Pinter-Brown v. The Regents of the University of California

Gender discrimination

2nd District Court of Appeal

Justice Maria E. Stratton

Eric Shumsky

Appellant's attorneys: Orrick, Herrington & Sutcliffe LLP, Eric A. Shumsky, Jeremy Peterman, Jessica R. Perry, Elizabeth R. Moulton, Evan Rose; Morgan, Lewis & Bockius, Barbara A. Fitzgerald, Jason S. Mills, Kathryn T. McGuigan; Regents of the University of California, Valerie C. Shelton

Appellee's Lawyers: Shegerian & Associates, Carney R. Shegerian, Jill P. McDonell

Even before the jury had been empaneled, Barbara A. Fitzgerald knew she had a problem as lead counsel for the Regents of the University of California in a major gender discrimination case. A prominent UCLA Medical Center female physician was seeking millions of dollars on claims that a male colleague had conducted a harassment campaign against her. And it sounded to Fitzgerald and her defense team like the judge was taking the plaintiff's side.

Speaking to a panel of potential jurors, Judge Michael P. Linfield gave a speech highlighting major figures in the civil rights movement. He told the panel their duty was to stand in the shoes of Martin Luther King and bend the arc of the moral universe toward justice. To the defense, it sounded highly prejudicial in a case of alleged discrimination.

"He does that in advance of all trials," Fitzgerald said of the judge. "But here it came across as if he was prejudging the plaintiff. As soon as he started, I had to balance interrupting the court with defending my client. As soon as appropriate, I called for a mistrial right off the bat."

The judge's speech surprised the university's counsel. "It caught me off guard," said Valerie C. Shelton. "It landed as wrong. It's hard to argue against Dr. King."

Barbara Fitzgerald

Linfield denied Fitzgerald's mistrial motion. But after the trial concluded with a $13 million jury award to Dr. Lauren C. Pinter-Brown, UCLA's appeal focused on the judge's remarks plus other alleged errors.

"The odds aren't great for any appellant," said Eric A. Shumsky, who argued the appeal for UCLA. "But here there was a series of major errors. We developed a strategy of grouping three different errors into a package, to convey the magnitude of the unfairness and make it more difficult for the court to dismiss the errors as harmless mistakes."

It worked. The panel reversed the jury award and ruled the judge's errors collectively led to a "miscarriage of justice." After the jury pool heard the judge's speech, "it was their job to be Dr. King and to help bend that arc" which "stacked the deck against UCLA," the panel held. Pinter-Brown v. The Regents of the University of California, B290086 (2d DCA, op. filed April 23, 2020).

"They saw it as a close case on the merits, which really highlighted the danger of the judge's opening remarks," Shumsky said.

A new trial is set for October before a different judge. Pinter-Brown's lawyer, Carney R. Shegerian, said he's ready. "I can't agree with what the court of appeal had to say about the trial judge," he said. "He was simply engaging the jury. It was a travesty to attack him. There was overwhelming evidence that my client, a world class oncologist, got chased out of UCLA after she raised gender issues. They awarded the harasser with this decision. It was not a close case."

-- John Roemer