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New Trial Ordered for Prejudicial Remark by Plaintiff’s Counsel (PA)

November 21, 2017

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On November 16, 2017, the Superior Court of Pennsylvania ordered a new trial in <a href="http://blog.wcmlaw.com/wp-content/uploads/2017/11/Cardwell-of-interest-opinion-11.20.17.pdf"><em>Buttaccio v. American Premier Underwriters, Inc.</em> </a> after  plaintiff’s counsel made prejudicial comments and violated a preclusion order during the underlying trial.  The court also decided on several other evidentiary issues.
In the underlying case, plaintiff Mike Buttaccio, brought a claim against his former employers alleging occupational injuries and resulting economic damages.  Buttaccio was a repairman for Penn Central and Conrail for around forty years.  He alleges that his years of heavy work resulted in career-ending shoulder, knee, and carpal tunnel injuries.  The jury found for Buttaccio for $600,000.  The defendants appealed on the issues of: 1) should the plaintiff’s liability expert should have been excluded; 2) should a new trial be ordered since plaintiff’s counsel violated a preclusion order and made prejudicial comments; and 3) should evidence of other claims been admitted.
Appellants argued that plaintiff’s ergonomics expert should have been excluded since his methods were not generally accepted in the field and he failed to objectively measure factors.  In Pennsylvania, a person qualified as an expert may testify if: 1) their knowledge is beyond that of the average person; 2) their testimony will help the trier of fact; and 3) their methodology is generally accepted.  Upon review, the Superior Court agreed with the trial court and found that the expert’s testimony was admissible since it was based on his decades’ worth of experience, education, and on publications from NASA, OSHA, and the Federal Railroad Administration.  In addition, it found that the computer program that the expert used to measure factors was generally accepted in the field.
The Superior Court did agree, however, with the appellants’ second argument that a new trial should be ordered.  During trial, the court granted defendants’ motion to preclude any mention by plaintiff that there was inadequate manpower during his work.  Despite this, plaintiff’s counsel made numerous statements on the record mentioning an alleged inadequate manpower.  The Superior Court also granted a new trial on the basis that the trial court failed to properly instruct the jury and/or grant a mistrial when plaintiff’s counsel mentioned that two other employees were killed during a cross-examination.  The court argued that this statement highly inflammatory and could serve to prejudice the jury against the defendants.
This case demonstrates the importance of going into trial with an overall plan when it comes to evidence.  As seen above, by properly preserving issues, whether through pre-trial or evidentiary motions or objections during trial, counsel can limit the plaintiff’s case by cutting off certain evidentiary avenues. This can then set up the case for a dismissal or for a new trial.  Thus, by properly analyzing the evidence and what you think plaintiff’s counsel will try to introduce, one can set up the case for an endgame with a favorable defense verdict or dismissal.  Thanks to Peter Cardwell for his contribution to this post.  Please email <a href="mailto:BGibbons@wcmlaw.com">Brian Gibbons</a> with any questions.

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