Reptile; (2) Accept Responsibility responsible for 49%, totaling for Something; (3) Always Give a nearly $26 million. Number, Even When Seeking a Defense Verdict; and (4) Proceed Undisputed Facts Delicately. Ms. Andrews, currently age 37, $55 Million Jury Verdict was employed as a reporter for Ms. Andrews filed the lawsuit in ESPN at the time of the incident December 2011 in Nashville, in 2008. She currently hosts Tennessee against defendants (1) FOX for Fox Marriott International, (2) Sports and also works as a co- Michael David Barrett (the host of ABC’s “Dancing with the stalker), (3) West End Hotel Stars.” Barrett, an insurance Partners LLC (hotel franchisee), executive from the Chicago area, and (4) Windsor Capital Group targeted Ms. Andrews because (hotel management). Her 3rd she was “trending” on Yahoo. Amended Complaint filed in Barrett flew to Nashville knowing October 2015 asked for $75 Ms. Andrews was there working million in damages. The Court at a college game. dismissed Marriott International before Trial. The Court found Barrett was able to book a room Marriott was not responsible for adjacent to hers, modify the ven ESPN reported this legal E security or the actions of the peephole to her room, and insert “victory” – a Tennessee jury hotel’s employees at the hotel as a small video camera within the awarded sports reporter Erin it was independently operated by hole to tape her nude as she Andrews $55 million, all West End Hotel Partners LLC exited the bathroom after a noneconomic damages, in her and managed by Windsor Capital shower. After unsuccessfully trial against hotel companies and Group. attempting to sell the 4.5-minute a stalker for secretly recording a video to TMZ, he posted three nude video of her in 2008. The At the close of evidence, the video clips to an internet site jury agreed the groups were guilty Court found Defendant Barrett at from which it rapidly spread. In of negligence and invasion of fault. The jury was only asked to 2009, after having been arrested privacy in connection with the determine if defendants West by the FBI, Barrett pled guilty to surreptitious filming of her in her End Hotel Partners LLC and felony stalking charges and was room at the Nashville Marriott. Windsor Capital Group were at sentenced to 2.5 years. At the fault. If so, they were to time of the trial, he was living While hindsight is always 20/20, apportion fault among the with his father in Oregon driving important lessons stem from this defendants and award damages. a food truck. Barrett did not jury trial which apply to cases After a full day of deliberations, appear in the lawsuit, but his across the country. This article the jury of seven men and five deposition was videotaped and assesses the Andrews trial and women awarded Ms. Andrews played for the jury during the provides four “lessons” for $55 million in emotional distress trial. businesses, insurance damages. The jury found Barrett professionals, and defense was responsible for 51% of the Plaintiff’s Evidence – Ms. counsel to avoid runaway jury verdict, and the two hotel Andrews Is A “Very Changed verdicts: (1) Spot and Slay the companies were jointly Person”

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going to hurt her, or even more. not say anything about the FBI Ms. Andrews contended the hotel After I saw what was happening, investigation because they did not was negligent in (1) confirming I thought, there’s a stalker out want to tip off Barrett. the she was staying at the hotel, there that could easily kill her. I (2) not adequately protecting her was terrified for her safety.” In closing, Ms. Andrews’s room number, (3) granting Over time Ms. Andrews became attorney argued the hotel staff Barrett’s request to book the a “shell of the person” she was allowed Barrett to stay in the specific room adjacent to Ms. before the incident. “My room next to Ms. Andrews Andrews, and (4) not discovering daughter has been scared for because they did not want to lose the modifications made by eight years. Eight years she has his business. “The hotel must Barrett to the peephole. been terrified that there’s never let profits become more something else out there. That important than guest safety.” Ms. Andrews left the courtroom there’s someone else looking for when the video was shown to the her.” He also noted, “She’s mad. Ms. Andrews’s attorney urged the jury. Experts testified Ms. She’s terrified. She’s depressed. jury to award $1 for every person Andrews was distressed, She cries. She’s full of anxiety. who watched or will watch the humiliated, and panicked about She’s a very, very changed videos over the next 45 years to the video being taken and put person. She’s not the girl that we send a message to the hospitality online. Barrett’s release from used to know at all.” industry about its responsibility prison triggered Ms. Andrews’s for guest safety. “Barrett trauma all