Bailiff: SJC-12937, Meaghan Fitzpatrick
V Wendy's Old-Fashioned Hamburgers of New York Inc.
-: Thank you.
Mr. Fogelman.
-: Good morning, your honor.
Associate justices, may it please the court.
My name is Matt Fogelman, I represent Meaghan Fitzpatrick.
It's an honor to be appearing before you again.
Your honors, the trial judge here
applied an incorrect standard.
Once a verdict comes back in a civil case,
one cannot ignore the various points of information,
the data points, as we refer to them.
The appeals court got this exactly correct.
We can not bury our head in the sand
and pretend that we don't have the info.
And here, the info, the evidence, the data is irrefutable.
One, the amount of the verdict was at the lowest end
of the range that I suggested to the jury.
Two, the jury submitted two questions, jury questions.
They were both evidentiary in nature.
They dealt with x-ray technology
that occurred during the trial.
And, three, we have the length of deliberations.
The length of deliberations here were
almost as long as the trial itself,
including over a weekend, they came back on a Monday.
This does not show a jury that's been
inflamed or swept away in any way.
-: Mr. Fogelman, you're skipping the first issue though.
I certainly understand that argument
and I'm anxious to hear you elaborate on it.
But, the first issue is whether our case law allows,
in a civil case, the mistrial standard
to be applied, even though it's post-verdict.
And, you sort of skipped over that issue.
You're just assuming it.
Don't we need to hear some argument on that?
-: Oh, absolutely, your honor, I'm happy to do that.
I don't wish to assume it, but I think it makes sense.
I think it's correct.
And, many other states follow that line of thinking.
And, the Matta Amicus brief details many
of those cases and mine does as well.
Your honor, distinguishing from Brangan,
Brangan is a criminal case.
In a criminal case, there are double jeopardy
implications that are applicable.
And, obviously, in a criminal case,
you also don't have these other data points.
For example, there's no verdict amount,
so it's not something that you can look at.
So, in a criminal case, it makes sense.
I understand why a judge may defer
and that's perfectly okay.
In a civil case, Justice Lowy,
that doesn't make sense, because if the closing,
or whatever the issue was, was so bad,
then you can declare a mistrial before it goes to verdict.
The definition of a mistrial
is that it interrupts the trial.
By definition, once the case goes to verdict,
there is no longer a trial to interrupt.
The trial is over.
You now have these various data points,
points of information, and I don't wanna
be redundant, but a few of the things,
I already mentioned this morning, you have those.
You cannot then say, you know,
we're not gonna look at those, we'll just pretend
this was before verdict and we'll treat it as such.
It's not, it doesn't make sense, your honor, and it's not--
-: I understand that argument.
And, frankly, it's a very compelling argument.
But, there's an argument on the other side,
that if the judge, for instance, thinks,
well, this has been a five-week trial
and the plaintiff barely survived the directed verdict,
and now we have a closing argument
that is the quintessential reptile closing argument,
and the judge doesn't want another jury
to go through a five-week trial, judicial efficiency,
the expense for the defendant,
because the judge thinks it's gonna be a defense verdict,
the judge loses a tool in the toolbox
by not being able to defer on it.
So, your argument is a good one,
but there is one on the other side.
-: I recognize that, your honor, I would say this:
I don't think that the judge loses
a tool in the proverbial toolbox.
If the judge wants to defer and let it go to verdict,
because it may be a defense verdict, that's perfectly fine.
The question is, once it goes to verdict,
what is the standard?
What is the judge?
What must the judge look at to determine
whether a new trial is warranted?
And, once it goes to verdict, as I said,
we have various points of information, a verdict amount.
In the DeMoulas case, Judge Brieger herself
looked at the verdict amount, $500,000.
So, let's say, in my case, the jury came back
in 45 minutes with $600,000.
I could understand, my opposing counsel
would certainly be talking about that,
he'd say, see, that is evidence that this jury was inflamed,
and the judge would talk about it as well.
It would be one of the first things highlighted
in my brother's papers and in the judge's opinion.
