Plaintiff's counsel blame judge for evidence allowed in Uber assault trial

Attorneys for a plaintiff who lost the first bellwether trial against Uber over claims of sexual assault by its drivers blasted the San Francisco judge on Thursday for allowing references to their client's past sexual encounters to be included as evidence.

This goes against the newly strengthened California Rape Shield Law, which limits the admissibility of evidence of a plaintiff's sexual conduct in a civil action, the plaintiff's attorneys, John Taylor and Natalie Weatherford of Taylor & Ring, said.

On Tuesday, a jury found Uber was negligent in this case, but that its negligence was not a substantial factor in the alleged harm caused to the plaintiff.

The plaintiff's attorneys said they were planning to appeal the verdict but there were "a number of things to consider" first.

"The jury was never going to be able to say yes to that question [of a substantial factor] because of evidence that the judge allowed in," Taylor said in a phone call Thursday.

Superior Court Judge Ethan P. Schulman denied several motions for mistrial brought by Taylor and Weatherford. One of these motions was filed on the first day of trial, claiming Uber's attorney, Allie Brown of Kirkland & Ellis LLP, had breached a pretrial order as well as California's rape shield statute that limited the admissibility of the plaintiff's other sexual encounters, including assaults.

Brown was contacted for comment but did not respond by press time. Schulman was not contacted for comment as judges are not allowed to speak about their cases. Uber Rideshare Cases CJC21005188 (S. F. Super. Ct. Filed August 12, 2021).

On the opening day of trial, Brown attempted to diminish the plaintiff's ability to accurately recollect the details of what happened between her and the driver, downplayed the number of assault encounters reported by passengers and rejected plaintiff's counsel's use of the term "sexual violence" to describe some reported incidents in her opening statement.

"Uber is exceptionally safe," Brown said. "In the United States there are 2.5 million Uber trips made per day. Only 0.002% end in a report. You're five times more likely to be struck by lightning than be assaulted in an Uber."

Shaana Rahman, who heads up personal injury firm Rahman Law PC, commented Thursday that future bellwether trials may be able to "bridge the gap" between Uber's alleged negligence and whether that negligence was a substantial factor in passengers' harm.

"The jury did find that Uber was negligent, and I think that's significant because the substantial factor part is the hurdle that the rest of the plaintiffs and the rest of these cases are going to have to get over," Rahman said in a phone call Thursday.

"If there's enough evidence for the negligence piece, then it's a question of figuring out what evidence should be presented to get over the second hurdle of the causal element of the substantial factor," Rahman said.

"I think the evidence is out there to bridge that gap between not only Uber being negligent, but that their negligence being a substantial factor in the end result," Rahman added.

Weatherford accused Schulman of almost "opening the door" to her client's sexual history and attempting to "fix what he thought was an unfair statute, the law in California."

"The defense is not allowed to introduce the plaintiff's sexual history in a sexual assault trial to either reduce the plaintiff's damages or argue consent," Weatherford said. "Or to impeach the plaintiff's credibility on either of those issues, and the judge, unfortunately, at the very beginning of the trial, made a ruling that allowed the defense to introduce the plaintiff's sexual history, but not call it sexual history, call it a 'traumatic incident.'"

Taylor added that the judge "said that he found it concerning that this type of evidence couldn't be considered in determining the plaintiff's damages. So, he created a fiction where events were labeled as 'traumatic events' or 'traumatic incidents' without further explanation."

Taylor and Weatherford alleged that Uber's counsel blamed the plaintiff for the assault, ascribing causation of her damages to her past sexual encounters, subjected her to a 12-hour deposition and subpoenaed her parents to come to trial, but did not call them.

They described Uber's approach as "heavy-handed intimidation of people, of women, who have been victimized by drivers."

An Uber spokesperson said in an email Thursday, "It is wrong to suggest we intimidated anyone, and we handled the cross-examination with the utmost care.

"We do not expect nor require survivors to 'prove' their own assault, like the court system, and we rely heavily on the survivor's statement of experience, which we take at face value.

"The plaintiff named several family members as witnesses with pertinent information. That's why we included them as possible witnesses, although we ultimately did not call them (which happens often during trials, just as the plaintiffs subpoenaed Uber employees who they did not call)."

There are another five bellwether trials lined up with the next trial expected to begin in January 2026.