Opinion
SUCV2010-1022
05-19-2016
Kira Wahlstrom v. LAZ Parking Limited, LLC et al. [1] No. 134125
Paul D. Wilson, Justice
MEMORANDUM OF DECISION AND ORDER ON CERTAIN DEFENDANTS' MOTION FOR A NEW TRIAL
Paul D. Wilson, Justice
Plaintiff Kira Wahlstrom was raped in a hotel parking garage. She sued many parties for damages. When the case reached trial, three defendants remained. These Defendants were the owner of the parking garage (and hotel), JPA IV Management Company, Inc. as Trustee of the John Philopoulos Associates Trust (" JPA IV"); the related entity that managed the hotel and garage for that owner, JPA I Management Company, Inc. (" JPA I"); and a parking company that was party to a " Management Agreement" with JPA I concerning the garage, LAZ Parking Limited, LLC (" LAZ").
I presided over a lengthy trial of Plaintiff's negligence claims in July and August 2015. The jury returned a verdict in favor of Plaintiff and against two of the three Defendants, namely garage owner JPA IV and its management company JPA I, in the amount of $4 million. The jury also found for LAZ on Plaintiff's claim against it.
After considerable post-trial procedural motion practice between Plaintiff and the losing Defendants, JPA IV and JPA I (collectively the " JPA Defendants"), concerning, among other things, the form of the judgment, the effective date of the judgment, and a request to impound certain attachments to expected substantive post-trial motions, the JPA Defendants filed a motion for a new trial, as well as a motion for remittitur. I reviewed the extensive filings of all parties, and heard argument. After oral argument, Plaintiff filed a motion to strike certain arguments made by the JPA Defendants at the hearing, which the JPA Defendants later opposed. Plaintiff also filed a post-hearing Supplemental Memorandum of Law in opposition to the new trial motion.
In addition, in another substantive post-trial matter not involving Plaintiff, Defendants JPA I and LAZ filed dispositive cross motions as to the claims of JPA I that LAZ must indemnify JPA I under the Management Agreement between those Defendants. I decide that motion in a separate Memorandum and Order issued today.
In light of my decision allowing the new trial motion, I am denying that motion as moot in a separate order today.
Without expressly labeling her motion to strike as an emergency motion, Plaintiff filed it, more than three weeks after the hearing, without following the procedure set out in Superior Court Rule 9A. The JPA Defendants' opposition thus was filed separately, and later still. I decide the motion to strike in a separate order issued today.
Plaintiff did not seek advance leave to file this brief and its substantial supporting materials, but I have reviewed it nonetheless. This brief responds substantively to the same arguments that Plaintiff also moves to strike in her simultaneously-filed motion to strike described in the preceding footnote of this Memorandum and Decision. In this supplemental brief, Plaintiff requests another hearing upon the new trial motion, a request that I hereby deny.
For the reasons set forth below, I will allow the motion for new trial.
1. Overview of the Trial
This case arose from what all parties agreed was a tragedy: in the early morning hours of May 1, 2009, former Defendant Jose Ruben Rivera III raped Plaintiff Kira Wahlstrom in a parking garage attached to a hotel in downtown Boston that was then known as the Radisson Boston. Plaintiff Wahlstrom was returning to her car in the parking garage after working a shift as a lighting technician in a nearby nightclub. Defendant JPA IV owned the hotel and parking garage, and Defendant JPA I, an affiliate, managed the hotel and its garage.
About 12 days earlier, Rivera had raped another woman in the same garage. Rivera's first victim was a hotel employee. Plaintiff's primary argument at trial was that the first rape made a second rape particularly foreseeable, and Defendants were negligent in failing to take action to prevent it from happening, for example by warning parking garage customers, or by taking additional security measures.
Plaintiff was represented by four lawyers at trial. Two of them, David Hoey and his associate Krzysztof Sobczak, are Massachusetts lawyers. The other two, Don Keenan and his associate Andrew Gould, are Georgia lawyers admitted pro hac vice.
The case was aggressively litigated on both sides, particularly by Plaintiff's counsel. The Final Trial Conference held shortly before trial, at which I generally deal with motions in limine, jury selection procedures, arrangements concerning exhibits and witnesses, and the like, had to be stretched out over several lengthy sessions because of the variety and number of issues raised by the parties and the spirited and lengthy argument on almost every topic covered.