But, here, where the data points do not support that,
they support the opposite, they show a jury
that was deliberative and careful and thoughtful,
that was not swept away, all of a sudden,
we're going to ignore those pieces of information?
I just don't think that that's right, your honor.
And, to your honor's specific question,
what is wrong with simply just waiting
and analyzing, surveying the whole case?
The tool is still there.
Once the judge, after verdict, surveys the whole case,
looks at the various data points, analyzes, say,
well, this is what the jury questions were and this
is what the verdict was, they can declare a new trial.
-: Well, council, that might be so,
but what about the argument that, as in criminal cases,
mitigation efforts should be made at first?
Those mitigation efforts can't be taken
if one waits until after the verdict.
So, for example, a strong instruction
to the jury or some other curative method.
-: Oh, absolutely, Justice Cypher, I completely agree.
And, another, there are so many issues here,
another issue is that that wasn't done here.
And, the appeals court made note of that
and I think was critical of the trial judge.
-: Well, we haven't held that that should be done
and it's not in the rules, correct?
-: When you say haven't held, you mean
to give curative instructions? -: In the civil cases,
in the civil cases.
On mistrials trials, we have not required judges
to engage in a search for alternative remedies.
-: In the Torre case, which is an appeals court case,
Torre versus Harris-Seybold, a judge is supposed
to take rigorous and emphatic action.
So, I think that is, at least in
the appellate jurisprudence, your honor,
if not in the SJC jurisprudence, an appeals court,
in this case, picked up on that language as well.
So, I mean, it makes perfect sense,
if there's an issue, we can leave to decide
whether there was an issue in this case,
but if there is an issue, obviously the time
to try to deal with it is when there's still time.
Once the ship has sailed, the judge
can't do anything about it, your honor.
-: Well, let me ask you a question.
What are the criteria for mistrial?
-: The criteria for a mistrial is...
Sorry, action that was so egregious, your honor,
that essentially justice cannot stand
if this is allowed to stand.
We must stop, and therefore that's why
it's an interruption of the trial,
we can't even send it to the jury, Justice Lenk.
It's so bad, it so taints the process
that we must stop it now.
-: Does anyone ever get tipped for declaring a mistrial
or not declared a mistrial in a civil case?
-: I'm sorry, one more time, your honor?
-: Does anyone get tipped?
I mean, does any judge get tipped for declaring a mistrial?
In a civil case, in a civil case is what I'm talking about.
-: Before verdict or after verdict?
-: Well, obviously, yeah, obviously,
you're saying it has to be before verdict, right?
You're saying that a mistrial has to
be declared before verdict, right?
-: In a civil case, your honor.
-: Yes, that's right, that's what you're saying, right?
-: Right.
-: So, did they ever get tipped?
I mean, you can get tipped for doing it
in a criminal case, can't you?
Matt: Yes.
-: Can you get tip for doing it in a civil case?
Or, is it so discretionary with the judge
as to what amounts to a mistrial and not a mistrial?
-: I think, I mean--
-: Have you got any cases?
Have you got any cases where a judge has been reversed
for granting a mistrial in a civil case?
-: I don't think so, your honor.
I don't think so. -: Okay.
-: But, it'd be abuse-- -: But, you've gotta be able...
That's gotta be a rule.
Doesn't that have to be a rule?
There's gotta be some time where it's reversible
to do that, right? -: Absolutely!
It's an abuse of discretion and standard, Justice Kafker.
Absolutely.
-: Can I push you then?
So, procedurally in this case,
so the defense moves for a mistrial,
but then is it consensual that you go to verdict?
I can't remember.
Do both sides agree?
You move for a mistrial, I take it the defense
doesn't insist that the judge decide that issue.
But, is their agreement to go to verdict?
I can't remember now.
-: You know, (laughs) I guess the answer
to your question is yes.
Agreements, I mean, Attorney Duggan asked for a mistrial.
Judge Brieger clearly indicated that she wanted
to defer and wait until the jury came back.
She asked me, I don't remember if she asked me
if I agreed with it, she probably did,
and I mean, I didn't want a mistrial. (laughs)
I mean, why would I want a mistrial?
First of all, I thought I was gonna win the case.
