EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, June 9, 2012

With No Objection In The Middle There's Some Leeway: EDVA Requires No Contemporaneous Objection In Golden Rule Appeal

Sometimes, an attorney's closing argument is so over the top that it is easy for opposing counsel to object. Think Al Pacino's closing argument in ...And Justice for All. Other times, it is exceedingly difficult to raise a contemporaneous objection. For example, can you imagine trying to object in the middle of Matthew McConaughey's closing argument in A Time to Kill?    

So, should a contemporaneous objection during closing argument be required? According to the recent opinion of the United States District Court for the Eastern District of Virginia in Ray v. Allergan, Inc., 2012 WL 1979226 (E.D.Va. 2012), the Fourth Circuit has issued contradictory opinions on the issue. So, could those opinions be harmonized?

In Ray,

Douglas M. Ray, Jr....filed [an] action against Allergan after he received three BOTOX® injections between January through July 2007 to treat a dystonic movement disorder of his right hand....Allergan manufactured, tested, marketed, and sold BOTOX®, a drug first approved by the United States Food and Drug Administration...in 1989....Ray received BOTOX® injections on three dates: January 10, 2007, April 3, 2007, and July 17, 2007....Ray allege[d] that he sustained a severe reaction to the BOTOX® that required hospitalization and left him totally disabled....Allergan contend[ed] that Ray's injuries are due to a pre-existing neurodegenerative condition.

At the end of trial, the jury awarded Ray compensatory damages in the sum of $12,000,000 and punitive damages in the sum of $200,000,000, with the punitive damage award reduced to $350,000, the maximum punitive award allowed by Virginia law.

Allergan thereafter moved for a new trial, claiming, inter alia, that these portions of the plaintiff's closing argument were improper:

This [picture] was taken just a few months before he got BOTOX. This is him and Peggy in their shop, Fancy Hats. Do you think he would have taken 512 million to give up the last 15, 20 years of his life and to have this massive brain damage? Do you think he would have made that trade? I'll give you $12 million, you can forget the rest of your life. You're just going to be in bed with brain damage. Do you think he would have made that trade? Do you think any reasonable person would? I don't....

Can you imagine the horror when he first realized that something was terribly wrong? He couldn't walk right. He couldn't think right. Couldn't speak right. He's not going to be able to take care of his mother and his wife. His mother is going to have to go live somewhere else. Can you imagine?...

[T]hink of all the Douglas Rays in the United States that were being injected with BOTOX® in 2007 for mild to moderate non-life-threatening conditions.

So, were these statements improper? According to the Eastern District of Virginia, the answer is "yes." As support, the court cited to Leathers v. General Motors Corp., 546 F.2d 1083 (4th Cir.1976), in which the Fourth Circuit found these statements to be improper:

Mr. Leathers is going to live those 26.9 years disabled. We submit the disability was caused by the steering defect in a General Motors car.

I don't know, again, how to put a number on that. It's the loss of the use of your legs, to some extent, the loss of doing sports or hobbies which are athletic, the general limitation in your job duties, general limitation in your enjoyment of life, pain, further medical treatment over a period of 26.9 years. 26.9 years are a lot of years, somewhere close to 9,000 days.

I don't know how much you how much you put a dollar value on it, but how much dollars would it be worth to you, $30 a day, $20, $300 a month? The only way he can be compensated is with money. He can't be compensated with a new leg or having his leg put back in good condition, and I ask that you consider that.

The Eastern District of Virginia noted that some courts find that such "can you imagine" or "put yourself in the plaintiff's shoes" arguments are per se reversible as "Golden Rule" arguments (i.e., counsel is asking the jury to do unto the plaintiff as they would wish it to be done to them). The court then noted that the Fourth Circuit didn't go that far in Leathers but did find reversible error because

Counsel for defendant was placed in an unnecessarily difficult and embarrassing position. To interrupt argument by plaintiffs' counsel might antagonize the jury, and would certainly emphasize the point.

Based upon this conclusion in Leathers, the court in Ray had no problem finding reversible error. And, as with the Fourth Circuit in Leathers, the Eastern District of Virginia found no problem with the lack of a contemporaneous objection. Moreover, it was able to do so despite recognizing that, under some Fourth Circuit precedent and "[i]n general, failure to object to a closing argument waives the right to attack the verdict on a motion for a new trial based on a prejudicial closing argument."

How? Well, according to the court, while a contemporaneous objection to closing argument is usually required, "an argument that offends Leathers...is excused from the contemporaneous objection requirement."



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I find it very unfortunate what happened to MR. Leathers... Hope him all the best no matter what!

Posted by: Julie Hart | Jun 13, 2012 8:56:04 AM

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