Nastri v. Vermillion Brothers, Inc.

747 A.2d 1069 (Conn.Super. 2000)

DAVID NASTRI v. VERMILLION BROTHERS, INC., ET AL.^*

No. CV940118719S

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF WATERBURY

December 1, 1998, Memorandum Filed

Tinley, Nastri, Renehan & Dost, for the plaintiff.

Day, Berry & Howard, for the defendants.

Before: SHORTALL, J.

I INTRODUCTION

SHORTALL, J.

The defendants, Forrest M. Haist and Vermillion Brothers, Inc. (Vermillion), have moved to set aside the jury's verdict, claiming, inter alia,¹ that certain statements made in closing argument by counsel for the plaintiff, David Nastri, caused them manifest injury and deprived them of a fair trial.

This case was tried to a jury before the court, beginning on June 10, 1998 and concluding with the jury's verdict on July 17, 1998. The plaintiff alleged that he had suffered serious personal injuries due to the negligence of Haist, the individual defendant, in the operation of a tractor trailer truck owned by Vermillion, the corporate defendant. The jury awarded economic damages in the amount of $ 1,144,489 and noneconomic damages in the amount of $ 137,500 and found the plaintiff to have been twenty-five percent negligent in causing the collision between the vehicle he was operating and the defendant's truck.

"The setting aside of a verdict can occur . . . for two general reasons. First, a trial court may set aside a verdict on a finding that the verdict is manifestly unjust because the jury, on the basis of the evidence presented, mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case can be applied . . . Second, a verdict may be set aside if its result justifies a suspicion that a juror or jurors were influenced by prejudice, corruption or partiality. A trial court's review of a motion to set aside a verdict, therefore, will focus on one or both of the two tests." (Citation omitted.) Foley v. Huntington Co., 42 Conn. App. 712, 724-25, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996). The court understands the defendants' remaining claims to implicate both tests.

The defendants, of course, have the burden of proof on their motion. "The burden is on the [defendant] to establish that, in the context of the proceedings as a whole, the . . . arguments were so prejudicial that they deprived him of a fair trial." Nevers v. Van Zuilen, 47 Conn. App. 46, 51-52, 700 A.2d 726 (1997).

A preliminary issue which applies to both of the defendants' remaining claims is the effect of their failure to move for a mistrial in response to the allegedly improper arguments of plaintiff's counsel. First, the plaintiff has cited no authority, and the court has found none, for the proposition that the defendants are barred from making their claims in the absence of such a motion. The defendants promptly voiced their objections at the close of the plaintiff's argument, requested curative instructions and excepted to the court's failure to give them. Therefore, the error, if any, was properly preserved and may be raised by this motion to set aside the verdict.

At the same time, it is at least relevant to the court's decision whether such an extreme remedy is required that the defendants did not request its equivalent when they could have during trial. They apparently believed then that curative instructions would have been adequate to remedy any injury although now, in their supplemental memorandum of law dated September 14, 1998, they argue that "plaintiff's argument was so inflammatory that no curative instruction could remove the prejudicial impact." "The Connecticut Supreme Court has looked with disfavor on attempts to claim unfair prejudice after an unfavorable verdict by moving to set aside the verdict where there was no prior motion for mistrial. In Archambeault v. Jamelle, 100 Conn. 690, 124 A. 820 (1924), the defendants claimed that plaintiff's counsel improperly displayed excluded evidence and made improper remarks during closing argument. After a verdict for the plaintiff the defendants moved to set aside the verdict and for a new trial on the grounds that the foregoing misconduct deprived them of a fair trial. The trial court denied the motion. The Supreme Court upheld the decision of the trial court and stated: 'We think that the action of the trial judge was sufficient to avert any harm to defendants in the consideration of the jury on account of these incidents, especially in view of the fact that it does not appear from the finding that defendants' counsel considered the matters of sufficient importance to then move for a dismissal of the jury from further consideration of the case. That was the proper time and method, rather than to first take the chance of a favorable verdict by the jury.' [Id.,] 695. In the following cases the Court also cited the failure to previously move for a mistrial as one basis on which to deny a motion to set aside the verdict on the grounds of prejudicial conduct: Furber v. Trowbridge, 117 Conn. 478, 169 A. 43 (1933); Altiere v. Peattie Motors, Inc., 121 Conn. 316, 321, 185 A. 75 (1936); Ferino v. Palmer, 133 Conn. 463, 465-66, 52 A.2d 433 (1947); Jacek v. Bacote, 135 Conn. 702, 706, 68 A.2d 144 (1949)." Miller v. Sherwin-Williams Co., Superior Court, judicial district of Middlesex, Docket No. CV930067675S (April 10, 1995, Aurigemma, J.).