And, second of all, I didn't think I did anything wrong,
so the last thing I wanted was a mistrial.
-: Right, but I'm just trying to understand,
do we have to analyze whether the first decision was error?
I understand your point that once it goes to verdict,
we may need to change the legal standard.
That seems to make some sense, but I'm also,
do we have to do the first step to decide
whether it was error to not rule on that mistrial motion
or was that waived by both sides
and we don't need to deal with that issue?
-: I don't think we need to deal with it, your honor.
I don't think we do, now I understand your question.
Again, when I agreed to let it go to verdict,
I knew that a motion that would then
later be heard would take the entire case into account.
In fact, in the post-trial arguments
to Judge Brieger, before she decided,
that was my-- -: Mr. Fogelman,
I think I understand why you don't object
when she sends this there.
The question is, has Mr. Duggan
waived that first step in my questioning?
Because he allows it to go, he doesn't, I don't know
if he can, I just, I haven't thought through it.
-: I see, I see, so I guess your point is that
he could say to the judge, I want this ruled on now.
-: Yeah, he could.
It's back to Justice Lenk's question,
is there some behavior by the judge
on how she or he handles a motion for a mistrial,
that is just reversible in a civil case?
And, is this that case?
I'm just trying to get a sense of that.
Or was it, because most trial, jury,
most stuff in civil can be waived and I'm just trying
to understand, did the parties sort of say,
okay, I'm moving forward here?
-: You know, that's a very fair question.
I guess I hadn't really considered that
and I do see what you're saying.
That is possible.
I think that is possible.
The problem is that, by waiving it,
the analysis that was then performed later
should've been a different analysis,
but the trial judge applied the same analysis
that she would have applied prior to verdict.
That's the issue, your honor.
-: It's just, you guys are both--
-: Judgment notwithstanding the verdict?
Matt: I'm sorry, your honor.
-: Was there a motion for not withstanding,
for judgment not withstanding the verdict?
JNOV?
-: I don't believe so.
-: Uh-huh.
There was no motion for a new trial either?
-: There was not, I think this should be treated
as a motion for new trial, but there was--
-: I know, but was there one that
was entitled a motion for new trial?
Matt: No, no.
-: Okay, all right.
-: And so, if I may, what we're looking at is,
this has to be so greatly against
the weight of the evidence.
And, Walstrom, which came out right around the same time
as the Fitzpatrick appeals court,
is a very similar situation and they reversed as well.
We have here,
no impact on Brangan, as I've already covered.
And, Justice Lenk, to your question,
again, it's an abuse of discretion standard.
And, the appeals court opinion here is so instructive,
because what they did is they actually performed
the analysis that the trial court did not perform.
They went through methodically and analyzed every point,
from the opening statements of both parties
to witness testimony, evidentiary issues,
the closings, the verdict amount, the jury questions,
they went through step-by-step and they came
to one inescapable conclusion, which is that this verdict
never should have been taken away.
-: Well, shouldn't the conclusion be that
there was an abuse of discretion by the trial judge?
Matt: Yes.
-: Okay.
-: Yes, that's right, that's right, Judge Cypher.
-: I didn't read Judge Wolohojian's opinion to say though,
however, that it would have been mistaken
to grant a mistrial, had she done it at the time.
-: I don't think she opined on that.
-: I don't think she did either,
I don't read the opinion that way.
-: I don't think she opined on that, your honor,
but I mean, (laughs) that would have
been ridiculous, in my, in my opinion, to--
-: Well, I know that, but I'm just saying
that she could have, I think she could have
under the circumstances, had she wanted to,
granted a mistrial when she was asked
to grant a mistrial, couldn't she?
-: Trial judges can do a lot of things. (laughs)
-: That's right.
So, she could have done that,
would not have been error for her to do that.
-: In my opinion, it would have been.
-: Uh-huh, an appeal lawyer.
You think it would've been an abuse of her discretion?
-: I would certainly, on this record,
I would certainly argue that, your honor.
-: Uh-huh, okay, all right. -: Yes.
You know, a couple of other points, if I may.
