Arguments Against
A Pale Stipulation by Leslie Hayes Russo
Leslie Hayes Russo is a partner in Otway Russo, L.L.P. in Salisbury, Md. Ms. Russo and James Lonergan Otway concentrate their trial and appellate practice in civil litigation, with an emphasis on personal injury, medical malpractice, product liability and commercial
litigation. Ms. Russo received her law degree from the Columbus School of Law at Catholic University, where she was a member of the Law Review. She served as a law clerk to Hon. Theodore G. Bloom of the Court of Special Appeals (retired) and trial clerk to Hon. Ronald J. Wortheim, D.C. Superior Court (retired). Ms. Russo previously served as legislative assistant and speechwriter to United States Senator Patrick J. Leahy. Her recent publications include “Final Judgments and Interlocutory Appeals,” APPELLATE PRACTICE FOR THE MARYLAND LAWYER: STATE AND FEDERAL (P. Sandler, A. Levy ed. 1994, 2d ed.. 2001, MICPEL);”Product Liability Update: Halliday v. Sturm,” MTLA Trial Reporter (Fall 2001); “Product Liability Update: Ford Motor Sales v. General Accident Insurance,” (Winter 2002). She is a co-author of the second edition of THE PRODUCT LIABILITY MANUAL to be published by MICPEL.
She is a member of MTLA’s Trial Reporter and Amicus Committees.
Ms. Russo recently won an appeal which she briefed and argued in the Court of Special Appeals affirming a substantial verdict in favor of a product liability plaintiff against Toyota Motor Corporation (Toyota Motor Corporation v. Kumar, Appeal No, 2860, September Term, 2000).
I. The Unilateral Offer of Stipulation to Fact1
You have a solid case. Nevertheless, the defense has disputed liability to the courthouse door. Your trial witnesses have been subpoenaed; your order of proof carefully marshaled; your expert fees are non-refundable. Grueling discovery has yielded the type of evidence at which ju- ries recoil: the defendant failed to timely remove from the market a product which
1
The focus of this article is on stipulations of fact. The courts are generally not bound by stipulations of law. Korotki v. Attorney Ser- vices Corp., Inc., 931 F. Supp. 1269 (D. Md.), aff ’d, 131 F.3d 135 (4th Cir.), cert. denied, 118 S.Ct. 1797 (1996); In re Lawson Square, Inc., 816 F.2d 1236 (8th Cir. 1987); Crown Oil and Wax Co. v. Glen Construction Co. of Virginia, Inc., 320 Md. 546, 578 A.2d 1184 (1990). Parties can, within limits, stipulate to the choice of law to be applied to their dispute and can be deemed to have stipu- lated to its application by not objecting to the court’s application of substantive law. Annapolis Road, Ltd. v. Anne Arundel County, 113 Md. App. 104, 686 A.2d 727, rev’d on other grounds, 349 Md. 237, 709 A.2d 740 (1996); Atlantic Sea-Con, Ltd. V. Robert Dann Co., 80 Md. App. 161, 560 A.2d 592, rev’d on other grounds, 321 Md. 275, 582 A.2d 981 (1989). The parties cannot, by stipula- tion, deprive the court of its power to grant equitable relief. Peddicord v. Franklin, 270 Md. 164, 310 A.2d 561 (1973). Nor can the parties, by stipulation, invoke a court’s jurisdiction. The court has an independent obligation to examine the basis for its juris- diction irrespective of any stipulation. Vannatta v. Keisling, 899 F. Supp. 488 (D. Or. 1998), aff ’d, 151 F.3d 1215 (9th Cir. 1995); Mayer v. Cornell University, Inc., 909 F. Supp. 81 (S.D.N.Y. 1995), aff ’d, 107 F.3d 3 (2nd Cir. 1995). The forum’s rules of pro- cedure cannot be subverted by stipulation. Lynch v. City of Boston, 180 F.3d 1 (1st Cir. 1999).
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it knew to be hazardous. On the morn- ing of trial, opposing counsel advises the court that defendant will only challenge medical causation. This removes from the case issues such as proof of product de- fect and the defendant’s knowledge of the product’s hazards. The trial court assumes that you will receive this “stipulation” with glee and graciously bow to the greater “in- terest of judicial economy.” Should you accept the offer? May you be forced to do so? Until faced with a similar prospect, I
had never researched the question of the trial court’s authority to order the plain- tiff to accept a proposed “stipulation,” nor its discretion to do otherwise. These ques- tions were addressed in a thoughtful opinion by Judge Paul Grimm in Briggs v. Dalkon Shield Claimants Trust, 174 F.R.D 369 (1997). In Briggs, the plain- tiff brought suit against Dalkon Shield Claimants Trust alleging that she was in- jured by the use of an intrauterine device (IUD) manufactured by A.H. Robins Company. Actions were asserted for neg- ligence (including negligent design, development, advertisement, failure to warn, and negligent misrepresentation of the safety and efficacy of the IUD); strict liability (asserting that the IUD was mar- keted and manufactured in an unreasonably dangerous condition); and fraud (including allegations of intentional misrepresentation of the product’s safety and deliberate failure to timely recall the product after learning of the product’s dangers). The defendant denied the alle- gations and raised various, substantive defenses.2
As trial approached, the defendant
filed a “Waiver of Proof” (“waiver”) in which it agreed that it would not require the plaintiff to prove any of the legal theo-
2 Briggs, 174 F.R.D. at 369. Trial Reporter
3 Id. at 369. 4
A stipulation, by definition, requires mutual assent. See Section II, infra, The Joint Stipu- lation of Fact.
5 Id. 174 F.R.D. at 372. Summer 2003
ries raised other than her claim that the IUD was the cause of her injuries.3
How-
ever, the waiver also specified that defendant made no admission as to prod- uct defect, negligence, strict liability or any other theory raised in the complaint. The defendant further indicated that the waiver applied to the pending litigation only, and could not be relied upon in other litigation to preclude defenses on grounds of issue preclusion, estoppel or judicial admission. The plaintiff opposed the unilateral waiver. At issue in Briggs was whether a party may be compelled by an opposing party or the court to accept a material “stipula- tion” of fact.4
The district court
preliminarily addressed the issue of its authority to compel such a stipulation, and noted that the question implicated the interplay between the Federal Rules of Evidence (Fed. R. Evid. 104 (a), 401, 403 and 611 (a)) and Civil Procedure (Fed. R. Civ. P. 16). From a procedural standpoint, Rule 16, pertaining to pre- trial scheduling and case management, empowered the court to “take appropri- ate action, with respect to…the formulation and simplification of the is- sues, …the possibility of obtaining admissions of fact and of documents which avoid unnecessary proof,…advance rulings from the court on the admissibil- ity of evidence…[and] the avoidance of unnecessary proof and of cumulative evi- dence.”5
The court determined, however,
that Rule 16 did not directly address the question of the authority of the court to compel a party to accept an opposing party’s stipulation. It noted that there was
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