Q&A With Carlton Fields' Wendy Lumish

by Carlton Fields

Originally Published in Law360 - May 14, 2013.

Wendy LumishQ: What is the most challenging case you have worked on and what made it challenging?

A: Frankly, many of my cases are extremely challenging because I am generally defending a large corporation against a horribly injured plaintiff. But the one case that stands out in my mind arose from an accident involving several teenagers who had been out drinking, got in a car and crashed into a tree. After the crash, there was a fire, and the plaintiff /passenger suffered severe burns. The plaintiff sued the car manufacturer claiming that a defect in the design of the vehicle caused the fire I was called in after opening statements to convince the trial court that the jury should be allowed to hear evidence that the driver was drunk and underage, and that the driver should be on the verdict form. The plaintiff was arguing that any negligence in causing the accident was irrelevant because the plaintiff did not claim that a defect caused the accident; rather the plaintiff claimed that a defect in design caused the plaintiff's injury to be greater than it otherwise would have been in the accident — a classic crashworthiness case.

I was successful in arguing this issue during the trial, but after the jury rendered a verdict for the manufacturer, the judge changed his mind, found the admission of evidence as to the driver's negligence to be erroneous and ordered a new trial.

The intermediate appellate court sided with my client’s position that the evidence should have been admitted and overturned the trial court's new trial order, but the state supreme court reversed and reinstated the new trial order. This left us with a result that we believed was contrary to clear Florida statutory law, public policy, the majority position nationally and common sense.

We defended products liability cases under this decision for a number of years until one day, when I got a call from the in-house counsel expressing exasperation that yet another drunk driving case had morphed into a products enhanced injury case because of the exception to the comparative fault statute created by the state supreme court. With a comment that reminded me of the famous scene in the movie "Network," he proclaimed that he was "not going to take it anymore."

Ultimately, we were able to convince the state legislature to enact a law providing, as was the case before the Supreme Court’s decision, that the negligence of a driver is relevant regardless of whether the plaintiff claimed that the alleged defect caused the accident or claimed that the alleged defect caused the plaintiff to suffer greater injuries in the accident. In the legislative hearings, many lawmakers were surprised to learn that illegal and reckless driver conduct could be concealed from juries and that the fault of these culpable parties could not be considered by the jury as a result of the enhanced injury exception.

Q: What aspects of your practice area are in need of reform and why?

A: Punitive damages continue to be an area in need of reform. Thirty years ago, when I started practicing, there were some favorable decisions in Florida that raised the bar for bringing a punitive damage claim. The legislature even made it difficult to plead such a claim. There were also a series of cases from the United State Supreme Court that provided limitations on the amount of punitive damages. For a time, these cases seemed to stem the tide of punitive damage cases.

But in the last few years I have noticed that there is once again an uptick in cases involving punitive damages. They continue to be used as a sword to pressure defendants into settlements or to scare jurors into believing that companies really intend to hurt their consumers. While the Supreme Court cases have been helpful on the issue of amount of punitive damages, I think we need more focus on the arguments that limit liability for punitive damages.

Q: What is an important issue or case relevant to your practice area and why?

A: By and large, trial lawyers hate to deal with jury instructions, but they are the best friend of appellate lawyers because they cannot only shape the jury's assessment of the evidence, but they also provide fertile areas for appeal. For this reason, I spent many years on the state's jury instruction committee where we painstakingly tried to create instructions that not only conformed to the law, but were also written in plain English as opposed to "legalese." This latter effort was particularly significant to all litigators, since technically accurate instructions are not helpful if the jurors cannot understand them.

Q: Outside your own firm, name an attorney in your field who has impressed you and explain why.

A: I have been fortunate to work with so many talented attorneys over the years, so it is really hard to just pick one, but the lawyer that stands out for me is John Thomas. John was formerly in-house appellate counsel at Ford Motor Company and now practices with Dykema. When I was just starting out, John took me under his wing and taught me and others not to accept the law as it is, but rather to decide what the law should be and strive to change it. John's creative ideas, particularly in the areas of products liability, comparative fault and punitive damages have been a guiding force as I work on these legal issues in products liability and tort cases.

Q: What is a mistake you made early in your career and what did you learn from it?

A: Early in my career, I thought I could prepare for an oral argument by working through all of the issues on my own. Since that time, I have learned the tremendous value of having a full moot court or a roundtable discussion with several of my partners so I can get their perspective on the issues. It is amazing how often someone will ask a question during the prep session that I could never imagine coming up at oral argument and yet, there it is. We have definitely proven the old adage — two heads, or even three heads, are better than one.



DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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