Wednesday, February 9, 2011

Avoid “kitchen sink” pleading to maintain credibility

Ramadan v. MetroHealth Med. Ctr. (Ohio Ct. App. 1/13/11) is a medical malpractice case, which is an odd fit for a blog about employment law. It teaches, though, a universal lesson about the importance of selective pleading, and not merely throwing everything against the wall and seeing what sticks.

Briefly, Mai Ramadan’s husband died in the operating room during surgery for injuries he suffered while setting his wife on fire. She then sued for the hospital for medical malpractice and loss of consortium. On appeal, she argued that the trial court wrongly admitted evidence about the arson. The court of appeals ruled that because she brought a claim for loss of consortium, the jury was entitled to hear evidence about the quality of her marriage and the events that led to the injuries:

In the instant case, plaintiff argues that evidence of the circumstances that caused the fire and resulting injuries is irrelevant to plaintiff’s medical malpractice claim…. [P]laintiff did not limit her case to a claim of medical negligence. Plaintiff chose to also pursue a claim for loss of consortium, which required proof of damages.... Accordingly, evidence regarding plaintiff’s relationship with Ramadan is relevant to rebut her claim for loss of his “companionship, cooperation, aid, and affection.” Tragically, this evidence included that Ramadan abused plaintiff, ultimately setting her on fire.

To bring this full circle to the world in which we live – employment law – consider these words of caution from Moore v. Avon Prods. (N.D. Calif. No. C 06-03425 10/4/07) about how scattershot litigation undermines one’s credibility:

Simply put, Moore has failed to come forward with any evidence that Avon’s stated reasons for firing him are pretextual. Indeed, Moore’s kitchen-sink approach to his discrimination claims only serves to highlight the extent to which his claims are mutually inconsistent and unsupported by the facts. Was he discriminated against because he was disabled? Because of his age? Because of his sex? Because of his race? Or because of his religion? While Moore urges the Court to answer “all of the above,” on the basis of the evidence before the Court, it appears the correct answer is “none of the above.”

Many take the approach that when litigation in concerned, the more the merrier. As these examples show, sometimes what you don’t argue is more important than what you do argue.

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