over again. “She could Ms. Andrews’s testimony over couldn’t have done it without the not get through the day two days was emotional and negligence of the Nashville peacefully.” Ms. Andrews was tearful. She first learned of the Marriott, the repeated violations, diagnosed with adjustment videos uploaded to the internet one after the other, of the disorder and some symptoms of when called by a friend. She had standards that are there to protect Post-Traumatic Stress Syndrome. no idea where or when it was all of us, our children,” he said. Other experts testified a filmed, was terrified by the conservative estimate of 16.8 stalker, and was afraid she would Ms. Andrews’s attorney described million people watched the video never get the video off the her as a woman forever altered by between July 2009 and January internet. She testified, “I called a traumatic incident she did not 2016. During the month of July my parents. I was just screaming, choose, and said she has devoted 2009 “Erin Andrews” was the that I was naked all over the herself to work to cope. “This is top searched term, and someone Internet. And I didn't know what a post-traumatic stress disorder watched the video every 1.5 it was.” problem for which there is no minutes. ‘post,’” he said. “She knows For the first few months after the people are looking at her naked Ms. Andrews’s mother and father videos appeared on the internet, on the Internet every day.” testified regarding the impact of there were rumors it was all a the incident on Ms. Andrews’s publicity stunt, which “ripped Defendants’ Evidence – This life. Her mother characterized [Ms. Andrews] apart.” “Because Was Independent Criminal her daughter as “easy-going” and there wasn’t an arrest, because we Conduct loved to talk to people at sports didn’t know where this happened, games. Now, she is “very, very my bosses at ESPN told me The attorneys for West End frightened” and refuses to before you go back on-air for Hotel Partners LLC & Windsor interact unless she has protection college football, we need you to Capital Group argued Barrett with her. Her father testified: “I give us a sit-down interview. alone was responsible for his didn’t know if she was safe. I That was the only way I was criminal actions and deception. didn’t know who was doing this. going to be allowed back.” Ms. Additionally, they argued no I didn’t know if someone was Andrews and her family could evidence existed to establish hotel

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employees knowingly placed about her work with , would do to what an absolutely Barrett in the room adjacent to , hosting safe hotel would do in similar Ms. Andrews. Defendants the Country Music Awards in circumstances. These tactics argued Marriott booked the room 2015 and her numerous typically begin early in discovery. for Barrett because the hotel endorsement deals (, Defense counsel and insurance chain receives its reservations at a Degree deodorant, Diet professionals must be able to central location and the request Mountain Dew, Florida Orange spot the reptile and shut down was never transmitted to the Juice, Victoria’s Secret, Gillette, these strategies. The defense’s Nashville front desk. A workout brand Physique 57, SK response to the reptile should “hospitality” professor provided Energy Shots, and PayPal). begin early in discovery with expert testimony the Nashville Finally, she was asked, “Since corporate witness deposition hotel had enough security in 2008 2009, has your income preparation and deposition and when the video of Ms. Andrews increased?” to which she replied, continue through trial with was originally recorded. “Yes.” motions in limine and objections Additionally, a forensic in order to prevent these psychologist testified Ms. In closing argument, defense “absolute” arguments at trial. Andrews suffered from only attorney maintained Barrett was “mild” Post Traumatic Stress solely responsible for the “terrible 2. Accept Responsibility For Disorder because of the incident. disgusting crime” and had no Something reason to lie. He said Barrett was A video deposition of Barrett was an insurance executive who By accepting responsibility, the played for the jury. Barrett traveled more than 200 nights a defense seems reasonable to the claimed sole responsibility for the year and knew how to deceive the jury and simultaneously diffuses incident. He said he discovered system to get access to Andrews. juror anger. It also allows the Ms. Andrews’s room number by Ultimately, “[a]re banks defense to focus the jury on the an in-house employee phone responsible for bank robbers?” negligent conduct of plaintiff or display and then requested to be anyone else who has not accepted next door. Takeaways – How to Avoid responsibility. Runaway Jury Verdicts The defense also played a video Notably, it is possible to accept deposition of Ms. Andrews’s 1. Spot and Slay the Reptile