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Marcoux v. Farm Service and Supplies

November 14, 2003


The opinion of the court was delivered by: William C. Conner, Senior District Judge


Plaintiff Patricia Marcoux brought this diversity action against defendants Farm Service and Supplies, Inc. ("Farm Service"), Hribar Truck & Equipment Corp. ("Hribar") and Bradley J. Jones ("Jones") seeking compensatory and punitive damages for personal injuries suffered in a 2002 automobile accident. Plaintiff alleged that Jones, an employee of Farm Service, negligently operated a tractor-trailer truck, the trailer of which was owned by Hribar and leased to Farm Service, thereby causing a motor vehicle accident in which she was injured. This Court granted defendants' motion for partial summary judgment dismissing plaintiff's punitive damages claim on September 12, 2003. See generally Marcoux v. Farm Service & Supplies, Inc., 283 F.Supp.2d 901 (S.D.N.Y.2003) (Conner, J.). Thereafter, defendants conceded their liability and the matter proceeded to a jury trial on damages. On September 18, 2003, a jury rendered a verdict in the amount of $4,190,000 and this Court entered judgment in that amount on September 22, 2003.

On October 2, 2003, defendants moved pursuant to FED. R. CIV. P. 59 for an order setting aside the jury's verdict and the judgment entered on it and granting a new trial because: (1) violations of the "Golden Rule" and other improper commentary by plaintiff's counsel during his summation influenced the jury with passion and prejudice, resulting in a excessive verdict that is against the weight of the evidence; and (2) the verdict is not supported by the evidence and is grossly excessive as a matter of law and should be set aside unless plaintiff accepts remittitur.*fn1 (Defs. Mem. Supp. Mot. New Trial at 1-2.) Defendants also move for a stay of execution of the judgment with a waiver of the supersedeas bond required by FED. R. CIV. P. 62(d). ( Id. at 2.) For the reasons set forth herein, defendants' motion pursuant to Rule 59 for a new trial or remittitur is denied, with the exception of their claims relating to the awards for lost past earnings and future medical expenses. The Court will order a new damages trial limited to the issue of future medical expenses and lost past earnings unless plaintiff agrees in writing by December 5, 2003 to a remittitur reducing the future medical expenses award to $75,000 and the lost past earnings award to $119,250. Defendants' motion pursuant to Rule 62(d) for a stay of judgment pending appeal without supersedeas bond is denied.


The following is a brief recitation of the facts giving rise to the present motion; substantially more detailed discussions of the relevant facts are set forth in the appropriate sections of this Opinion and Order. As stated previously, defendants conceded their liability for compensatory damages for plaintiff's personal injuries arising out of a June 6, 2002 automobile accident that was the result of the negligent operation of a tractor-trailer truck by Jones, an employee of Farm Service.*fn2 The trailer of the truck was owned by Hribar and leased to Farm Service. During the four day damages trial, plaintiff, who was a fifty-year old radiology staff nurse at the Westchester Medical Center, introduced evidence of her injuries, which included fractures of the femur, radius/wrist, and foot, and the associated economic and non-economic damages. This evidence included, in addition to documentary exhibits, the testimony of Richard Finn, the investigating police officer, Jeffrey Siegel, the captain of the Yorktown Ambulance Corps., Jo Ann Crawford, the human resources director of the Westchester Medical Center, David Wellin, the orthopedic surgeon who treated plaintiff, Richard Schuster, a vocational psychologist and Brian Sullivan, an economist. (Pl. Mem. Opp. Mot. New Trial at 34.) Defendants introduced into evidence the testimony of James Pascuitti, a vocational and rehabilitation expert. ( Id. at 35.) Closing arguments were held before this Court on September 18, 2003; the summation by plaintiff's counsel included remarks that form the basis for one aspect of defendants' motion. Thereafter, on September 18, 2003, the jury returned a total verdict of $4,190,000, broken down as follows: $800,000 for pain and suffering and $125,000 for lost earnings from June 6, 2002 through the date of verdict on September 18, 2003 for a subtotal of $925,000. The jury then awarded plaintiff $1,000,000 for future pain and suffering from the date of verdict, $2,100,000 for future loss of earnings, and $165,000 for future hospital, medical and other health care expenses for a subtotal of $3,265,000. The jury further provided that the pain and suffering and medical expense awards are intended to provide compensation for thirty-one years, which is plaintiff's life expectancy from the date of the verdict. The loss of earnings award is intended to provide compensation for fourteen years of lost earnings.