Jury selection delayed opening statements until Day 5 of the trial. Even before the jury selection process began, I dealt with a request by a private investigator retained by Plaintiff's counsel to review the list of potential jurors in advance, a request I allowed after holding a hearing on the subject.
Following the completion of jury selection, presentation of the evidence consumed nearly three weeks. During that time, the parties, particularly Plaintiff, often raised new legal or evidentiary issues, or re-argued old ones, outside the jury's presence. Counsel for all parties made more objections after opening statements, and during the presentation of evidence, than is usual in my experience, and I held more sidebars than is my usual practice. Motions for mistrials, almost all made by Plaintiff, were common, and all were denied.
The aggressive lawyering of Plaintiff's counsel is illustrated by Mr. Sobczak's mistrial motion during jury selection. The motion was based on the fact that, when the lawyers introduced themselves and their clients to the successive jury pools, defense counsel introduced one corporate officer as the client's representative one day, and introduced another corporate officer as the representative of its client to a different jury pool the next day. I denied the mistrial motion.
Both Plaintiff and the JPA Defendants are now represented by new counsel with regard to the various post-trial motions. The new lawyers are not learning this case afresh, however. Plaintiff's trial counsel are still signing post-trial filings, along with new counsel. The law firm now representing the JPA Defendants also is quite familiar with what happened at trial, because lawyers from that firm observed much, or perhaps all, of the trial.
2. The Legal Standard
" A new trial may be granted on the ground of prejudicial misconduct of counsel that is not cured by the judge's instructions to the jury." Gath v. M/A-Com, Inc., 440 Mass. 482, 492, 802 N.E.2d 521 (2003) (citations omitted). The JPA Defendants argue this is what happened here. Because of the misbehavior of Plaintiff's counsel at trial, they contend, the " jury failed to exercise an honest and reasonable judgment in accordance with the controlling principles of law." Hartman v. Boston Herald Traveler Corp., 323 Mass. 56, 60, 80 N.E.2d 16 (1948).
I must order a new trial, the JPA Defendants suggest, because it should " appear[] to the judicial conscience and judgment that otherwise a miscarriage of justice will result." Davis v. Boston Elev. Ry. Co., 235 Mass. 482, 496, 126 N.E. 841 (1920). Plaintiffs' counsel " 'play[ed] fast and loose' with our judicial system, " the JPA Defendants argue, in precisely the manner that recently caused the Appeals Court to order a new trial in Fyffe v. Massachusetts Bay Transportation Authority, 86 Mass.App.Ct. 457, 475, 17 N.E.3d 453 (2014), review denied, 470 Mass. 1105, 23 N.E.3d 107 (2014), quoting Polansky v. CNA Ins Co., 852 F.2d 626, 632 (1st Cir. 1998). As result, the jurors " allow[ed] themselves to be misled, were swept away by bias or prejudice, or for a combination of reasons, including misunderstanding of applicable law, failed to come to a reasonable conclusion." W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass.App.Ct. 744, 748, 616 N.E.2d 118 (1993).
The JPA Defendants' new trial motion relies most heavily on Fyffe, a case that provides the most recent appellate guidance on whether a new trial is required by attorney misconduct. The overarching inquiry, the Appeals Court there explained, is whether " the errors committed by plaintiff's counsel, considered in their totality, 'injuriously affected the substantial rights' of the defendants, and deprived them of a fair trial." 86 Mass.App.Ct. at 458, citing G.L.c. 231, § § 119, 132. Fyffe also laid out a four-factor framework for considering claims of prejudicial attorney misconduct. Those four factors are: " (1) whether the Defendant seasonably objected; (2) whether the error was limited to collateral issues or went to the heart of the case; (3) what specific or general instructions the judge gave to the jury which may have mitigated the mistake; and (4) whether the error, in the circumstances, possibly made a difference in the jury's conclusion." 86 Mass.App.Ct. at 472, citing Commonwealth v. Lewis, 465 Mass. 119, 130-31, 987 N.E.2d 1218 (2013).
Plaintiff responds to the reliance of the JPA Defendants on Fyffe by citing MacCuish v. Volkswagenwerk A.G., 22 Mass.App.Ct. 380, 398, 494 N.E.2d 390 (1986), aff'd, 400 Mass. 1003, 508 N.E.2d 842 (1987) (rescript), for the proposition that a new trial should not be ordered unless damages were excessive. While that argument might be relevant to the companion motion for remittitur, it misses the point of the new trial motion, which focuses not on the size of the verdict, but rather on the conduct of Plaintiff's counsel.
