An interesting case was decided by the Court of Appeals last week. Unfortunately, in Tennessee, there are not very many cases dealing with trial procedure and conduct. When a case is decided that addresses such issues, trial lawyers take note.
In Ardry v. Home Depot USA, Inc., No. M2012-02667 (Tenn.Ct.App. July 10, 2013), the plaintiff was operating a bucket truck at a Home Depot. An employee for Home Depot driving a heavy duty truck collided head on with the Plaintiff. The jury returned a verdict in the amount of $809,241.24. On appeal, the defendant made three arguments. First, the defendant argued that the trial court failed to act as the 13th juror. Second, the defendant argued that the plaintiffs’ attorney made improper comments and arguments to the jury. And finally, the defendant argued that the jury award for loss of earning capacity was not supported by the evidence.
Addressing the first issue, the reviewing court noted that the trial court has a duty to “independently weight the evidence” and “decide whether the jury’s verdict is supported by the evidence.” The Court cited a number of cases where the trial court failed to fulfill its role as thirteenth jury. Basically, if the trial court simply defers to the jury, such action is improper. For example, if the trial court indicates, “I’m not inclined to interfere with the verdict of the jury”, the court will not have fulfilled the duty of acting as the thirteenth juror. In this case, the reviewing court held that the trial court acted properly.
With regard to the comments made by plaintiff’s counsel, a summary is as follows:
- Earning Capacity: The plaintiffs’ attorney told the jury during closing argument to award between $643,000 and $698,000 for future earning capacity, stating that if the jury returned a verdict outside of that range, it might “cause problems in the future with your verdict, and I don’t want it to be destroyed.” The reviewing court held that such comments were not inappropriate and did not affect the outcome of the trial.
- Personal Opinion: When describing an expert witness, the plaintiffs’ attorney stated: “He seemed believable to me.” Home Depot argued that said comment, and another comment concerning the plaintiffs, “vouched for the credibility” of the witnesses. Home Depot, however, did not object to these comments during the trial. Thus, the Court considered the “issue waived.”
- Attacks on the Defendant: When Home Depot Answered the Complaint at the beginning of the case, they denied liability. Right before trial, they admitted liability. During his closing argument, the plaintiffs’ attorney referenced the fact that Home Depot had changed its position. The reviewing court dismissed Home Depot’s arguments because there was no objection at trial.
- Facts not in Evidence: During his closing argument, plaintiffs’ counsel made comments about degenerative disk disease, and also gave an example of advice he had given a friend of his that was in a car wreck. The reviewing court rejected Home Depot’s arguments because “there was medical expert testimony consistent with counsel’s statements concerning degenerative disc disease; and the anecdote concerning counsel’s friend was offered as an analogy, not as fact testimony. In any event, Home Depot did not object to these comments during the trial, and we consider them to be waived.”
In conclusion, the reviewing court determined that the evidence was sufficient to support the verdict.