Section Review

Arguing numerical awards in closing arguments in civil cases

Winter
Kimberly E. Winter is a partner in the law firm of White, Freeman & Winter, LLP in Weston, where she has a personal injury trial practice specifically concentrating on cases involving medical negligence.
This article will initially review two cases that illustrate and define some of the boundaries involved in arguing numerical awards in civil cases. The article concludes with an analysis of Ji Feng Chi et al v. Princiotta, Stoughton District Court, Oct. 17, 2002 (No. 0055CV517) (Winslow J.).
Harlow v. Chin, 405 Mass. 697 (1989)

William Harlow was rendered a quadriplegic as a result of medical care he received for a work-related injury to his neck. Following the trial of Harlow's medical malpractice claim there was a jury verdict for the plaintiff.

During closing arguments counsel for Harlow used a number of methods to portray to the jury the magnitude of Harlow's damages. Specifically, plaintiff's counsel referred by way of analogy to verdicts in other cases, the amount that advertisers pay for advertising time during the Super Bowl, the multimillion dollar salaries of professional athletes and the significant amount ("five million dollars") that art collectors have paid for paintings by impressionists Renoir and Monet.

After closing arguments, and in response to objections by defense counsel, the judge issued a number of curative instructions. The substance of the curative instructions was that closing arguments were not evidence to be considered by the jury in reaching their verdict.

In their review of the closing arguments made by the plaintiff's counsel in Harlow, the Supreme Judicial Court found parts of the argument improper, not because there was reference to specific numerical amounts, but because the amounts had no basis in the evidence before the jury. The court then went on to find that the defendants had not objected to the curative instructive instructions given by the trial judge, raising the presumption that the curative instructions were sufficient.1 The Supreme Judicial Court's analysis of the closing arguments in Harlow illustrates a common misconception involving arguments for numerical damages in cases involving personal injury and death. Nothing in Harlow stands for the proposition that such an argument is improper. Harlow merely reinforces established case law holding that numerical amounts argued must have a basis in the record.

Abramian v. President and Fellows of Harvard College et al, Mass. Super. Dec. 10, 1998 (No. 935968) 1998 WL1182103 (McHugh, J.).2

Abramian was a security guard at Harvard University. After his discharge from this position, Abramian brought suit against Harvard alleging that his release from employment was both discriminatory and retaliatory. Following trial the jury awarded the plaintiff both compensatory and punitive damages.

During trial and in post-trial motions, defense counsel objected to portions of the plaintiff's closing argument on punitive damages. In particular, defense counsel cited plaintiff's counsel's argument that Harvard earned $3 million a day in interest on its endowment and that by their verdict the jury "should tell Harvard they won't make any money that day."3

In his rulings on post-trial motions the trial judge found this argument to be improper, not because numerical amounts were argued by counsel, but because the evidence in the case did not support the actual numerical amounts used in the argument. Specifically, Judge McHugh found that the 1996 tax return for Harvard University, entered as evidence in the case, showed daily interest income on Harvard's endowment to be substantially less than $3 million.4

In quoting from Harlow, Judge McHugh noted that "an argument concerning money damages indulging in significant references to numerical amounts that have no basis in the record is improper."5 Judge McHugh then went on to find that the closing argument on punitive damages, even if improper, resulted in no harm as the jury did not appear to have relied on this argument in rendering their verdict.

Ji Feng Chi et al v. Princiotta, Stoughton District Court, Oct. 17, 2002 (No. 0055cv517) (Winslow, J.).

The two cases above illustrate the background against which Judge Winslow decided the case of Ji Feng Chi et al v. Princiotta in May 2002.6

The plaintiffs in Ji Feng Chi alleged they had suffered injuries in an automobile accident. During pre-trial motions counsel for both the plaintiffs and the defendant presented arguments as to whether their respective summations could suggest a specific dollar amount that the jury might award to the plaintiffs for pain and suffering. Counsel for the plaintiffs argued that both lawyers should be permitted to make such a reference, while defense counsel argued that such a reference to specific dollars amounts would be improper. Following argument, the court held that both lawyers could suggest a specific dollar amount to the jury provided any such amount was based on evidence produced during the trial or reasonable inferences from such evidence.

In his written decision regarding this matter, the trial judge undertook an exhaustive analysis of the reasons that arguments concerning specific dollar amounts have generally been thought improper. As a beginning proposition Judge Winslow noted that a leading treatise on Massachusetts practice states that "in Massachusetts it is not proper for plaintiff's counsel to mention during argument the amount of damages the plaintiff expects to recover" but that this treatise points to no authority for the proposition.7

In Mason v. General Motors, 397 Mass. 183, 192 (1986), the Supreme Judicial Court held "that the closing argument is limited to comments on facts in evidence that are relevant to the issues and the fair inferences which can be drawn from those relevant facts." The trial judge in Ji Feng Chi quoted from this passage and then went on to note that no Massachusetts court had squarely addressed whether the scope as suggested in Mason can include specific reference to pain and suffering if such reference is properly based on the evidence.

