Dkt. 747-2, at 19.

If the policy didn’t provide coverage for punitive damages, then the certificate of

insurance for the policy is completely irrelevant. Second, as Federal Rule of

Evidence 411 makes clear, “[e]vidence that a person was or was not insured against

liability is not admissible to prove whether the person acted negligently or

otherwise wrongfully.” Fed. R. Evid. 411.

Setting aside that CHC possessed no insurance coverage and that Plaintiff’s

counsel knew this, Plaintiff’s counsel insists that evidence of CHC’s insurance falls

into an exception to Rule 411 because it goes to punitive damages, citing various

cases. At trial, the Court addressed these same cases, finding that this exception

exists when a defendant claims to have insufficient funds to pay a judgment.

Occasionally, this is referred to as “poor-mouthing.” See, e.g., DSC Commc’ns. Corp.

v. Next Level Commc’ns., 929 F. Supp. 239, 248 (E.D. Tex. 1996). In response to the

motion for new trial, Plaintiff’s counsel doubles down and makes the same

argument with the same cases, never addressing that its argument is legally

meritless as the Court previously established. In this regard, Plaintiff’s counsel

relies on cases like Valdes v. Miami-Dade County, No. 12-22426 CIV, 2015 U.S.

Dist. LEXIS 155196 (S.D. Fla. Nov. 17, 2015). But that case relies on Christiansen

v. Wright Med. Tech. Inc., No. 13-cv-297, 2015 U.S. Dist. LEXIS 147805, at *9 n.7

(S.D. Fla. Oct. 30, 2015), which explains the rationale for allowing an exception

when a party claims it can’t pay damages, including punitive damages.

Christiansen, 2015 U.S. Dist. LEXIS 147805, at *9 n.7 (“There is authority to

support the contention that insurance coverage for punitive damage awards is

relevant and admissible evidence to rebut a defendant’s assertion that a punitive

damages award would impact its finances.”).10 Further, Plaintiff’s counsel’s citation

to Pinkham v. Burgess, 933 F.2d 1066 (1st Cir. 1991), is misplaced because there

was no suggestion that the defendant in that case was insured; whereas, here, the

obvious and only inference the jury could draw from being shown the certificate of

insurance is that CHC was insured, which it wasn’t and Plaintiff’s counsel knew it

wasn’t. And Plaintiff’s counsel’s citation to a dissenting opinion from the Ninth

Circuit carries the weight one would expect—zero. Dispositive of Plaintiff’s

counsel’s argument is the fact that CHC never asserted it couldn’t pay a damage

award or a punitive damage award. Without that prerequisite, the exception

Plaintiff’s counsel relies upon doesn’t apply, as the Court explained during trial.

Having easily negated Plaintiff’s counsel’s meritless arguments, the Court

must address the prejudice caused by his actions. The rationale for the general

prohibition of insurance evidence by Rule 411 is obvious: “Knowledge of defendant’s

10 The Christiansen court also addressed the issue that any such insurance policy may not

cover punitive damages because doing so would violate public policy.

insurance has traditionally been treated as fruit of the forbidden tree. Without

question, a trial lawyer is treading on dangerous ground and always approaches

grounds for a mistrial by the mere mention of insurance when same is not at issue.”

Cleveland v. Peter Kiewit Sons’ Co., 624 F.2d 749, 758 (6th Cir. 1980) (cleaned up).

In Ventura v. Kyle, 825 F.3d 876 (8th Cir. 2016), the Eighth Circuit relied upon

Tenth Circuit case law to grant a motion for new trial based upon plaintiff’s

counsel’s references to insurance. The Eighth Circuit found that the risk of

prejudice is high when insurance is referenced to a jury. Ventura, 825 F.3d at 886.

The Ventura court stated that it was utterly repugnant to a fair trial or a just

verdict for the jury to hear that the damages sued for will be paid by an insurance

company. Id.; see also Cleveland, 624 F.2d at 758 (“The general principle that the

voluntary or intentional introduction into evidence, either directly or indirectly, by

the plaintiff of the fact that a defendant in a tort action is protected by liability

insurance, is prejudicial error and grounds for a mistrial, is . . . well settled.”

(quoting Gleaton v. Green, 156 F.2d 459, 461 (4th Cir. 1946)). In finding that

counsel’s references—“[a]lthough relatively brief”—required a new trial, the

Ventura court found that it has been almost universally held that the receipt of

evidence of insurance coverage constitutes prejudicial error sufficient to require

reversal. Ventura, 825 F.3d at 886.

Factually, the following is undisputed: (1) Plaintiff’s counsel failed to remove

CHC’s certificate of insurance from the exhibit program after withdrawing the

exhibit following the Court’s admonition that insurance coverage evidence was

improper, (2) CHC informed Plaintiff’s counsel that the insurance policy was

exhausted, (3) Plaintiff’s counsel knew the insurance policy was exhausted, (4)

CHC’s certificate of insurance was placed on the exhibit monitors before the jury,

and (5) there was sufficient time to read the document’s title “Certificate of

Insurance.” The Court further finds that the fully engaged and attentive jury had

enough time to read the title of the document. The Court also finds that the jury

could only draw one reasonable inference from CHC’s certificate of insurance being

shown to them: CHC was covered by insurance, despite this being factually

incorrect. The Court also finds that Plaintiff’s counsel’s after-the-fact rationales for

keeping CHC’s certificate of insurance in the exhibit program are not credible.

Plaintiff’s counsel’s contentions are both factually and legally meritless.

The critical issue is whether CHC was prejudiced by the display of the

certificate of insurance. Osterhout, 10 F.4th at 989. So, regardless of whether the

display of CHC’s certificate of insurance was intentional, it is reasonably probable

that it—among the litany of other misconduct identified in this order—influenced

the jury. This is particularly true because of Plaintiff’s counsel’s arguments—again,

many of them improper—made during closing argument. Standing alone, Plaintiff’s

counsel’s display of an unduly prejudicial, inadmissible document for a short time

might not require a new trial. But this event doesn’t stand alone. Moreover,

Plaintiff’s counsel’s completely noncredible arguments—both factual and legal—are

just more evidence of his lack of candor and willingness to play fast and loose with

the trial process.

Introducing Evidence from Non-Admissible Documents under

the Guise of “Refreshing Recollection”

During trial, Plaintiff’s counsel demonstrated that he understood how to

properly refresh a witness’ recollection under Rule 612—but only when the witness

was friendly. Dkt. 733-1, at 14-15. He conveniently forgot the niceties of

foundation and process when it benefited him.

Here’s a good example. After CHC’s counsel objected and raised concerns

about a particular document, at a sidebar, the Court explicitly and repeatedly

confirmed with Plaintiff’s counsel that the document would be used solely to refresh

recollection. Id. at 59-60. The Court then explicitly stated that the exhibit was not

going to be admitted and that the witness was not going to read from the exhibit.

Id. at 60. The exhibit was inadmissible hearsay, among other problems, and was

unduly prejudicial to CHC in a number of ways. Immediately after this side bar,

the following exchange occurred:

Q (by Mr. Smolen): Ma’am, do you see that you were reportedly in this

meeting on June 12th of 2012?

A: Reportedly, yes, I see that.

