When Your Corporate Client is the Subject of an Inflammatory Closing Argument

(A Pennsylvania Perspective)

By: Scott M. Russ, Esq.

The Superior Court of Pennsylvania recently ruled that a plaintiff’s attorney’s inflammatory remarks during closing argument concerning a corporate defendant were not enough to warrant a new trial.

In the matter of Ferguson v. Morton, et.al. the Superior Court overturned a Philadelphia Court of Common Pleas Judge’s decision to grant a new trial to defendants, Derrick Morton and Philadelphia Cycle Center (“PCC”). The trial jury had awarded the plaintiff, Sheila Ferguson, $575,000 arising from an accident whereby she was struck by a motorcycle driven by defendant Morton.  Plaintiff also alleged that defendant was also negligent for having sold the motorcycle to Morton without verifying he had insurance or a valid driver’s license.  By way of damages, the plaintiff alleged multiple fractures with ongoing, chronic and permanent pain with limitation on her work hours.  During closing argument, the plaintiff’s attorney said: “If the defendants had been a tad bit careful back at the store, they never would have hurt Ferguson.  In essence, they are here carefully protecting their right to needlessly endanger the public.  Please tell them that in our community the safety of people is more important that the safety of money.”  The trial judge sustained almost every objection made by defendants’ counsel during plaintiff’s attorney’s closing argument, repeatedly admonished the plaintiff’s attorney, issued curative instructions to the jury and eventually cut off the closing argument entirely.  Subsequent to verdict, PCC claimed that during his closing argument, the plaintiff’s attorney “…was presenting improper matter and seeking to inflame the jury by focusing attention upon the fact that PCC was a corporate rather than individual defendant, and by repeatedly suggesting that PCC was concerned only with profits and not with the safety of the greater community.”  PCC argued that such statements encouraged the jury to incorporate punitive damages into the verdict when there was no claim for them and that the Judge’s curative instructions were otherwise ineffective.  The defendants requested, and were granted, a new trial as the presiding trial judge found that it would be impossible to conclude that the jury’s verdict did not wrongly include punitive damages.

On appeal, the Superior Court disagreed and overturned the trial judge’s decision to grant a new trial. In reaching its conclusion, the Superior Court found that the trial judge’s reasoning concerning the grant of a new trial was without legal authority and did not elaborate in any way on such in-court observations that the court may have made.  The Superior Court further noted that the damages verdict “only minimally” surpassed the cap for claimed economic damages asserted during the trial and that the jury was otherwise within its purview to award non-economic damages as well.  Finally, in noting that the jury apportioned liability equally between Morton and PCC, the Court stated “that the jury apportioned liability equally implies that the jurors did not calibrate their award in magnitude or apportionment to punish PCC.”  The Court concluded as follows:  “While we deplore Holland’s [plaintiff’s counsel] intractability in flouting the trial court’s clear directions, we nonetheless disagree that the remarks in question so obviously compromised the jury’s deliberations as to establish a basis for the grant of a new trial.”

To avoid a similar scenario in the future, in advance of, and during, civil trial a corporate defendant in Pennsylvania should ensure that its defense counsel submits appropriate jury charges and a proposed verdict sheet, create a proper record during the trial and closing arguments, object often, ensure that corrective charges are given to the jury (as necessary) and after verdict, poll the jury to ascertain if it was in any way unduly influenced by an improper closing statement similar to that above.  Such preventative measures will assist a corporate defendant in avoiding another unfortunate and expensive outcome such as in the Ferguson case.