Plaintiff also attempts to distinguish today's case from Fyffe by arguing that Fyffe involved a two-day trial rife with attorney misconduct, while here the JPA Defendants complain about only a few isolated instances in a much lengthier trial. I disagree with that characterization, concluding, as will be seen below, that the unfortunate behavior of Plaintiff's counsel was not rare or isolated.
On the subject of such alleged misconduct, Plaintiff argues that Gath says that a new trial may be granted because of prejudicial misconduct of counsel only if that misconduct is not cured by the judge's instructions to the jury. 440 Mass. at 492. At the hearing on the new trial motion, I asked Plaintiff's new counsel whether Plaintiff believes " that it is okay for a plaintiff's counsel to continually go too far so long as the judge fixes it either immediately or at the end of the case in instructions. If it's fixed, there is no basis for a new trial." Plaintiff's counsel replied, " Exactly." Exhibit A to The JPA Defendants' Opposition to Plaintiff's Motion to Strike Untimely and Jurisdictionally Barred New Claims . . . at 55.
Having laid out the relevant law, and the parties' positions, I now consider some, but certainly not all, of the specific conduct about which the JPA Defendants complain.
3. The Behavior of Plaintiff's Counsel at Trial Cited by the JPA Defendants
In their new trial arguments, the JPA Defendants recite a litany of behavior by Plaintiff's counsel that, the JPA Defendants suggest, " played fast and loose with our judicial system" and was intended to sweep away the jury with bias or prejudice. Below I will discuss what I regard as the most serious matters raised in the new trial motion, providing specific factual detail as necessary. Because those matters, perhaps individually and certainly collectively, require me to order a new trial, I do not reach the many other instances of alleged misconduct on which the JPA Defendants rely.
Before addressing the specific issues, however, I will briefly comment on the complaint by the JPA Defendants that Plaintiff's counsel followed the " Reptile" playbook at trial. As defense counsel informed me in a pretrial Bench Memorandum, Plaintiff's counsel Mr. Keenan travels the country teaching seminars to plaintiffs' personal injury lawyers based on his book entitled " Reptile, The 2009 Manual of the Plaintiff's Revolution." Mr. Keenan teaches that plaintiffs' lawyers should appeal to the primitive, reptilian portions of jurors' brains, which will cause them to decide cases based on a subconscious desire to protect themselves and their loved ones from the danger posed by the allegedly negligent behavior of any defendant. The " Major Axiom" of the book, Mr. Keenan states at its outset, is this: " When the Reptile [apparently a reference to a primitive part of the juror's subconscious] sees a survival danger, even a small one, she protects her genes by impelling the juror to protect himself and the community." Id. at 8.
A complete copy of this book is Exhibit N to the new trial motion.
I mention this argument at the outset because the new trial motion of the JPA Defendants is sprinkled with references to particularly inflammatory portions of Mr. Keenan's book, coupled with alleged examples of how Plaintiff's counsel allegedly put Mr. Keenan's Reptile theory into practice at this trial. Both before and at trial, I paid little attention to Mr. Keenan's philosophy, instead focusing on particular actions of Plaintiff's counsel without considering whether they were products of that philosophy. I will take that approach in this Memorandum of Decision as well, and will mention the Reptile theory no more.
I now turn to some of the specific instances of alleged misconduct by Plaintiff's counsel.
a. Reference in the Opening to What the Rapist Was Thinking
At the Final Trial Conference, I ruled that Plaintiff would not be permitted to call former Defendant Rivera, the rapist, to the stand. Rivera was serving a lengthy sentence in a maximum security prison, and while security issues were my primary focus, I was also concerned that the appearance of a rapist in the courtroom during a negligence trial would cause jury confusion and prejudice that would substantially outweigh the probative value of the rapist's testimony.
