Posted by Gary Burger on December 19, 2018 in Commercial Litigation\
Advanced Trial LawPersonal Injury Lawyer
Q: Do you have to elect your remedy before going to the jury?
Typically, you do have to elect your remedy and submit one legal theory for each claim of damages before going to a jury. Courts don’t want double recovery or inconsistent verdicts.
However, a plaintiff may submit two different legal theories for the same injury so long as: 1) the theories are not factually or legally inconsistent, i.e. proof of one theory does not disprove the other; and 2) the theories do not permit the jury to award a double recovery. Whittom v. Alexander-Richardson Partnership, et al., 851 S.W.2d 504 (Mo. banc 1993).
In a case we tried two weeks ago, we submitted the case on two theories: 1) that the psychiatrist Dr. Mattingly committed medical negligence which resulted in the death of his patient and others, and 2) a legal theory under famous cases Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425 (Cal. 1976), and Bradley v. Ray, 904 S.W.2d 302 (Mo.App. W.D. 1995), where because Dr. Mattingly knew or should have known of the risk of danger his patient presented to others, he was negligent in failing to warn them of that danger.
Because these two theories are not inconsistent (proof of medical negligence would not disprove failure to warn, and vice versa), and because we were only seeking one remedy (wrongful death damages), we were able to submit both legal theories to the jury.
An illustration in MAI guided us. Illustration 35.15 shows how you can submit two verdict directors and one verdict form to avoid multiple recoveries for the same injury. So, you structure your verdict directors so that the jury can elect two different liability theories but just have one amount of damages to assess.
We effectively did this by organizing our verdict form in three parts. Part I asked the jury to determine liability only on our medical negligence claim. Part II asked the jury to determine liability only on our failure to warn claim. Part III required the jury to determine the total amount of damages, which would be the same for either (or both!) claims.
The jury was free to elect one or both theories of liability. Email me if you’d like a set of the instructions we used.
Submitting two different legal theories can give the plaintiff an advantage, because some jurors may resonate more with one theory than the other. The way we structured our verdict form alleviated the concern of a double recovery (which would lead to possible error), and also enabled us to determine which theory(ies) the jury relied on in the event of an appeal.
Other examples where you can submit two theories to obtain one recovery include:
- Palmer v. Hobart Corp., 849 S.W.2d 135 (Mo. Ct. App. 1993) (plaintiff whose hand became lodged in meat grinder was permitted to submit jury instructions for both design defect patterned off MAI 25.04 and failure to warn patterned off of MAI 25.05);
- Davis v. Cleary Bldg. Corp., 143 S.W.3d 659, 669 (Mo. Ct. App. 2004) (plaintiffs’ claims for breach of contract and fraudulent misrepresentation were not inconsistent legal theories, and as such, did not require election of remedies or election of recovery);
- Host v. BNSF Railway Co., 460 S.W.3d 87 (Mo.App. WD 2015) (liability under FELA could be based on alternative theories of general negligence and negligence per se due to violation of the Locomotive Inspection Act);
- Whittom v. Alexander-Richardson Partnership, et al., 851 S.W.2d 504 (Mo. banc 1993) (plaintiffs were improperly required to elect between their theories of prescriptive easement and common-law dedication).
In contrast, examples where you cannot submit two theories:
- Oliver v. Ford Motor Credit Co. LLC, 437 S.W.3d 352, 363 (Mo. Ct. App. 2014) (“Under Missouri law, a party must choose between a legal remedy for money damages and an equitable remedy for rescission of the contract but not both.”);
- Trident Grp., LLC v. Mississippi Valley Roofing, Inc., 279 S.W.3d 192, 198 (error in awarding damages for both breach of contract and professional negligence in installing roofing system due to double recovery).