Negligence – MBTA

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Where a jury awarded $1.228 million to a plaintiff who was injured when the MBTA trolley she was riding collided with another trolley, a new trial must be ordered because of the numerous and repeated violations of the law by the plaintiff’s trial counsel.

Majority’s analysis

“[T]his is a case where, contrary to established law and the trial judge’s numerous cautions and rulings, plaintiff’s experienced trial counsel improperly argued (1) facts that were not in evidence, (2) concepts of liability, despite the parties’ stipulation that the only triable issues related to damages, and (3) that the jury were the conscience of the community and had a duty in this case to safeguard users of public transportation in the future. Plaintiff’s counsel also wilfully disregarded the judge’s explicit rulings on a number of issues and, by defiantly challenging her rulings in front of the jury, undermined her attempts to remedy his misconduct. As a result of these numerous transgressions by plaintiff’s trial counsel, the judge was required to ‘conduct[] the trial under severe and exasperating handicaps.’ … Mindful of the deference we owe the judge’s determination on a motion for a new trial whether such errors were prejudicial, in this case our review of the record of this very brief trial (two full days of testimony) persuades us that the errors committed by plaintiff’s counsel, considered in their totality, ‘injuriously affected the substantial rights’ of the defendants and deprived them of a fair trial. G.L.c. 231, sectionsection119, 132. Accordingly, despite the judge’s commendable patience, we vacate the judgment and remand for a new trial. …

“… The record here indicates that the defendants seasonably and repeatedly objected; that the misconduct by plaintiff’s counsel related to the central issues in dispute; that although the judge responded to many of counsel’s improper statements, the corrective measures taken were not sufficient to negate the prejudice; and that the cumulative effect of counsel’s misconduct deprived the defendants of a fair trial. In particular, on several occasions during his closing argument, plaintiff’s trial counsel challenged the judge in front of the jury as she instructed him to confine himself to the evidence. We also attach significance to the fact that during his closing argument to the jury, plaintiff’s trial counsel was permitted to state that in assessing fair compensation for her injuries, the jury should consider the possibility that at any time in the future, without warning, the plaintiff would become a quadriplegic because ‘a very thin fragile membrane,’ which was all that protected her spinal column from a herniated disc, could fail to hold the disc back from her spinal cord. This was not within the realm of a reasonable inference from the medical evidence, and invited the jury to speculate about the central issue in the case — fair compensation for the injury suffered by the plaintiff.

“An isolated remark, even several remarks in a closing argument that make reference to matters that are not in evidence, when followed by an objection and a curative instruction directing jurors to disregard the remark, will not support an argument on appeal that there was prejudicial error requiring a new trial. … While much is left to the discretion of the trial judge in assessing the impact of errors in a closing argument, … this case stands apart from most cases in which errors in a closing argument are alleged to require a new trial. In this case, in which the evidence unfolded over the course of only two days, the improper remarks permeated the opening and closing arguments, with plaintiff’s experienced counsel deliberately disregarding the judge’s directives and pretrial rulings, openly arguing with her, and defiantly, forcefully, and repeatedly making irrelevant and prejudicial statements. We do not believe the judge’s final charge was sufficient to counter the damage. … Defense counsel’s numerous objections at trial, especially during plaintiff’s counsel’s closing argument, were sufficient to call the misconduct of opposing counsel to the judge’s attention and to impose on her a duty to take corrective action. … While the trial judge was unfailingly patient and issued numerous cautions to plaintiff’s trial counsel, the steps that were taken were not sufficient. …

