Reputation Evidence as Mediation Tactic

A few years ago, we were defending a claim by a volatile plaintiff who claimed to have been injured  by our client's employee. Among the issues we wanted to address was the plaintiff's REPUTATION for violence. In his deposition, he stated that he had never been involved in any other lawsuits, had not been sued or sued anyone and had no criminal record or altercations.

The investigative materials included  a document certified by a deputy clerk listing several lawsuits, including:

1. a property dispute for the subdivision in which he and his wife reside,
2. a divorce petition from his current wife filed by wife,
3. a claim against a nursing home,
4. another claim for "damages,"
5. a petition for breach of contract,
6. a claim against UPS shipment of equipment 
7. a claim that someone was using water from Plaintiffs’ well
8. an injunction against the Plaintiff because was involved in a physical altercation with Plaintiff

We argued that because e all of these lawsuits were before the date of plainitff’s deposition, we could use this information to discredit him at trial. We reasoned that we might  be able to use his history of litigation to show a propensity for using lawsuits to make money because in various cases he:

1. demanded the return of his payment along with all reasonable damages,
2. demanded replacement costs, reprogramming costs, lost profits, aggravation, inconvenience, and other damages.

Also, in the plaintiff's deposition, he said that he has been arrested twice for fighting - one over five years ago and one in the past five years. In the incident involving our client, the plaintiff saids he was not charged in the incident at Quizno’s, however, there was a bill of information filed and a warrant filed for his failure to appear in court. Interesting aside: his attorney representing him in ALL of this cases is the son of the former Sheriff of the Parish where the plaintiff was charged.

Medical records indicated possible dependence on pain medication:

1. Reported taking 14-16 Tylenol per day for cervical spine relief on 2/20/95.
2. Reported on 1/20/98 that Neurontin (used for neuropathic pain) and Lorcet (pain medication) were not effective against his pain.
3. On 2/03/98,  began a course of Lodine for pain.
4. On 7/6/06, he reported that he was having pain and taking Lortab once every three days for the pain.
5. He was given 220 10Mg Lortab pills over a 153-day period (5/01/07 - 9/30/07) at an average of 1.4 pills per day.
6. He was also prescribed 40 Oxycontin (2/13/07) and 10 Fentanyl pain patches on 1/24/07 - during the same 153-day period.

In his deposition, he testified that he had his prescription for Lortab refilled the day before the accident because "it’s something you don’t want to go without" because of the pain. Obviously, if he was on Lortab the day of the accident, we could assert a reckless and wanton disregard for safety because  Lortab can impair thinking and reaction time. He had been taking it regularly for ten months before the incident with our client so he should have been well-aware of the contraindications.

Like the Rules of Evidence in other states, Louisiana Code of Evidence article 404B(1) states that "evidence of other crimes, wrongs, or acts is not admissible to prove the character of the person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as ... it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding."

Evidence Code article 405(B) goes on to say "in cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense...proof may also be made of specific instances of his conduct.

By asserting that the plaintiff had a propensity of violence and the that he was the aggressor in the incident comparatively at fault, we anticipated making the the argument that evidence of his other aggressive acts support our defense. We argued we should be able to use specific instances of his conduct - like the fight that he was arrested for in 2008.

Also, if a plaintiff uses any witnesses to testify as to his reputation, the door can be opened to ask the character witnesses about plaintiff’s other altercations. See State v. Guss, 775 So. 2d 622, (La. App. 4 Cir. 12/6/00) .

Louisiana Civil Code article 2323 states that if a person suffers injury  partly of his own negligence and partly as a result of the fault of another person, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury. We argued that at the very least, the plaintiff should be allotted one-half  of the fault as he was involved in the fight. Because he  was the aggressor and was quite larger than his opponents, he  could be found at a greater percentage fault.

What do you think? Would the judge have allowed the prior charges to be admitted in evidence?