What Lessons Can Be Learned From The Fyffe Decision? Part 2 of 4

This will be the second blog in a series of discussions on the recent case Fyffe v. MBTA, which was decided by the Massachusetts Appeals Court on October 6, 2014. There are several lessons to be learned from this case in the context of personal injury litigation.

First, the Appeals Court pointed out that it was inappropriate for the plaintiff’s attorney to inform the jurors of the extensive media coverage that this case was receiving. Media coverage has always been deemed to be an inappropriate reference in the course of a trial. To permit it, would affect impartiality and be potentially inflammatory.

Second, the Appeals Court noted that the plaintiff’s attorney was overreaching when he attempted to inform the jurors that they were the “conscience of the community” and the “guardians of safety for all the moms, all the dads, all the children and all the grandparents that ride in these trains”. Clearly, in Fyffe, such an argument was inappropriate because of the stipulation on liability. If liability were not stipulated, it is an open question if this argument can be made in this manner or if it can be made at all.

Third, the Appeals Court discussed the role of expert witnesses as they relate to the jury’s assessment of the case. The trial court judge in Fyffe correctly, in my opinion, instructed the jury: “[You must keep] firmly in mind that you jurors decide what the facts are. If you conclude that an expert’s opinion is not based on the facts as you find those facts to be, then you may reject the testimony and opinion of the expert in whole or in part. You must remember that expert witnesses do not decide cases. Juries do.” [cite] Footnote 16. There are cases where expert witnesses serve a vital role in explaining the severity of a plaintiff’s injuries and the expected prognosis– information that could not be sufficiently relayed to a jury without the help of an expert. However, as suggested by the Appeals Court in Fyffe, experts are not the final arbiters of the plaintiff’s case.

The discussion of experts is a double-edged sword. It applies both ways: that is, to plaintiff’s experts and defendant’s experts. A trial judge, in reviewing a motion for a new trial based upon the jury’s rejection of a defendant expert’s testimony, will deny such a motion. The unmistakable basis for the denial will be from the standard jury instruction– experts do not decide cases, juries do.