In a personal injury suit, a plaintiff's credibility is critical, and successfully impeaching a plaintiff can be the key to swinging a verdict. In a trial against BNSF Railway Co. over a train yard accident that allegedly left a firefighter pinned to a guardrail by a utility cart, a cross-exam by Lewis Brisbois Bisgaard & Smith's Anthony Sonnett likely played a central role in a major defense win.
Davidson claimed he suffered knee injuries after being struck by a cart driven by his colleague Jose Avalos. He sued BNSF under the Federal Employees Liability Act, a statute that compensates injured railway workers. However, the defense contended the statute barred Davidson's recovery under the statute because he had been injured while the employees were engaged in horseplay.
During more than an hour of scathing cross-examination, Sonnett hammered at changes in Davidson's story. During closings, he reminded jurors of those inconsistencies. “If Mr. Davidson is going to come into this courtroom and ask you to find in his favor, to give him some kind of an award, then he has an obligation to come in here and tell you the truth,” Sonnett said. “At least.”
Sonnett told jurors evidence showed Davidson had given BNSF one statement after the accident--that Avalos accidentally drove forward, striking Davidson, when he meant to drive backwards--that was essentially consistent with the storyline of the initial complaint. Sonnett went on to point out that Davidson ultimately disavowed that story, claiming his lawyer added the details for the complaint.
“So I asked Mr. Davidson straight out, “So you didn’t talk to your lawyer then to put this in?”” Sonnett said. “Even though he had signed a declaration with the court, sworn to under oath, and that oath… that oath is a serious oath. You are sworn to tell the truth under penalty of perjury. This is not a game. This is not a joke. This is not an opportunity to slip one by you, as jurors.”
Sonnett said that an alternate version of events came out during Davidson’s deposition and Davidson explained his change of story as an attempt to protect Avalos. Later still, Davidson claimed he had no "personal knowledge" Avalos was engaged in horseplay at the time the collision occurred.
The jury needed less than a day to clear BNSF of liability in the case.
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