Q: And is it true that a discussion took place during the June 12th, 2012,

meeting where it was indicated that the Elliot Williams death was not

acceptable?

[Counsel for CHC]: Objection. This was to refresh her memory, not to

then read a document as to what happened.

The Court: Sustained.

Id. at 60-61. Counsel then grumbled about the Court sustaining the objection. Id.

at 61. The Court again sustained the objection. After again testifying that she did

not recall the alleged meeting—and remember, Plaintiff’s counsel repeatedly

represented to the Court that the document would only be used to refresh

recollection—the following exchange occurred:

Q (by Mr. Smolen): Are you telling the jury that the Tulsa County

Sheriff’s Office did not address CHC’s failures in June of 2012 in this

meeting?

A: I’m not saying that at all.

[Counsel for CHC]: She said she doesn’t recall the meeting --

The Court: Sustained.

[Counsel for CHC]: -- multiple times.

The Court: Sustained.

Q (by Mr. Smolen): If, in fact, everything had been resolved by the time

you sent the plan to NCCHC [an accrediting body] in 2010, why are the

same issues being addressed by the Tulsa County Sheriff’s Office in June

of 2012 with you?

Id. at 62-63. During these exchanges, Plaintiff’s counsel held the document in his

hands in front of the jury and read these passages from the document, which again,

Plaintiff’s counsel represented to the Court (at a side bar so as to not taint the jury)

was only going to be used to refresh recollection and after the Court explicitly stated

the document would not be read to the jury. And these exchanges occurred after the

witness repeatedly testified that the document didn’t refresh her recollection.

Relying on numerous and vast authority, District Judge Mark Bennett (ret.)

addressed the foundational requirements and process for using a document to

refresh recollection. United States v. Hawley, 562 F. Supp. 2d 1017, 1051-52 (N.D.

Iowa 2008). First, the witness’ memory must be exhausted; then the witness must

identify a document that would refresh her memory; next, after marking the exhibit

and providing copies to opposing counsel and the court, the examining attorney

provides the exhibit to the witness, thereby allowing the witness to inspect the

exhibit; then after being given the opportunity to inspect the exhibit, the examining

attorney asks if the witness’ memory is now refreshed (“jogged”); and only if the

witness states that her memory is now refreshed so that she can testify from her

memory, does the examination continue on the topic contained in the exhibit. Id.;

see Rush v. Ill. Cent. R.R. Co., 399 F.3d 705, 717 (6th Cir. 2005) (“[D]efense counsel

terminated the cross examination when it appeared that the transcript failed to

refresh Moore’s memory.”). Based on authority, Judge Bennett stated that the

contents of the exhibit “may not even be read into evidence.” Hawley, 562 F. Supp.

2d at 1051.

Indeed, multiple courts have held that counsel can’t read from a document

allegedly being used to refresh memory. United States v. Sheffield, 55 F.3d 341, 343

(8th Cir. 1995); Gaines v. United States, 349 F.2d 190, 192 (D.C. Cir. 1965). The

reason is obvious: Reading from the document causes the jury to consider the

contents of the document—not the witness’ testimony—as substantive evidence.

Gaines, 349 F.2d at 192. Even outside of the context of using a document to refresh

recollection, in front of the jury, counsel can’t read from a document that hasn’t

been admitted into evidence, which may be a basis for granting a new trial. See

Cadorna, 245 F.R.D. at 494 (“It’s inappropriate to read from a document not yet

admitted in evidence.”).

In fact, generations of attorneys—including the undersigned—were trained

on the purpose of Rule 612, its foundational requirements, and the process for

refreshing recollection. See Thomas A. Mauet, Trial Techniques and Trials § 5.13

(10th ed. 2017). After identifying the elements, Professor Mauet even provided a

handy example examination, like he had for all foundational questions. Id. Not

surprisingly, the example followed the legal requirements: (1) establish that the

witness’ memory was exhausted, (2) ask if anything could refresh the witness’

memory, (3) mark the exhibit, (4) show the exhibit to opposing counsel and the

court, (5) provide the exhibit to the witness and ask the witness to read to document

to herself, and (6) after the witness has read the document, ask the witness if her

memory was refreshed. Id. Note that the process does not allow the witness to read

out loud from the document and certainly doesn’t allow counsel to do so. For those

attorneys who have attended the National Institute for Trial Advocacy Training,

this is familiar ground. See Steven Lubet, Modern Trial Advocacy: Analysis and

Practice 50 (3d ed. 2004) (“Note that in this situation the testimony must ultimately

come from the witness’s own restored memory; the document may not be offered as

a substitute.”).

Plaintiff’s counsel engaged in misconduct. Despite previously showing that

he understood the purpose of Rule 612 and that he could comply with the

foundational requirements of the rule, he lied to the Court and then improperly

jammed in inadmissible evidence in violation of the rule and court orders. He did

not use the exhibit to refresh recollection. Instead, he used the exhibit to read its

unduly prejudicial and inadmissible content to the jury—and did so immediately

after the Court stated that the contents would not be read to the jury. No doubt,

objections were sustained, but persistently asking knowingly objectionable

questions is misconduct. Teter, 274 P.3d at 344. And sustaining objections doesn’t

necessarily cure the harm. Caudle, 707 F.3d at 363; Sullivan, 919 F.2d at 1425-26

n.32; Underwood, 215 N.E.2d at 238.

In Plaintiff’s response brief, Plaintiff’s counsel doesn’t address any of this.

Instead, Plaintiff’s counsel simply asserts that the exchange evidenced run-of-the-

mill cross examination. Setting aside the fact that Plaintiff’s counsel repeatedly

represented to the Court that the document was being used only to refresh

recollection—which is different than impeachment—this argument misses the

entire purpose of Rule 612: “Rule 612 is not a vehicle for a plenary search for

contradictory or rebutting evidence that may be in the file but rather is a means to

reawaken recollection of the witness . . . .” Sheffield, 55 F.3d at 343. So, Plaintiff’s

counsel not only misrepresented to the Court the purpose for which the document

would be used, but also then misused the document in contravention of the rule and

an explicit court order. Plain and simple, Plaintiff’s counsel knowingly engaged in

misconduct, which prejudiced CHC.

Gratuitous, Improper, and Prejudicial Comment with a Witness

Throughout trial, it was readily apparent that Plaintiff’s counsel simply

couldn’t or wouldn’t control his behavior. Here’s a good example.

In Plaintiff’s case in chief, Plaintiff’s counsel called Tammy Harrington as a

witness. Ms. Harrington had issues regarding her employment with CHC, its

supervisors, and others. On redirect examination, the following exchange occurred:

Mr. Smolen: So how is it possible that you’re getting terminated by your

supervisor who’s Chris Rogers but she’s not signing off on the form?

A: I guess she didn’t agree with it.

Q: I guess maybe they’ll call her and explain that to the jury.

[CHC Counsel]: Objection, Your Honor.

Court: Sustained. Sidebar.

Court: You pull that one more time and we’re done. Do you understand?

Mr. Smolen: Yeah.

Court: Do you get it.

Mr. Smolen: Yes.

Court: Why would you make a statement like that?

Mr. Smolen: I didn’t know what rule it affected.

Court: The rule of common sense.