One thing that has troubled me,
is there's some gas-lighting here
that I think my opposing counsel has engaged in.
There's a lot of talk in his presentations,
both in opening and in closing, about safety,
about the types of foods that we eat,
about what all fine companies in America should be doing.
And then, I get taken to task for talking about
the exact same things, for responding to those arguments.
All of my arguments were based
on the evidence, were based on the testimony,
were responses to Attorney Duggan's arguments
and were based on black letter law.
-: I don't wanna survey the whole closing argument.
But, you can't sorta say to the jury,
we're in this together.
The plaintiffs and the little guy and the jury,
we're all in this together against the big, bad corporations
and this is your chance to issue a clarion call.
And, if you don't do it, you're gonna
regret it the rest of your life.
Now, I'm obviously from my own hyperbole intuit,
for the purposes of making a point.
You can respond to their arguments,
but you can't say, as Judge Brieger interpreted it,
we're all in this together, the plaintiffs,
the community and us jurors and people.
-: I would agree, your honor.
With your hyperbole, I would agree.
The issue is that there's good case law
in this commonwealth, that there is room
for excusable hyperbole and for enthusiastic rhetoric
and for strong advocacy, they're all permitted.
And, if I was a tad overzealous
in one or two remarks, I can own that.
But, that is not grounds for a mistrial or for a new trial.
It simply is not.
You know, one or two statements that maybe,
in retrospect, were better phrased differently.
Again, that's okay.
But, juries are smart.
This jury was smart and thoughtful.
They can smell malarkey from a mile away, your honor.
And, if they didn't like what I was saying,
that could've been rejected and we could've been
sent home with a defense verdict
in 20 minutes, but that did not happen.
They were deliberative, they were careful,
as I said, they came back over a weekend
to continue deliberating on Monday.
Juries don't want to do that.
And then, they gave an award at the lowest end of my range,
which the appeals court noted.
The trial judge took none of that into account at all.
-: What did you put in on damages, Mr. Fogelman?
'Cause I understand there was, like,
some kind of stipulation not to include
medical expenses and other things here.
How did you prove damages?
'Cause to me, it seems like the issue really is,
you know, wasn't the damage award too high?
And, did the jury struggle with the damage award
for three days, because they had very little to work with?
What did you put in, besides there's a range of damages?
How did you supply that?
-: Sure, your honor.
Thank you.
And, it is becoming increasingly common
in the civil cases in the trial world,
not to put in damages for medical bills.
You know, sometimes they're quite low, quite frankly.
And, a case, maybe there may be tremendous
emotional distress, as there was in this case.
My client dealt for several years with this issue.
And so, it was more of an emotional distress,
pain and suffering, type of argument.
-: But, I mean, did you just say, this is worth 150 grand?
What did you say?
I'm just trying, 'cause to me, I get your point
that we don't expect to chew on hard substances
in our hamburgers that break our teeth,
and I understand they have a defense for that,
but where I start getting worried here is when you throw in
all this rhetoric in your closing about the little guy,
you know, and I want you to, we, and all that stuff.
That inflates damages dramatically, particularly when
the jury doesn't have something very rooted in fact here.
So, what was in there for damages?
How do we know the emotion didn't sway the damages stuff?
-: Well, your honor, let me say this.
We are allowed to suggest numbers now, that is by statute,
and we're allowed to suggest a range.
So, what I said was, very calmly, that,
ladies and gentlemen, and you have the transcript,
your honor, but that the appropriate range
for this case is between 150 and $250,000,
that that would fairly and adequately compensate
Ms. Fitzpatrick for all that she's been through,
all of the pain, all of the suffering,
the 25 visits to the dentist and the oral surgeon,
that that is a fair range to compensate her for this case.
And, I think I said, you can go higher
than that or you can go lower than that.
You're in charge, ladies and gentlemen,
this is a suggestion from me,
we're allowed to suggest numbers to you.
I think I said something like that, your honor.
So, when they come back--
-: I'm very familiar with root canal
and all these other things.
(laughing)
Justice Lenk: Oh, yes, yes.
-: How does a jury do that with not being swayed,
if there's an emotional appeal, I guess,
so that's what we got on damages?
