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."

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