Kathleen Stiles et al. 
Demoulas Super Markets, Inc. No. 133514
Date April 1, 2016
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S
MOTION FOR A NEW TRIAL, OR, IN THE ALTERNATIVE, FOR
E. Brieger, Justice of the Superior Court.
personal injury action arose out of injuries sustained on
August 12, 2010, by plaintiff Kathleen Stiles ("
Stiles") when she slipped and fell while shopping at the
Market Basket grocery store owned and operated by defendant
Demoulas Super Markets, Inc. (" Demoulas"). The
case was tried to a jury beginning on August 18, 2015
(Brieger, J., presiding). The jury concluded that
Demoulas' negligence was a substantial contributing
factor to Stiles' injuries, rejected the loss of
consortium claim brought by Stiles' husband, and awarded
Stiles $500, 000 in damages. The matter is now before the
court on Demoulas' motion pursuant to Mass.R.Civ.P.
59(a), for a new trial on liability and damages, or in the
alternative, for remittitur. After hearing and careful
consideration of the parties' submissions, and for the
reasons set forth below, Demoulas' Motion for a New Trial
is ALLOWED .
court grants a new trial " for any reason which new
trials have heretofore been granted in actions at law in the
courts of the Commonwealth." Mass.R.Civ.P. 59(a).
Moreover, this court may grant a new trial when " it
appears to the judicial conscience and judgment that
otherwise a miscarriage of justice will result."
Davis v. Boston Elev. Ry. Co., 235 Mass. 482, 496,
126 N.E. 841 (1920). " The standard that a trial judge
is to apply on a motion for a new trial in a civil case is
whether the verdict is so markedly against the weight of the
evidence as to suggest that the jurors allowed themselves to
be mislead, were swept away by bias or prejudice, or for a
combination of reasons, including misunderstanding of
applicable law, [or] fail[ure] to come to a reasonable
conclusion." W. Oliver Tripp Co. v. American Hoechst
Corp., 34 Mass.App.Ct. 744, 748, 616 N.E.2d 118 (1993),
citing Scannell v. Boston Elev. Ry., 208 Mass. 513,
514-15, 94 N.E. 696 (1911); see Hartmann v. Boston
Herald-Traveler Corp., 323 Mass. 56, 59-61, 80 N.E.2d 16
(1948) (observing that a new trial is warranted where the
jury " fail[s] to exercise an honest and reasonable
judgment in accordance with the controlling principles of the
law"). A new trial must be granted where, as here,
errors committed by counsel were so serious that they, "
injuriously affected the substantial rights" of a party
and deprived it of a fair trial. G.L.c. 231, § §
119, 132; Fyffe v. Massachusetts Bay Transportation
Authority, 86 Mass.App.Ct. 457, 459, 17 N.E.3d 453
assessing the nature of claimed errors committed by counsel
in the instant trial, this court must consider " the
framework that is used to evaluate allegations of misconduct
by counsel in criminal cases, notwithstanding obvious
differences . . . '(1) whether the defendant seasonably
objected; (2) whether the error was limited to collateral
issues or went to the heart of the case; (3) what specific or
general instructions the judge gave to the jury which may
have mitigated the mistake; and (4) whether the error, in the
circumstances, possibly made a difference in the jury's
conclusion.'" Id. at 472 (2014), quoting
Commonwealth v. Lewis, 465 Mass. 119, 130-31, 987
N.E.2d 1218 (2013).
advances several arguments in support of the instant Motion.
First, Demoulas asserts that the arguments offered by
Stiles' counsel during his closing argument were highly
prejudicial and inflammatory. Specifically, Stiles'
counsel argued that Demoulas was a " large corporation .