Apparently anticipating this ruling, Plaintiff's counsel expressed their intention to offer into evidence a written statement obtained by an investigator who interviewed Rivera in prison, as well as transcripts of the investigator's conversations with Rivera. After reviewing Rivera's statement and the transcripts, I ruled at a later session of the Final Trial Conference that they were inadmissible for a host of reasons, primarily because Plaintiff had failed to depose Rivera, and thereby deprived Defendants of the opportunity to be present and to cross examine, during the lengthy pretrial period when Rivera had no worry about self-incrimination because all his criminal appeals had been resolved. The statement and transcripts were also hearsay. Plaintiff's argument that they were admissible as a statement of a party opponent, I ruled, exalted form over substance, because Rivera had been in default since the beginning of the case, and Plaintiff had already agreed to dismiss the case as against him. In addition, the proffered transcripts were poorly prepared; they noted the participation in the conversation of an unidentified third party; the transcriber was not identified and had not attested to their accuracy; and the transcripts and statement contained various other indications of unreliability.
In his opening, Plaintiff's counsel Mr. Hoey then complied with the letter, but not the spirit, of this ruling, telling the jury:
Before we came to trial, we had to consider whether Rivera could have been stopped, whether added security guards or increased lighting or cameras on each floor, or any combination thereof would have made a difference, so we decided to ask the guy who did it. So we met with him, as uncomfortable as that was, but that is all I am allowed to tell you about that right now.Exhibit A at 98-99.
This exhibit, and all others referenced in this Memorandum of Decision, are exhibits to the Affidavit of Robert M. Kaitz in support of the motion for a new trial, unless otherwise noted.
The statement did not violate the letter of my pretrial ruling because it stopped short of describing any statement by Rivera. What it did say, however, was pernicious in two ways. First, Mr. Hoey created the impression that the rapist had told Mr. Hoey and his colleagues that added security guards or increased lighting or cameras on each floor would have made a difference (and his " right now" hinted that the jury would hear this later in the trial). Second, Mr. Hoey suggested that someone, presumably the trial judge who had the authority to tell him what " I am allowed to tell you about, " was keeping relevant evidence from the jury. Plaintiff's new counsel conceded at the argument of the new trial motion that the statement was probably improper, and she apologized for it.
This was not the only conduct that Plaintiff's new counsel admitted might have been inappropriate.
Plaintiff now suggests that the JPA Defendants waived this issue by not objecting at the end of Plaintiff's opening. This argument is disingenuous; Defendant LAZ specifically did object on this point, so there was no need for the JPA Defendants to do so.
In response to that objection, I issued a curative instruction by telling the jury that Rivera would not testify because of safety concerns, and that the jury would not hear from anyone about anything Rivera told anyone on any subject, and that they were therefore to put out of their minds what Mr. Hoey had said. I did not address Mr. Hoey's implication that someone, presumably the trial judge, was preventing him from telling the jury what Rivera had said.
Under the Fyffe factors, this improper statement is serious. First, there was a defense objection. Second, the issue of whether Defendants should have taken additional security measures after the first rape was at the very heart of the case. Third, while I did instruct the jury that it should ignore what Mr. Hoey had said, I should have gone further, specifically telling the jury not to speculate about anything that the rapist had told him. Nor did I explain to the jury that the law of Massachusetts, embodied in its rules of evidence, gave me no choice but to bar any second-hand statements, by Mr. Hoey or any witness, about what Rivera had said. Fourth, given the sensational nature of the subject matter--a look into the mind of the rapist--and the inadequacy of my curative instruction, the improper statement may well have made difference in the jury's conclusion.
b. References to, and Mischaracterization of, Video concerning First Rape
During the Final Trial Conference, I ruled that Plaintiff could introduce evidence that another woman had been raped in the parking garage about 12 days before the rape at issue here, because that fact was relevant to Defendants' ability to foresee this second rape. I instructed the parties, however, that I would not permit the details of the first rape to go before the jury, because those details were of limited relevance and their probative value was substantially outweighed by the danger of jury confusion and unfair prejudice. I ruled, in short, that Plaintiffs would not be permitted to try both rapes, because the lawsuit only concerned the second rape.
At this time, I also said that it was unlikely that any video evidence from the night of the first rape would be admissible. I added, however, that Plaintiff was free to elicit testimony about the facts that the video might illustrate, for example that the rapist was in the garage for 40 minutes on the night of the first rape.