While the court does not consider that the defendants have waived their right to raise these issues, it will consider their failure to move for a mistrial as one factor in determining the necessity of a new trial to remedy the injury of which they complain.

II THE "GOLDEN RULE" ARGUMENT

At the close of his first argument to the jurors, the plaintiff's counsel, in suggesting a method for measuring noneconomic damages, asked the jurors to imagine themselves holding a job which consisted of "being David Nastri," with all of the damages counsel claimed the evidence showed, and to "think about [what] someone would have to pay you to assume his lifestyle on a yearly basis, then multiply that times 37.9 years, and that's how you'll come up with your appraisal of what the noneconomic component of this case is worth." The defendants objected at the conclusion of the argument, characterized it as a "golden rule" argument and requested that the court tell the jurors not to place themselves in the shoes of the plaintiff in deciding this case. The court declined to do so and instructed the jurors that "sympathy for . . . any of the parties in this lawsuit has absolutely no place whatever in this case. [This] consideration may not influence your deliberations in any way." The court further instructed the jurors that they were free to disregard the suggestion of the plaintiff's counsel as to this approach to measuring damages, characterizing it as "not evidence itself but only arguments." The court concluded by telling the jurors they were "free to disregard any suggested approach in whole or in part as you see fit."

A golden rule argument is one that "urges jurors to put themselves in a particular party's place . . . or into a particular party's shoes." (Citation omitted.) Walton v. Manchester, 140 N.H. 403, 406, 666 A.2d 978 (1995). Or, as a Connecticut commentary puts it, a request that 'jurors award such damages to the plaintiff as they would like to be awarded if similarly situated." 6 Connecticut Practice, J. Fitzgerald & R. Yules, Connecticut Trial Practice (1987) 9.18, p. 273 n.6. Such arguments are improper "because they encourage the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence." (Internal quotation marks omitted.) Walton v. Manchester, supra, 406. They have also been equated to a request for sympathy. Delaware Olds, Inc. v. Dixon, 367 A.2d 178, 179 (Del. 1976).

The only Connecticut case in which a golden rule argument is discussed is Begley v. Kohl & Madden Printing Ink Co., 157 Conn. 445, 452, 254 A.2d 907 (1969). There, our Supreme Court upheld the trial court's refusal to instruct the jury to disregard a golden rule argument made by defense counsel because it was "an offhand remark . . . not stressed" and "there was nothing contained therein to arouse the sympathy of the jurors or inflame their passions."² It is clear from Begley that not every golden rule argument is cause for a curative instruction or for a new trial in the absence of one.

In ruling on the defendants' objection to this argument, the court analyzed it as an attempt to "concretize damages." While the court adheres to that construction of the plaintiff's argument, having read the cases cited by the parties in their posttrial briefs, the court cannot blink the fact that it comes close to the kind of appeal to sympathy or self-interest found in the typical golden rule argument. It is similar to the argument condemned in Russell v. Chicago, Rock Island & Pacific R. Co., 249 Iowa 664, 672, 86 N.W.2d 843 (1957), in which counsel asked how much money the jurors would take to go through life as the plaintiff. Even in a case where the trial court believed, as the court does here, that the word "you," which is sometimes the tipoff to a golden rule argument, was used in an indefinite or hypothetical or generic sense and "was not personally addressed to the members of the jury," the appellate court concluded that "the argument was quite close to the improper borderline, could have been prejudicial, and should not have been permitted." Phillips v. Fulghum, 203 Va. 543, 549, 125 S.E.2d 835 (1962). Significantly, however, the Supreme Court of Virginia agreed with the trial court's conclusion that, "even if it be assumed that the argument was improper, it was not prejudicial and did not influence the jury to bring in a verdict which was excessive." Id.

That is the case here as well. First, it is important to recall that the argument was addressed only to the jury's calculation of noneconomic damages.³...