Dkt. 733, at 18 (emphasis added). Not captured in the transcript was Plaintiff’s

counsel’s nonplussed, disrespectful, smug attitude for making this statement and

the Court sustaining the objection. At the trial, the Court found that Plaintiff’s

counsel’s actions were intentional and that he knew it was wrong, but he just didn’t

care. Dkt. 733-1, at 31. The Court reiterates those findings now.

Stunningly, just like counsel did at trial, in response to the motion, Plaintiff’s

counsel “respectfully” believes there was nothing wrong with this “comment” and

that no authority prohibits this behavior.11 Besides being wrong, this position is

just more evidence of Plaintiff’s counsel’s mindset that anything goes during trial.

First, as Plaintiff’s counsel now finally admits, he was not asking a question

of this witness. Instead, he was making a comment. When examining a witness,

counsel must not to make gratuitous prejudicial comments. United States v. Castro,

795 F. App’x 635, 655 (11th Cir. 2019) (commenting on witness’ testimony during

examination is improper); United States v. Dowdy, 960 F.2d 78, 80 (8th Cir. 1992)

(appellate court affirmed contempt finding based on, among other things, counsel’s

misbehavior, including “making unnecessary remarks” during witness

examination). In fact, one district judge even possesses a standing order warning

counsel not to engage in this type of conduct. See, e.g., Overstreet v. Allstate Vehicle

& Prop. Ins. Co., No. 4:20-CV-242-A, 2020 U.S. Dist. LEXIS 197649, at *41-42 (N.D.

Tex. Aug. 25, 2020). Gratuitous comments during witness’ testimony are even

objectionable in the informal settings of arbitrations. See David Robbins, 1

Securities Arbitration Procedure Manual §§ 10-5,12-23 (5th ed. 2024).

During witness examination, counsel’s job is to elicit testimony from

witnesses with questions; counsel’s job isn’t to make gratuitous prejudicial

comments. If Plaintiff’s counsel needed more authority on this topic, Howard v.

Offshore Liftboats, LLC, Nos. 13-4811, 13-6407, 14-1188, 2016 U.S. Dist. LEXIS

64837 (E.D. La. May 17, 2016), provides a good example. In that case, the district

11 At trial, Plaintiff’s counsel wouldn’t even admit that he was making a comment. Instead,

undeterred by reality, he insisted that the following was a question: “I guess maybe they’ll

call her and explain that to the jury.” Even a casual reader will note the absence of a

question mark and, instead, note the period at the end of the sentence.

court sanctioned plaintiff’s counsel for, among other things, making gratuitous

comments during a witness examination rather than asking questions—after the

district court had warned counsel about engaging in misbehavior. Howard, 2016

U.S. Dist. LEXIS 64837, at *10-11. In the show-cause hearing, the district court

stated the obvious: “[Y]ou again commented on his testimony rather than asking

him questions, which is what you’re supposed to do. You’re supposed to ask

questions, not make comments.” Id. at *12-13. Plaintiff’s counsel can find another

example in Cadorna v. City & County of Denver, 245 F.R.D. 490, 492-93 (D. Colo.

2007), in which the court granted a motion for new trial based, in part, on the

plaintiff’s attorney injecting editorial comments during a witness examination.

Like the sanctioned counsel in both Cadorna and Howard, Plaintiff’s counsel

made his gratuitous editorial comment, appeared very pleased with himself for

doing so, and was unrepentant when called out for engaging in misconduct, after

being repeatedly warned not to engage in misconduct. Dkt. 747-2, at 8 (noting

Plaintiff’s counsel’s smug look on his face). His feigned ignorance that his comment

was improper only exacerbates his misbehavior. Some misbehavior is so obvious

that all counsel should know it is wrong and not have to be instructed not to engage

in it. Dowdy, 960 F.2d at 81. Making gratuitous comments during a witness

examination instead of eliciting testimony is one such behavior.12

Second, using best trial practices, before every jury trial, the Court provides

the jury with introductory instructions. See Seventh Circuit American Jury Project,

12 See supra note 6.

25 & 52 (September 2008). Before publishing these instructions to the jury, the

Court provides copies to all sides to address any objections and to ensure that the

instructions properly state the law. The Court did that in this case. There were no

objections, and all agreed that the instructions properly stated the law. Critically,

one of the instructions stated the following: “The Plaintiff will introduce evidence in

support of her claims. At the conclusion of the Plaintiff’s case, the Defendant may

introduce evidence. The Defendant, however, is not obligated to introduce any

evidence or to call any witnesses.” But Plaintiff’s counsel’s gratuitous comment told

the jury that CHC possessed the burden to not only introduce evidence, but to

introduce this specific witness to “explain” this specific issue—contrary to the

explicit preliminary jury instruction, which Plaintiff’s counsel agreed was an

accurate statement of the law. Respectfully, there’s a lot wrong with doing that. In

addition to being legally wrong in this regard, Plaintiff’s counsel was basically

making a missing witness argument in the middle of re-direct examination. And

there was no basis for that. Wilson v. Merrell Dow Pharms., 893 F.2d 1149, 1150-51

(10th Cir. 1990) (identifying required elements for a missing witness instruction);

Wytex Prod. Corp. v. Xto Energy, Inc., No. CIV-12-12-339-JHP, 2014 U.S. Dist.

LEXIS 201062, at *10-15 (E.D. Okla. Aug. 29, 2014).

Plaintiff’s counsel’s gratuitous comment to Ms. Harrington during her

examination—telling the jury that CHC must present evidence to rebut his

argument—was misconduct. The Court is unsure what is worse—that Mr. Smolen

claims it wasn’t misconduct or that he claims he didn’t know it was misconduct.

The disrespect he showed to the Court when his behavior was called out and his

continued assertions that he has done nothing wrong further evidences his

misguided mindset about trials, his lack of respect for basic rules of trial advocacy,

and his lack of candor with the Court.

Improper Arguments and Comments During Closing

Arguments

CHC contends that Plaintiff’s counsel made numerous improper statements

and argument during closing. Plaintiff’s counsel denies the statements or

arguments were improper, notes that no objections were made for some of these, if

there were objections, the objections were sustained, or asserts a combination of

these contentions.

The Court finds that Plaintiff’s counsel made factual representations that

were not based on record evidence, made references to documents not in the record,

made arguments not based on facts in the record, and most importantly made

highly improper arguments in rebuttal. CHC attempts to place the various

improper statements and arguments into different categories, but many of

Plaintiff’s counsel’s improper actions defy singular categorization. Some of the

improper statements and arguments are relatively minor, which would not, alone,

be sufficient to establish that it was reasonably probable that the verdict was

influenced by Plaintiff’s counsel’s misconduct. But, again, those improper

statements and arguments didn’t stand alone. There were some doozies. For

example, Plaintiff’s counsel made numerous attempts to argue his personal opinion

as to the justness of Plaintiff’s case, and even more troublingly, the justness of his

actions in bringing the type of cases tried before this jury. The most egregious

misconduct related to Plaintiff’s counsel’s play to regional bias against CHC and its

counsel not being from “our community” and that the jury’s obligation was to find in

favor of “our community” and against the outsiders. Despite being the most critical

argument, Plaintiff’s counsel all but ignores this misconduct.