During the testimony of JPA security guard Lahout, Plaintiff's counsel Mr. Sobczak first asked whether the JPA Defendants " had two chances to prevent the first rape." Exhibit F at 191. I viewed this question as both irrelevant and as a violation of my order that the Plaintiff could not litigate the first rape, so I intervened, directing Mr. Sobczak not to ask the question in that form. Mr. Sobczak then asked the question again, in nearly identical words. I sustained an objection. Mr. Sobczak then asked whether the witness had an opportunity to prevent the first rape, and the security guard witness answered " No." Mr. Sobczak then offered the hotel security video from the night of the first rape " for purposes of impeachment." I denied his request. Id. at 192-93.
Mr. Sobczak then began to explain why he thought the video contradicted the witness's statement that the witness had no opportunity to prevent the first rape. Fearing that Mr. Sobczak was about to describe before the jury the contents of a video that I had just ruled inadmissible, I told him not to talk about the video before the jury, and to move on.
A few minutes later, Mr. Sobczak defied this instruction that he not discuss the contents of an inadmissible video before the jury. When the security guard testified that he did not see the rapist enter the facility on the night of the first rape, Mr. Sobczak again offered the video for purposes of impeachment, adding this time adding that the video " actually contradicts that statement." In the colloquy that followed between me and Mr. Sobczak and the objecting attorney for the JPA Defendants, I repeatedly instructed Mr. Sobczak not to describe the contents of an inadmissible video. Despite my instructions, and despite the fact that my last words were that I was again sustaining the defense objection to the video (which, misspeaking, I called the " report") going into evidence, Mr. Sobczak said, before the jury, " We'd move to introduce the video, the video surveillance from the 4:46 timeframe for purpose of impeachment that show Mr. Lahout visualizing the rape." Id. at 213.
I again ruled the video inadmissible and again instructed Mr. Sobczak not to say in front of the jury what the inadmissible video showed. I instructed Mr. Sobczak to ask another question, but he did not, instead asking me for the grounds for my ruling. A heated defense objection followed, using the word " outrageous." Concerned with the tone of the proceedings, I suggested that everyone, including me, needed to calm down. A few questions later, when security guard Lahout testified that he did not see the rapist " lurking around the vestibule of the elevators" on the night of the first rape, Mr. Sobczak again said that he wanted to introduce the video " for purposes of impeachment." Id. at 215. It could not have been a surprise when I ruled against him.
Mr. Sobczak was certainly within his rights to offer the video into evidence, in light of trial testimony that, according to him, could be impeached by the video. I sustained a defense objection to its admission, and that should have been the end of the matter.
Instead, Mr. Sobczak then misbehaved. He did so in several ways.
First, he did his best to describe the content of the video to the jury, on more than one occasion, despite my insistence that he stop. Second, and most serious of all, he mischaracterized the contents of the video, suggesting before the jury that the video would prove that the security guard was lying when he said that he did not see the rapist " lurking around the vestibule of the elevators" on the night of the first rape, id. at 215, and, more remarkably, saying before the jury that the video actually " showed [the security guard witness] visualizing the rape." Id. at 213. Neither of these statements is true.
Third, in defiance of my pretrial and trial rulings that Plaintiff would not be allowed to try both rapes in this case, Mr. Sobczak's persistence caused the proceedings to focus too heavily and for too long on the details of the rape that not the subject of the lawsuit. This may have been by design. Fourth, Mr. Sobczak may have reinforced, accidentally or deliberately, the impression that the trial judge was keeping relevant information from the jury.
This behavior raises a serious problem under the four Fyffe factors. First, the JPA Defendants did object, and strenuously. Second, while the issue of whether the JPA Defendants could have prevented the first rape was not central to this case as a matter of law, Mr. Sobczak nonetheless attempted to make it so in the face of my pretrial ruling to the contrary. Third, I failed to instruct the jury that it should ignore what Mr. Sobczak had said about the contents of the video contradicting the witness's testimony. Finally, I fear that the jury's possible misapprehension about the contents of the video may well have made difference in the jury's conclusion.
c. Reference to the Sales Price of the Hotel and Garage
At the Final Trial Conference, I allowed Defendants' motion in limine and excluded from evidence any information about " the size, dollar volume of revenues, profits, market share, or assets of any of the defendants . . ." However, I did so without prejudice to the right of Plaintiff to make arguments at trial about the admissibility of particular evidence of this type. I then specifically ordered, in writing, that " Plaintiff will raise any such issue at sidebar before raising it in front of the jury." Exhibit L. Nonetheless, at trial Plaintiff's counsel Mr. Hoey stated before the jury, without first discussing it at sidebar, that the hotel and garage had been sold after the rape for $143,000,000.
