UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-3090

BILLY G. BUFFORD and CHERYL BUFFORD,

Plaintiffs-Appellants,

versus

ROWAN COMPANIES, INC. and NELSON

VIDRINE,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Louisiana

(June 16, 1993)

Before POLITZ, Chief Judge, REYNALDO G. GARZA and WIENER, Circuit

Judges.

POLITZ, Chief Judge:

Billy Bufford and his wife Cheryl appeal an adverse judgment

on jury verdict and the denial of their post-judgment motion in

their suit for damages for injuries allegedly sustained by Billy

Bufford in the workplace. Concluding that the Buffords did not

receive a fair trial we reverse and remand for a new trial.

Background
2

Bufford was employed by Rowan Companies, Inc. as a mechanic on

an oil drilling vessel. He alleged that his supervisor, Nelson

Vidrine, intentionally pushed him, causing him to fall over a

three-foot railing onto the deck, injuring his neck and back. The

Buffords brought the instant action for damages against Rowan and

Vidrine. Vidrine filed a counterclaim contending that the Bufford

claims were fraudulent.

The case was tried to a jury. Defendants' theory was that the

Bufford case was a "copycat" lawsuit. Specifically, defendants

contended that the Buffords got the idea of staging an accident, or

exaggerating a minor mishap, from a former co-worker, Ray Pearson.

Pearson previously had settled a suit against Rowan for on-the-job

injuries. One of the ways in which Bufford purportedly "copied"

Pearson was by using the same lawyers. Defendants repeatedly

referred to this fact.

The jury returned a verdict for the defendants, finding that

Vidrine neither battered Bufford nor negligently injured him and

that the Buffords' claims were fraudulent. The district court

entered judgment for the defendants on the Buffords' claims but

granted a directed verdict on Vidrine's counterclaim because he

offered no proof of damages. After their motion for judgment as a

matter of law or a new trial was denied, the Buffords timely

appealed.

Analysis
 

1 Improper comments from the bench or by counsel will not

warrant reversal unless they so permeate the proceedings that they

impair substantial rights and cast doubt on the jury's verdict.

Dixon v. International Harvester Co., 754 F.2d 573 (5th Cir. 1985).

 

2 Pearson actually referred Bufford to Stanley Jacobs. As

the district court explained to the jury, Jacobs worked with

Lawrence D. Wiedemann. Wiedemann was Bufford's lead counsel at

trial and also worked on Pearson's case.

3

This is one of those rare cases in which the actions of the

trial judge combined with the conduct of defendants' counsel to

impugn the integrity of plaintiffs' counsel in such a way as to

prejudice the plaintiffs' case in the eyes of the jury. The

damaging aspersions began with the opening statement and consisted

of more than isolated remarks. Indeed they were an integral part

of the defense, building toward a crescendo at the end of the

trial, unfortunately amplified by the trial court. We are

compelled to the conclusion that plaintiffs' substantial rights to

a fair trial were impaired,1 and that the district court abused its

discretion in denying the requested new trial.

In his opening statement defense counsel stated that Bufford

engaged the same lawyers as Pearson, and thus completed "the

copycat nature of the claim." Bufford testified that when his

injuries worsened he asked Pearson for the name of a doctor.

Pearson responded by telling him to contact his lawyers2 for a

medical referral. On cross-examination, defense counsel made much

of the fact that Bufford had contacted Pearson's attorneys before

he visited a doctor and saw only those doctors to whom he was

referred by his lawyers. On cross-examination, Bufford's
4

orthopedic surgeon acknowledged that he had received other

referrals from plaintiffs' counsel. A co-worker testified that

prior to his accident Billy Bufford had said that if he ever needed

a lawyer he would use Pearson's attorney. Finally, in closing

defense counsel reiterated that the Buffords had used the same

lawyers as Pearson while arguing that their claim was a fraudulent

imitation of Pearson's.

That a personal injury claim is fabricated or exaggerated is

a perfectly legitimate and valid defense. The proof of such may be

by direct or circumstantial evidence; defendants are afforded a

broad latitude to attempt to prove this defense. What is not

permitted is an unsupported, irresponsible attack on the integrity

of opposing counsel. When such unprofessional conduct rears its

unethical head in a courtroom, it is the duty of the trial court to

suppress same, quickly and unqualifiedly, and to instruct the

offending counsel to cease and desist. The court must take great

care not to exacerbate the situation or to give the impression to

2the jury that it approves or condones any unjustified impugning of

the ethical standards or integrity of an officer of the court

practicing before it.

