Court Rules That Misconduct by Defense Expert and Incredible Testimony By That Expert Was Harmless Under the Totality of Circumstances

In the case of McManus v. Walgreens Co., No. 21-CV-2285 (E.D. Pa. Aug. 30, 2022 Kenney, J.), the court denied the Plaintiff’s request for a new trial in a premises liability case that ended in a verdict for the Defendant.

According to the Opinion, there was misconduct by the prevailing defense counsel in surreptitiously having his expert conduct an on-site experiment, and hiding that information from plaintiff's counsel until it was revealed at trial. Although the court agreed that this was misconduct, the court found that the misconduct was harmless under the circumstances presented at trial.

More specifically, the court noted that, immediately after this information was revealed to the jury, it was objected to and the testimony was stricken.

Moreover, the jury was instructed to disregard this information. The court noted that jurors are presumed to obey instruction to disregard information presented at trial when so directed by the court. This presumption can only be overcome by circumstances indicating that the wrongfully admitted material was so overwhelmingly significant that the jury could not possibly disregard it.

The trial court judge additionally noted in his Opinion that this incident with the expert testimony was only a minor part of a lengthy trial.

The court additionally found that it was not an abuse of the discretion of the court to allow the remainder of that expert’s testimony to stand despite the expert’s mendacity. The court additionally noted that, in any event, every issue that the expert testified to was already on the record and the subject of multiple defense witnesses’ testimony.

In another notable decision out of this case, the trial court found that the admission of evidence of the lack of prior similar incidents was proper given that an adequate foundation was laid for the admission of this evidence.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.