LeBlanc v. American Honda Motor Co., Inc.

• Decision Date: 28 January 1997
• Docket Number: No. 94-198,94-198
• Citation: 688 A.2d 556,141 N.H. 579
• Parties: Thomas LeBLANC v. AMERICAN HONDA MOTOR CO., INC.
• Court: New Hampshire Supreme Court

Page 556

688 A.2d 556

141 N.H. 579

Thomas LeBLANC v. AMERICAN HONDA MOTOR CO., INC.

No. 94-198.

Supreme Court of New Hampshire.

Jan. 28, 1997.

Vincent C. Martina, Amherst, by brief and orally, for plaintiff.

Shaheen, Cappiello, Stein & Gordon, P.A., Concord (Robert A. Stein, on the brief and orally, and Diane Perin Hock on the brief) for defendant.

BROCK, Chief Justice.

The defendant, American Honda Motor Co., Inc. (Honda), appeals the special jury verdict of the Superior Court (Conboy, J.), holding Honda liable for injuries caused by the defective design and failure to warn of the braking and steering properties of its product, the Honda Odyssey. For the reasons that follow, we reverse and remand.

On January 16, 1988, the plaintiff, Thomas LeBlanc, while riding on the back of a snowmobile driven by his friend, was injured when the snowmobile collided with an off-road vehicle driven by Stephen Beaulieu and manufactured by Honda. The impact of the collision severely injured the plaintiff's leg.

The plaintiff sued Beaulieu and Honda alleging negligent operation of the Odyssey by Beaulieu and asserting a products liability claim against Honda. The jury rendered its verdict via a special verdict form that contained eight questions agreed to by the parties. The jury found: that the 1985 Honda Odyssey contained a design defect which rendered it unreasonably dangerous; that the design defect was a cause of the accident; that the Odyssey was unreasonably dangerous and defective due to Honda's failure to adequately warn the driver, Beaulieu; that the failure to warn Beaulieu was a cause of the accident; that the plaintiff proved all the elements of his negligence claim against Beaulieu; that negligence or misconduct by the plaintiff contributed to cause his injury; that Honda was 68% at fault, Beaulieu was 27% at fault, and the plaintiff was 5% at fault; and that the plaintiff's total damages were $2,206,000. The superior court ordered judgment against Honda for $1,487,196 plus statutory interest and costs, and against Beaulieu for $590,504 plus statutory interest and costs.

On appeal, Honda argues: (1) that the plaintiff's trial counsel, Vincent C. Martina, made improper and inflammatory remarks during the trial and during closing arguments in an attempt to cultivate in the jury a racial and national bias against Honda, a subsidiary of a Japanese corporation; (2) that the trial court erred by admitting previously undisclosed testimony and by allowing a courtroom demonstration; and (3) that the trial court erred by denying the defendant's motion for judgment notwithstanding the verdict.

Honda first argues that certain remarks made by Martina so tainted the proceedings as to deprive Honda of a fair trial and that denial of its motion for a mistrial and motion for a new trial on this ground was reversible error. We agree.

The trial court should grant a party's motion for a mistrial if it determines that

some circumstance ... indicates that justice may not be done if the trial continues to verdict. To justify a mistrial, remarks or the conduct must be more than merely inadmissible; they must constitute an irreparable injustice that cannot be cured by jury instructions. Because the trial court is in the best position to gauge prejudicial impact, it has broad discretion to determine whether a mistrial or other remedial action is necessary.

State v. Martin, 138 N.H. 508, 516, 643 A.2d 946, 951 (1994) (citations, quotations, and brackets omitted); see Walton v. City of Manchester, 140 N.H. 403, 408, 666 A.2d 978, 981-82 (1995). Remedial action includes, but is not limited to, curative jury instructions, which the jury is presumed to follow. State v. Lemire, 130 N.H. 552, 555, 543 A.2d 425, 426 (1988).

The defendant points to several statements made by Martina as grounds for reversal. The first, directed at Honda's vehicle design expert, focused on the color scheme of the Odyssey. Martina asked the expert if he knew the color of the Japanese flag. After Honda objected, Martina explained that he was curious about how the machine's color happened to be designed. The court decided to give Martina "some latitude." Martina then questioned the expert about whether the expert had ever wondered why the Odyssey is "red, white and blue, the color of the American flag."

The second series of statements highlighted by Honda occurred during the plaintiff's closing argument:

What's this case about? It's not about Honda making great automobiles or Sony making good Walkmans. But also it's not about Pearl Harbor or the Japanese prime minister saying Americans are lazy and stupid.

....

What this case is about is not American xenophobia; it's about corporate greed.