Arguments Not Based on Evidence

Plaintiff’s counsel made gratuitous statements about documents not in

evidence, such as tax filings. It is axiomatic that closing arguments may not be

based on evidence not admitted. Whittenburg, 561 F.3d at 1128-29. It’s undisputed

that the tax filings were not in evidence, so there was no basis to mention them,

except to bolster Plaintiff’s counsel’s theme of CHC being a large, evil corporation.

At trial, when questioned outside the presence of the jury why he mentioned the tax

filings, Plaintiff’s counsel comically responded that he needed to establish that CHC

was a corporation and that the tax filings—which again were not in evidence—

supported this element of his case. This argument was absolute nonsense. In the

opposition brief, Plaintiff’s counsel abandoned this nonsense and argues a lack of

prejudice because the objection was sustained. Plaintiff’s counsel’s attempt to claim

a lack of misconduct by sanitizing each improper action either by a lack of objection

or a curative action by the Court rings hollow. Moreover, the shifting

“justifications” are strong evidence of pretext—also known as a lie. Mueggenborg v.

Nortek Air Sols., LLC, No. 20-6147, 2021 U.S. App. LEXIS 30860, at *23 (10th Cir.

Oct. 15, 2021) (citing Appelbaum v. Milwaukke Metro. Sewerage Dist., 340 F.3d 573,

579 (7th Cir. 2003)); Campell v. Wal-Mart Stores, Inc., 272 F. Supp. 2d 1276, 1295

(N.D. Ok. 2003) (citing Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995)).

Plaintiff’s counsel also made reference to what a hypothetical video recording

of Ms. Young would show. Obviously, this hypothetical video recording was not in

evidence. Moreover, there was no evidence to support this argument nor was it a

reasonable inference. There was simply no evidence as to what occurred in the cell

that housed Ms. Young. This was an improper argument. See Whittenburg, 561

F.3d at 1128-29.

Plaintiff’s counsel also made a gratuitous, improper statement about his

allegedly heroic attempts to obtain a former CHC employee to testify during trial.

In reference to Nurse White, Plaintiff’s counsel told the jury, “I tried to get her here.

She dodged service for 16 weeks.” Initially, there was no evidence supporting any of

this, so the argument is improper on its face. Whittenburg, 651 F.3d 1128-29. Next,

the obvious and only reason to make this statement is to imply that CHC was

hiding evidence—an implication that is completely unsupported by any evidence.

Not surprisingly, the jury was instructed that it could only draw reasonable

inferences. See Coffey v. United States, 906 F. Supp. 2d 1114, 1143 n.26 (D.N.M.

2012) (citing Tenth Circuit Pattern Jury Instructions § 1.07, at 15 (2011)). And

counsel can only make arguments based upon a reasonable inference from the

evidence. Whittenburg, 561 F.3d at 1128-29. So, Plaintiff’s counsel’s argument

conflicted with the instructions on the law that the jury was provided and Plaintiff’s

argument was not based upon any reasonable inference derived from the evidence

at trial. Again, changing course in response to the motion for new trial, Plaintiff’s

counsel contends that the statement was proper for this reason: “In making the

statement, Plaintiff’s counsel was merely attempting to explain why such a key

figure in Ms. Young’s plight at the jail did not testify.” This contention is without

merit for at least three reasons. First, regardless of the purpose of the statement,

there was no evidence to support it. Second, assuming that this was the purported

reason, Plaintiff’s counsel ran out of his allotted time to put on his case-in-chief

because of his repeated, egregious misconduct. The trial was constantly derailed by

sidebars and hearings outside the presence of the jury because of Plaintiff’s

counsel’s misconduct. Despite exhausting his time because of his own misconduct,

the Court nevertheless gave him more time than allotted. Third, there is absolutely

no need to make this statement for this alleged reason because—once again—the

jury was instructed on this issue. The jury was specifically instructed that a party

need not call all witnesses or introduce all exhibits. So, Plaintiff’s counsel’s after-

the-fact contention reeks of pretext.

Finally, Plaintiff’s counsel also improperly argued that CHC is “the largest

private health-care provider in corrections in the entire United States.” Dkt. 733-5,

at 10. There is no evidence to support this argument. But rather than admit that

this statement was unsupported by evidence, Plaintiff’s counsel makes a

disingenuous argument. According to Plaintiff’s counsel, “Plaintiff testified, without

objection, that ‘correctional medicine [is] worth billions of dollars a year.” There’s a

lot wrong with Plaintiff’s counsel’s attempt to avoid the obvious fact that this

testimony doesn’t support the argument that CHC is “the largest private health-

care provider in corrections in the entire United States.” Initially, the fact that

nationwide correctional medicine might be a billion dollar a year industry in no way

equates to CHC’s alleged status as “the largest private health-care provider in

corrections in the entire United States.” It’s simply sophistry to argue otherwise.

It’s not even close to being a reasonable inference. For example, the legal profession

is certainly a multi-billion dollar a year industry, but that doesn’t mean Mr. Smolen

is “the largest provider of legal services in the United States.” Besides this critical

problem, even Ms. Young-Powell’s testimony must be placed in context. Ms. Young-

Powell was rightfully providing testimony about her mother’s pain and suffering as

well as the familial relationships. There was nothing wrong with that type of

testimony. However, during her testimony, Ms. Young-Powell volunteered that she

and her family wanted to start a foundation in Ms. Young’s name. It was in this

context that Ms. Young-Powell volunteered without any foundation or established

personal knowledge that correctional medicine was worth billions of dollars a year.

A mere three sentences later, Ms. Young-Powell stated that correctional medicine is

big business “and each one of those corporations are making billions of dollars off

the deaths of others.” CHC then objected to this testimony. The Court sustained

that objection. So, Plaintiff’s counsel’s assertion that the testimony was “without

objection” is a thin reed at best and at worst just another example of counsel’s

misrepresentations to the Court.

Community Conscience

Courts have condemned arguments based on pleas to “community

conscience.” Westbrook v. General Tire & Rubber Co., 754 F.2d 1233, 1238-39 (5th

Cir. 1985). Impassioned and prejudicial pleas intended to evoke a sense of

community loyalty, duty, and expectation are improper in closing arguments, and

can lead to a new trial. Id.

Plaintiff’s counsel’s rebuttal closing argument was peppered with pleas to the

jury to be the community conscience and that, indeed, it was their duty to take on

this role. Dkt. 733-5, at 12 (“That’s your obligation.”). In fact, this was the entire

theme of the rebuttal argument. Id. at 9 (“Our whole community is affected by this,

guys.”).

This argument was improper. This argument didn’t just cross the line

prohibiting counsel from inciting the jury’s passion against CHC, it hurtled well

beyond that line. Once again, Plaintiff’s counsel engaged in misconduct.

Plaintiff’s counsel’s response to these blatant pleas to the jury’s passion notes

that CHC did not object to these arguments. For the reasons stated throughout this

order, in this Court’s discretion, that argument is rejected. See, e.g., First Sav.

Bank, 902 F. Supp. at 1361; Cadorna, 245 F.R.D. at 495; 12 James Wm. Moore et

al., Moore’s Federal Practice § 59.13[2][c][i][C] (3d ed. 2023). Plaintiff’s counsel’s

modus operandi is essentially to engage in a game of legal chicken, daring CHC’s

counsel to object to everything, thereby looking like an obstructionist. Teter, 274

P.2d at 344. The Court will not countenance that game.