responsibility and still get a defense former co-worker at ESPN who verdict. By accepting responsibility testified Ms. Andrews’s work on In this case, Ms. Andrews’s for something, the defense does “Dancing with the Stars” was a counsel focused the jury on not necessarily accept way to help her recover from the awarding damages to punish the responsibility for the accident or stress following the video. defendants and to protect against the incident that led to the Despite being “more reserved” this kind of incident in the future. lawsuit. For example, it is off camera, she was “impressive” Counsel also framed plaintiff’s possible to accept responsibility during the broadcasts. case around a “safety rule” that for putting a safe product into no risk of harm is acceptable in the stream of commerce, The defense also argued, despite the community. The jury highlight the extensive testing the the emotional trauma Ms. ultimately agreed the hotel should defendant’s product underwent Andrews suffered, her career have done everything possible to before entering the marketplace, flourished since the scandal. She stop this heinous act. and ultimately focus on how was cross-examined about her plaintiff failed to safely use the advancement at ESPN after the These classic reptile tactics product. incident and later securing an successfully hijack the standard of even better contract with Fox care by reframing the case from Similarly, a hotel can accept Sports. She was asked in detail what a reasonably prudent hotel responsibility for providing safe

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lodging and protecting the the jury will never get to damages trial questioning, and even which confidentiality of guests. It can in deliberations, if they do, their counsel will examine which then highlight its extensive safety award will be for some amount witnesses at trial in order to protocols, employee training, and the defense has told them early delicately yet effectively persuade independent certification the and often. the jury. hotel’s procedures complied with industry standards. Then, the In this case, the defense told the ABOUT THE AUTHORS defense can proceed with the jury in vior dire that Ms. Andrews Leslie M. Price is an Associate at theme the incident was an was seeking $75 million. The Tyson & Mendes. Mr. Price unforeseeable criminal act defense only mentioned a much specializes in personal injury and committed by a sophisticated lower defense number to the jury general liability litigation. Contact criminal which could not have in closing argument, when it Leslie at 858.263.4099 or been prevented. Accepting argued the cost of future [email protected]. responsibility in this way allows psychiatric care for Ms. Andrews the hotel to reasonably argue for would be $5,000. To this, Ms. Cayce E. Greiner is Special a defense verdict and effectively Andrews’s counsel responded Counsel at Tyson & Mendes focus on the heinous third party “$5,000 and she will be all better? LLP. She specializes in personal criminal conduct. That tells you about their attitude. injury, insurance coverage, and Your verdict will tell us the value bad faith litigation. Contact Cayce 3. Always Give A Number, of privacy, security, and at 858.263.4136 or Even When Seeking a protection.” [email protected]. Defense Verdict The jury’s final award of $55 Yes, it is possible to give a number and million demonstrates their still obtain a defense verdict! attachment to early priming of $75 million. A simultaneous early The best way for plaintiffs to priming of the defense value of obtain a large jury verdict is to the case may have anchored the ask for it. In this case, Ms. jury’s award to a much more Andrews’s counsel asked the jury reasonable figure. to award $75 million dollars in emotional distress. The best way 4. Proceed Delicately for the defense to avoid a runaway jury verdict is to give a Regardless of who the plaintiff is reasonable defense number early or the issues at stake in the case, to anchor the jury through trial defense counsel must proceed (and then explain in closing the respectfully. In this case, defense defense number is not an anchor), counsel was criticized for the even when asking for a defense “heartless” defense tactics used verdict. during trial. With sympathy on plaintiff’s side, a jury will rarely Technically, there is a way to give respond positively to attacks on a number such that the jury the plaintiff by defense counsel. understands the evidence It is much easier for the defense supports a defense verdict, to successfully call plaintiff’s defendant is seeking a defense counsel’s behavior or intentions verdict, but the defense also has into question for the jury. The an obligation to address damages. defense must strategically prepare Even though the defense believes defense themes, deposition and

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