Lawyer's 'Inflammatory' Words Don't Warrant New Trial

, The Legal Intelligencer

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Judge David N. Wecht

An attorney's closing remarks about corporate greed during a personal injury case—deemed inflammatory by the trial court—were not enough to warrant a new trial, the state Superior Court has ruled.

On Dec. 26, the three-judge panel in Ferguson v. Morton ruled unanimously to overturn a Philadelphia Court of Common Pleas judge's decision to grant a new trial to defendants Derrick Morton and Philadelphia Cycle Center (PCC).

The jury in the case returned a $575,000 verdict in favor of Sheila Ferguson, who sustained injuries from being hit by a motorcycle. The defendants argued that the comments made during closing arguments by Ferguson's attorney, Thomas More Holland, encouraged the jury to incorporate punitive damages into the verdict when there was no claim for them.

Judge David N. Wecht wrote in his opinion that the trial court's repeated instructions to the jury to disregard Holland's closing comments were sufficient to dissuade the jury from punishing the defendants.

"We believe that the trial court's curative instructions, admonitions of Holland in the presence of the jury, and the court's jury charge were more than ample to ameliorate any risk of undue harm to PCC's interests, and that the jury's verdict signaled that no such unfairness actually resulted from Holland's regrettable behavior," Wecht said.

The case pertains to an accident that occurred June 5, 2010, when a motorcycle allegedly being operated by Morton struck Ferguson. According to Wecht, Ferguson sustained several bone fractures and abrasions and must now work fewer hours due to chronic and permanent pain and swelling in her leg.

Ferguson previously worked 60 hours a week as a nurse. However, one of her expert witnesses testified that due to her conditions she should not work for more than 40 hours a week, Wecht said.

The jury's verdict reflects Ferguson's lost earnings had she continued to work 60 hours a week from age 36, when the accident occurred, to a retirement age of 65 to 70, according to Wecht.

Following the close of evidence in the trial, Wecht said, Holland's closing argument was repeatedly interrupted by objections from defense counsel on the basis that Holland was attempting to embitter the jury against PCC.

According to Wecht, PCC contended that "Holland was presenting improper matter and seeking to inflame the jury by focusing attention upon the fact that PCC was a corporate rather than individual defendant, and by repeatedly suggesting that PCC was concerned only with profits and not with the safety of the greater community."

Holland claimed that PCC was negligent because it sold a motorcycle to Morton without verifying that he had insurance or a valid driver's license, Wecht said.

During his closing argument, Holland told the jury, "If [the defendants] had been a tad bit careful back at the store, they never would have hurt [Ferguson]. In essence, they are here carefully protecting their right to needlessly endanger the public. Please tell them that in our community the safety of people is more important than safety of money," Wecht cited from the trial transcript.

The trial court sustained almost every objection raised by PCC's counsel during Holland's argument and repeatedly admonished Holland as he persisted with his remarks, Wecht said. Eventually, the trial judge cut off Holland's closing argument entirely.

Throughout the course of Holland's remarks, the trial judge issued curative instructions to the jury. However, PCC claimed that the instructions were ineffective and that its case was unfairly prejudiced, according to Wecht.

After reviewing Holland's comments, Wecht said, the trial judge found that it would be impossible to conclude that the jury's verdict did not wrongly include punitive damages and granted a new trial.

According to Wecht, "The court cited no legal authority and did not elaborate in any way on such in-court observations as the court might have made, beyond the comments themselves, that compelled its ruling."

In terms of the verdict awarded, Wecht mentioned that the number "only minimally" surpassed the cap for economic damages in the trial. He noted that it was within the jury's purview to also award non-economic damages, such as pain and suffering, should they have chosen to do so.

Given the initial trauma of the accident and the ongoing pain and hardship it caused Ferguson, Wecht said, the jury might reasonably have awarded significant non-economic damages.

Wecht also determined that the jury was not improperly influenced by Holland's comments because they assigned liability equally between PCC and Morton.

"That the jury apportioned liability equally implies that the jurors did not calibrate their award in magnitude or apportionment to punish PCC," he said.

Regarding Holland's trial argument itself, Wecht said that the comments were not so prejudicial as to warrant a retrial.

"While we deplore Holland's intractability in flouting the trial court's clear directions, we nonetheless disagree that the remarks in question so obviously compromised the jury's deliberations as to establish a basis for the grant of a new trial," he said.

Holland declined to comment on the case. Appellate counsel to Ferguson, Daniel J. Siegel, said that the jury's verdict was consistent with the evidence and that the trial court was incorrect in throwing it out.

"It's an unusual case because the issue was whether Holland overstepped. But corrections were made, and there's no question that the verdict was consistent," Siegel said.

Morton represented himself in the case. PCC was represented by Lisa Bellino Apelian of Campbell, Lipski & Dochney, who declined to comment.

P.J. D'Annunzio can be contacted at 215-557-2315 or pdannunzio@alm.com. Follow him on Twitter @PJDAnnunzioTLI.

(Copies of the 23-page opinion in Ferguson v. Morton, PICS No. 13-3400, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)

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