'Cause I'm gonna ask Mr. Duggan,
'cause I understand he didn't put in anything on damages.
-: Yes, I mean, that's what we have on damages, your honor.
And, it's not unusual too.
I mean, there's sexual assault cases, for example,
where there may be hardly any medical bills.
And so, there's so many examples that we can think of
where we're not talking about a bill or, you know,
a two-week stay in a hospital, we're talking about
the impact that this had on somebody's life.
It's pain and suffering, it's emotional distress.
And so, I suggested this range to them.
They could've, if they didn't like,
you know, what I was selling,
they could've done whatever they wanted to.
The fact that they came back at 150, to me,
suggests that they listened to my range,
but that they went on the very lowest end of the range.
That does not indicate inflammation.
And, your honor, also, it's a subtle point,
but it's an important one, they added in
the cost of the Wendy's meal.
So, it was actually $150,005 and 26 cents.
I did not ask for that. (laughing)
I did not ask for that.
That was a thoughtful--
-: I'm not sure.
I'm not sure you want a jury,
I don't know if you want us to make a big deal out of $5
and 30 cents. -: No, no, no, your honor.
The point is not the $5, the point is a thoughtful jury.
The point is a jury that was bothered by what happened
and came to a verdict deliberately and thoughtfully.
The touch of adding that in is symbolic.
That was my point, sir. -: It's nice, it's nice.
Justice Kafker: Okay.
-: Any further questions?
Thank you, Mr. Fogelman, Mr. Duggan?
-: Thank you.
(papers rustling)
-: Thank you, your honors.
May it please the court.
Justice Brieger, the trial judge,
after watching an inflammatory and prejudicial argument,
determined that it was, and based on the evidence,
determined that the inflammatory argument
that was made was so pervasive,
that it likely affected the justice of the verdict.
And, she specifically found that, therefore,
the defendants were denied a fair trial.
-: When did she decide this?
When did she decide this?
She decided that after trial or after
the verdict or before the verdict?
-: Oh, after the argument on the motion
for a mistrial, your honor, and briefing--
-: So, that was before the verdict.
You're saying it was before the verdict?
-: No, your honor.
What happened was I made the motion
for mistrial as a result of the closing argument,
right after Mr. Fogelman finished.
-: Right, but that was before the verdict, obviously.
Christopher: That was before the verdict.
-: Yeah.
-: I listed five things off the top of my head
that I found and Justice Brieger
actually listed them in her opinion.
And, she also then said, I have my own list on top of that.
And then, to answer the court's,
I think it was Justice Kafker's question
or maybe Justice Gaziano, anyway, the question was,
did I assent to it or did we assent to it?
The fact is Justice Brieger said,
I'm going to let this go, I'm going to reserve
and we're gonna take a verdict
and then we'll see what happens after that.
That's in the record appendix at page 628.
-: And, you didn't say anything
like, no, you can't do that, Judge.
-: No, as a matter of fact, I didn't,
and the reason is that Brangan had been decided
three months before that and Brangan said specifically
that not only can she, that she should.
This court has said precisely that and endorsed that,
both in Brangan and Murchison in 1984.
And, in the Brangan case, your honor,
as you know, Justice Cordy relied on two civil cases,
in which he actually quoted one of them from Florida,
the Ed Ricci case, in which he said there's good,
common sense reason for doing this.
And, there's two reasons for it.
One is that the jury may get themselves over
either a prejudicial argument or an improper argument.
There were two reasons, generally,
that this argument was violative of the Massachusetts
rules of evidence and longstanding cases.
One, it was inflammatory and improper.
Two, there were suggestions in the argument
that had no basis in the evidence.
For example, Mr. Fogelman said, the evidence was that
there were 61 million hamburgers sold over 12 months period
at this time and nothing, no problem with it.
And, Mr. Fogelman made a comment on that.
He said, I don't know whether that's true or not,
leaving the jury to believe, maybe drawing
the inference that I was lying to them.
There were also other instances
where he talked about other instances.