I. General Standard of Review

Whether to grant a motion for a new trial brought pursuant to Rule 59 is a matter that lies within this Court's sound discretion. See, e.g., Amato v. City of Saratoga Springs, 170 F.3d 311, 314 (2d Cir.1999). Indeed, this Court will exercise its discretion to grant a new trial only if it "is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.... Unlike a motion for judgment as a matter of law, a motion for a new trial may be granted even if there is substantial evidence to support the jury's verdict." Caruolo v. John Crane, Inc., 226 F.3d 46, 54 (2d Cir.2000) (citations and internal quotation marks omitted) (quoting Atkins v. City of New York, 143 F.3d 100, 102 (2d Cir.1998) and United States v. Landau, 155 F.3d 93, 104 (2d Cir.1998)). In determining whether "the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice" under Rule 59, "a district court need not view the evidence in the light most favorable to the non-movant and the court may independently weigh the evidence." Sharkey v. Lasmo, 55 F.Supp.2d 279, 283 (S.D.N.Y.1999) (Conner, J.) (citing Song v. Ives Labs., Inc., 957 F.2d 1041, 1047 (2d Cir.1992)), aff'd, 214 F.3d 371 (2d Cir.2000). Nevertheless, "[i]n applying this standard, '[t]he trial judge, exercising a mature judicial discretion, should view the verdict in the overall setting of the trial; consider the character of the evidence and the complexity or simplicity of the legal principles which the jury was bound to apply to the facts; and abstain from interfering with the verdict unless it is quite clear that the jury has reached a seriously erroneous result. The judge's duty is essentially to see that there is no miscarriage of justice.' " Sharkey, 55 F.Supp.2d at 283 (quoting Bevevino v. Saydjari, 574 F.2d 676, 684 (2d Cir.1978)).

II. Claims of Misconduct by Plaintiff's Attorney During His Summation

We begin with defendants' claim that, as a result of various improprieties committed by plaintiff's attorney during his summation, the jury was improperly influenced by passion and prejudice that caused it to render a verdict that was both biased and against the weight of the evidence. Specifically, defendants claim that during his summation, plaintiff's attorney improperly: (1) violated the "Golden Rule" that prohibits attorneys from asking jurors to put themselves "in the shoes" of the plaintiffs with respect to damages; (2) placed his own beliefs and credibility into issue; (3) discussed facts not in evidence; and (4) made other inappropriate comments calculated to inflame the jury's emotions. (Defs. Mem. Supp. Mot. New Trial at 2, 16.) We will treat defendants' contentions about the summation of plaintiff's attorney similarly to prosecutorial misconduct claims; that is, we will first address each claimed impropriety *fn3 to determine whether it violates the applicable legal standard. After determining the propriety of each challenged statement, we will then determine whether the improprieties, taken together in context, deprived defendants of their right to a fair trial by an impartial jury. For the reasons set forth herein, we conclude that defendants were not deprived of a fair trial by the remarks of plaintiff's attorney during summation.

A. Scope of This Court's Discretion

"In ruling on a motion for a new trial based on attorney misconduct, the trial court must determine whether counsel's conduct created undue prejudice or passion which played upon the sympathy of the jury.... The trial judge has considerable discretion in determining whether a new trial is required." Strobl v. New York Mercantile Exch., 582 F.Supp. 770, 780 (S.D.N.Y.1984) (citations omitted), aff'd, 768 F.2d 22 (2d Cir.), cert. denied sub. nom. Simplot v. Strobl, 474 U.S. 1006, 106 S.Ct. 527, 88 L.Ed.2d 459 (1985); accord Smith v. Nat'l R.R. Pass. Corp., 856 F.2d 467, 470 (2d Cir.1988); Ullman v. Starbucks Corp., 152 F.Supp.2d 322, 329 (S.D.N.Y.2001). We are mindful that "[g]reat discretion is to be given the judge who was present throughout the trial and is best able to determine the effect of the conduct of counsel on the jury." Johnson v. Celotex Corp., 899 F.2d 1281, 1289 (2d Cir.), cert. denied, 498 U.S. 920, 111 S.Ct. 297, 112 L.Ed.2d 250 (1990).