In the instant case, the underpinning of the "copycat" defense

was that the Buffords' attorneys distorted minor injuries into

major ones and prosecuted baseless claims. This was the obvious

implication of defendants' use of the fact of the Buffords'

selection of Pearson's attorneys as evidence that the Bufford

claims were fraudulent. This court addressed a similar situation
 

3 620 F.2d 559 (5th Cir. 1980).

 

4 620 F.2d at 564.

 

5 Indeed, if an attorney has unprivileged factual knowledge

that another attorney has engaged in unethical conduct, he is

obliged to report the violation to the proper authorities. ABA

Model Rule 8.3(a); Rule 8.3(a), Louisiana Rules of Professional

Conduct.

5

in United States v. McDonald,

3 where a prosecutor offered testimony

and critically commented that defense counsel was present in the

defendant's house for several hours during which the prosecutor

claimed that the defendant was destroying incriminating evidence.

In reversing the conviction, despite the prosecutor's disclaimer of

intent to malign defense counsel, we said: "Unfortunately, it is

difficult, if not impossible, to sanitize the comments so as to

remove the taint. Inherent in the comments is the barb that the

lawyer caused, aided in or, at the very least, tolerated the

destruction of evidence."4 A similar, equally improper inference

arose in the case at bar.

If the defendants had proof that the Buffords' attorneys

fomented fraudulent lawsuits, they were entitled to present it.5

Such proof could include appropriate circumstantial evidence from

which reasonable inferences might be drawn. Relying on the

identity of counsel as the basis for contending that the Buffords'

claim was fraudulent, however, went beyond the pale of appropriate

trial advocacy. That unwarranted inference may not be drawn.

In reversing the conviction in McDonald we warned that "No
 

6 620 F.2d at 564.

 

7 See, e.g., Winter v. Brenner Tank, Inc., 926 F.2d 468

(5th Cir. 1991); Hall v. Freese, 735 F.2d 956 (5th Cir. 1984);

Fineman v. Armstrong World Industries, Inc., 980 F.2d 171, 207 (3d

Cir. 1992) ("test is whether the improper assertions have made it

reasonably probable that the verdict was influenced by prejudicial

statements" about opposing counsel), cert. denied, _____ U.S.

_____, 113 S.Ct. 1285 (1993). We must note in passing that the

Fineman panel included the then-longtime chairman of the Committee

on Codes of Conduct of the Judicial Conference of the United

States, Judge Stapleton, and the then most senior member of that

committee in length of service, Judge Fullam. That committee is

charged with the responsibility for rendering advisory ethical

opinions to all judicial officers and judicial employees of the

United States.

 

8 Bruno v. Rushen, 721 F.2d 1193, 1195 (9th Cir. 1983),

cert. denied, 469 U.s. 920 (1984) (habeas relief granted where the

prosecutor inferred that a witness changed her story to the

defendant's advantage as a result of her meeting with defense

counsel and also hinted that the fact that the defendant had hired

an attorney was probative of his guilt).

6

prosecutor . . . may impugn the integrity of a particular lawyer or

that of lawyers in general, without basis in fact, as a means of

imputing guilt to a defendant."6 We and our colleagues in other

circuits have applied a similar stricture in civil cases.7 By

maligning opposing counsel, defendants impaired the Buffords'

presentation of their case. "[S]uch tactics unquestionably tarnish

the badge of evenhandedness and fairness that normally marks our

system of justice. . . ."8

We are distressed by the fact that the trial judge

inadvertently exacerbated the situation. The court appropriately

exercised firm control over the trial. Comments to counsel were
 

9 Cf. United States v. Williams, 809 F.2d 1072 (5th Cir.),

rev'd in part on other grounds, 828 F.2d 1, cert. denied, 484 U.S.

896 (1987).

 

10 THE COURT: Well, I'm going to permit it. The

objection is overruled.

PLAINTIFFS' COUNSEL: I object, and I think

it's reversible error.

THE COURT: Mr. Wiedemann, I must tell you

that it's my job to try a case as best and as

fairly as I can given the issues that are in

the case. If I commit reversible error, the

Fifth Circuit will remind me of that, sir, and

not you. Get back to work.

PLAINTIFFS' COUNSEL: I'm sure they will.