Well, you know, there may be other people
who are gonna get hurt in the future,
drawing right out of that reptile lawyer book and saying,
you'll feel good about it, even though you know
there are gonna be other people that are gonna be hurt
and you have to bring to the safety of our community,
leaving the jury to infer, according to Justice Brieger,
the trial judge, that there were other instances out there
that they didn't get to hear, but the lawyers knew about.
That was the damaging part of this argument.
-: Mr. Duggan, this gets tricky.
And, I understand maybe why you're not insisting
on the motion for mistrial be decided
because of Brangan, but now we have this issue
whether there's a different standard afterwards,
which is tricky, because there's all this new information.
We've got the verdict.
That's why we delayed, why I assume
Justice Brieger delayed, to see what the verdict was.
So, I guess, if we sort through this,
if there's a new standard afterwards, do you think you have
the right to insist that it be decided beforehand?
And, you know, it just seems like this
gets very tricky if the standard changes.
-: It gets, I'm sorry.
-: Sorry, go ahead.
-: I think it does get tricky if the standard changes
and there's no reason to change the standard,
because the motion for mistrial when the last lawyer
to speak, and remember, the key here is that
it's the last lawyer to speak.
If I were the plaintiff and somebody did that to me
as the defense lawyer, I could do something about it.
But, as the defense lawyer and the plaintiff speaks last,
there's nothing to do about it.
And so, that's the real sticking point here.
So, the standard is, Justice Lenk asked, I think,
the question, what is the standard on a motion for mistrial?
And, it is if there's an improper argument that is
so pervasive that it likely affects the jury verdict.
That's the standard on mistrial
and it's only for the closing argument.
Does it likely affect the jury verdict?
And, Justice, and this court has held
because I know Justice Cypher asked the question,
is there another case anywhere in Massachusetts
where anyone has ever tipped the allowance
or a denial of a motion for a mistrial?
The answer to that question is, not in my research.
-: Yeah, but there's gotta be something
that's egregious enough.
And also, the appeals court says that Justice Brieger
could've allowed the motion for mistrial.
Justice Wolohojian comes right out and says that, right?
-: Well,
I certainly read that, I'm sorry.
-: So, if she could've allowed it,
but didn't, and at the same time, the standard changes,
possibly afterwards, gets really messy now. (laughs)
That's why it's here.
(laughing)
-: I mean, are we forcing the judge, at that point,
to make a decision she might not wanna make?
I mean, she'd maybe like to have the jury decide this case
after five weeks and maybe the jury will do the right thing
as far as she's concerned, and then it turns out the jury
doesn't do the right thing as far as she's concerned.
And then, what does she do?
-: Well, that's what Brangan says.
That's one of the two justifications for Brangan.
You know, one is that you had the judicial economy.
The other is that the judge now has an opportunity
for further reflection, for briefing,
to read the trial transcript if she wants.
Now, the appeals court criticized her for only focusing
on the closing argument, which is not true.
She actually read the whole transcript and she refers,
in her opinion, repeatedly, I think six
or seven different times about her--
-: So, you see, you don't really think that she has a,
and you think it was, what standard did she apply?
Did she apply the motion for new trial standard?
Did she apply the mistrial standard, do you think?
-: She applied the mistrial standard
and it's at the very last part of her--
-: But, as a result of having
reviewed everything, you're saying.
-: Yeah, and she didn't have to do it, but she did.
-: So, how is it not the motion for new trial standard?
-: Because, the only thing that was at issue,
and this came up in the argument that we had
on post-trial on the motion for mistrial,
before her, after briefing, the question
was focused on the motion for mistrial.
And, she focused on that.
Now, Mr. Fogelman said, we have these other data points.
He said it there and he said it here again.
Here's one data point that he didn't talk about.
We did try the case a second time.
And, when both lawyers played by the rules
within the white lines in Justice Brieger's pilot,
the jury came back with a $10,000 award.
And so, did the argument that was--
-: Was the damage evidence the same in both trials
or did you guys actually put in something
that a jury could look at the second time around?
-: The damage evidence was identical, your honor.
And, there was no stipulation as to medical bills.
Medical bills, as defense lawyer, that's not up to me.
