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By: Thomas Hay
Two recent Massachusetts cases: Wahlstrom v. IPA IV Management Company, Inc., et al., and Fitzpatrick v. Wendy’s Old Fashioned Hamburgers of New York, Inc., et al., were granted motions for a new trial following a jury verdict awarded in the plaintiffs’ favor. The courts’ decisions to award a new trial in both matters involved the plaintiffs’ attorneys improperly questioning witnesses or going over the line in either opening or closing statements.
The defendants in each of these cases urged their respective judges to apply the four-factor framework for considering claims of prejudicial misconduct by an attorney, as set forth by the Massachusetts Appeals Court in its 2014 decision of Fyffe v. Massachusetts Bay Transp. Auth. Most importantly, the fourth factor of the Fyffe framework states that the court should prove “whether the error, in the circumstances, possibly made a difference in the jury’s conclusion.”
However, the Appeals Court, in its decisions in Wahlstrom and Fitzpatrick, held that the Fyffe framework is not a proper standard for a trial judge to use when considering motions for a new trial due to prejudicial attorney misconduct. Rather, the appropriate standard can be found in Evans v. Multicon Construction Corp. That case provides that a judge is to conduct a “survey of a whole case” and determine whether a “miscarriage of justice” would result if the jury’s verdict were upheld.
In the Wahlstrom matter, Judge Wilson temporarily voided a jury award of $4 million for a woman raped in a Boston parking garage. In the Fitzpatrick matter, Judge Brieger temporarily voided a jury award of $150,000 for a woman who required oral surgery after biting into a bone that was inside a Wendy’s hamburger. Each case involved its own set of claimed errors for which the judges relied on in ruling whether a new trial was warranted. Both Judge Wilson and Judge Brieger concluded, respectively, that curative instructions were inadequate to cure the claimed errors and granted motions for a new trial.
In Wahlstrom, the Appeals Court reversed the granting of defense’s motion for a new trial and concluded that the claimed errors upon which Judge Wilson based his decision were not sufficient to rise to the level of a “miscarriage of justice.”
In Fitzpatrick, Judge Brieger oversaw a retrial where a different jury awarded a plaintiff’s verdict of $10,000 – which amounted to $140,000 less than the initial jury award to the plaintiff. The Appeals Court stated, on remand, Judge Brieger “need not reconsider whether aspects of plaintiff’s counsel’s closing [argument] were impermissible.” In its decision, the Appeals Court instructed that a judge is not to act as a “13th juror” and set aside the verdict, just because they would have reached a different result. Nor is a judge to use a mistrial as a form of sanction for attorney misconduct. Moreover, the Appeals Court cautioned that a smaller verdict size awarded in a second case does not necessarily indicate that the jury in the first case was “misled or swept away” when a decision as to liability is consistent in both cases.
The Appeals Court’s decision in both Wahlstrom and Fitzpatrick appear to indicate that trial judges do not have the authority to punish parties for the sins of their attorneys, unless they create a “miscarriage of justice.” As such, greater incentive now exists for attorneys to “toe the line” in regard to courtroom conduct, stopping short of creating such a “miscarriage of justice.”
If you have any questions or would like more information, please contact Thomas Hay at [email protected].