THE COURT: Get back to work before you end up

in jail.

PLAINTIFFS' COUNSEL: My job is to protect my

client.

THE COURT: You have one more warning and then

you are going to be very sorry.

PLAINTIFFS' COUNSEL: I'm going to protect my

client when I have to.

THE COURT: You may be doing it from jail.

PLAINTIFFS' COUNSEL: I may be, but I'm going

to.

THE COURT: Last time. Now, get back to your

chair.

 

11 One affiant was attorney Jacobs. The other was an

attorney also seated in the audience. Both affiants were more

distant from the sidebar conference than the jury and heard the

reference to jail.

7

occasionally somewhat acerbic, but usually were evenhanded.9 The

error occurred when, during a sidebar conference and supposedly out

of the hearing of the jury, the judge threatened to jail

plaintiffs' counsel for what apparently was considered to be an

inappropriate retort by counsel to the court's admission of certain

evidence.10 According to two affiants, the jail threat apparently

was overheard by the jury.11
 

12 Williams, supra; Newman v. A.E. Staley Mfg. Co., 648 F.2d

330 (5th Cir. 1981).

 

13 Defendants maintain that we should review for plain error

because plaintiffs' counsel did not object to the court's threat to

jail him. That contention is frivolous. Plaintiffs' counsel

objected by stating that he was protecting his client. Defendants,

however, criticize the statement as evidence that counsel was

"irrationally . . . determined to have the last word. . . ." We

are not persuaded.

8

We need hardly remind that a trial judge should never sanction

an attorney in the presence of the jury. The power and influence

of the bench is so pervasive that even a strong display of

displeasure with counsel may create prejudice for the client's

cause.12 Such obviously was not the intent of the judge in the case

at bar for the comment came during a sidebar conference which, by

definition, normally is out of the hearing of the jury.

Unfortunately, here the sidebar comments were not so insulated.

Viewed against the backdrop of the claim that plaintiffs'

counsel fomented and prosecuted fraudulent claims, the likelihood

that the jury overheard the trial judge threatening counsel with

jail created an unacceptable risk of a tainted verdict. The jury

may well have thought that plaintiffs' counsel was facing such

punishment for engaging in fraud. The conclusion necessarily

flowing therefrom would be that the Buffords' claims were

fraudulent.13

The situation was further worsened when the trial court

prevented Buffords' counsel from countering defendants' aspersions.

The most direct response to the challenge to counsel's integrity
 

14 See O'Rear v. Fruehauf Corp., 554 F.2d 1304 (5th Cir.

1977) (error not to allow counsel to rebut false impression created

by opposing counsel in closing argument).

 

15 988 F.2d 513 (5th Cir. 1993).

9

would have been evidence and argument that Pearson had a legitimate

claim. Counsel attempted to so argue during his rebuttal comments,

after repeated references to Pearson's case in defendants' closing

argument. The trial court, however, cut counsel off, announcing in

front of the jury that it was shortening his allotted time to avoid

"the risk of any more intemperance." In this the trial court erred

for not affording plaintiffs' attorneys a meaningful opportunity to

defend their professional reputations.14

On remand, we leave to the trial court in the first instance

the decision whether the case should be referred to another judge

for retrial. Time is a great healer.

Because of the foregoing disposition we briefly address two

other issues raised on appeal. With reference to the question of

the admissibility of the tape recording and videotape we invite the

attention of the court and counsel to our intervening decision in

Chaisson v. Zapata Gulf Marine Corp.,

15 with the caveat that the

mandate has been stayed and the ultimate disposition thereof should

be noted.

Finally, the plaintiffs contest the admission of a co-worker's

testimony that Billy Bufford solicited his assistance in

transporting drugs. Fed.R.Evid. 608(b) forbids the use of

extrinsic evidence of a specific instance of conduct to attack a
 

16 See United States v. Lopez, 979 F.2d 1024 (5th Cir.

1992), cert. denied, _____ U.S. _____, 61 U.S.L.W. 3772 (May 17,

1993) (No. 92-1624); United States v. Opager, 589 F.2d 799 (5th

Cir. 1979).

10

witness's character for truthfulness. It does not bar, however,

extrinsic evidence offered to contradict a witness's testimony

about a material issue in the case.16 The co-worker's testimony

therefore is inadmissible unless defendants identify specific

contradictory testimony on a material issue.

REVERSED and REMANDED.