Additionally, in passing in a footnote, Plaintiff’s counsel seems to take the

position that arguments based on community conscience are proper when punitive

damages are sought. But Plaintiff’s counsel cited no authority. This Court would

be well within its discretion to find that this argument is waived. See Estate of

Jensen v. Clyde, 989 F.3d 848, 852 (10th Cir. 2021) (undeveloped arguments made

in footnote are waived). But for the sake of a complete analysis, the Court

conducted Plaintiff’s counsel’s research for them. It is true that some courts, in

their discretion, have allowed to some extent arguments based on community

conscience when punitive damages are sought. See, e.g., Mooney v. Roller Bearing

Co. of Am., Inc., 601 F. Supp. 3d 881, 889 (W.D. Wash. 2022) (collecting cases and

conflicting authority). But it is also true that other courts, in their discretion, have

not allowed these arguments even when punitive damages are sought. See, e.g.,

Penman v. Correct Care Sols., LLC, No. 5:18-cv-00058 (TBR), 2022 U.S. Dist. LEXIS

40596, at *7 (W.D. Ky. Mar. 7, 2022); Mahone v. Eden, No. 1:15-cv-01009-PJK-

KBM, 2019 U.S. Dist. LEXIS 109004, at *2 (D.N.M. Jun. 28, 2019) (“[P]rohibiting

such references ensures consideration of this case on these facts, rather than on

larger problems with the community.”). But even those cases that allow community

conscience arguments in closing when punitive damages are sought don’t

countenance the no-holds-barred/anything goes approach Plaintiff’s counsel used in

his closing argument. Mooney, 601 F. Supp. 3d at 889 (“Mooney is cautioned to

steer clear of the line between ‘permissible oratorical flourish’ and ‘impermissible

comment calculated to incite the jury’ against the defendant.”).

Regional Bias/Outsiders

Similar to the “conscience of the community” argument, Plaintiff’s counsel’s

unabashed arguments to treat CHC with disdain because of its—and its counsel’s—

outsider status were improper. Like the community conscience line of argument,

Plaintiff’s counsel’s closing argument highlighted the fact that CHC and their

counsel weren’t from Tulsa or Northeastern Oklahoma.13 But Plaintiff’s counsel

repeatedly emphasized that Ms. Young and he and his co-counsel were from Tulsa—

that they were part of the very same community as the members of the jury. Dkt.

733-5, at 5 (“Look, I – Bryon is from Tulsa. I am from Tulsa. You guys are from

northeastern Oklahoma. . . . I very much understand that these lawyers are not

from here and that they’ve left families to be here, okay? But this is our

community. This is where we live.”); id. at 9 (“Our whole community is affected by

this, guys.”); id. at 10 (“[T]hey’re taking our money . . . .”). In doing so, Plaintiff’s

counsel engaged in misconduct. Westbrook, 754 F.2d at 1238 (error to overrule

objection based on us-against-them plea in case against non-resident).

Setting aside the fact that CHC’s place of incorporation or principal place of

business and the residence of its counsel was not in evidence, Whittenburg, 561 F.3d

at 1128-29, these arguments were problematic in a much larger way. These

arguments don’t address the law or evidence in the case; instead, they seek to pit

the jury against outsiders. See Pappas v. Middle Earth Condominium Ass’n, 963

13 One of CHC’s counsel is from Michigan. The jury likely discerned he wasn’t from the area

when he mispronounced a nearby county on more than one occasion—a fact not lost on

those in the courtroom. But if the jury didn’t know this counsel was an outsider before

closing, Plaintiff’s counsel removed all doubt by highlighting this fact for them.

F.2d 534, 539 (2d Cir. 1992) (“There is no doubt whatever that appeals to the

regional bias of a jury are completely out of place in a federal courtroom. Appeals

tending to create feelings of hostility against out-of-state parties are so plainly

repugnant that the Supreme Court long ago stated that their condemnation

required no comment. This sort of argument improperly distracts the jury from its

sworn duty to hand down a just verdict based on the evidence presented to it.”)

(cleaned up). Despite being given wide latitude in closing arguments, these types of

arguments are barred because of the prejudice they engender. Id. Again, this point

is something that should go without saying. The prohibition is based on

fundamental fairness and ethical rules of conduct. Id. Plaintiff’s counsel should

brush up on both principles.

Combining Community Conscience and Regional Bias

Plaintiff’s counsel exacerbated this misconduct when he combined the

community conscience argument with the outsiders argument. See Guar. Serv.

Corp. v. Am. Emps.’ Ins. Co., 893 F.2d 725, 729 (5th Cir. 1990) (“Arguments which

invite a jury to act on behalf of a litigant become improper ‘conscience of the

community’ arguments when the parties’ relative popular appeal, identities, or

geographical locations are invoked to prejudice the viewpoint of the jurors.”). Here’s

a good example of Plaintiff’s counsel’s combining these two improper arguments: “I

feel like they’re coming down here like literally stealing our money and laughing at

us.” Dkt. 733-5, at 7.

It can’t be seriously disputed that this was misconduct. In Botey v. Green,

No. 3:12-CV-1520, 2017 U.S. Dist. LEXIS 89072, at *8-9 (M.D. Pa. June 9, 2017),

the court explained that counsel are prohibited from these types of arguments:

[T]he Court discerns in Plaintiff’s brief in opposition to Defendant’s

Motion . . . some intent to use language such as “send a message” or to

suggest that the jury act as the “conscience of the community” on the

basis that Plaintiff views punitive damages as fulfilling a larger societal

role. The Court will not allow the Plaintiff to make prejudicial appeals

to the members of the jury based on the Texas location of Defendants,

FFE and Conwell, or the Tennessee residence of Defendant Greene.

Such arguments are immaterial, parochial and irrelevant. That such

information may be disclosed during the course of the testimony does

not provide Plaintiff’s counsel with a license to foment prejudice and

Plaintiff’s counsel is directed to refrain from this kind of oratory in his

opening and closing statements.

In closing argument, Plaintiff’s counsel not only told the jury that it was their

duty to send a message and be the conscience of the community but also to do so

because CHC and its counsel were outsiders, not belonging to the jury’s

community—a community it shared with Ms. Young and Plaintiff’s counsel.

Plaintiff’s counsel engaged in misconduct. Westbrook, 754 F.2d at 1238 (“This us-

against-them plea can have no appeal other than to prejudice by pitting ‘the

community’ against a nonresident corporation.”); Payne v. Jones, 711 F.3d 85, 94 (2d

Cir. 2012) (“Regional biases against particular companies, furthermore, may fuel

unreasonable [punitive damage] awards.”).

As Plaintiff’s counsel knows, an attorney shall not state a personal opinion as

to the justness of a cause. Burke, 935 F.3d at 1031. By combining the “conscience of

the community” and regional bias arguments, Plaintiff’s counsel also improperly

argued his personal opinion as to the justness of the cause. Plaintiff’s counsel’s

argument to the jury was that together—Plaintiff’s counsel and the jury—they must

vanquish the interlopers because doing so is just. This is an improper argument.

