No. CV 04 4001055 S
May 4, 2007
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT AND FOR A NEW TRIAL
Following a jury verdict of $39,000 rendered on April 13, 2007 in this automobile accident-personal injury case, the defendants move pursuant to Practice Book § 16-35 for an order setting aside the verdict, and for a new trial.
The focus of the defendants' motion is not on the sufficiency of the evidence, but on certain conduct and arguments of the plaintiff's attorney Michael A. Columbo, Jr. during the trial. The defendants cite to language in an Appellate Court case that "a verdict may be set aside if its result justifies a suspicion that a juror or jurors were influenced by prejudice, corruption or partiality." Foley v. Huntington Co., 42 Conn.App. 712, 725, cert. denied, 239 Conn. 931 (1996). Defendants explicitly recognize the burden is on them to establish that, in the context of the proceedings as a whole, the arguments and tactics were so prejudicial as to deprive the movant of a fair trial. Nevers v. Van Zuilen, 47 Conn.App. 46, 51-52 (1997).
The specific types of improper conduct and arguments relied on by the defendants for this motion are five in number. First, they contend that plaintiff's counsel twice made improper "golden rule" arguments in his closing arguments to the jury. As explained in their motion an argument is improper when a jury is asked to put themselves in a party's position or shoes because it encourages jurors to depart from neutrality and to decide issues on the basis of personal interest or bias, or is seen as a request for sympathy. While this court was aware of limitations that must be put on these types of arguments, it had never heard the phrase "golden rule" applied to them and asked the defendants to brief exactly what type of objection was being made.
The court saw and heard the arguments contested by the defendants and felt that for the most part plaintiff's counsel was properly attempting to describe the nature of the injuries incurred. It is arguable that certain comments may have been overly aggressive; however, the court was, and is, convinced that no unfair prejudice occurred. First, this court carefully instructed the jury not to let sympathy affect its deliberations. Second, the initial verdict returned by the jury allotted zero non-economic damages to the plaintiff although finding the defendant negligent and awarding economic damages based on chiropractic bills incurred to alleviate pain. This court then instructed the jury to reconsider its zero non-economic damages award in light of the award of economic damages, coupled with the instruction that "reconsider" did not necessarily mean "change" the verdict. After further deliberation the jury returned a verdict awarding $39,000 including non-economic damages of $13,000. Third, this second verdict, which was accepted, was exactly the same amount as a pre-trial arbitrator had awarded. It seems clear that the jury which first returned zero non-economic damages was not influenced by any purported improper closing arguments, and even its second verdict which more likely was influenced by the court's instruction than earlier closing arguments, was no larger than the award of the arbitrator who never heard the arguments. See Murray v. Taylor, 65 Conn.App. 300, 320-22 (2001).
Second, the defendants contend that attorney Colombo's efforts to bring before the jury certain pictures which the court had earlier ruled inadmissible causing the defendants to move for a mistrial, unfairly prejudiced the outcome. The main instance arose when defendants' counsel noticed two such pictures face up on plaintiff's counsel's table in plain view of some of the jurors and moved for a mistrial. As a result, the court questioned the jury, and the two jurors closest to the plaintiff's table stated they had seen the pictures, recognized they were pictures of an automobile but with no further detail. When specifically asked, both jurors emphatically answered in the affirmative the question whether they could without hesitation, disregard the existence of the pictures. The court concluded that a mistrial was not warranted and concludes further that the jury was not unduly prejudiced. Plaintiff's counsel's effort to seek to introduce the pictures at later points were objected to, and the objections were sustained. These objections appear to have led to comments during closing arguments which are discussed later in this memorandum.
Third, the defendants argue they were unfairly prejudiced by the number of leading questions asked of the plaintiff by her counsel. Undoubtedly, counsel did ask many leading questions because the court has the distinct recollection of sustaining a number of objections thereto as well as directing, on its own initiative, that questions be rephrased and striking, and directing the jury to disregard certain answers that were articulated before a court ruling could be made. These actions were coupled with more than one verbal admonition to counsel in front of the jury to ask questions in the proper form.
Not all leading questions are necessarily improper even on direct examination. Several of defendants' objections on this ground were overruled. While there were more leading questions than mere inadvertance or mistakes would justify the question is whether they led to unfair prejudice and the court concludes it did not, because most were corrected by the above described actions or an instruction to reword the question.
Fourth, the defendant raised an issue about the court's ruling allowing testimony about one of the defendant's plea to a motor vehicle law violation. This matter, while raised in defendants' motion, is not briefed. The court allowed the testimony based on Connecticut Supreme Court cases holding that guilty pleas to motor vehicle law charges are evidence of negligence, but not conclusive on the issue. In its charge, the court stated that "admitting to a motor vehicle law violation is some evidence of negligence, but it is not conclusive on that issue. It is your province as the jury to make the determination of whether there was negligence." The defendant did not object to this charge. The court finds no basis for a new trial on this issue.
Finally, the defendants claim that attorney Colombo overstepped the bounds by certain comments made directed to defendants' counsel during closing arguments. Attorney Colombo did overstep the bounds of professional behavior when he began his closing argument by mocking opposing counsel's motion for mistrial with respect to the photographs. He continued his foray in unprofessionalism by ridiculing defense counsel's objections to testimony or pictures as efforts to hide the truth. The court, on its own initiative, interrupted these ad hominem comments by stating forcefully and in no uncertain terms, that it would not tolerate attacks on another attorney for legitimate efforts to defend his clients' interests, and that such comments would cease instantly and not be repeated. The court's instructions were followed.
The plaintiff's memorandum opposing the motion to set aside the verdict states:
Lastly, defense counsel asks that a new trial be ordered based on plaintiff's counsel's unprofessional and insulting behavior. To this, plaintiff's counsel has little to add. He intended neither to insult, nor to come across as unprofessional. He was merely doing his best to vehemently advocate his client's position. When he apparently crossed the line he was admonished by the court . . .
This memorandum may, perhaps inadvertently, tell too much. Plaintiff's counsel should have something to say. Vehemence is not the sole criteria of effective or appropriate argument. Crossing the line is not something to be so lightly dismissed. Winning in our adversarial system is not to be accomplished or condoned at any cost, and Vince Lombardi was not describing what the system of justice strives to be when he was quoted as saying "winning is the only thing."
Nevertheless, given the sharp rebuke and admonishment to plaintiff's attorney very early on in his closing argument, and the fact that initially the jury returned a verdict with no non-economic damages, the court is convinced that the defendants were not unfairly prejudiced by the conduct. Indeed, it was the court's observation during the presentation of evidence and closing arguments, that the reaction of at least some jury members to the conduct was to laugh quietly at plaintiff's counsel's somewhat bewildering attempts to persuade.
After carefully reviewing the arguments of counsel, the motion of the defendants is denied.