• Plaintiff's Counsel Pies Self in Face
  • August 16, 2012 | Author: Anthony J. Williott
  • Law Firm: Marshall Dennehey Warner Coleman & Goggin, P.C. - Pittsburgh Office
  • Key Points:

    • The proscription against the plaintiff requesting an amount for non-economic damages also precludes the plaintiff from providing the jury with a formula.
    • It is important to raise a timely objection to an improper argument and to make an appropriate record.

    Pennsylvania is among a small minority of states that do not allow plaintiff's attorneys to request specific amounts for non-economic damages in personal injury cases. However, this has not stopped clever plaintiff's attorneys from trying other devices to suggest an amount. For instance, in Atene v. Lawrence, 318 A.2d 695 (Pa. 1974), the Pennsylvania Supreme Court ruled it was improper for plaintiff's counsel to argue in summation that the jury should consider the daily fee paid to the defendant's investigator when calculating damages for pain and suffering. In Ruby v. Casello, 201 A.2d 219 (Pa.Super. 1964), the Superior Court ruled it was impermissible for plaintiff's counsel to suggest the jury should value the plaintiff's pain and suffering at a dollar a minute.

    More recently, in Brown v. Commons at Squirrel Hill, a nursing home malpractice case in the Court of Common Pleas of Allegheny County, a plaintiff's verdict was overturned by the trial judge because of a similar tactic used by plaintiff's counsel in his summation to the jury. The plaintiff's medical specials in the case were $17,157.58. Near the end of his summation, plaintiff's counsel projected onto the screen a pie chart wherein the $17,157.58 in medical specials was represented by a narrow sliver of the pie. In the remaining open section of the pie, plaintiff's counsel listed the four categories of non-economic damages (i.e., pain and suffering, embarrassment and humiliation, loss of life's pleasures and disfigurement). However, counsel did not request a specific amount.

    Defense counsel objected to use of the pie chart and requested a mistrial, arguing that the plaintiff was essentially providing the jury with a formula for calculating non-economic damages. Although the trial judge was visibly perturbed by the plaintiff's ploy, he denied the defense request for a mistrial but did give the jury a curative instruction.

    Following a verdict for the plaintiff, the defendant filed a motion for post-trial relief based on the use of the pie chart, among other things. In opposition, the plaintiff relied upon the case of Clark v. Philadelphia College of Osteopathic Medicine, et al., 693 A.2d 202 (Pa.Super. 1997).

    In Clark, plaintiff's counsel used a "tip of the iceberg" analogy in his summation. He showed the jury a drawing of an iceberg with a dotted line at the very tip of the iceberg and the vast majority of the iceberg below the dotted line. Counsel argued to the jury that the special damages in that case were only the "tip of the iceberg." The Superior Court did not find the argument improper.

    In Brown, plaintiff's counsel argued that his pie chart was substantially identical to the "tip of the iceberg" analogy. However, the defendant vigorously argued that the pie chart went well beyond analogy and actually provided the jury with a mathematical formula for calculation of non-economic damages. The trial judge agreed the with defendant and granted a new trial.

    The take-away from the Brown case is that reversible error can occur at any point in the proceedings. Where, as here, it occurs minutes before the case is given to the jury, through improper argument providing a formula for calculation of non-economic damages, counsel must be prepared to object and preserve the issue.