Did Audra McDonald Hide The Truth?

http://www.forbes.com/sites/marchershberg/2016/12/24/new-claims-in-audra-mcdonald-case/#1fc19fb4103c

The latest twist in this wild lawsuit accuses her of hiding material facts.

Yes she did. She knew she was pregnant when previews started and was following the traditional rule of waiting until after the tri-mester period to announce her pregnancy.

She'll never work in this town again!

Picturing a junior lawyer on the Insurance company's team given the task of hunting for a positive pregnancy test in Audras trash.

Is being pregnant, particularly early on, necessarily "SUFFERING from a physical condition?" (emphasis added).
Consider, for instance, that not all pregnant women have morning sickness. And, moreover, not all women who do have it to a suffering intensity.

If Lloyd's case is based only on McDonald averring that she wasn't "suffering" from a condition, I don't see that they would have much of a case, even if they can prove McDonald knew she was pregnant when she made her signed statement.

To conclude otherwise is to pathologize pregnancy.

Updated On: 12/24/16 at 06:43 PM

henrikegerman said: "Is being pregnant, particularly early on, necessarily "SUFFERING from a physical condition?" (emphasis added).
Consider, for instance, that not all pregnant women have morning sickness. And, moreover, not all women who do have it to a suffering intensity.

If Lloyd's case is based only on McDonald averring that she wasn't "suffering" from a condition, I don't see that they would have much of a case, even if they can prove McDonald knew she was pregnant when she made her signed statement.

To conclude otherwise is to pathologize pregnancy. "

I suppose Rudin could argue that, but the word "suffer," as a transitive verb, does not connote pain/discomfort/etc but simply "experience" a condition. It seems to me that her actual knowledge is key. If she knew, Rudin loses. (If she knew, moreover, he could easily bankrupt her if he were so inclined.) Circumstantially, two interesting things to think about: (1) If she knew, it seems insane she would have signed on for this in the way she did, so a jury ight well believe her that she didn't. (2) If she knew, regardless of the wording, I think a reasonable person would say that, in this context, a person would understand that it had to be disclosed. We shall see what happens. Though my guess is it will be settled.

But the question isn't what "suffers" means to the asker, it's what it meant to Audra. If it meant experience pain or discomfort to her, regardless of what it means to a lawyer or insurer, and if she wasn't experiencing pain or discomfort, then there was no lie forfeiting the protections of the indemnity.

The most curious thing is since the agreement covered her leaving because of pregnancy, why she wasn't directly asked if she were pregnant, rather than suffering from a condition.

Updated On: 12/24/16 at 10:58 PM

@mike66, more right than many other posts but not entirely so. Materiality is not an issue in this case. She had no duty to disclose her pregnancy to her employer. She had a duty to tell the insurer she was pregnant if she knew. "Should have known" is not likely to be a factor here. But basically, yeah.

@henrik not exactly right, as I explained. If you were on a jury and were told someone (a) knew they were filling out a form to get cancellation insurance on that someone's ability to complete their commitment and (b) knew they were pregnant, would you seriously think that a reasonable someone would misapprehend that they needed to disclose the fact that they were pregnant? the bottom line is, if she knew, the insurance company wins, at least on this issue and likely overall.

good enough. the one thing we DO know is that she was required to complete a form for the insurer, and was also required to reaffirm its representations in March of this year. So what Rudin knew seems immaterial.

One new point: we assume that by March she knew. By happenstance a friend of mine just called to wish me a Merry Christmas etc. It happens that he is an ob-gyn. I mentioned this and his response was that I would be surprised how many women show up in emergency rooms every year AT TERM not knowing they are pregnant. So we have that.