B. "Golden Rule" Claims

The well established "Golden Rule," also known as the "bag of gold" rule, prohibits counsel from "tell[ing] the jurors, either directly or by implication, that they should put themselves in plaintiff's place and render such a verdict as they would wish to receive were they in plaintiff's position." Boshnakov v. Bd. of Educ., 277 A.D.2d 996, 996, 716 N.Y.S.2d 520 (4th Dep't 2000), leave to appeal denied, 96 N.Y.2d 703, 746 N.E.2d 185, 723 N.Y.S.2d 130 (2001). Its application is limited to damages only. See, e.g., Johnson, 899 F.2d at 1289. "Golden Rule" arguments are prohibited 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." Forrestal v. Magendantz, 848 F.2d 303, 309 (1st Cir.1988) (internal quotation marks omitted). Guided by these general standards, we turn to defendants' claim that plaintiff's counsel violated the "Golden Rule" twelve times during his summation. (Defs. Mem. Supp. Mot. New Trial at 6.)

The first claimed impropriety occurred when plaintiff's counsel described the accident and stated: " Can you imagine the forces that were transmitted into the inside of the vehicle? You can see them here." ( Id. at 7, discussing Sept. 18, 2003 Trial Tr. at 33.) We note that defendants did not object to this statement at trial. Defendants next complain of the following section of argument:

And could you imagine how she felt as she was sitting there-or trapped in there would be a better way to put it-while they're cutting her out with the Jaws of Life? Can you just imagine what must have been going through her mind? Can you imagine how she felt when she was being immobilized? Can you imagine how she felt when she felt the pouring rain coming down on her as she was having her clothes cut off while she was on a back board?

When she got to Westchester Medical Center, she told you that she was so traumatized that she couldn't even remember the emergency-room encounter. You heard all about those surgeries. Can you imagine being put through all these surgeries in a hospital stay? Can you imagine a situation where the first thing they have to do on an emergent basis is to open up your knee joint and pound a rod up through your knee? Can you imagine what that was like? I mean, is there any doubt in your mind that that would produce serious pain, not only when the fracture happened, but serious post-operative pain as well, how could anybody argue with any of this?

( Id. at 7, discussing Sept. 18, 2003 Trial Tr. at 36-37.) At this point, defendants' counsel objected, but the Court did not address the objection and plaintiff's counsel continued with his argument:

Can you imagine if you broke your wrist like this and had to have it put back together with plates and screws, what that must have been like? Don't you think that may have produced some pain, too? And what about the foot? To have to open up the whole top of the foot and put the screws together here?

And then, finally, you know, and then, because of the risk of blood clots going to her lungs, she has to have a Greenfield filter placed by sticking a catheter up through the artery in her thigh and put up into the main artery that supplies the blood through the trunk of the body and put this filter in there. Can you imagine what all of that-

( Id. at 7-8, discussing Sept. 18, 2003 Trial Tr. at 37.) At this point, defendants' counsel again objected, claiming that " 'Can you imagine' is not proper comment." The Court overruled this objection. ( Id. at 8, discussing Sept. 18, 2003 Trial Tr. at 37.) Plaintiff's counsel continued: "You know, can you imagine what she went through. Just try and think about that for a while. Now-and then think about the period of recuperation just in Westchester Medical Center...." ( Id. at 8, discussing Sept. 18, 2003 Trial Tr. at 37.)

Thereafter, plaintiff's counsel argued:

Now, Dr. Wellin testified that, during the progression of her treatment, she underwent therapy, but developed so much pain in her knee that she couldn't continue any further. Now, do you think that if you had your knee-number one, if the-

( Id. at 8, discussing Sept. 18, 2003 Trial Tr. at 41.) At this point, defendants' counsel again objected and the Court instructed plaintiff's counsel to refrain from "refer[ring] the jurors to their knees." ( Id. at 8, discussing Sept. 18, 2003 Trial Tr. at 41.) Plaintiff's counsel then continued:

Does it make sense to you that if Patty had an accident where the forces were transmitted up through her leg which were sufficient to fracture the mid shaft of her femur like this and fracture the femoral neck up here, that that in and of itself might be sufficient to damage the soft tissues in the area of the kneecap? Just that. Do you think that might make your knee hurt? Do you think that opening up your knee like this and cutting through all these tissues, pushing the kneecap aside, pulling it back-

( Id. at 9, discussing Sept. 18, 2003 Trial Tr. at 41-42.) Defendants objected, but the Court overruled their objection. Plaintiff's counsel continued:

-driving that femoral intermedullary rod up through the knee might leave you with some problems in your knee in the future? Does that come as a surprise to anyone here? Do you think that, after a while, you might develop some pain up in your hip if you had a fracture like this?