That's up to the plaintiff.
If he decides to put it in, fine.
-: Mr. Duggan, I'm gonna agree with you that
that's a point in your favor, but there's a response
to that, which was you saw what didn't work
the first time and you spent your time
and energy on cross examination on damages.
But, that's a point in your favor, no doubt about it.
But, I'm gonna agree with Justice Kafker,
this is complicated.
And, what I'm wondering here is,
you've got a tough decision at trial.
And, down the line, lawyers are gonna have
tough decisions at trial, if we say the mistrial standard
and the motion for new trial standard is different.
And, you've gotta make the call about
whether you really want the mistrial or not.
And, the judge is probably not going to get reversed
either way, not that there couldn't be
some egregious situation where the judge would
and it would be an abuse of discretion,
but probably, the judge is not going to get reversed.
So, you've got a real tough call here.
Do you push for the mistrial at the better standard
or do you wait?
And, if you push for the mistrial,
you might have to try the case again.
It's a tough call, but if you decide not to object,
then you waive the mistrial standard,
and now you're in the motion for new trial standard box,
which by the way, in this case,
might end up in the same result.
-: Yeah.
-: Well, it certainly might.
A couple of things, Justice Lowy, on that.
First of all, I did object.
I don't think there's any, no doubt about that.
If you look at the record in 626,
I did object and Justice Brieger noted
that I objected twice at record seven--
-: I don't mean to the closing,
I mean to the denial of the mistrial.
-: In other words, insist that she makes a ruling.
-: Right.
You didn't do that, right?
-: No, I certainly did not.
-: That's Justice Kafker's waiver question.
-: Right, well, I mean, but the issue,
I think, would be, hopefully, the court will consider
that I don't think I could, as an officer of the court,
have insisted with an SJC opinion three months before,
saying that this is exactly what they should do--
-: Apples and oranges, apples and oranges.
You got double jeopardy.
I don't see it as the same situation or even close.
-: You don't think the same rules have to apply.
Christopher: Pardon?
-: I said, I don't think we're saying
that the same rules have to apply in civil
and criminal cases, is what we were saying.
-: Well, there's two things.
First of all, in 2016, when we tried the case,
with Brangan came out and with a citation
to two civil cases justifying that,
it certainly sounded an awful lot
like the court was condoning that approach.
And, that's what the judge did and I thought--
-: But, it's condoned!
It's an absolutely condoned approach.
-: Right.
-: You can wait.
There's nothing wrong with it.
Absolutely nothing wrong with it.
The issue is whether the standard changes.
-: Exactly right, your honor.
Now, that goes to the second part, and that is,
let's say I didn't make the motion at all.
Let's say, I think this is pretty hideous,
but I'm gonna just keep my powder dry
into a motion for new trial.
Then the question is, if the court applies the Gath standard
on motion for new trial, that was Freddy Halstrom's case,
you know, where I think Justice Hillman
was the trial judge in that case and Justice Hillman talked,
you know, the judge went through ad nauseum
what a horrible closing argument that was,
but the plaintiff got a verdict
and Justice Hillman decided not to give a new trial.
The court also said, had the court decided
to award a new trial, we would've affirmed that.
So, because that's left up to the discretion of the court.
So, what we have here, your honors, now is,
where we are is we did not file a motion
for new trial or a motion for JNOV because
we never got there, no judgment ever entered, I couldn't.
We actually won the motion for mistrial,
went back and tried the case again,
but had that motion been denied,
I certainly was going to file a motion
for new trial and a motion for a JNOV.
There's no doubt about it.
So, you know, right now, what I think Mr. Fogelman
is suggesting is not only have I lost
by winning the motion for mistrial,
I've now lost the opportunity to file post-trial motions.
And, I suggest, your honors, that's fundamentally unfair.
-: And, that's after a second trial.
What do we do about the second trial?
I'm not sure what the status of
the second trial is, in all of this.
-: Oh, we won it, well, the second trial,
we tried the case to verdict.
The parties, the lawyers played by the rules.
The arguments were fine.
-: Yes, but why are we here then,
if it isn't even a second trial, I suppose is my question?