Hogans, assuming that Lloyd's and not Audra McDonald drafted the agreement (which I think is a safe assumption), if you were on a jury and were instructed by the judge about "contra proferentum" - that where there is an ambiguity it should be resolved against the drafter - and took that instruction seriously (as you are obligated to do on a jury), why would you be concerned about what a reasonable person would expect under general circumstances she would have to disclose?

https://en.wikipedia.org/wiki/Contra_proferentem


Not sure the instruction would be given in this case, but the spirit of it may apply. That is not the issue. The issue is what the drafter required her to disclose in an application, and whether with respect to that disclosure, there was any falsehood. The issue is not what a reasonable person would expect she would be asked to disclose on a application; but what she was actually asked and whether she answered that particular question truthfully.

Now with that said, the question here might well become whether a reasonable pregnant woman not suffering from her pregnancy, would be truthfully answering "no" to the question whether she was currently "suffering" from any physical condition. I submit, that it would it be not only reasonable, but eminently reasonable.

Now, of course, if it wasn't Lloyd's but the claimant who drafted the insurance agreement - which also strikes me as unusual - than it very well might be a somewhat different question.

Updated On: 12/25/16 at 08:36 AM

It seems some are losing sight of the root question here. Was there a falsehood in breach of the contract? To answer that one has to consider the meaning to the declarant, not the meaning to a professional community such as insurers or their counsel. The declarant, Audra, is the one being claimed to have made a knowing falsehood.

Of couse if Audra didn't know she was pregnant, we don't even have to reach the question of what the question and her answer meant. But if she did know, I don't see how the meaning to her wouldn't be the controlling question. If not subjectively than to a reasonable lay person in her shoes, not a reasonable insurer or insurance lawyer.

Updated On: 12/25/16 at 09:47 AM

Hogan's, reflecting further (retreading their article), the root question seems to be whether pregnancy is an accident. With that in mind the producers have a bigger problem: proving the pregnancy was accidental. I still maintain that pregnancy isn't coextensive , at least from the signatory pregnant declarant's perspective, with suffering with a condition. But neither is it coextensive with having an accident.

As far as "bubbles" go in some sense all legal arguments are formed in their partisan "bubbles." You may well be right, my offered view may not have merit. But I am not quite sure why it would not.

In any event, an interesting case.

Updated On: 12/25/16 at 12:35 PM

I'm with Hogans on this one.

I think it's a major mistake to include "intent" or "intent to deceive" in any of this. The law rarely (except in many criminal cases) really gives a darn what the parties' "intent" was -- much more often, the facts are the facts.

For example -- if someone left a question blank because two sheets stuck together, that would change nothing. The "failure to disclose" is a clean fact. Either you did or you didn't. (My first Judge-Mentor used to say: It's a tis/taint. Either it tis, or it t'aint.)

The undertaking party (in this case the insurer) is entitled to know "what is known (and generally, what could have been known upon reasonable diligence)" And it doesn't much matter if the failure to disclose was intentional, accidental, or somewhere in between. (As long as it's material, but we've already beat that issue to death.)

Some of the postings are looking at this as a "moral" question, or a "sexist" question, or a whole other rash of other sidebar concerns -- like why we use the word "suffer" when no one is suffering. (In auto collision cases, you get paid for your pain and suffering -- but in that context the word has a closer meaning to "inconvenience" than anything else).

One last point (for the moment) -- many have suggesting that the pregnancy and its fall out isn't any different that the Lady Day absence and its fall out. That's certainly something that I imagine that someone is going to pound the crap out of at trial. But it may be that there are facts and assumptions that were agreed to by the parties in light of Lady Day that became materially (!!) different by the pregnancy. Here's one, just as a "maybe" -- the transfer was known to begin and end on dates set in stone. The pregnancy (and its impact on her ability to return) was not. It might be (again I don't know) that the producers have reams of data that will tend to show that ticket sales would not have recovered until she was actually back on stage, and that based on her history of returning from prior pregnancies and/or medical advice to a woman of her age (don't yell), that it was more likely than not (and that's the degree of proof that they need), that she would have been out an indefinite period of time, and therefore they couldn't start advertising her being in the show the same way they could have if she'd just been going to London. And again, I don't know any of these facts. So we'll just have to wait and see.