The Ji Feng Chi decision then reviews a number of Massachusetts cases where the appellate courts held that arguments by counsel about specific damage amounts were not permissible. In each of these cases close analysis reveals that the arguments were improper, not because they reference specific dollar amounts, but because the damage figures suggested by counsel had no basis in the evidence.8 The trial judge then addressed the issue of whether the proscription on arguing or introducing the amount of an ad damnum (a dollar amount specifically demanded in the complaint) also prevented counsel from arguing dollar amounts in closing argument.9 However, Judge Winslow clearly distinguishes the ad damnum clause, which is not based on evidence, from an argument for a specific dollar amount that the evidence presented in the case would fairly and reasonably support.

The Ji Feng Chi decision then goes on to review cases from a number of other jurisdictions that allow counsel to suggest specific monetary awards for pain and suffering.10 As a final matter Judge Winslow addressed the common misconception that awarding a dollar amount for pain and suffering is peculiarly within the province of the jury. As the decision in Ji Feng Chi points out, this proposition does not withstand critical analysis. Surely if counsel can argue that a criminal defendant is guilty (where liberty is at stake), or that a jury should or should not find a civil defendant negligent, they can also use facts and evidence to argue a dollar amount a jury should award for significant elements of the civil plaintiff's claim.

Ultimately, although the court had clearly permitted this line of argument, neither counsel in Ji Feng Chi actually argued a specific dollar amount in closing argument. In a newspaper account of this decision in Massachusetts Lawyers Weekly the plaintiff's lawyer was interviewed and noted that, although he agreed with Judge Winslow's decision, he had decided for tactical reasons not to argue a specific dollar amount to the jury in the Ji Feng Chi case.11

Conclusion

Arguing specific dollar amounts for pain and suffering in civil cases may be advantageous to counsel for both the plaintiff and the defendant in select cases. Based on current law this appears permissible in Massachusetts state court cases as long as the numerical amounts suggested have a clear evidentiary basis.

End notes

1. In this regard the court noted that "we again comment that if a judge fails to cure an alleged error, the judge is 'entitled at the end of the charge to have errors and omissions claimed to exist therein brought to his attention, and if an exception was desired because of such an omission or error to have these exceptions taken for such reason or reasons.'" Commonwealth v. Cabot, 241 Mass. 131, 151 (1922). See Commonwealth v. Gouveia, 371 Mass. 566 (1976). Quoted by the court in Harlow v. Chin, 405 Mass. 697, 706 (1989)

2. Affirmed in part, vacated in part by Abramian v. President and Fellows of Harvard College, 432 Mass. 107 (2000) and on remand to Abramian v. President and Fellows of Harvard College, 14 Mass. L. Rptr. 230 (Dec. 4, 2001).

3. Abramian v. President and Fellows of Harvard College et al, Mass Super. Dec. 10, 1998 (No. 935968) 1998 WL1182103.

4. Confusion may have arisen because Harvard's net assets appeared to have grown by approximately $3 million a day in a one-year period although the specific source of this growth was unclear.

5. Abramian v. President and Fellows of Harvard College et al, Mass. Super. Dec. 10, 1998 (No. 935968) 1998 WL1182103, quoting Harlow v. Chin, 405 Mass. 697 (1989), citing Gardner v. State Taxi, Inc., 336, Mass. 28 (1957).

6. The matter was decided in pretrial motions on May 28, 2002. The written decision was released Oct. 17, 2002.

7. Ji Feng Chi, No. 0055cv517 at 2. Using a quotation from William C. Flanagan, 43 Mass. Prac. Trial Practice ß 339, 326 (1993).

8. For example, Harlow v. Chin, supra and Gardner v. State Taxi, Inc. 336 Mass. 28 (1957). (Plaintiff's counsel asks jury to award, inter alia, the plaintiff $200 a week for total disability for six months, this argument was invalid as there was no evidence in the records to suggest that the plaintiff was totally disabled for six months).

9. As noted in Ji Feng Chi, Superior Court Rule 7 (also applicable in the instance of jury trials to the District Court) provides that "no reference to the ad damnum shall be made by counsel nor shall pleadings go to the jury except by authorization of the court."

10. As an example see Beagle v. Vasold, 417 P.2d. 673 (Cal. 1966); Affett v. Milwaukee and Suburban Transport Co., 106 N.W. 2d. 274 (Wis., 1960).

11. Testa, Precise Damage Amounts May be Argued to Jury, Massachusetts Lawyers Weekly, Nov. 4, 2002.

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