On July 24, 2014, the Supreme Court of Delaware reversed and remanded a $2.8 million jury verdict in a mesothelioma case because the plaintiff’s expert, Dr. Barry Castleman, called the defendant a liar and accused it of bribery in front of the jury.

The plaintiff alleged that defendant R.T. Vanderbilt Company, Inc. sold industrial talc to the decedent’s employer, Borg Warner, and that the decedent was exposed to asbestos contained in the talc during the manufacture of ceramic bathroom fixtures.

At trial, Vanderbilt denied that the talc contained actual asbestos (as opposed to asbestiform minerals) or that it caused mesothelioma.  Vanderbilt also argued that Borg Warner breached the standard of care because it failed to operate the facility in a safe manner for its employees.  During trial, three of the plaintiff’s witnesses made inflammatory and prejudicial statements against Vanderbilt.  On appeal the court found the statements made by Dr. Castleman egregious enough to order a new trial.

At trial, Dr. Castleman testified that Vanderbilt’s employees were “liars” and Vanderbilt had spent millions of dollars bribing public officials to obtain favorable reports and undermine government regulatory action. The trial court advised the jury to “disregard the statement about buying senators and governors,” but gave no curative instruction about Vanderbilt’s alleged dishonesty.  The court did express concern, however, whether “any amount of curative instructions would erase [the statements] from the minds of the jury.”

The Supreme Court reversed the jury’s verdict finding that 1) the trial court abused its discretion when it denied Vanderbilt’s motion for a new trial based on the inflammatory and prejudicial statements made by Dr. Castleman and 2) the trial court erred when it failed to instruct the jury on the duty of care of the decedent’s employer.  The court noted that Dr. Castleman’s comments went to the heart of the defense by impermissibly challenging Vanderbilt’s character, credibility and motivations. The court also found that the admonition to the jury to disregard the bribery statement was insufficient to mitigate the prejudice resulting from the testimony.  Finally, the court expressed concern that Dr. Castleman’s statements appeared to have been intentionally made on cross-examination, without regard to the questions asked.

This decision provides persuasive grounds to limit Dr. Castleman’s testimony at future trials and depositions.  Defense counsel should consider citing this decision in motions in limine to pre-empt experts’ potential inflammatory and prejudicial testimony. Defense counsel also should vigilantly object to improper conduct at trial and not hesitate to move for a new trial based on a witness’ prejudicial testimony and/or a trial court’s inadequate curative instructions to the jury.  Finally, defense counsel need to be diligent to ensure that the record is clear about which instructions were proposed and promptly object if any of those instructions are omitted during the jury’s charge.