Fitzpatrick v. Wendy's Old Fashioned Hamburgers of N.Y., Inc.

• Decision Date: 21 May 2021
• Docket Number: SJC-12937
• Citation: 168 N.E.3d 361,487 Mass. 507
• Parties: Meaghan FITZPATRICK v. WENDY'S OLD FASHIONED HAMBURGERS OF NEW YORK, INC., & others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

487 Mass. 507

168 N.E.3d 361

Meaghan FITZPATRICK

v.WENDY'S OLD FASHIONED HAMBURGERS OF NEW YORK, INC., & others.¹

SJC-12937

Supreme Judicial Court of Massachusetts, Suffolk.

Argued November 6, 2020.

Decided May 21, 2021.

Matthew J. Fogelman, Newton, for the plaintiff.

Christopher A. Duggan, Lincoln, for Wendy's Old Fashioned Hamburgers of New York, Inc., & another.

Myles W. McDonough, Laura Meyer Gregory, & Ryan B. MacDonald, Boston, for Massachusetts Defense Lawyers Association, amicus curiae, submitted a brief.

Brendan G. Carney, Thomas R. Murphy, Salem, Kevin J. Powers, & Patrick M. Groulx, Somerville, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief.

Present: Budd, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.

GAZIANO, J.

The defendants in this personal injury suit moved for a mistrial after plaintiff's counsel purportedly made improper comments during his closing argument. The judge chose to reserve decision on the motion until after the jury rendered their verdict. When the jury found for the plaintiff, the judge allowed the motion and declared a mistrial due to the plaintiff's closing argument. The plaintiff prevailed again at a second trial, but she was awarded significantly lower damages. She then appealed from the decision allowing the mistrial, on the ground that once the verdict had been returned, the motion for a mistrial became a motion for a new trial and should have been evaluated under that standard.

Our prior case law does not directly address the question whether, in a civil action, a judge may reserve decision on a motion for a mistrial until after the jury renders a verdict. We conclude that, in civil cases, a motion for a mistrial must be decided when made, and that, after a jury verdict, the appropriate vehicle to be used in seeking to have a case tried again is through a motion for a new trial.² As this requirement shall apply only prospectively, we conclude that, here, the judge did not abuse her discretion in allowing the motion for a mistrial.

1. Background. We recite the essential facts from the record at the first trial, supplemented where relevant with the records of the proceedings at the both trials.

a. The plaintiff's injury. In 2011, the plaintiff purchased a plain hamburger from a fast food restaurant. The hamburger meat contained a small piece of bone, less than one-eighth inch in diameter. When the plaintiff inadvertently bit down on the bone in the course of eating the hamburger, one of her upper molars split. The plaintiff was thirty-four years old at the time of the injury. Treating the injury required multiple medical procedures over the next two years, including two root canals, a gingivectomy, sinus elevation surgery, and a graft of bone from a cadaver. In 2013, the plaintiff filed a complaint in the Superior Court against Wendy's Old Fashioned Hamburgers of New York, Inc. (Wendy's), which operated the restaurant, and JBS Souderton, Inc. (JBS), which produced the hamburger patty, for breach of the implied warranty of merchantability under G. L. c. 106, § 2-314, and violations of G. L. c. 93A.³

b. Events at trial. A jury trial was held in 2016 on the breach of warranty issue. The four witnesses, all called by the plaintiff, were the Wendy's district manager, the plaintiff's dentist, a JBS employee who had been responsible for quality assurance, and the plaintiff herself. The defendants did not dispute that the hamburger contained two hard fragments, or that the plaintiff had broken her tooth on one of them. Rather, the defendants argued that previous issues with the same tooth had contributed to the plaintiff's injuries. The defense also sought to establish that JBS and Wendy's had exceeded government and industry standards and had met reasonable customer expectations for hamburger meat.

After testimony concluded, counsel for the defense began his closing argument by telling the jury that, "in our society we entrust our citizens to come together, evaluate the truth, evaluate what has been put before you and to speak the truth." After reviewing the evidence, he concluded by urging that the jury's "speech of the truth" be that neither defendant committed a breach of the warranty of merchantability, and that in fact "both of these fine companies did precisely what we would want all of the companies in America to adhere to."

