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Plaintiff’s Counsel’s “Dead Witness” Strategy Backfires

May 17, 2016

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The Second Circuit recently demonstrated the consequences of making a strategic decision not to preserve the testimony of an ailing plaintiff: summary judgment in defendant’s favor.
In <em><a href="http://law.justia.com/cases/federal/appellate-courts/ca2/15-1589/15-1589-2016-04-18.html">Reginella v. Target Corp</a>.</em>, plaintiff fell while exiting a bathroom stall designated for people with disabilities. Plaintiff claimed that the door to the stall closed with “excessive force and speed,” which posed a special risk for elderly and disabled patrons.  Over two years after the case was filed and answered, plaintiff passed away of unrelated causes before she was deposed.
The court found that the dangerous-door-theory was not supported by direct evidence. As noted by the court, “the only direct evidence with respect to accident causation before the court on summary judgment are four statements made by [plaintiff] shortly after her accident and a video that, although it does not rule out the possibility, does not show that [plaintiff’s] fall was caused by being hit by the restroom door.”
As for the remaining, weak circumstantial evidence, the court noted that it might have been enough to justify trial had there been testimony from the plaintiff that the door caused the accident, or even if plaintiff had “died or been rendered incapable of testifying immediately as a result of her fall….”  Instead, plaintiff passed away of unrelated causes over two years later.  During that time, her testimony could have been preserved, but plaintiff’s counsel made, as the court euphemistically stated, “a strategic decision” not to do so.  Plaintiff’s counsel, at oral argument, couched the decision in more blunt and macabre terms:  “There could be a strategy why I would not want to have—to preserve her testimony….It’s just that—without making light of it, Judge, sometimes the plaintiff’s best witness is a dead witness.”
One has to wonder at the circumstances in which it is preferable to wait for the plaintiff and only direct witness to an incident to die instead of preserving her testimony. In any event, the Second Circuit clearly had very little regard for this strategy.  The decision will, ultimately, prove useful in any action where a plaintiff tries to manufacture a theory of causation by defect without direct evidence, and further serves as a cautionary tale as to the consequences of failing to preserve your client’s testimony.
Thanks to Chris Soverow for his contribution to this post.
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