Wade Clark Mulcahy LLP

<p style="text-align: justify;">During trial, a judge will issue various decisions outside of the jury’s presence.  These decisions, orders and/or instructions are meant to dictate what evidence is admissible and what actually gets heard by a jury.  Frequently, however, attorneys will make statements or ask questions in the presence of a jury that contradict the trial judge’s orders.  The case below demonstrates that such violations, though improper, rarely lead to a mistrial.</p>
<p style="text-align: justify;">In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2019/05/Livingston-v-Greyhound.pdf">Livingston v Greyhound</a>,</em> bus passengers were injured when the bus rear-ended a tractor-trailer.  The passengers of the bus sued the bus company and driver alleging that the driver fell asleep at the wheel and that the company was vicariously liable for the driver’s conduct and independently liable because its procedures to prevent fatigued driving were inadequate.  Following trial, the jury found both the driver and bus company negligent, awarding punitive and compensatory damages.</p>
<p style="text-align: justify;">On appeal, the defense argued that the trial court should have granted a mistrial after a company accountant was asked by plaintiff’s counsel, in violation of the trial judge’s prior order, whether the company had set aside $81 million for crash claims following the accident.  The trial court gave a curative instruction that evidence of a company’s wealth was not something the jury could consider in coming to its decision on causation and damages.  The appellate division upheld the trial court’s denial of defendant’s request for a mistrial.  The Superior Court acknowledged that mistrials were necessary when “irrelevant remarks …are reasonably likely to have a direct and prejudicial effect on the award of damages.”  In determining whether a mistrial is warranted, the Court noted that one must look at the curative instruction given, the frequency and nature of the improper question, and whether the verdict reflects any prejudicial effect.</p>
<p style="text-align: justify;">In this action, the Superior Court concluded that the single question was asked once (in the middle of a seven week trial), a curative instruction was given, and the defendant’s wealth was an issue for the jury to hear given the punitive damages claim.  Moreover, the verdict was not so excessive that prejudice could be blamed.  Finally, even though plaintiff’s counsel disobeyed the trial judge’s prior order on the subject, the court found that the violation was not intentional.</p>
<p style="text-align: justify;">Thank you to <a href="mailto:aperry@wcmlaw.com">Alexandra Perry</a> for her contribution to this post.</p>
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