“The judge reasoned in part that ‘the consequences of counsel’s fault should not be visited on his client.’ However, that is not the question before us. Ultimately, the question before us is whether there was an unacceptable risk that plaintiff’s counsel’s misconduct had a material effect on the jury’s decision. … Here, the jury were asked only to determine the cause, nature, and extent of the plaintiff’s injuries and to assign to those attributable to the negligence of the defendants a dollar value that would represent fair compensation to the plaintiff. We think that plaintiff’s trial counsel’s numerous inflammatory remarks and efforts to inject facts beyond the record into the trial, especially unfounded statements about the plaintiff’s risk of future harm and the defendant MBTA’s indifference to rider safety, could have influenced the jury’s decision-making process, and thus deprived the defendants of a fair trial. The sheer number of counsel’s acts of misconduct cannot be minimized or overlooked. … Although the judge sustained numerous objections, told the jury that argument by the lawyers was not evidence, and gave jurors cautionary instructions about some of counsel’s improper statements, the rubric that jurors are presumed to follow the judge’s instructions does not mean that a curative or cautionary instruction always suffices to remove the stain of what otherwise would be prejudicial error. …

“… Ultimately, we conclude that the judge’s efforts to address the numerous and repeated violations of the law by plaintiff’s trial counsel fell short. We cannot say ‘with substantial confidence’ that the errors committed by plaintiff’s counsel did not make a material difference in the outcome. … Accordingly, we vacate the judgment and remand the case for a new trial.”

Dissenting judge’s comments

Graham, J. “The majority of the court, hesitant (and properly so) to say outright that the judge abused her discretion, instead turns to the prejudicial error standard as its basis for overturning the judgment on the direct appeal. That analysis is flawed for several reasons. At the threshold, the defendants did not preserve for appeal their arguments about uncured prejudice from plaintiff’s counsel’s antics. Their contemporaneous objections alone were not enough: once the defendants’ objections were sustained, they did not ask for specific curative instructions, and when the judge gave her own curative instructions, the defendants did not object or request any additional instructions or actions. Tellingly, at no time did defense counsel move for a mistrial. Finally, defense counsel did not object after the final jury charge was given, instead pronouncing himself satisfied. The issue of the sufficiency of the judge’s instructions (or claimed insufficiency) has been waived. … I am concerned that the court, by relying on waived issues to upend a trial judge’s discretionary determination in a civil case, has strayed too close to the restraining line between error correction and substitution of judgment.

“Waiver of the issues aside, I am also persuaded that the majority has overestimated the prejudice caused by plaintiff’s counsel’s actions, inexcusable though they were. A number of factors suggest an insignificant risk that the jury were inflamed or distracted. (1) The trial was clearly focused solely on the issue of damages — the stipulation to liability was emphasized to the jury throughout the trial. (2) The vast majority of the evidence went in without objection or controversy, whereas the inadmissible evidence was only a small part and passed quickly. (3) Although there were opposing experts, the plaintiff’s expert testified live and the defendants’ did not. Testimony presented by video recording or transcript is often less effective than live testimony. Moreover, the plaintiff’s expert had personally examined the plaintiff, while the defendants’ expert had not. (4) The husband’s testimony was extremely affecting — it painted a moving picture of a woman whose life activities have been seriously curtailed by the train crash. A significant portion of the undifferentiated damages award may have related to this suffering. (5) The defendants’ tactical decision to call the plaintiff’s Delta Airlines supervisor to the stand clearly backfired. His testimony favored the plaintiff, including vouching for her value as a long-time employee. (6) The trial judge allowed the jurors to ask questions after each witness’s testimony and those questions reveal a focus only on pertinent issues. (7) The jury did not rush to a verdict. They deliberated for one hour after the closings and returned to deliberate for almost a full additional day. Considering that the trial was short, this was a long deliberation — which undercuts the notion that the jury were inflamed by plaintiff’s counsel. (8) Finally, I am inclined to believe that the judge’s interventions with the jury had more curative value than the majority is willing to recognize.”

Fyffe v. Massachusetts Bay Transportation Authority, et al. (Lawyers Weekly No. 11-129-14) (36 pages) (Agnes, J.) (Graham, J., dissenting) (Appeals Court) Case tried before Fabricant, J., and a motion for a new trial or remittitur heard by her. John J. Bonistalli (Jonathan P. Feltner with him) for the defendants; Thomas R. Murphy on appeal for the plaintiff (Docket No. 13-P-186) (Oct. 6, 2014).