While strong testimony from an expert witness can be the linchpin to a favorable jury verdict, the converse is also true, as one ill-timed statement from an expert can destroy even the best-prepared case. In Morse v. R.J. Reynolds, an expert’s reference to the September 11 World Trade Center attacks led to a mistrial in a wrongful death tobacco case potentially worth millions.
Pearl Morse sued tobacco manufacturers R.J. Reynolds and Philip Morris for the lung cancer death of her husband, Jay. Nicotine addiction and its link to Jay Morse's cancer was a key element to the case. To help establish addiction, Morse’s attorneys called Dr. Shannon Miller, an addiction expert, to testify. At the end of three days on the stand, however, when asked how many people will die prematurely from smoking, Miller answered "(A)bout 430,000 people die of smoking each year. It's the equivalent of about three World Trade Centers."
The testimony, less than a week after the 13th anniversary of the attack on the World Trade Center, prompted a swift objection from the defense.
Although Judge George Turner allowed the parties to continue until the day's end, the next morning he granted a defense motion for a mistrial based on the possibility that the statement may have been calculated to inflame the jury.
“We’re dealing with a psychiatrist here, and there could be a subliminal plant dealing with what he mentioned and what he knew not to mention: (the) Twin Towers.' So the subliminal plant deals with punishment,” Judge Turner said.
“There’s a correlation there that I can’t get beyond,” Judge Turner explained as he declared a mistrial.
Miller’s testimony in Morse, and the effect it had, is a reminder of how high stakes can be in expert testimony.
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