Stand-Up Guy Takes Stand : Jurors Find Gallagher Funny, but Plaintiff’s Attorney Is Not Amused

With the plaintiff’s attorney as his fuming straight man and a snickering, incredulous jury as his audience, comedian Gallagher performed what might be called a witness stand-up routine in Orange County Superior Court on Wednesday.

Waving his arms, wisecracking and pouring on the sarcasm, the manic comedian bedeviled James R. Gorman, an attorney representing a Rancho Santa Margarita woman who has sued Gallagher, claiming she was injured by one of his stage props three years ago.

It did not take long for the shenanigans to begin. When Gorman’s first question to Gallagher, “We’ve met before, haven’t we?,” was met with a long, tangential answer, the lawyer abruptly asked Judge William R. Froeberg for a closed-door meeting of attorneys.

The bemused comedian smiled at the chuckling jury as the lawyers hustled out of the room. “I didn’t get very far did I? . . . Was that less than a minute? What was that, the first question?”

Froeberg, who at times let out a chuckle at Gallagher’s antics, admonished the comedian and Gorman to maintain decorum.

The testimony and facetious asides that followed seemed hardly out of place in a case that revolves around a two-foot, furry brown penguin doll taking flight at a Sept. 29, 1990, comedy show in San Juan Capistrano.

The plaintiff, Robin Vann, 29, claims she has suffered three year’s worth of headaches, neck stiffness and back pain related to the head injury that she says occurred when the penguin doll--and the hefty fire extinguisher inside it--was thrown at her during Gallagher’s show at the Coach House.

But Gallagher testified Wednesday that the stage prop, which he uses to squirt water during his notorious attempts to douse audience members, slipped out of his hands and bounced harmlessly on a table, not on Vann.

“My penguin is innocent, I know that,” he said. “I cannot say how (Vann) got hurt or where she got a bump on her head, but the penguin is not guilty.”

Gallagher, who said he has a 3,000-square-foot warehouse packed with his trademark props and gadgets, told jurors that part of the way through the fateful 1990 show, half a dozen fans rushed toward the stage and unloaded a barrage of confetti-like foam sprayed from aerosol cans.

Because such show-stopping rowdiness is encouraged and expected at his shows, Gallagher said, he whipped out his own can and returned fire. When a second raid later in the show caught him with no ammunition, Gallagher testified, he swung the penguin in front of him to deflect the torrents of foam.

“And I was looking cool then, because none of it was getting to me,” Gallagher testified. “But then I lost it.”

From there, Gallagher said, the penguin flew toward the group of snipers and landed with a thud on a table.

But Gorman contended that Gallagher actually threw the bird, which hit Vann in the head, sending her to Saddleback Community Hospital.

Vann’s neurologist, Dr. David Holstein, testified Tuesday that the impact triggered post-trauma headache syndrome in Vann, a malady that has made her “miserable” and caused her to miss six months of work.

But Dr. Richard N. Selby, a neurologist called by the defense, Wednesday countered that testimony by telling jurors that his interview and examination of Vann showed her to be a “less than accurate historian” who was “exaggerating or magnifying” her injuries.

Vann is seeking $13,000 in medical costs, $20,000 in lost wages and unspecified punitive damages that, according to one source close to the case, exceed $100,000.

Gallagher’s testimony drew a small crowd of sightseers Wednesday. Among them was County Administrative Officer Ernie Schneider, who sought an autograph while Gallagher performed less-than-kind impressions of the plaintiff’s witnesses during a break.

“My son just loves this guy,” Schneider said, laughing.