Beyond Category Misconduct

Not to be outdone with the improper “Us and Them,” “conscience of the

community,” or the “justness” of Plaintiff’s counsel’s cause arguments, Plaintiff’s

counsel blasted well beyond the bounds of proper closing argument when he

attempted to bring up his neighbor “Bob.” During closing arguments, Plaintiff’s

counsel implied that Bob died in the Tulsa County Jail because of CHC’s

indifference—again, a fact not in evidence—and that this was why he litigates these

cases. Dkt. 733-5, at 6. Plaintiff’s counsel argued, “Bob Byrd was my neighbor,

okay? And I know how it affected him and his family. We had family that went to

school together, okay?” Id. CHC’s counsel objected. The Court sustained the

objection. But not to be hindered by the Court’s ruling, Plaintiff’s counsel

immediately continued unabated to tie these themes together: “Bob was part of our

community, okay? You guys are part of this community.” Id.

There are at least four ways this argument was improper and constituted

misconduct. First, the argument is a community conscience “Us and Them”

argument. Second, it relies on facts not in evidence. Third, it was an attempt to

argue the justness of not only Plaintiff’s claim but also Plaintiff’s counsel’s own

actions in bringing these types of cases. Fourth, Plaintiff’s counsel continued to

make the argument even after the Court sustained the objection.14

14 This is yet another example of why Plaintiff’s counsel’s repeated assertions that he didn’t

violate the Court’s rulings is not just erroneous but also an intentional falsehood.

In Gilster v. Primebank, the Eighth Circuit, relying in part on Tenth Circuit

precedent, stated, “Moreover, counsel’s recounting of her personal experience—facts

that were not in evidence—was aimed at enhancing her client’s credibility by telling

the jury that counsel, too, had endured similar misconduct.” 747 F.3d 1007, 1011

(8th Cir. 2014). In finding plain error, the Ninth Circuit addressed a similar

circumstance in Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1192-93 (9th Cir.

2002). During closing argument, the plaintiff’s attorney argued that the defendant

had not corrected its policies and that she knew this because she had sued them

before. Id. Despite the failure to object or move for a mistrial, the Ninth Circuit

found clear error. Id. Plaintiff’s counsel made these same errors in this case. See

Gilster, 747 F.3d at 1011 (“Referring to an experience in her own life was ‘plainly

calculated to arouse [the jury’s] sympathy.’”). These errors were not a bug in the

system; they were a feature, there by design. Plaintiff’s counsel engaged in

intentional misconduct and persisted in continuing with his improper argument

even after the objection was sustained. The misconduct was intentional.

Timing of Misconduct

The most egregious errors occurred during Plaintiff’s counsel’s off the rails

rebuttal argument. As all good trial lawyers and judges know and who understand

the concepts of primacy and recency, improper rebuttal arguments are the most

prejudicial. Gilster, 747 F.3d at 1011 (“Counsel made a deliberate strategic choice

to make emotionally-charged comments at the end of rebuttal closing argument,

when they would have the greatest emotional impact on the jury, and when

opposing counsel would have no opportunity to respond.”). The Court doesn’t

believe that the increased egregiousness of misconduct occurring in rebuttal

argument was a coincidence.

Plaintiff’s Counsel’s Waiver

In support of its motion, CHC cites several relevant cases, including Gilster.

Dkt. 733, at 25-26. Rather than addressing these cases and the relevant

propositions of law for which they stand, Plaintiff’s counsel attempts to distinguish

the cases on picayune grounds. For example, Plaintiff’s counsel notes that a case

was not a civil rights case—as if the law prohibiting improper closing arguments

doesn’t apply in civil rights cases. And Plaintiff’s counsel makes these undeveloped

distinctions in passing in a footnote. But, as the Court repeatedly told Plaintiff’s

counsel at trial, arguments made in passing in footnotes are waived. Dkt. 700, at

11; Estate of Jensen v. Clyde, 989 F.3d 848, 852 (10th Cir. 2021). Again, the irony of

Plaintiff’s counsel’s action in this regard is not lost on the Court. Plaintiff’s counsel

repeatedly attempt to find refuge for their misconduct by invoking principles of

waiver. But they ignore waiver when it suits them.

* * *

At this point, it bears repeating: Just because Plaintiff’s counsel’s previous

misconduct in other cases was not reversed on appeal under an abuse of discretion

standard doesn’t mean that he didn’t engage in misconduct in this case or even

those cases. It only means that, on appeal, an appellate court didn’t reverse a

district court’s denial of a motion for new trial under the most deferential standard

of review. Plaintiff’s counsel’s apparent takeaway from cases such as Osterhout v.

Bd. of Comm’rs, 10 F.4th 978 (10th Cir. 2021), and Burke v. Regalado, 935 F.3d 960

(10th Cir. 2019), that his misconduct was appropriate is woefully misguided.

The Court finds that Plaintiff’s counsel engaged in persistent, intentional

misconduct throughout trial, despite repeated warnings from the Court. So, the

Court must apply these findings to the Tenth Circuit’s established standard to

determine if the Court should grant a new trial or enter a remittitur as to damages.

STANDARD FOR MOTIONS FOR NEW TRIAL BASED ON ATTORNEY

MISCONDUCT

Four Factors

As Plaintiff’s counsel knows—because they are repeatedly accused of

misconduct—the Tenth Circuit established a four-part test to determine whether it

is reasonably probable that the verdict was influenced by their misconduct.

Osterhout, 10 F.4th at 991-92; Burke, 935 F.3d at 1026-27; Whittenburg, 561 F.3d at

1127. The Court must also consider the cumulative effect of the misconduct, a

factor Plaintiff’s counsel ignore. Osterhout, 10 F.4th at 993; Whittenburg, 561 F.3d

at 1133 (“In so concluding, however, we underscore that our decision is not based on

any one of these factors singly, but rather their combination after considering the

argument as a whole.”). The four factors are (1) the pervasiveness of the

misconduct, (2) the taking of curative action, (3) the size of the verdict, and (4) the

weight of the evidence. Osterhout, 10 F.4th at 991-92. In considering the four

factors and the cumulative effect of the misconduct, the Court must remember that

the ultimate question is whether the misconduct “influenced the verdict.” Id. at

992.

As established in detail in the preceding and following pages, the misconduct

was pervasive; despite multiple efforts at curative action, the misconduct continued;

and the verdict size was extraordinary; however, the weight of the evidence was

strong. Balancing these factors and the cumulative effect of the misconduct leads

the Court to find that Plaintiff’s misconduct influenced the verdict regarding

punitive damages.

Pervasiveness of the Misconduct

The pervasiveness of Plaintiff’s counsel’s misconduct makes it reasonably

probable that this misconduct influenced the verdict. As previously shown,

Plaintiff’s counsel’s misconduct was pervasive. The misconduct infected nearly

every aspect of the trial, starting in opening statements, continuing through witness

examinations, and ending in closing argument. The Court doesn’t recall a single

day in which Plaintiff’s counsel didn’t engage in misconduct. Other than publishing

CHC’s certificate of insurance, the other improper actions were repeated, including

making speaking objections containing inadmissible and prejudicial statements,

making gratuitous, prejudicial comments during witness examinations, violating

Court orders, attempting to introduce evidence through improper means (such as

reading from inadmissible documents not in evidence), asserting facts not in

evidence in closing, and making improper closing arguments.