( Id. at 9, discussing Sept. 18, 2003 Trial Tr. at 42.) At this point, the Court interjected and stated that: "No, I think their verdict should be based on not what they think might happen, but what the evidence shows will probably happen." ( Id.) Plaintiff's counsel continued:

Now, do you think you might have-or does it seem reasonable that the evidence might support the conclusion that if you had a fracture like the one [plaintiff] had in her wrist and you had metal plates and screws that were installed as is shown on this illustration and demonstrated even more dramatically in the X-rays-

( Id. at 9, discussing Sept. 18, 2003 Trial Tr. at 42-43.) Defendants' counsel again objected at this point, but the Court did not address their objection and plaintiff's counsel continued with his argument.

We conclude that the foregoing remarks by plaintiff's counsel did not violate the "Golden Rule" prohibition because they invited the jury to focus on the gravity of plaintiff's injuries, but did not tell the jurors directly or implicitly that they should award plaintiff the sum of damages that they themselves would desire if they found themselves "in the plaintiff's shoes." The Delaware Supreme Court's decision in McNally v. Eckman, 466 A.2d 363, 371-73 (Del.1983) is illustrative of this distinction. McNally was an automobile accident case wherein the plaintiff suffered injuries that left him a paraplegic without sensation below the waist, a complete loss of bowel and bladder control and constant pain for the rest of his life. Id. at 366. In his damages argument during summations, the plaintiff's attorney asked the jury inter alia,*fn4 "[ s ] uppose you had just one of the elements of these damages. How would you come to grips with it?" and "[t]he pain went on and on. It's in the record, in the hospital, and that was excruciating. And if that alone were the basis for an award, the award would be immense, I suggest. Can you imagine ten weeks with a roll ten inches big holding your back up like that? Try it for ten minutes and it's excruciating." Id. at 371-72 (emphasis added, internal quotation marks omitted). The Delaware court concluded that these comments did not violate the "Golden Rule" because "plaintiff's counsel intended to ask the jury to focus on both the nature of the injuries here involved and on the claim for general damages as well as lost earnings." Id. at 372.

The comments by plaintiff's attorney in the present case are closely similar to the comments that were held in McNally not to violate the "Golden Rule." *fn5 We perceive those comments as designed to focus the jury's attention on the grave nature and consequences of plaintiff's injuries, and therefore not within the prohibited category of argument. Thus, they are distinct from arguments such as those held improper in Klotz v. Sears, Roebuck & Co., 267 F.2d 53, 54-55 (7th Cir.1959), a case that is relied on heavily by defendants, and correctly distinguished by plaintiff. (Defs. Mem. Supp. Mot. New Trial at 3-4; Pl. Mem. Opp. Mot. New Trial at 33-34.) In Klotz, a products liability case wherein the plaintiff had lost his left eye, the Seventh Circuit held improper under the "Golden Rule" remarks by the plaintiff's counsel, which included asking the jury to " 'give us the kind of deal that you would want to get' " and " '[w]hat is the eye worth and what could you get anybody to give it to you for?' " Id. at 54-55. The court concluded that these comments were a "deliberate appeal to the jury to substitute sympathy for judgment" and that reversal was appropriate in light of the close question of liability present and the substantial damages, despite the defendants' failure to object to the remarks at trial. Id. at 55. The remarks of plaintiff's counsel in the present case are of a character different from the exhortations in Klotz. See also Callaghan v. A Lague Express, 298 F.2d 349, 350-51 (2d Cir.1962) (concluding that the trial court improperly allowed counsel to argue that the jury "should treat [plaintiff] as you would like to be treated" and compounded that error by charging the jury accordingly (internal quotation marks omitted)).*fn6

C. Claims that Counsel Placed His Own Credibility and Personal Beliefs into Issue

Defendants also claim that plaintiff's counsel improperly placed his own credibility and personal beliefs into issue during several portions of his summation. They first complain of this statement by plaintiff's counsel: "You know, when we talk about pain and suffering, I think everybody understands, when you sustain fractures like this, just how painful and how much suffering is involved. And I don't really have to elaborate on that very much to make that point." (Defs. Mem. Supp. Mot. New Trial at 16, discussing Sept. 18, 2003 Trial Tr. at 35.) In this regard, defendants next complain of the following statement: "And I suggest to you that her future pain and suffering, her loss of enjoyment of life through what ought to have been her golden years, but no longer are going to be golden-they're not even going to be silver; they're not even going to be brass- has to be fairly compensated." ( Id. at 16, discussing Sept. 18, 2003 Trial Tr. at 55.) Defendants also complain about plaintiff's counsel having stated that: " I think it would be sufficient to say that I established that, prior to the happening of the accident, [plaintiff] was a productive, self-sufficient person. Her whole life had been devoted to helping others." ( Id. at 19-20, discussing Sept. 18, 2003 Trial Tr. at 33.) Defendants did not object contemporaneously to any of these statements.