Counsel for Honda again objected and, at a bench conference, moved for a mistrial. At the bench conference, Martina explained that he was certain that the fact that the defendant is a foreign corporation had entered the minds of the jurors, and he was trying to tell them that that was irrelevant to the case. The court denied the motion for a mistrial but warned Martina: "I am, however, Mr. Martina, cautioning you that there's a limit to how far argument can go, and I think you're right at the wall on it. So please back away from it and focus on the issues in the case." The court did not strike the remarks or issue a curative instruction to the jury.

At the conclusion of the trial, the court instructed the jury:

I try to be fair and impartial, just as you are required to be.... You must decide the case only on the basis of the evidence and the law as I give it to you. You should keep in mind that all parties, whether an individual or a corporation, are equal before the law....

And again:

[Y]ou should decide this case without passion, without prejudice, and without sympathy. It is your highest duty as officers of this court to conscientiously determine a fair and just result in this case.

See Walton, 140 N.H. at 408, 666 A.2d at 982. The court never instructed the jury specifically with regard to Attorney Martina's above-quoted remarks.

Although the decision whether to grant the mistrial motion or the motion for a new trial falls within the trial court's discretion, see Martin 138 N.H. at 516, 643 A.2d at 951, "[i]n some circumstances ..., counsel's remarks may be so prejudicial as to mandate reversal," Walton, 140 N.H. at 408, 666 A.2d at 982; see Texas Employers' Ins. Ass'n v. Guerrero, 800 S.W.2d 859, 863 (Tex.Ct.App.1990) (appeals to racial prejudice incurable by instruction).

We do not expect advocacy to be devoid of passion. But jurors must ultimately base their judgment on the evidence presented and the natural inferences therefrom. Thus, there must be limits to pleas of pure passion and there must be restraints against blatant appeals to bias and prejudice.

Walton, 140 N.H. at 406, 666 A.2d at 981 (quotation, brackets, and ellipsis omitted). A mistrial or a new trial may be warranted "where counsel attempts to appeal to the sympathies, passions, and prejudices of jurors grounded in race or nationality, by reference to the opposing party's religious beliefs or lack thereof, or by reference to a party's social or economic condition or status." Id. at 407, 666 A.2d at 981 (quotation omitted). Such an appeal was attempted in this case.

The remarks, when viewed in isolation and outside of the context of the trial, may not seem to be so "explicit and brazen," Guerrero, 800 S.W.2d at 864, as to warrant the severe remedy of reversal. This sort of argument, which "may be indirect or implied, as well as direct or express," Annotation,Statement by Counsel Relating to Race, Nationality, or Religion in Civil Action as Prejudicial, 99 A.L.R.2d 1249, 1255 (1965), is nonetheless an affront to the court. See Guerrero, 800 S.W.2d at 865 (characterizing racial or ethnic appeals to be "an attack on the social glue that helps bind society together"). "It is true that counsel's closing reference was brief. At the same time, when an elephant has passed through the courtroom one does not need a forceful reminder." Willey v. Ketterer, 869 F.2d 648, 652 (1st Cir.1989).

Honda invites us to declare appeals to racial bias per se incurable. Although we have considered seriously the adoption of a per se rule of reversal in such cases, we believe it better at this time to leave these matters to the sound discretion of the trial court. Compare Walton, 140 N.H. at 408, 666 A.2d at 982 with Guerrero, 800 S.W.2d at 866. Such appeals, although extremely unprofessional and deplorable, must be considered in light of the circumstances of the particular case. See Lincoln v. Gupta, 142 Mich.App. 615, 370 N.W.2d 312, 317 (1985). When a racial or ethnic appeal has been made, as in this case, the trial judge

must examine, on a case-by-case basis, the totality of the circumstances, including the nature of the comments, their frequency, their possible relevancy to the real issues before the jury, the manner in which the parties and the court treated the comments, the strength of the case (e.g. whether it is a close case), and the verdict itself.

Forrestal v. Magendantz, 848 F.2d 303, 309 (1st Cir.1988) (quotation omitted); see Walton, 140 N.H. at 408, 666 A.2d at 982. In reaching this conclusion, we keep in mind that it will be an unusual case in which the invocation of racial or ethnic bias should not result in a mistrial or sanctions, see Walton, 140 N.H. at 408, 666 A.2d at 982; N.H. R. Prof. Conduct 3.5 ("A lawyer shall not ... seek to influence a ... juror ... by means prohibited by law...."), and that attorneys and judges have authority to refer these matters to the committee on professional conduct or the committee on judicial conduct when appropriate. See N.H. R. Prof. Conduct 8.3; N.H. Prof. Conduct Comm. R. 2.1; Sup.Ct.R. 38, Canon 3(A)(2).

In denying Honda's motion for a new trial, the trial court recognized that Martina's remarks "raised irrelevant and potentially prejudicial...