O Connor v. George
2015 MT 274
| Mont. | 2015Background
- On Sept. 30, 2011 Rebecca George rear-ended Patricia O’Connor; George admitted liability but disputed injury extent. Property-damage was resolved by insurer and not at issue.
- O’Connor sued for personal injuries in May 2013 seeking medical expenses and damages for pain, lost earning capacity, and life disruption.
- State Farm produced ~12 photos purportedly of collision damage. At trial, George revealed several photos actually showed damage from a later ‘‘bird’’ accident about a year after the collision. Defense counsel had disclosed and stipulated the photos pre‑trial but did not tell O’Connor when he learned about the error.
- During cross-examination, defense counsel used the (later) photos to impeach O’Connor’s credibility without clarifying they depicted a different incident; George later explained the photographs were from a separate accident.
- Jury awarded O’Connor $3,665 (far less than claimed medical bills). District Court denied motions for mistrial and a new trial, finding no showing that the misidentified photos materially affected substantial rights.
- Montana Supreme Court reversed: held defense counsel’s misrepresentation about the photos was an irregularity that deprived O’Connor of a fair trial and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defense counsel’s nondisclosure that some photos showed a later accident required a new trial | O’Connor: counsel’s concealment was an irregularity and surprise that undermined her credibility and deprived her of a fair trial; she would have pursued expert discovery if informed | George: plaintiff could have discovered the error with ordinary discovery; counsel had no duty to withdraw all photos and disclosure was plaintiff’s responsibility | Court held counsel’s misrepresentation of the photos was an irregularity that materially affected O’Connor’s right to a fair trial; reversed and remanded for new trial |
Key Cases Cited
- Dees v. American National Fire Ins. Co., 260 Mont. 431 (Mont. 1993) (trial court best positioned to determine prejudicial effect of attorney misconduct)
- Kuhnke v. Fisher, 227 Mont. 62 (Mont. 1987) (standard for reviewing mistrial/new trial rulings)
- McDermott v. Carie, 329 Mont. 295 (Mont. 2005) (definition of manifest abuse of discretion)
- Havens v. State, 285 Mont. 195 (Mont. 1997) (some prejudicial matters so undermine fairness that new trial is only remedy)
- Cooper v. Hanson, 356 Mont. 309 (Mont. 2010) (cumulative prejudice from counsel’s misconduct can require new trial)
- Clark v. Bell, 353 Mont. 331 (Mont. 2009) (to obtain new trial for surprise, moving party must show verdict resulted mainly from the surprise and new trial would probably produce different result)