Gilmore v. Central Maine Power Co.

• Decision Date: 29 September 1995
• Docket Number: Docket No. K,No. 7409,7409
• Citation: 665 A.2d 666
• Parties: Deborah and Michael GILMORE v. CENTRAL MAINE POWER CO., et al. DecisionLawen-94-677.
• Court: Maine Supreme Court

Page 666

665 A.2d 666

Deborah and Michael GILMORE v. CENTRAL MAINE POWER CO., et al.

Decision No. 7409.

Law Docket No. Ken-94-677.

Supreme Judicial Court of Maine.

Submitted on Briefs March 31, 1995.

Decided Sept. 29, 1995.

Peter B. Bickerman, Roger Katz, Lipman & Katz, P.A., Augusta, for plaintiff.

Cathy S. Roberts, Thompson & Bowie, Portland, for defendant.

Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA and LIPEZ, JJ.

LIPEZ, Justice.

Central Maine Power Co. [hereinafter CMP] appeals from the judgment entered in the Superior Court (Kennebec County, Alexander, J.) denying its motion for a new trial. Because we conclude that the court did not abuse its discretion in denying CMP's motion, we affirm the judgment.

The Gilmores were injured in a July 1988 accident in which their car was struck from behind by a van driven by a CMP employee acting in the course and scope of his employment. Deborah suffered a cervical sprain affecting her mid-back, neck and shoulder. Michael sustained both cervical and lumbar sprains.

The Gilmores filed a complaint against CMP for the personal injuries. CMP stipulated to liability and a jury trial took place solely on the question of damages. During the trial in which they were represented by separate counsel, Deborah and Michael Gilmore testified to the events leading up to the accident and the impact of the injuries on their lives. The chiropractor who treated the Gilmores testified to the nature and extent of their injuries. Other witnesses testified to Deborah's level of activity both prior and subsequent to the accident. CMP called no witnesses. The jury awarded $60,000 to Deborah Gilmore and $37,000 to Michael Gilmore. CMP moved for a new trial. The court denied the request and this appeal followed.

Discussion

CMP argues for a new trial because of comments made by the plaintiffs in closing argument which CMP characterizes as comments about the wealth and power of the company. A reference to a corporation's wealth and power is improper argument. 75A AM.JUR.2 D Trial § 653 (1991). Such remarks, however, do not always require reversal. Duke v. American Olean Tile Co., 155 Mich.App. 555, 400 N.W.2d 677, 681 (1986) (citing Reetz v. Kinsman Marine Transit Co., 416 Mich. 97, 330 N.W.2d 638 (1982)). If the jury was not influenced by the remarks or if their prejudicial effect was dissipated by a later curative instruction, the ruling of the court denying a new trial will not be disturbed. Norlin Music, Inc. v. Keyboard "88" Inc., 425 A.2d 74, 76 (R.I.1981). The trial court who heard the remarks in the context of the entire trial is in the best position to gauge the reaction of the jury to them. Grant v. Warren Bros. Co., 405 A.2d 213, 218 (Me.1979).

Unpreserved claims of error

CMP did not preserve its claims of error for the comments now cited on appeal, with one exception. ¹ These unpreserved claims of error include two comments to which there were sustained objections, but for which CMP requested no further relief than was granted by the court. ² In the absence of any further request by CMP, the company is deemed to have acquiesced to the curative approach taken by the court. State v. Conner, 434 A.2d 509, 511 (Me.1981), including later instructions that are intended to cure any prejudice that might result from the comments of counsel. We thus review those claims only for obvious error affecting substantial rights. M.R.Evid. 103(d); Miller v. Szelenyi, 546 A.2d 1013, 1018 (Me.1988). We find none.

To the extent that one of the statements about which CMP complains makes the point that a jury should treat a large corporate defendant just like any other defendant, it is proper. ³ Adkins v. Aluminum Co. of America, 110 Wash.2d 128, 750 P.2d 1257, 1265, modified, 756 P.2d 142 (Wash.1988). The remaining comments cited by CMP, if error, do not constitute obvious error.