Mr. Hoey was questioning the hotel's former director of security, Michael Soper. Mr. Soper said he left the employ of the JPA Defendants after the hotel was sold. He agreed with Mr. Hoey that the sale had occurred in October 2010 (more than a year after the rape). Mr. Hoey then asked, " And it's also my understanding that the complex sold for $143,000,000."
As counsel for the JPA Defendants rose to object, I cut the witness off before he could answer. I called counsel to sidebar, where Mr. Hoey argued, inaccurately, that there had been no motion in limine on the subject at all. He also argued that the sale price of the hotel and garage was relevant to show that the owners could have afforded to make safety improvements. I said that I would allow him to question the director of security for that purpose about the security department budget, but that the question of " how rich these corporations are, how rich these people are, should not be in front of the jury." Exhibit F to Opposition at 7-8. I then instructed the jurors that they should ignore the question altogether, to the extent that they heard it. At the end of the trial I also gave the usual instruction that what lawyers say is not evidence that the jury can consider.
In addition to being irrelevant and unduly prejudicial, the nine-figure amount may well have been considerably overstated I recall some indication at the Final Trial Conference that the owners of the JPA Defendants owned other hotels as well, and that those other hotels were included in the sale Whether the figure was accurate or not, however, plays no role in my decision.
I had ruled pretrial that such evidence would not be admissible. While I said that Plaintiff's counsel were free to revisit that ruling at trial, it was improper for Mr. Hoey to simply blurt out such a large figure before the jury, without discussing the matter at sidebar in advance, as I had ordered in writing.
The mention of the $143,000,000 sale price--particularly in a question put to a witness unlikely to have any information on the subject--could only have been intended to suggest to the jury that the JPA Defendants could easily sustain a sizeable verdict in favor of Plaintiff. Mr. Hoey may also have been hoping that the jury would think that the JPA Defendants had left the parking garage behind them by cashing out in spectacular fashion, while Plaintiff herself could not so easily leave behind the rape that had occurred in that garage.
Plaintiff responds with the technical argument that the JPA Defendants cannot cite this misdeed in support of a new trial motion because they waived their rights by failing to object at trial, citing Gath . This argument fails as a matter of law, and as a matter of fact.
The cited paragraph of Gath says only that a party " must object to improper conduct of opposing counsel, thereby alerting the judge to the impropriety, to preserve the issue for appeal." 440 Mass. at 492 (emphasis added). Gath simply does not apply where a trial judge raises an issue at trial sua sponte, even in the absence of an objection. If the trial judge himself was " alert[ ] . . . to the impropriety" and had the opportunity to fix it, as was true here, the policy underlying Gath is satisfied.
In addition, Plaintiff is also wrong as a matter of fact. The only reason that the transcript does not show a defense objection is that I cut the witness off before counsel for the JPA Defendants could get the objection out of his mouth (although he did rise to object, as indicated by my saying, " I'll sustain the objection even before Mr. Kenney makes it." Id. at 6).
Under Fyffe, this misconduct cuts in favor of a new trial. First, Defendants obtained a pretrial ruling excluding evidence of their assets, and the JPA Defendants attempted to object at trial but I beat them to the punch. Second, the wealth of the JPA Defendants was not a central issue in the case--indeed, it should not have been mentioned at all--and yet the sheer size of the $143,000,000 number, coming out of the blue, created the risk that the jury would focus on the fact that the JPA Defendants could pay any judgment the jury cared to impose. The third factor, that I instructed the jury that it should ignore Mr. Hoey's question, cuts against a new trial, because we assume that the jury follows such instructions. The fourth factor is neutral; the number is so big that it would be easy for it to creep into the jury's deliberations despite my instructions to the contrary, but Plaintiff correctly points out that the jury returned only a $4 million verdict even though Plaintiff's counsel asked for $7 million to $10 million.