. . looking at their bottom line." Demoulas' counsel
objected. Stiles' counsel disputes that he used those
words and disputes that there was an objection. Both the
words and the objection are transcribed at Tr. at 42, ¶
¶ 20-23. Demoulas argues that Stiles' counsel made
improper argument by telling the jury that this was a case of
" us against them, " and that, " it's up
to you to you to straighten out the situation." (Tr. at
43, ¶ 11.) Stiles' counsel admits that he used those
terms, but suggests that in doing so, he referred to "
the plaintiffs and himself against the defense lawyer, his
client, and its managers."
of counsel's subjective intent, there can be no doubt
that by these arguments, Stiles' counsel intended the
jury to infer that Stiles was pitted against a large, wealthy
corporation, and that the jury must rise to the occasion,
right a corporate wrong, and ensure that Demoulas pay Stiles.
These arguments amount to nothing more than a " covert
appeal to partiality and prejudice" that crossed the
line between zealous advocacy and improper argument. See
Leone v. Doran, 363 Mass. 1, 17, 292 N.E.2d 19
(1973); see also London v. Bay State St. Ry., 231
Mass. 480, 485-86, 121 N.E. 394 (1919) (plaintiff's
improper summation was " covert appeal to the jury to
make this great and powerful corporation . . . feel the
jury's power in the case at bar"). The court gave no
contemporaneous curative instruction, and a review of the
court's charge to the jury, in its totality, compels the
conclusion that the charge did not adequately address the
improper argument so as to mitigate the errors.
next argues that Stiles' counsel improperly suggested
that Demoulas withheld evidence from the jury in order to
" deceive and mislead" them. (Tr. at. 42, ¶
¶ 11-17.) Stiles' counsel's convoluted response
to that claim is not based on the record, and neglects to
acknowledge that in his closing he accused Demoulas of having
a " goal" to " deceive and mislead." The
court agrees that this argument, unsupported by the evidence,
was prejudicial and impermissibly invited the jury to
speculate on whether Demoulas had some collateral deceptive
practices. See, e.g., London, 231 Mass. at 486
(observing that even if counsel had not intended for his
words to carry such prejudicial meaning, " at any rate
the argument might well have been taken by the jury to mean
that"). The prejudicial impact was increased by the fact
that, although the court sustained Demoulas'
counsel's objection, there was no contemporaneous
next contends that Stiles' counsel impermissibly argued
facts not in evidence and misstated evidence resulting in a
jury award based on prejudice and sympathy. " 'In
closing argument, counsel may argue the evidence and the fair
inference which can be drawn from the evidence' . . .
[c]ounsel may also attempt to assist the jury in their task
of analyzing, evaluating, and applying evidence. Such
assistance includes suggestions by counsel as to what
conclusions the jury should draw from the evidence."
Commonwealth v. Raymond, 424 Mass. 382, 390, 676
N.E.2d 824 (1997) (citation omitted). Counsel is limited,
however, to discussion of evidence properly adduced during
trial and reasonable inferences that can be drawn therefrom.
See Leone, 363 Mass. at 17-19 (scope of argument is
limited to the evidence and the fair inferences that may be
drawn from the evidence).
review of the transcript of the closing arguments reveals
that Stiles' counsel repeatedly argued matters not in
evidence. For example, Stiles' counsel argued that,
referring to Demoulas, " Judge Green [ ]--in another
case, said it was negligent inspection." (Tr. at 33,
¶ ¶ 22-24.) By arguing in such a fashion, counsel
impermissibly attempted to suggest that another judge had
ruled that Demoulas was negligent. Such an argument,
completely unsupported by any evidence at trial, improperly
suggested that Demoulas' conduct in the instant case was
part of a pattern. Stiles' counsel neglects to respond to
this in his instant Opposition. The court agrees that it was
improper argument, and notes that the record indicates that
no curative instruction was given.
argues further that--against the weight of the
evidence--Stiles' counsel suggested that, "
we've come to the conclusion that she had lost--that she
was unconscious and she sustained when she hit her head, her
neck, and her back." (Tr. at 35, ¶ ¶ 4-6.)
Such an argument amounted to an improper invasion of the
jury's factfinding province as to a central fact issue
before the jury.
Demoulas claims that Stiles' counsel made damages
arguments that were unsupported by the evidence admitted at
trial. Specifically, he argued that any ...