As a cautionary point, Plaintiff’s counsel’s misconduct has continued in the

response brief in opposition to the Rule 59(a) motion. Moreover, the decisions in

Osterhout and Burke appear to have only emboldened Plaintiff’s counsel’s

misconduct both at trial and in the briefing. The Court notes this not as a basis for

deciding this motion; instead, the Court notes Plaintiff’s counsel’s behavior as

another warning—not that Plaintiff’s counsel heeds the Court’s warnings.

Curative Actions

The failure of the Court’s curative actions to stop Plaintiff’s counsel from

engaging in misconduct weighs in favor of finding that it is reasonably probable

that the misconduct influenced the verdict. Plaintiff’s counsel’s misconduct

continued throughout trial despite repeated warnings and other curative actions.

For example, as to the motion in limine, the Court informed the jury that attorneys’

statements were not evidence after Plaintiff’s counsel violated the Court’ order.

That curative action didn’t have much of an effect on Plaintiff’s counsel as

evidenced by at least two other violations of the very same order.

Other examples abound. The Court warned Plaintiff’s counsel about making

speaking objections, yet he continued to do so. The same is true for making

prejudicial, gratuitous comments during witness examinations.

The fact that curative actions were no hindrance to Plaintiff’s counsel is

exemplified by parts of his closing argument, specifically Plaintiff’s counsel’s

argument about his neighbor “Bob.” As already established, the argument was

patently improper. And when CHC’s counsel objected, the Court sustained the

objection. But Plaintiff’s counsel continued on with his argument undeterred.

Because of Plaintiff’s counsel’s constant, pervasive, and intentional

misconduct, CHC’s counsel was forced to choose between constantly, repeatedly

objecting to the misconduct and being viewed as obstructionists or choosing

strategic moments to make a timely objection so as to not look like obstructionists.

CHC’s option to have the Court instruct the jury to disregard Plaintiff’s counsel’s

cornucopia of misconduct would likely just draw the jury’s attention to the

objectionable information. See Laudicina, 328 F.R.D. at 517-18. There is no doubt

that Plaintiff’s counsel intentionally put CHC in this position.

Out of the jury’s presence, CHC’s counsel raised many of these issues in

multiple motions for mistrial. Obviously, the Court denied those motions. The

Court did so because it wanted to give the jury the opportunity to function. So, both

CHC and the Court took corrective action to no avail.

The Court’s curative actions failed to stop Plaintiff’s counsel’s misconduct or

eliminate the prejudice to CHC. As a result, it is reasonably probable that the

misconduct influenced the verdict. The Court’s curative actions didn’t act like a

Men in Black Neuralyzer and no reasonable person could expect those actions to

have the same result.

Verdict Size

The verdict size weighs in favor of finding that it is reasonably probable that

Plaintiff’s misconduct influenced the jury’s verdict. The jury’s award of $14 million

for compensatory damages was high, but not unreasonable. The jury in Mr.

Williams’ trial awarded $10 million in compensatory damages. Dkt. 733-8, at 1.

Again, that is a large amount. But it is not unreasonable. The compensatory award

in this case being greater than that in Mr. Williams’ case could easily be viewed as

evidence of the increase in post-pandemic verdicts. See Aleeza Furman, With High-

Value Verdicts on the Rise, Some Attorneys Say Post-COVID Jurors Demand

Accountability, Legal Intelligencer Online (Sept. 28, 2022). Regardless, $14 million

is still a very large verdict, even under these facts.

In contrast, the jury’s award of $68 million in punitive damages is extremely

strong evidence that the jury was influenced by Plaintiff’s counsel’s misconduct.

Particularly egregious was Plaintiff’s counsel’s rebuttal closing argument in which

he told them it was their duty as members of the Tulsa community—of which

Plaintiff and Plaintiff’s counsel were also members—to return an astronomical

verdict over $20 million15 against the foreign corporation represented by counsel not

from the area. A critical fact in this regard is that the jury in Mr. Williams’ case

entered an award of punitive damages of $250,000. Dkt. 733-8, at 1. Sixty-eight

million dollars is more than two-hundred and fifty times that amount.

The Court recognizes that courts should hesitate to compare verdicts in other

cases. Hill, 815 F.3d at 670-71. But the verdict in Mr. Williams’ case is similar

enough to serve as a meaningful benchmark. Id. at 671.

15 In rebuttal closing argument, Plaintiff’s counsel told the jury, “They’ll be high-fiving if

you walk out of here giving a verdict of $10 or $20 million, I promise you, because that just

means business as usual.” Dkt. 733-5, at 11.

Weight of the Evidence

The overwhelming evidence of liability weighs against finding that it was

reasonably probable that Plaintiff’s counsel’s misconduct influenced the jury. As

the Court previously explained in denying CHC’s Rule 50(b) motion, the weight of

the evidence supporting the jury’s verdict on liability was overwhelming. Dkt. 748,

at 3. Under the Rule 50(b) standard, the Court was to have viewed the evidence in

the light most favorable to Plaintiff. But even viewing the evidence neutrally, the

Court found the evidence was overwhelming. Id. The Court adopts its reasoning

and analysis in that order for this motion but will nevertheless briefly address the

weight of the evidence.

As to the systemic failures, a mountain of evidence was admitted showing

CHC’s deliberate indifference to its patients generally and to Ms. Young specifically.

The “treatment” of Mr. Williams, captured on horrific video recordings, exemplified

CHC’s “care” of the inmates. And, as Chris Rogers (CHC’s former Director of

Nursing) admitted, “the whole system” was responsible for Mr. Williams’ death.

Further, CHC’s general deliberate indifference to its patients is captured in

multiple studies and reports. These included the Roemer report and findings by the

National Commission on Correctional Health Care. And Immigration and Customs

Enforcement’s report found that the clinical staff at the Tulsa County Jail (a.k.a.

CHC) maintained a prevailing attitude of indifference. This finding was supported

by a variety of evidence, including CHC’s staff’s penchant for falsifying medical

records.

Tragically, CHC’s staff’s prevailing attitude was visited upon Ms. Young. Ms.

Young was suffering from multiple serious medical conditions, including but not

limited to her blood pressure and vomiting of blood. The video recording of Ms.

Young as she struggled to engage in the most basic activities—such as walking and

breathing—evidenced her condition. Ms. Young was in desperate need of emergent

medical care, even to an untrained eye. But Dr. Allen’s testimony was powerful, as

he walked through the video recording showing the medical conditions, concerns,

and appropriate care that should have been provided. Instead of being sent to the

hospital for emergent care, Nurse Metcalf refused to send Ms. Young to the

hospital. And CHC’s medical director never interceded because he wasn’t involved

in Ms. Young’s treatment and care. He arrived after she passed. Nurse White’s

treatment of Ms. Young was borderline criminal. Critically, the evidence

established that this horrific treatment of Ms. Young was caused by CHC’s various

customs and policies of deliberate indifference.