But in the final analysis, Plaintiff's decision to put the sale price of the hotel before the jury is unconscionable. Plaintiff did so in defiance of my pretrial ruling, and then denied that I had made such a ruling. The nine-figure sales price was irrelevant to any issue in the case. The only purpose for putting it before the jury was to prejudice the JPA Defendants. Cf. London v. Bay State St. Ry., 231 Mass. 480, 485-86, 121 N.E. 394 (1919) (ordering a new trial because plaintiff's counsel made a " covert appeal to the jury to make this great and powerful corporation . . . feel the jury's power in the case at bar"). The dollar figure was so big that it would be hard for the jury to ignore, and, given the irrelevance of the number, that must have been the intent of Plaintiff's counsel. This misconduct provides yet another reason to order a new trial, before a jury uncontaminated by this information.
d. Plaintiff's Use of Defendants' Pleadings
As is often the case in multi-defendant personal injury cases, Defendants filed counterclaims against each other for indemnity and contribution. The theory of these claims was that, if the JPA Defendants were to be found liable to Plaintiff, then LAZ was legally required to reimburse the JPA Defendants for part or all of the judgment, and vice versa. In the cross claims, Defendants referred to the rape as " the alleged rape." Defendants also raised an affirmative defense of comparative negligence, apparently as self-protective boilerplate, because they made clear at the Final Trial Conference that they were not pursuing that defense.
At the Final Trial Conference, I asked whether Defendants intended to present any evidence on their cross claims to the jury. They responded that their cross claims raised only issues of law, not fact, and, if Plaintiff won at trial, then Defendants would file cross motions for judgment on the cross claims. In light of the " alleged rape" language of the cross claims, I asked Defendants if they intended to suggest at trial that Plaintiff had not been raped. They confirmed that they would not. In that case, I ruled, neither the cross claims (including their " alleged rape" language) nor the abandoned comparative negligence defense could be mentioned at trial. My thinking was that there was little probative value in Defendants' legal positions, especially as to claims that were not before the jury, and that any such value was substantially outweighed by the possibility of jury confusion and unfair prejudice.
Defendants did file such cross motions, which I decide in a separate order today.
Nonetheless, in Plaintiff's opening statement, Mr. Hoey told the jury that Defendants were suing each other, each asserting that the other was negligent in a way that caused the rape of Plaintiff. After the opening, Defendant LAZ objected and sought a curative instruction, and the JPA Defendants asked for a mistrial. Referring to the pleadings, Plaintiff's counsel responded that Defendants had " not even admitted it was a rape." Exhibit A at 131.
I asked Plaintiff's counsel to describe the evidence they intended to present that would justify the statements in the opening, in light of my ruling that the cross claims were inadmissible. Plaintiff's counsel said, I believe for the first time, that the cross claims were relevant to damages because Plaintiff would testify to suffering psychological damage because Defendants denied in their pleadings that the rape had occurred. After considerable vigorous argument, I asked the parties to brief (by the next morning) the issue of what use, if any, Plaintiff should be permitted to make of the cross claims at trial. I denied the mistrial motion of the JPA Defendants. I then gave a mild curative instruction that the jury would not be deciding any claims between the Defendants, but I did not instruct the jury to ignore Plaintiff's assertion that Defendants had each said that the negligence of the other had caused Plaintiff to be raped.
The next morning, after reviewing the parties' briefs on the subject, I again ruled that I would not allow Plaintiff to use the cross claims before the jury. Again, however, I failed to instruct the jury to ignore what Mr. Hoey had said in the opening statement about Defendants blaming each other's negligence for causing the rape.
Days later, Plaintiff's counsel Mr. Sobczak suggested that he wanted to cross examine an LAZ executive to the effect that LAZ had denied the rape occurred, by using the LAZ pleadings. Mr. Sobczak suggested that the JPA Defendants had opened the door when their counsel said to Plaintiff, in cross examining her, that " no one disputes it was a horrible assault." Exhibit J at 266. I rejected the argument that this question made the cross claims admissible. Mr. Sobczak's vigorous disagreement with my ruling ended with his request that I instruct the jury that counsel for the JPA Defendants " again has misspoken to the jury, and misrepresented things in this case, " id. at 270, an instruction that I declined to give.
Ignoring these multiple rulings, Plaintiff's counsel Mr. Sobczak later asked former hotel manager Povall whether she would call the rape " an alleged assault." When the witness expressed confusion about the question, I intervened, instructing counsel not to play with the word " alleged, " but rather to ask factual questions. Mr. Sobczak then asked, " As the general manager of the hotel, do you agree with your corporation's position that Ms. Wahlstrom's rape is just an alleged assault?" I sustained an objection, and specifically instructed counsel to leave the subject of whether it was " an alleged rape." Mr. Sobczak then asked if the witness believed Plaintiff was raped, and she responded affirmatively. The next question was, " So if anybody else said something to the contrary in the last six years, you would dispute that?" Another objection followed, which I sustained, again instructing counsel to move on. Mr. Sobczak then asked the JPA hotel manager if she blamed Plaintiff for the rape, even though the affirmative defense of comparative negligence was no longer in the case. At no time during this exchange did I issue a curative instruction.