Cumulative effect of comments

If improper comments about the wealth and power of a corporation are repeated constantly, the error can become incurable and require reversal. Reetz, 330 N.W.2d at 646. The comments in this case do not rise to that level. See, e.g., Duke v. American Olean Tile Co., 400 N.W.2d at 681 (counsel's remarks held improper as tending to inflame prejudice of jurors where he referred to company's executives as sitting in "plush paneled corporate offices" and "sitting at the country club" having lunch with no concern for its customers; that money talks and that, though the executives might be snickering now, they would not be doing so if the jury returned a substantial verdict against the corporation); Babcock v. Chesapeake & O. Ry. Co., 83 Ill.App.3d 919, 38 Ill.Dec. 841, 852, 404 N.E.2d 265, 276 (Ill.App.Ct.1980) (statements to effect that case "involves a seven-year old child pitted against the entire railroad, against all of their personnel, against all of their train crew, and against anyone and everyone who stands behind the entire railroad). Moreover, the court gave a number of instructions to the jury which mitigated the effects of any improper comments. At the beginning of the trial, the court instructed the jurors that the comments of counsel are not evidence. Prior to closing argument, the court instructed the jury not to make an award on the basis of passion, prejudice or sympathy. It also instructed the jury to consider the case as an action between persons or entities of equal worth and standing in the community and that a corporation is entitled to be treated fairly by them.

Statements characterizing CMP's closing argument

CMP claims that plaintiffs' counsel inflamed the jury in closing argument by accusing CMP of branding the Gilmores "liars" in contravention of M.Bar R. 3.7(e)(2)(v). ⁴ Contrary to CMP's contention, the statements do not violate the plain language of M.Bar R. 3.7(e)(2)(v), which provides in pertinent part:

(e) Adversary Conduct.

(2) In appearing in a professional capacity before a tribunal, a lawyer shall not:

(v) Assert a personal opinion as to the justness of a cause, as to the credibility of a witness ... but a lawyer may argue, on the lawyer's analysis of the evidence, for any position or conclusion with respect to the matters stated therein; ....

M.Bar R. 3.7(e)(2)(v) (emphasis added). The comments cited by CMP do not refer to the credibility of a witness; they characterize the arguments of counsel. In closing argument, CMP properly highlighted inconsistencies in the evidence presented at trial by the Gilmores. Indeed, its case relied completely on discrediting the Gilmores with such inconsistencies since CMP offered no witnesses of its own. Plaintiffs' counsel merely acknowledged CMP's strategy in closing argument. ⁵

Excessive verdict

When a court refuses to grant a new trial on the ground of an excessive damage award, the ruling will not be reversed except for clear and manifest abuse of discretion. Gillison v. Farrin, 632 A.2d 143, 144 (Me.1993). In general, we will not substitute our judgment for that of the jury in assessing damages and will not disturb an award unless it is the product of, inter alia, bias or prejudice. Currier v. Cyr, 570 A.2d 1205, 1210 (Me.1990). An assessment of damages must have some rational basis in the record. Braley v. Berkshire Mut. Ins. Co., 440 A.2d 359, 361 (Me.1982).

The jury had before it evidence of special damages totalling $4608.50 for Deborah, including medical bills in the amount of $3558.50, lost wages totalling $450.00 and property damage in the amount of $600.00. The record indicates that Michael sustained $1520 in special damages. Although there is a substantial disparity between the amount of special damages and the verdicts returned by the jury, such a disparity alone does not establish that an award of damages is excessive. Isaacson v. Husson College, 332 A.2d 757, 763 (Me.1975).

Based on the record, the jury properly could have awarded further damages to Deborah and Michael for pain and suffering as a result of the accident. Both testified to pain at the time of the accident, as well as ongoing discomfort. Deborah suffered a sudden relapse in the fall of 1988; she awoke unable to move her neck and in a great deal of pain. Both of the Gilmores routinely experience pain in the course of performing their jobs. In addition, Deborah testified that she has difficulty completing an ordinary activity such as cleaning her house without fatigue and pain.

The jury could have...