CHC’s continued focus on the subdural hematoma being unknown to CHC

misunderstands the law and the facts of this case. No doubt, CHC was unaware of

the subdural hematoma. But also without doubt, CHC knew of the myriad of other

extremely serious medical events and conditions affecting Ms. Young, especially in

her final days. The video, the non-falsified medical records, and the Tulsa County

Jail’s records are telling in this regard. And one of the alleged policies presented to

the jury was that CHC maintained “[a] pattern of failures to send inmates with

obvious and emergent needs to the hospital.” Dkt. 685. The subdural hematoma

may have been unknown by CHC at the time, but the rest of her obvious, emergent

medical needs were known. But, per CHC’s alleged policy, CHC failed to send Ms.

Young to the hospital. And, as Dr. Allen repeatedly testified, had Ms. Young been

sent to the hospital, it is likely that Ms. Young would not have died from the

subdural hematoma because it would have been discovered while she was in the

care of the hospital. Dkt. 683, at 10, 60, 68, 73, 81, 82. Again, Dr. Allen’s testimony

was unrebutted and there was overwhelming evidence that CHC maintained a

custom or practice of failing to send inmates in need of emergent care to the

hospital.

Cumulative Effect of Misconduct

The cumulative effect of Plaintiff’s counsel’s misconduct weighs in favor of

finding that it is reasonably probable that the misconduct influenced the jury’s

verdict. Plaintiff’s counsel’s misconduct in this case was not a one-off. Plaintiff’s

counsel’s misconduct was systemic. Again, the misconduct was not a bug in the

system; the misconduct was by design.

Application of Four Factors

Three of the four factors weigh in favor of finding that it is reasonably

probable that Plaintiff’s counsel’s misconduct influenced the jury’s verdict. The

misconduct was pervasive; the curative attempts were insufficient to cleanse the

jury’s collective mind or to stop Mr. Smolen from continuing to engage in

misconduct; and the cumulative effect of the misconduct over the course of nearly

two weeks were significant. Countering these factors was the overwhelming

evidence of liability. This is not the first time the Court has noted the

overwhelming nature of the evidence. See, e.g., Dkt. 748, at 3; Dkt. 726, at 1 (“[I]t

would behoove Defendant to give considerable attention to the weight of the

evidence factor, as that is a major—albeit not dispositive—issue as the Court

currently sees things.”).

Balancing these factors, in the Court’s discretion, the Court denies the

motion for a new trial. Certainly, the conduct was pervasive, but the pervasive

misconduct was less significant as to liability. Overall, the misconduct’s main effect

was on the damages, particularly the punitive damages.

The Court possesses the discretion to deny a motion for new trial, but still

grant a remittitur. Osterhout, 10 F.4th at 992-93. As to compensatory damages,

the jury returned a large verdict, fairly valuing the harms caused to Ms. Young.

The verdict is relatively consistent with the compensatory damages verdict returned

in Mr. Williams’ case. The jury was given the difficult task of valuing Ms. Young’s

damages resulting from the deliberate indifference of CHC. In the Court’s

discretion, the jury reached a reasonable—albeit very large—verdict for

compensatory damages.

But the astronomical punitive damage award is a different matter. The

Court is confident that Plaintiff’s counsel’s pervasive misconduct influenced the

punitive damage award. The punitive damage award in Mr. Williams’ case was

$250,000. This is a tiny fraction of the punitive damage award in this case.

Granted, Ms. Young perished at the hands of CHC after Mr. Williams’ slow motion

homicide. Unfortunately, Mr. Williams’ death apparently resulted in no discernable

corrective action by CHC. So, a substantially larger punitive damage award is

appropriate. But the punitive damage award must fair, reasonable, predictable,

and proportionate. Payne, 711 F.3d at 93.

Fully aware that “there is no such thing as a correct amount of punitive

damages,” id., the Court grants CHC’s request for a remittitur. In its discretion,

the Court reduces the punitive damage award to $7 million.

During its research for this motion, the Court located the decision in

Cadorna, 245 F.R.D. 490. This decision addresses the same issue, involving many

of the same types of attorney misconduct. Plaintiff’s counsel made the trial a toxic

environment, read from a document not in evidence, refused to comply with court

orders even after being admonished, gave insincere apologies, made gratuitous

comments while examining witnesses, and made inappropriate arguments in

closing. Cadorna, 245 F.R.D. at 492-95. Not surprisingly, like this Court, poor

Judge Blackburn found that counsel engaged in misconduct. Id. Judge Blackburn

highlighted many of the same unprofessional behaviors that occurred in this case.

There is much wisdom in Judge Blackburn’s decision. This wisdom includes, but is

certainly not limited to, noting that curative measures are not necessarily effective.

Id. at 495 (“The bench and bar are both aware that cautionary instructions are

effective only up to a certain point. After repeated exposure of a jury to prejudicial

information, cautionary instructions will have little, if any, effect in eliminating the

prejudicial harm.” (cleaned up)). And also relevant to this case, Judge Blackburn’s

wisdom continued by giving no quarter to attorneys who engage in repeated

misconduct but also seek refuge in the opponent’s failure to object. Id. (“Nor is it

any answer to the overwhelming effect of such prejudicial conduct to argue . . . that

defendant waived its right to complain by failing to object at every instance where

objection was warranted.”). The distinction between Cadorna and this case is that

the plaintiff in Cadorna did not have a strong case, so Judge Blackburn granted the

motion for new trial. Id. at 496. Having analyzed Judge Blackburn’s decision, the

Court is confident in its decision.

CONCLUSION

The most important task of a district judge in presiding over a jury trial is to

preserve the integrity of the process to ensure—as best as possible—that the

litigants receive a fair trial. Cardona, 245 F.R.D. at 492; see also Fed. R. Evid.

103(d). That task is not diminished even when one of the parties engages in

conduct that results in death and the other party is represented by an attorney

determined to engage in misconduct. At trial, the Court did the best it could to

ensure a fair trial. But the Court was unprepared for Mr. Smolen’s litigation

strategy of infecting the trial at every turn with misconduct. As the Court

repeatedly stated during trial, Mr. Smolen’s didn’t need to engage in this type of

behavior. Ms. Young-Powell had a strong case and she had waited a decade to

reach trial. Cardona, 245 F.R.D. at 497 (“[I]nstead of letting the justice of plaintiff’s

case speak for itself, [plaintiff’s counsel] chose to decry and debase the very

mechanisms through which he sought relief.”). But it became readily apparent that

Mr. Smolen’s couldn’t or wouldn’t control his nature or his predetermined litigation

strategy. The result was a toxic trial, resulting in a verdict influenced by his

misconduct. That influence manifested itself in the $68 million punitive damage

award—an award that can’t stand.

After balancing the required factors, the Court denies the motion for new

trial, but grants CHC’s motion for remittitur as to the punitive damage award. The

punitive damage award of $68 million is reduced to $7 million. Plaintiff has until

March 26, 2024 to either accept the remittitur or seek a new trial.

As is plainly evident from these seventy plus pages, the main victim in this

case is Ms. Young and her family, including Ms. Young-Powell. The Court has deep

sympathy for Ms. Young-Powell and her family for this result. Again, she did

nothing wrong. But the facts and law lead the Court to this result.

Entered: 29th day of February, 2024 By: s/ Iain D. Johnston

Iain D. Johnston

U.S. District Judge