There was nothing wrong with Plaintiff's counsel arguing at the Final Trial Conference that Plaintiff should be permitted to use defense counsel's statements in their pleadings against them. I ruled to the contrary, but there was also nothing wrong with Plaintiff's counsel asking me to revisit that ruling at trial by suggesting that Defendants had opened the door to such evidence. But once I rejected that argument and ruled again that Plaintiff could not mention the " alleged" language in the pleadings, it was improper for Plaintiff's counsel to use that language, repeatedly, in the examination of the hotel manager described above. In light of my multiple rulings, it was even more improper for Plaintiff's counsel to suggest before the jury, immediately after one of those rulings, that the JPA Defendants had denied the rape occurred for six years, and then to suggest that the JPA Defendants had blamed Plaintiff for the rape in a since withdrawn, boilerplate pleading.
Application of the Fyffe factors suggests that this, too, was a serious matter. First, after obtaining a favorable pretrial ruling on the subject, the JPA Defendants objected at trial when Plaintiff's counsel violated the pretrial order. Second, I failed to issue adequate curative instructions. Third, the rape was the central fact in the case, and therefore any suggestion that Defendants denied its occurrence, or accused each other of negligence that caused the rape, was not a collateral matter. Fourth, these multiple statements by Plaintiff's counsel in the opening statement and the witness examination that Defendants had accused each other of negligence, and had even denied that Plaintiff was raped--statements not immediately followed by adequate curative instructions--raise a serious danger that the jury's verdict was influenced by those statements. I conclude that counsel's conduct as to this issue suggests that a new trial is required.
e. Other Alleged Misconduct
The JPA Defendants cite many other instances of what they call misconduct by Plaintiff's counsel. For example, after I specifically ruled at the Final Trial Conference that Boston Police Department crime statistics for much of downtown Boston were inadmissible, Mr. Hoey began his opening by reciting Justice Department national crime statistics, responding to Defendant's post-opening objection that my ruling did not mention national statistics. Plaintiff's counsel repeatedly referred, in the opening and in questioning witnesses, to " safety rules" for parking garages, which I permitted under the mistaken assumption (which Plaintiff did not correct) that Plaintiff would present evidence of industry standards, and then Plaintiffs' expert testified that there were no such rules or standards. After much pretrial discussion of my unwillingness to allow Plaintiff to argue that the jury should render a verdict that would deter future bad conduct by Defendants or other parking garage owners, Plaintiff made such arguments. Plaintiff's counsel Mr. Hoey told the jury in his opening statement that the news media, which covered the trial with great enthusiasm, " will be here to be an advocate for her. That's how important these issues are." Exhibit A at 105. The JPA Defendants raise many other issues as well.
I believe that the JPA Defendants are correct in arguing that much of this other conduct also suggests that a new trial is necessary. I have not reached those other issues, however, because I have concluded that the behavior I discuss above is sufficient by itself to require a new trial.
Conclusion and Order
I am aware of the immense efforts devoted to the trial of this case by the parties and their counsel. I am aware that 14 jurors took weeks away from their families, their jobs, and their ordinary pursuits to hear evidence and ultimately to issue a verdict. I am acutely aware of how difficult it was for Plaintiff to relive the rape as she described it on the stand. For these reasons and others, it is with great regret that I issue this ruling.
But Gath, the case on which Plaintiff herself so heavily relies, requires me to order a new trial if there is " prejudicial misconduct of counsel that is not cured by the judge's instructions to the jury." 440 Mass. at 492. Here, " the errors committed by plaintiff's counsel, considered in their totality, 'injuriously affected the substantial rights' of the defendants, and deprived them of a fair trial." Fyffe, 86 Mass.App.Ct. at 458. For the reasons set forth above, I have concluded that I must order a new trial, because it " appears to the judicial conscience and judgment that otherwise a miscarriage of justice will result." Davis, 235 Mass. at 496.
Certain Defendants' Motion for a New Trial is ALLOWED .