Improper Remarks in Trial Summation Warranted New Trial on Damages Only

Risko v. Thompson Muller Automotive Group, Inc., 206  N.J. 506 (2011).  This case came to the Supreme Court because of improper remarks made by plaintiff’s counsel in his trial summation.  The case was a slip and fall that caused plaintiff’s decedent to suffer a fractured arm and hip.  The hip injury required surgery, which led to a severe inflammation of the colon, which developed into septic shock and ultimately caused the death of plaintiff’s decedent.

Plaintiff’s counsel believed that the case warranted an award of at least $1 million.  He told the jury that the Eighth Amendment of the United States Constitution “says even prisoners of war, people we hate, are not supposed to be tortured.  What [the decedent] went through was torture.  [Defendants] didn’t intend to put her through that.  But now they have to pay for that….  And if someone goes into the jury room and says … I don’t believe in damages of over a million dollars … please knock, tell [the jury attendant], ask for the judge.  Because what they’re doing is ignoring the law.”

The trial judge reacted angrily, and threatened a mistrial.  Instead, he let the matter sit overnight and ultimately did not order either a mistrial or a curative instruction.  He did, however, remind the jury that statements by counsel were not evidence and that the existence and amount of damages were solely up to the jury.  The jury found liability and awarded $1.75 million in damages.

The defense moved for a new trial, and the judge granted that motion based on the improper summation by plaintiff’s counsel and the judge’s own mistaken failure to cure the improper statements.  The new trial was to be on both liability and damages because, as the trial judge said, without elaboration, “the entire process was tainted” by what had occurred.

Plaintiff appealed.  By a 2-1 vote, the Appellate Division reversed and reinstated the jury verdict.  The majority found that plaintiff’s counsel’s remarks were “brief and fleeting” and did not constitute “either blatant bullying of the jury or a deliberate attempt to abrogate the court’s charging function.”  Though “clearly inappropriate,” counsel’s statements “may be construed as a call to the jury to follow the law, consult with the court for clarification if any confusion arises, and avoid basing its decision merely on an arbitrary dislike for damage awards over $1 million.”  The court’s closing instruction to the jury also mitigated any problem that the summation might have created.

Judge Carchman dissented.  In his view, the summation was plainly improper.  He advocated a new trial, but only on the issue of damages.  Thus, when the case reached the Supreme Court, the judges below had reached three different conclusions: 1) there should be a new trial on all issues (the trial judge), 2) there should be a new trial on damages only (Judge Carchman), and 3) there should be no new trial at all (Appellate Division majority).

The Supreme Court voted 6-1 to adopt Judge Carchman’s viewpoint, with Judge Stern writing one of his last opinions of his temporary term on the Court.  Justice Rivera-Soto, dissenting, would have ordered a new trial on all issues, in agreement with the trial judge, based on that judge’s “feel for the case.”  Both opinions contain useful summaries of the standard of review of jury verdicts.

The majority could not “tolerate the suggestion to jurors that they would be violating the law, and will be reported to the judge, if they reject the notion that plaintiff’s case could be worth more than $1,000,000.”  Those remarks hindered the “collective mutual decision-making” that is the core function of a jury.  “A juror who dissented from, or even questioned, the quantum of damages that was being discussed may have been discouraged from voicing his or her thoughts out of fear of being reported to the judge.”  Judge Stern limited the new trial to damages issues only, however, “[i]n the absence of an articulated basis by the trial judge for going beyond that.”

An interesting appellate law wrinkle is the way that the case came to the Supreme Court.  Because of Judge Carchman’s dissent, the issue raised by that dissent, but only that issue, could be brought to the Court as a matter of right under Rule 2:2-1(a)(2).  However, because the Appellate Division’s review was on leave to appeal, defendant sought and the Court granted leave to appeal under Rule 2:2-5(a), which states that an Appellate Division judgment issued on an interlocutory appeal shall itself “be demed to be interlocutory and not reviewable by the Supreme Court as a final judgment, unless the judgment of the Appellate Division is dispositive of the action.”  Judge Stern observed that Rule 2:2-5(a) might have permitted an appeal as of right “because there was no need for further proceedings in the trial court,” citing Rule 2:2-5(a), presumably the “unless” clause quoted above.  That “unless” clause is only rarely invoked.  Practitioners should be aware that, in proper circumstances, Appellate Division decisions made on leave granted may be appealable as of right to the Supreme Court rather than on leave to appeal only.

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