-: I agree with you.
I don't think we should be, your honor.
I think the second trial verdict should stand.
There was a $10,000 verdict, reduced by 6,000
because of costs and that was, I made her an offer
of judgment for more than the verdict came back on.
And, that's what I think, that judgment should stand.
And, I urge the court to rule in that manner.
-: Does that judgment stand?
Even if we think that once this proceeds to a second trial,
the judge didn't apply the different standard, right?
So, if we agree that the judge should have applied
the tougher standard, what happens then?
'Cause, I mean, I understand we're all litigating
this thing with a lack of clarity,
but say we come to the following conclusion,
that the judge should've decided the motion for a mistrial,
but she didn't and she let it go.
Once she does that, the standard changes, but she didn't,
when she allowed the mistrial, apply the right standard.
What do we do then?
-: Well, excellent question, your honor.
I think this court, under those circumstances,
is gonna have to give some guidance when this case
goes back down for further consideration
by the trial judge, as to what standard is.
Because, I think the standard is Gath.
And, Gath says, was the closing argument
so outside the proper bounds
that it likely affected the verdict?
In other words, that's pretty much what she applied.
But, I certainly should have an opportunity
to argue that to the judge and then
have her make a decision one way or another.
But, that was not ever given to me.
The problem here is--
-: Mr. Duggan, can I push you on one last point?
'Cause the appeals court remand, I mean, is very narrow.
There's a paragraph basically saying,
liability is clear, damages are clear, (laughs)
with that in mind, do what we say, but don't,
but you have some flexibility,
I don't know how, how do we address that paragraph?
That's a really limited remand.
Is that too limited, even if we think
they're right that the standard changes?
-: It is far too limited, because basically that's all dicta.
That issue wasn't briefed or argued
before the appeals court.
And so, I was, candidly, kind of surprised
that they said that.
The trial judge never had an opportunity
to opine on whatever the standard is going to be.
So, the question now is the appeals court in this case
and in Walstrom, which is sort of a sister case to this,
came up with a standard on motion for new trial and rule 59,
which is far more difficult to meet
than anything that the Supreme Court has ever held.
As far as I know, the rule under the rule 59 is Gath.
And, that is the opinion that should be followed.
Not that there has to be a survey of the whole case,
there doesn't, for a motion for new trial,
at least under Gath, and not that there has to be
some type of miscarriage of justice,
but I will say one other thing on the miscarriage
of justice, if I might, your honor.
The trial court found that the defendants
were denied a fair trial.
If that's not a miscarriage of justice,
I'm not sure what it is.
That has to be a miscarriage of justice.
And so, I think your honor can change this
if your honors decide to modify Brangan,
which by the way, I think would be a bad idea.
As a civil trial lawyer, it seems to me
to make an awful lot of sense to do Brangan
in both civil and criminal cases.
It really does.
For a whole bunch of reasons
that Justice Cordy said in that opinion.
But, if this court decides otherwise,
we still have a finding by the trial judge,
the person who was there and saw this,
that the defendants were denied
a fair trial. -: Can I ask you a question?
Can I ask you a question?
I'm just so confused.
Please help me with this.
I don't understand why it is that
you even went to a second trial.
I don't understand why that happened.
How did you get there?
Yes, she said that there was a mistrial, right?
-: Yes. -: After the verdict.
And then, she immediately retried the case,
is that what happened?
-: Not immediately, but yes, we retried the case, yes.
-: But, how come there wasn't an appeal as to whether or not
the mistrial was appropriately granted the first time?
-: I suspect that the plaintiff felt that the allowance
of a mistrial motion is an interlocutory order and therefore
is not appealable, unless you, so that's, I think--
-: And there was no, there was not even a try here
about whether or not there should be a second trial?
-: That's true, your honor.
And, to be quite candid about it,
that's certainly how I understood it,
that a mistrial motion ends the proceedings.
And, once that happens, that's an interlocutory order
and therefore it's not appealable under most circumstances.
So then, we tried the second--
-: That explains it to me.
Okay, thank you.
-: Any further questions?
Thank you, council.