Plaintiff's counsel then began his closing by exhorting the jury to use their commonsense knowledge of "what consumers reasonably expect." He emphasized that "[i]t's what we reasonably expect. Us, the average people, not them." He later referred to the defendants as "[o]ne of the largest fast food companies and one of the largest beef manufacture[r]s in the world," and said that "[w]hat we've heard for three days is a long list of excuses. One after another. Attempt to confuse things. That's what they do, these big companies. That's what they do." Subsequently, he said:

"But you know what, when Wendy's and JBS sells all those burgers, they are more than happy to take our money. We pay for the burger. It goes to them. But when a burger hurts somebody, no responsibility. No accountability. Shame on them, honestly -- shame on them.

"Are these important rules in our community? Are we going to enforce them? Are you going to enforce them? If the rules that we talked about here, the safety rules, if those are important you need to speak to that and your verdict needs to speak to that. Your verdict will speak volumes echoing outside of this Courthouse. If the rules are not important, if it's okay for them to serve burger with bone and someone gets hurt once in a while, and if they get injured, too bad for them. Then you know what? Give these guys a pass. Give them a pass. I don't think you can. I don't think you can give them a pass."

He then suggested a range of damages for the plaintiff's pain and suffering of between $150,000 and $250,000.⁴ The plaintiff's counsel concluded with:

"And this may be the kind of case that triggers something for you a month from now or a year from now. You might be eating a burger. Maybe you'll read an article that someone else got hurt by a food product. Or you'll be telling your wife or your husband about the case. That somebody ate a burger and they did not expect to get hurt. And that safety rules were violated and that you helped to make a wrong right. You made it right and you held them responsible and accountable."

Although defense counsel did not object during the plaintiff's closing, once the argument was finished, he immediately moved for a mistrial.⁵ A sidebar discussion was held in which the plaintiff's counsel protested that he had not "crossed any lines." The judge responded, "I have not yet decided how close you were to that line but it was close. I'm going to let it go to the Jury and we'll see what happens after that. All right?" The parties accepted this manner of proceeding. Prior to the judge's final charge, only one request was made for specific instructions; this was by the plaintiff's counsel, who sought an instruction concerning aggravation of a prior dental condition.

In her final charge, the judge told the jurors that "the opening statements and the closing arguments of lawyers are not evidence," and that they should disregard any "matters" argued in closing that were not introduced in evidence. She added:

"I want to stress to you that it is not your job as a juror to send a message to anyone inside or outside of this Courtroom. Your job is not to deter any conduct or to punish any party. Your job is not to make any distinctions or hold any sympathies or prejudices based on whether a party is a big company or a small company or a buyer or a seller."

The judge also explained that the damages the plaintiff was seeking were compensatory and their "object is not to punish anybody." Neither side objected to the jury instructions or sought any modifications insofar as they touched on the closing arguments.

The jury found that both defendants had committed a breach of the warranty of merchantability and thus had caused injury to the plaintiff. They awarded $150,005.64 in damages (the low end of the range recommended by the plaintiff's counsel, plus the cost of the plaintiff's meal at Wendy's). Once the verdict was announced, counsel for the defense immediately renewed his motion for a mistrial.

After a hearing on the motion and a review of the transcripts, the judge determined that the plaintiff's counsel had made a number of improper remarks in closing that went beyond a permissible response to statements by the defense. In particular, the judge found that counsel had urged the jury to "depart from neutrality," and to decide the case based on an "us versus them" attitude with a bias against big corporations; encouraged the jury to act as the "voice of the community" and send a message by punishing the defendants; made "golden rule" arguments asking the jury to identify with the plaintiff; injected personal opinion by implying that incidents such as the one in which the plaintiff was injured were frequent; and used so-called "reptile" litigation tactics aimed at triggering in the jurors a fear of harm to their community. The judge stated that no immediate curative instructions were given, that the curative instructions included in her final charge did not address the "golden rule" argument or the injections of personal opinion, and that her instructions relative to the "us versus them" arguments had not been forceful enough. She noted that she had discretion to declare a mistrial when "emotional, inflammatory, or prejudicial elements" of a closing argument were "likely to affect the justice of the verdict." Having "review[ed] the totality of the closing argument and the evidence presented at trial," the judge concluded that "prejudicial aspects of the closing argument likely influenced the jury's verdict," and allowed the motion.

A second trial was held before the same judge; the second jury...