Disrespect, lies and videotape: Hicks v. CMC, a cautionary tale for lawyers and their clients.

Sometimes an appeals court hands down a decision important not for any legal principle, but because of the practical lessons it provides for litigants and attorneys.  Such is the case in the opinion handed down by the Western District in Kathleen Louise Hicks v. Commercial Metals Company, et al.  Hicks started as a straight forward workers’ compensation case, but deteriorated into a retaliation claim and eventually a sanctions case, largely due to the actions or inactions of the employer and its attorneys.

The case reached the Court of Appeals on four issues.  Three of those dealt with the underlying judgment from the retaliation case, and there are lessons – especially for employers and insurers – to be had from reading the decision on those issues.  The fourth issue dealt with an award of sanctions from the trial court against the employer for filing a bad-faith motion for new trial based on “lies” sworn to by two employer witnesses in affidavits filed with the motion.  That issue is the subject of this article. 

Kathleen Hicks was employed by a metal company as a rebar bender.  She had an admittedly compensable workers’ compensation accident when she was struck in the head and right shoulder and knocked unconscious.  From the start, the employer’s actions were questionable.  A male superintendent took her to the emergency room and stayed in the room with her while she was being undressed, despite being asked to leave multiple times.  Rather than turning in the claim as a recordable incident and beginning temporary benefits, the employer chose to put her in a darkened room where she did nothing but sit in a chair or lie on the floor.  When she couldn’t work, she had to take vacation time, sick time, or PTO.  She was not allowed to use her cell phone.  Ultimately, a nurse case manager hired by the insurance company got involved, but there was a lack of communication between the employer and the nurse case manager that resulted in her termination.

Hicks then filed a lawsuit alleging violations of §287.780 RSMo, and after a three-day trial the jury returned a plaintiff’s verdict awarding $90,000.00 in lost wages and $300,000.00 in non-economic damages.  The employer timely filed post-trial motions, including a motion for new trial, which were overruled.  Almost two months later, the defendants filed a second motion for new trial, this time alleging “jury misconduct/improper contact.”   Two employees of the defendants who were witnesses at trial stated in almost identical affidavits that the father of the attorney representing the plaintiff was seen speaking to jurors during a break for an extended period.   Both affidavits alleged the conversation “appeared friendly and as though they had known each other for a long period of time.”   Both indicated the witness “observed the [dad] and the jurors smiling, laughing and carrying on a conversation.”  Both stated that although they were “not certain of the exact length of the conversation, it continued for at least 5 minutes.” 

Upon receiving the Motion for New Trial, the attorney for the plaintiff, Brianne Thomas with Boyd, Kenter, Thomas and Parrish LLC, immediately called her father and asked him if the allegations in the affidavits were true.  He adamantly denied them.  Counsel then reached out to the courthouse to see if there was any video footage of the area where the alleged improper communication took place.   Despite the passage of two months, there were numerous shots of the area on that day.  All of the footage completely and totally exonerated the attorney’s father, and conclusively showed that the statements made in the affidavits were lies.

With video in hand, the plaintiff filed a Motion for Sanctions.  A hearing was held, and the plaintiff called both witnesses to testify.  Despite the presence of personal counsel, and admonitions from the bench and plaintiff’s attorney, neither witness invoked their rights against self-incrimination.  Both admitted that the allegations in the affidavits were untrue.  Their only defense was that they “misremembered” the facts that day. 

The court was having none of it:

[the] testimony of [the witnesses] that they simply ‘misremembered’ the events included in their sworn affidavits lacked any credibility.  After reviewing the video surveillance of the time period at issue and receiving the testimony of [the witnesses], it is abundantly clear to the Court that the sworn statements of Defendants’ employees were complete fabrications meant to mislead this Court and were a fraud upon the Court.

The judge was likewise critical of the defense attorney who filed the motion:

Further, the Court finds that prior to filing such a motion questioning the integrity and/or motives of a family member of opposing counsel, and attacking the orderly administration and integrity of the judicial proceedings, counsel for Defendants had a duty to determine what evidence existed of the alleged improper conduct.  At a minimum, counsel should have timely contacted authorities in Caldwell County prior to filing the motion to obtain the relevant surveillance recordings.  (emphasis in original).

The court awarded sanctions in the amount of $312,450.00, which represented 624.9 attorney hours at a “reasonable” rate of $500.00 per hour, and the employer appealed. 

On the issue of sanctions, the Western District affirmed that a trial court has “inherent power to enforce compliance with its reasonable orders and may, at its discretion, impose sanctions when they are justified, considering the conduct of the parties and counsel.”  Further, the Court found it “clear that the CMC witnesses waited to raise the allegation until after the jury returned its verdict . . . and did so for the sole purpose of fraudulently obtaining a new trial for their employer.”

Like the trial court, the Court of Appeals had words for defense counsel.  “[G]roundless and flagrant accusations by disgruntled litigants should be carefully investigated by counsel for the alleged aggrieved party to determine their validity before being asserted.”   And, “[t]hese types of allegations require an additional responsibility of investigation before they are asserted because they relate directly to the integrity of our legal system.”   It found no abuse of discretion in the award of sanctions.

Since this is a workers’ compensation blog, I think it’s worth noting the defense attorney in this case does not regularly practice in this area.  My own experience in working with the workers’ compensation bar in four states for 33 years is that very few, if any, attorneys would file such a motion without reaching out to the attorney on the other side to give a heads up and confirm whether the witness’ allegations were true.  Clearly, it was possible to obtain the footage necessary to prove the case, although it was extremely fortunate for the plaintiff it had not been destroyed. 

When I first started practicing, my mentor, Fred Greenbaum, gave me some sound advice.   “The facts are the facts.  Don’t try and make it not so.”  Over the years, I’ve had clients attempt to give me a version of events that I knew in my gut were not true.  For young lawyers, especially on the defense side where repeated business is so important, the temptation to make something out of nothing can be great.   This case is a good reminder of the danger in succumbing to that temptation.  For the client, sanctions and possible criminal charges for perjury.  For the lawyer, possible disciplinary action, negative career implications, and a blow to one’s reputation.   

Remember the Golden Rule.  It will serve you well. You can read the Western District's opinion here.

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