Defendants also claim that plaintiff's counsel argued his own belief that plaintiff's chances of obtaining an administrative nursing job were slim, when he stated that:

Now, we know what the essential functions of a general staff nurse are at Westchester Medical Center. We know not only because [plaintiff] has told you, but it has been confirmed by the documentary evidence. The essential function are one of the documents that you have here. We know what it takes to be a general staff nurse. We know what [plaintiff's] limitations are. All you have to do is put that together and see if she can do the job or not. You really think she could do that job? Do you ever think she's going to be able to do that job? I don't think so.

( Id. at 20, discussing Sept. 18, 2003 Trial Tr. at 44.) Defendants did not object contemporaneously to this comment, although they did object shortly thereafter when plaintiff's counsel had stated that "in the 'real world,' " nurses do not get such administrative jobs. (Sept. 18, 2003 Trial Tr. at 45.)

In a similar vein, while discussing the possibility of plaintiff becoming an administrator in the future, plaintiff's counsel had stated that: "Sure, those jobs are out there. What is the realistic possibility of getting one? Pretty slim, I suggest. But you have to think about that." (Defs. Mem. Supp. Mot. New Trial at 20, discussing Sept. 18, 2003 Trial Tr. at 49.) Defendants did not object contemporaneously to this comment.

It is well established that it is improper for attorneys to place their own credibility in issue or vouch for their clients or witnesses during summations. See, e.g., Trademark Research Corp. v. Maxwell Online, Inc., 995 F.2d 326, 340 (2d Cir.1993) (concluding that "recapitulation of [expert's] qualifications" was not improper vouching by counsel, but that counsel's statement that " 'I recommended' " that his client hire the expert was improper vouching, but cured by jury charge); McAlister v. Schwartz, 105 A.D.2d 731, 733-34, 481 N.Y.S.2d 167 (2d Dep't 1984) ("Additionally, defense counsel improperly injected his own beliefs into his summation."); Cusumano v. N.Y. City Transit Auth., 75 A.D.2d 801, 801-02, 427 N.Y.S.2d 644 (2d Dep't 1980) (concluding that the defendant's counsel's remarks were "egregiously prejudicial" and "[a]n independent basis for reversal" when they directly vouched for testimony of subway motorman and referred to " 'plenty more that's not in this case that I can't say' "); Taormina v. Goodman, 63 A.D.2d 1018, 1018, 406 N.Y.S.2d 350 (2d Dep't 1978) (noting in dicta that comments by the plaintiff's attorney discussing defendant's expert's reputation in legal community and accusing the defendant and counsel of perjury would have been sufficiently prejudicial to require a new trial). Nevertheless, not every inartful, "improper or poorly supported remark made in summation irreparably taints the proceedings; only if counsel's conduct created undue prejudice or passion which played upon the sympathy of the jury, should a new trial be granted." Matthews v. CTI Container Transport Int'l, Inc., 871 F.2d 270, 278 (2d Cir.1989). Moreover, a "district court is entitled to give attorneys wide latitude in formulating their arguments." Reilly, 181 F.3d at 271.

We conclude that although plaintiff's counsel's use of language such as "I suggest" and "I don't believe" may have been inartful, his arguments did not rise to the level of vouching and injection of attorney credibility and personal belief contemplated as a basis for reversal in Cusumano, which is relied on heavily by defendants. (Defs. Mem. Supp. Mot. New Trial at 19-20.) In Cusumano, the defendant's attorney had stated specifically that " 'believe me there's plenty more in this case that I can't say' " and he vouched by the testimony of a subway motorman by stating that " 'I would swear on my God-damn life in this case as to what happened and whether or not the motorman is at fault or the Transit Authority is at fault.' " 75 A.D.2d at 802, 427 N.Y.S.2d 644. In contrast, the personal belief statement by plaintiff's attorney in the present case tended to support obvious inferences from the evidence such as that plaintiff would suffer chronic pain from her injuries and that she would be unable to perform the duties of a general staff nurse. Accordingly, we conclude that these statements are distinguishable from the far more egregious remarks of the defendant's attorney in Cusumano, and therefore, were not such an improper injection of an attorney's beliefs or credibility into the proceedings as to warrant upsetting the verdict of the jury.*fn7

D. Comments on Facts Not in Evidence

Defendants also claim that plaintiff's counsel improperly made arguments based on facts not in evidence. One particularly lengthy exchange occurred when plaintiff's counsel, in ...

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