Opinion
No. CIV 99-382 LH/DJS ACE.
February 5, 2002.
ORDER
THIS MATTER comes before the Court on Defendant Fleetwoods oral Motion for a mistrial, joined by Defendant Reese, made at trial on January 29, 2002 , after Plaintiffs counsel presented opening statements to the jury. The Court, having heard the oral arguments of counsel and being otherwise informed, finds that the Defendants motion is well taken and shall be granted.
Counsel for Defendant Fleetwood brings this motion based on a number of comments made by Plaintiffs counsel in her opening statement at trial. First, Fleetwood asserts, Plaintiffs counsel used the opening statement generally as an opportunity to make an emotional argument, in spite of the Courts admonition to present only the facts she intended to prove in her case in chief. Second, Fleetwood argues that counsel for Plaintiff interjected her personal beliefs about the case, including her belief that her client, Mr. Garcia, may not be credible because of his diagnosis of Post Traumatic Stress Disorder (PTSD), when it is inappropriate for counsel to comment on the credibility of witnesses.
Additionally, the Court excluded as untimely Plaintiffs expert witness designated to testify about these matters. See Order (Docket No. 432), filed January 22, 2002 aff'g, Magistrate Judge Svets Orders (Docket Nos. 391 392), filed January 7, 2002 and January 8, 2002 , respectively.
Third, Plaintiffs counsel repeatedly referred to the Defendants as one general they, even though the theories of liability and facts pertaining to each are not identical. Finally, Fleetwood complains that Plaintiffs counsel introduced facts about Fleetwoods status as the largest manufacturer of travel trailers in the United States and stated that its sales were in the billions of dollars, in complete disregard of the Courts recent ruling granting summary judgment on punitive damages to Fleetwood.
Counsel for Defendant Reese joins Fleetwoods Motion for a mistrial, citing Plaintiffs counsels general penchant for arguing her case instead of making an opening statement. Reeses counsel is specifically concerned that his repeated and necessary objections tainted the jurys perception of his client, that Plaintiffs counsel violated the Courts orders by presenting evidence and arguing theories of liability that have been excluded or still under consideration by the Court, and that Plaintiffs counsel inappropriately expressed personal beliefs about the case to the jury. Counsel for Reese adds that Plaintiffs counsel gave the jury details about a settlement paid by Plaintiffs insurance company that were beyond the parties stipulation.
The purpose of an opening statement is to state what evidence will be presented, to make it easier for the jurors to understand what is to follow, and to relate parts of the evidence and testimony to the whole. It is not an occasion for argument. Testa v. Village of Mundelein, Illinois, 89 F.3d 443, 446 (7th Cir. 1996) (citing United States v. Dinitz, 424 U.S. 600, 612 (1976)). In considering a motion for mistrial, the question is whether such opening statements or arguments were so prejudicial as to deny a party a fair trial. See id. The trial judge has broad discretion in determining whether a statement or action at trial is serious enough to warrant a mistrial, or whether a limiting instruction can serve to mitigate the prejudice. See id. at 445.
Being argumentative in an opening statement does not necessarily warrant a mistrial, but being argumentative and introducing something that should not be allowed into evidence may be a predicate for a mistrial. Id.at 446. The Court agrees that Plaintiffs counsels statements were generally argumentative. Nevertheless, it is often possible to instruct the jury to disregard argumentative statements of counsel and carry forward with a fair trial. In this case, however, the Court is concerned about Plaintiffs counsels opening for far weightier reasons.
First, Plaintiffs counsel disclosed Defendant Fleetwoods dollar earnings from travel trailer sales, disregarding the Courts grant of Fleetwoods motion for summary judgment on punitive damages several weeks ago. See Order (Docket No. 410), filed January 16, 2002 . Additionally, Plaintiffs counsel repeatedly referred to the two Defendants as if they were one, flouting the jurys charge to decide each defendants case separately, as if each were a separate lawsuit. N.M. UJI 13-1902 (2001). Finally, Plaintiffs counsel made two inappropriate statements to the jury about the Garcias automobile liability insurance settlement, the details of which have been severely redacted by stipulation of the parties. Plaintiffs counsel argued that Mr. Garcias version of the accident, which he provided to his own liability insurance carrier and upon which the liability carrier had settled with Mrs. Garcia, was incorrect because Plaintiffs experts subsequently concluded that the accident did not occur that way; that any liability of Mr. Garcia was probably a responsibility that was less than five percent of the whole; and that the insurance carrier, to their credit, havent asked for their money back, when it learned of the experts conclusion. See Court Transcript of Plaintiffs Opening Statement, January 29, 2002 , pp. 201-02. These statements are arguments that her client, Mr. Garcia was incorrect in his initial statement and his liability was limited, in a case where the credibility of witnesses and the comparative fault of parties is decided by the jury after hearing the facts.
Plaintiffs counsels comments incorporating excluded evidence and theories were not statements of the facts to be proven at trial. They were emotional arguments made in direct contravention of the Courts numerous orders for counsel to restrict themselves in opening statements to the facts that would be proven at trial. Plaintiffs counsels opening inserted into the minds of the jury facts and arguments that have been excluded from trial. More importantly, Plaintiffs counsels opening statements were prejudicial and irreparably harmful to both Defendants cases, for the reasons stated above. The statements of Plaintiffs counsel deprived both Defendants Fleetwood and Reese of a fair trial before it could begin.
This Court is deeply troubled by the time and expense that a mistrial will cost the jury members, the Court, and the parties. However, it is impossible to repair the damage by giving limiting instructions to the jury when the harm to Defendants pervades Plaintiffs counsels opening statement. To effectively rehabilitate the jury with limiting instructions, the Court would have to address each inappropriate statement in turn. This would serve only to emphasize, not downplay these matters for the jury. The poisoning of the jury and the prejudice to both Defendants is too comprehensive and egregious to be cured by any limiting instruction the Court could now give.
Plaintiffs counsel suggests that, instead of a mistrial, the Court should sever the cases and allow Plaintiff to proceed against Defendant Reese who, Plaintiffs counsel argued, was less harmed by the opening statement than Defendant Fleetwood. The arguments of counsel have borne out, however, that Defendant Reese was harmed just as irreparably as Defendant Fleetwood by, among others, Plaintiffs counsels repeated mention of excluded theories of liability and by suggestions of a ceiling on the liability of her clients.
IT IS, THEREFORE, ORDERED that Defendants Fleetwood and Reeses oral Motion for a mistrial is granted.
IT IS FURTHER ORDERED that Plaintiffs counsel shall pay the entirety of the jury costs, which are broken down as follows:
Attendance fee: $2,280.00
Incidental fee: 228.00
Travel (mileage): 1,549.79
Subsistence: 721.00
$4,778.79
The entire amount of $4,778.79 shall be remitted to the Clerk of the United States District Court within 20 days of the entry of this order.
____________________________ UNITED STATES DISTRICT JUDGE