Verdicts

At trial, the plaintiff objected to statements made by defense counsel in closing arguments. Specifically, counsel said:

I want to discuss briefly just a few instructions. One of those is the burden of proof. The plaintiff has the burden of proof in this case. … I believe the evidence supports a verdict for Dr. Solman. And we don't have an obligation under the law to prove anything. I don't believe plaintiff has met their burden. I think — but if you are just sitting there and you are not sure, then the law requires that you find in favor of the defendants.

Plaintiff's counsel timely objected to this statement of the law — that the jury must find for the defendants if they were not sure — but the trial court, rather than sustaining the objection, clarified on the record that the instructions concerning burden of proof would be given to the jury by the court. The jury ultimately returned a defense verdict.

The plaintiff moved for a new trial on several grounds. Among them was her assertion that by failing to sustain her objection to defense counsel's misstatement during closing argument, the court had allowed an erroneous explanation of her burden of proof to stand. This misstatement was prejudicial to the plaintiff, she argued, and under Missouri law a new trial is required.

U.S. District Judge Charles A. Shaw agreed with the defense that it is federal, not state, law that governs the permissible scope of closing arguments in federal diversity cases. (Kostelec v. State Farm Fire & Cas. Co., 64 F.3d 1220, 1228 (8th Cir. 1995) (citing cases); Vanskike v. Union Pacific R. Co., 725 F.2d 1146, 1149 (8th Cir. 1984).) Federal law, as explained in Vanskike, says that error results from statements made in a closing argument only if they are plainly unwarranted and clearly injurious. And the entire trial record must be considered when determining whether a plaintiff has made the requisite showing of prejudice resulting from misstatements in closing arguments. Gilster v. Primebank, 747 F.3d 1007, 1011 (8th Cir. 2014). To conduct the inquiry, Judge Charles A. Shaw asked the trial court reporter not only for the official trial transcript, but also for an unedited rough-draft transcript and for records of voir dire proceedings.

After reviewing the records, the court observed that during voir dire, extensive discussion of the correct burden of proof took place — between counsel and the potential jury members, and in statements from the bench. Once the jury was empaneled, the court read initial instructions to the jury, including a description of the burden of proof, which stated in part that the party with the burden must prove that an asserted fact is more likely true than not. Then, at the conclusion of evidence and before closing arguments, the court read the final instructions to the jury, including instructions about the burden of proof and about how attorneys' closing arguments are not “evidence.”

Further, the court noted that it was not only defense counsel who misstated the burden of proof in closing — plaintiff's counsel also did. And when plaintiff's counsel made that misstatement, defense counsel immediately pointed out the error; the judge told the jury, “Be aware of that,” then instructed counsel to go on.

With all of these things in mind, the court turned to the U.S. Court of Appeals for the Eighth Circuit's teachings in Ventura v. Kyle, 825 F.3d 876, 885 (8th Cir. 2016), in which it stated that, when deciding to order a new trial because of improper remarks from counsel, courts must ask three questions: 1) whether the remarks were minor aberrations made in passing; 2) whether the district court took curative action concerning those remarks; and 3) whether the size of the damage award suggests that the disputed remarks prejudiced the jury.

On the first point, Judge Shaw found that the equities came out on the side of calling the defense attorney's misstatement a “minor aberration made in passing.” In his opinion, defense counsel's erroneous statement was, after all, just one small statement among a multitude of others that correctly described the plaintiff's burden of proof, made throughout the voir dire and trial proceedings. Pointedly, according to the court, it was “not unlike plaintiff's counsel's misstatement of her burden of proof in closing argument.”

On the second point, the court allowed that a specific ruling on the plaintiff's objection was not made, but deemed this unimportant in light of the judge's immediate curative action of directing defense counsel to “follow the instructions,” which prompted him to state to jurors the correct burden of proof. (The court also noted that the plaintiff did not request a ruling on the objection at the time of these proceeding, and did not return to the issue of the burden of proof in her rebuttal to the defense's closing argument.)

The court also found no prejudice to the plaintiff in the outcome, because although she lost, the jurors appeared to have considered the evidence, taking 2 ½ hours to deliberate and sending three notes asking to see specific evidence. Therefore, the motion for a new trial was denied.

An Error in Closing Argument Does Not Warrant New Trial

A court recently declined to order a new trial in a medical malrpactice case in which defense counsel made an erroneous statement concerning the burden of proof, after finding that the plaintiff failed to show prejudice. Grussing v. Orthopedic & Sports Med. Inc., 2017 U.S. Dist. LEXIS 65717 (E.D. Mo. 5/1/17).

