Reversal ordered for multimillion dollar verdict tainted by wide range of plaintiff counsel’s inappropriate comments

On May 13, 2015, the Superior Court of New Jersey’s Appellate Division vacated a jury verdict and a judgment after finding that plaintiff counsel’s comments exceeded the bounds of permissible advocacy and were prejudicially improper.

In this case of personal injury, a drunken driver struck a girl after her school bus service let her off about three-tenths of a mile from her designated bus stop. The Plaintiff settled with the driver and proceeded to trial against the bus service and its driver. Plaintiff’s counsel uttered several inappropriate comments during the trial. The court “repeatedly directed the jury to disregard improper statements, struck others, and issued curative instructions in the face of the most egregious remarks”. The jury awarded $5 million and found the bus service and driver were 75 percent at fault. The trial court reduced of 50% the verdict amount as excessive but refused to order a new trial in light of the inappropriate comments.

Defendant appealed, arguing among others, “the individual and cumulative effect of plaintiff’s counsel’s misconduct inflamed the jury and prejudicially impacted the verdict.”

The Superior Court of New Jersey’s Appellate Division agreed. It held that the jury’s verdict was inappropriately influenced by several comments made by Plaintiff’s counsel. The court reversed the verdict finding Plaintiff’s counsel’s comments exceeded the bounds of permissible advocacy, were prejudicially improper, and required reversal:

“[T]he cumulative effect of counsel’s inappropriate commentary, undeterred by cautionary and curative instructions, improperly inflamed the jury’s passion, affected its deliberations, and had “the ability or capacity to improperly influence [its] ultimate decision making.”

Several of Plaintiff’s counsel comments fueled a negative connotation of Defendant and tainted the verdict. There is a whole laundry list of improprieties: (i) “qualifying opposing counsel’s line of questioning as stupid,” which violates standards of professionalism; (ii) in opening and in closing statements suggesting that Defendant wrongfully “refused to take responsibility” and forced Plaintiff to wait five years and then undergo a trial. In fact, Defendant, as well as Plaintiff, has a right to go to court for determination of liability. The exercise of that right must not be portrayed as offensive or warranting punishment. Also, blaming Defendant because proceedings stretched more than five years was “untenable”; (iii) telling “the jury plaintiff’s compensation depended on the amount of the award against defendant was significantly prejudicial as it implied the only funds available for her recovery resulted from defendant,” which led the jury “to shift a portion of the liability to defendant solely based on its ability to pay”; (iv) inviting the jury to step into the shoes of Plaintiff’s parents, which was as an “improper appeal to emotion.”

36-2-6771 Burkert v. Holcomb Bus Service, Inc., App. Div. (per curiam) is available at http://www.njlawjournal…      Open Pdf 

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