O’Connor v. George, 2015 MT 274 (Sept. 15, 2015) (Cotter, J.; Baker, J., dissenting) (4-1, rev’d)
Issue: Whether the district court manifestly abused its discretion in denying O’Connor’s motion for a new trial based on defense counsel’s failure to disclose that some of George’s photographic evidence depicted damage from another accident.
Short Answer: Yes.
Reversed and remanded for new trial
Facts: In September 0211, O’Connor was rear-ended by George while stopped at a railroad crossing in Helena. Both vehicles sustained minor damage; the property damage claim was resolved. O’Connor claimed she was injured in the accident. George admitted liability but disputed the extent of O’Connor’s injuries.
O’Connor sued George in May 2013. State Farm, George’s insurer, investigated and provided O’Connor with its investigative materials. O’Connor was deposed in April 2014 and was shown the accident photos for the first time, which showed damage to the front of George’s vehicle. O’Connor testified George was going 30-40 mph when she hit O’Connor.
O’Connor moved in limine to exclude photos of the damage to George’s car, anticipating George would argue that the pictures who relatively little damage and that O’Connor’s claim of injury was exaggerated. The district court denied the motion, although agreed to offer a cautionary instruction.
At trial, the parties stipulated to the exhibits. George, the first witness, testified that several of the photos were of damage to her car a year after the collision with O’Connor. When O’Connor testified to George’s car having scratches and cracks around the grille after the accident, defense counsel showed her photos of George’s damaged car and asked if they showed the damage. He did not mention that the photos were of the accident that occurred one year after the O’Connor accident.
George testified in her case in chief that State Farm had conflated the two accidents and she had tried to resolve this error without success. She said she did not know that photos from the later accident had been given to O’Connor. When she saw the photos the day before trial she told her attorney they were the wrong ones. He did not tell O’Connor and did not withdraw the photos as exhibits.
O’Connor moved for a mistrial on the basis of surprise, and George argued O’Connor would have discovered the mistake had she conducted discovery on the photographs. George’s counsel insisted he was obligated to submit all photos, and that withdrawing the ones from the later accident never occurred to him. The district court denied the motion for a mistrial, and gave a cautionary instruction to the jury regarding inferences from photos about injuries O’Connor suffered.
Procedural Posture & Holding: The jury returned a verdict for O’Connor, awarding $3,665 in damages – far less than the $17,236 in medical expenses for which O’Connor sought recovery, and less than the amount George’s counsel had suggested would be reasonable in his closing. O’Connor moved for a new trial and renewed her motion for a mistrial. The district court denied the motions, calling it a very close question due to defense counsel’s actions. O’Connor appeals and the Supreme Court reverses and remands for a new trial.
Reasoning: O’Connor contends that the manipulation of the evidence constituted an irregularity in the proceedings that prejudiced her right to a fair trial. The Court agrees. The district court failed to take into account the impact the incorrect photos had on O’Connor’s credibility. Defense counsel used the wrong photos to impugn O’Connor’s credibility, and undermined the fairness of this trial to such a degree that a new trial is the only remedy.
Justice Baker’s Dissent: Justice Baker agrees with the majority’s assessment of defense counsel’s conduct in this case, but would afford more deference to the district court’s determination that the misconduct did not prejudice O’Connor’s case. She would affirm.