The plaintiff in this federal diversity action brought suit alleging that Dr. Corey Solman, Jr. and his practice, Orthopedic and Sports Medicine Inc., committed medical malpractice by failing to diagnose and properly treat her knee infection. As a result, the plaintiff claimed, she was forced to undergo further surgery, including total knee replacement.

At trial, the plaintiff objected to statements made by defense counsel in closing arguments. Specifically, counsel said:

I want to discuss briefly just a few instructions. One of those is the burden of proof. The plaintiff has the burden of proof in this case. … I believe the evidence supports a verdict for Dr. Solman. And we don't have an obligation under the law to prove anything. I don't believe plaintiff has met their burden. I think — but if you are just sitting there and you are not sure, then the law requires that you find in favor of the defendants.

Plaintiff's counsel timely objected to this statement of the law — that the jury must find for the defendants if they were not sure — but the trial court, rather than sustaining the objection, clarified on the record that the instructions concerning burden of proof would be given to the jury by the court. The jury ultimately returned a defense verdict.

The plaintiff moved for a new trial on several grounds. Among them was her assertion that by failing to sustain her objection to defense counsel's misstatement during closing argument, the court had allowed an erroneous explanation of her burden of proof to stand. This misstatement was prejudicial to the plaintiff, she argued, and under Missouri law a new trial is required.

U.S. District Judge Charles A. Shaw agreed with the defense that it is federal, not state, law that governs the permissible scope of closing arguments in federal diversity cases. ( Kostelec v. State Farm Fire & Cas. Co. , 64 F.3d 1220, 1228 (8th Cir. 1995) (citing cases); Vanskike v. Union Pacific R. Co. , 725 F.2d 1146, 1149 (8th Cir. 1984).) Federal law, as explained in Vanskike, says that error results from statements made in a closing argument only if they are plainly unwarranted and clearly injurious. And the entire trial record must be considered when determining whether a plaintiff has made the requisite showing of prejudice resulting from misstatements in closing arguments. Gilster v. Primebank , 747 F.3d 1007, 1011 (8th Cir. 2014). To conduct the inquiry, Judge Charles A. Shaw asked the trial court reporter not only for the official trial transcript, but also for an unedited rough-draft transcript and for records of voir dire proceedings.

After reviewing the records, the court observed that during voir dire, extensive discussion of the correct burden of proof took place — between counsel and the potential jury members, and in statements from the bench. Once the jury was empaneled, the court read initial instructions to the jury, including a description of the burden of proof, which stated in part that the party with the burden must prove that an asserted fact is more likely true than not. Then, at the conclusion of evidence and before closing arguments, the court read the final instructions to the jury, including instructions about the burden of proof and about how attorneys' closing arguments are not “evidence.”

Further, the court noted that it was not only defense counsel who misstated the burden of proof in closing — plaintiff's counsel also did. And when plaintiff's counsel made that misstatement, defense counsel immediately pointed out the error; the judge told the jury, “Be aware of that,” then instructed counsel to go on.

With all of these things in mind, the court turned to the U.S. Court of Appeals for the Eighth Circuit's teachings in Ventura v. Kyle , 825 F.3d 876, 885 (8th Cir. 2016), in which it stated that, when deciding to order a new trial because of improper remarks from counsel, courts must ask three questions: 1) whether the remarks were minor aberrations made in passing; 2) whether the district court took curative action concerning those remarks; and 3) whether the size of the damage award suggests that the disputed remarks prejudiced the jury.

On the first point, Judge Shaw found that the equities came out on the side of calling the defense attorney's misstatement a “minor aberration made in passing.” In his opinion, defense counsel's erroneous statement was, after all, just one small statement among a multitude of others that correctly described the plaintiff's burden of proof, made throughout the voir dire and trial proceedings. Pointedly, according to the court, it was “not unlike plaintiff's counsel's misstatement of her burden of proof in closing argument.”

On the second point, the court allowed that a specific ruling on the plaintiff's objection was not made, but deemed this unimportant in light of the judge's immediate curative action of directing defense counsel to “follow the instructions,” which prompted him to state to jurors the correct burden of proof. (The court also noted that the plaintiff did not request a ruling on the objection at the time of these proceeding, and did not return to the issue of the burden of proof in her rebuttal to the defense's closing argument.)

The court also found no prejudice to the plaintiff in the outcome, because although she lost, the jurors appeared to have considered the evidence, taking 2 ½ hours to deliberate and sending three notes asking to see specific evidence. Therefore, the motion for a new trial was denied.