MEMORANDUM OF DECISION AND ORDER ON CERTAIN
DEFENDANTS' MOTION FOR A NEW TRIAL
D. Wilson, Justice
Kira Wahlstrom was raped in a hotel parking garage. She sued
many parties for damages. When the case reached trial, three
defendants remained. These Defendants were the owner of the
parking garage (and hotel), JPA IV Management Company, Inc.
as Trustee of the John Philopoulos Associates Trust ("
JPA IV"); the related entity that managed the hotel and
garage for that owner, JPA I Management Company, Inc. ("
JPA I"); and a parking company that was party to a
" Management Agreement" with JPA I concerning the
garage, LAZ Parking Limited, LLC (" LAZ").
presided over a lengthy trial of Plaintiff's negligence
claims in July and August 2015. The jury returned a verdict
in favor of Plaintiff and against two of the three
Defendants, namely garage owner JPA IV and its management
company JPA I, in the amount of $4 million. The jury also
found for LAZ on Plaintiff's claim against it.
considerable post-trial procedural motion practice between
Plaintiff and the losing Defendants, JPA IV and JPA I
(collectively the " JPA Defendants"),
concerning, among other things, the form of the judgment, the
effective date of the judgment, and a request to impound
certain attachments to expected substantive post-trial
motions, the JPA Defendants filed a motion for a new trial,
as well as a motion for remittitur. I reviewed the extensive
filings of all parties, and heard argument. After oral
argument, Plaintiff filed a motion to strike certain
arguments made by the JPA Defendants at the hearing, which
the JPA Defendants later opposed. Plaintiff also filed a
post-hearing Supplemental Memorandum of Law in opposition to
the new trial motion.
reasons set forth below, I will allow the motion for new
Overview of the Trial
case arose from what all parties agreed was a tragedy: in the
early morning hours of May 1, 2009, former Defendant Jose
Ruben Rivera III raped Plaintiff Kira Wahlstrom in a parking
garage attached to a hotel in downtown Boston that was then
known as the Radisson Boston. Plaintiff Wahlstrom was
returning to her car in the parking garage after working a
shift as a lighting technician in a nearby nightclub.
Defendant JPA IV owned the hotel and parking garage, and
Defendant JPA I, an affiliate, managed the hotel and its
12 days earlier, Rivera had raped another woman in the same
garage. Rivera's first victim was a hotel employee.
Plaintiff's primary argument at trial was that the first
rape made a second rape particularly foreseeable, and
Defendants were negligent in failing to take action to
prevent it from happening, for example by warning parking
garage customers, or by taking additional security measures.
was represented by four lawyers at trial. Two of them, David
Hoey and his associate Krzysztof Sobczak, are Massachusetts
lawyers. The other two, Don Keenan and his associate Andrew
Gould, are Georgia lawyers admitted pro hac vice.
case was aggressively litigated on both sides, particularly
by Plaintiff's counsel. The Final Trial Conference held
shortly before trial, at which I generally deal with motions
in limine, jury selection procedures, arrangements concerning
exhibits and witnesses, and the like, had to be stretched out
over several lengthy sessions because of the variety and
number of issues raised by the parties and the spirited and
lengthy argument on almost every topic covered.
selection delayed opening statements until Day 5 of the
trial. Even before the jury selection process began, I dealt
with a request by a private investigator retained by
Plaintiff's counsel to review the list of potential
jurors in advance, a request I allowed after holding a
hearing on the subject.
the completion of jury selection,  presentation of the
evidence consumed nearly three weeks. During that time, the
parties, particularly Plaintiff, often raised new legal or
evidentiary issues, or re-argued old ones, outside the
jury's presence. Counsel for all parties made more
objections after opening statements, and during the
presentation of evidence, than is usual in my experience, and
I held more sidebars than is my usual practice. Motions for
mistrials, almost all made by Plaintiff, were common, and all
Plaintiff and the JPA Defendants are now represented by new
counsel with regard to the various post-trial motions. The
new lawyers are not learning this case afresh, however.
Plaintiff's trial counsel are still signing post-trial
filings, along with new counsel. The law firm now
representing the JPA Defendants also is quite familiar with
what happened at trial, because lawyers from that firm
observed much, or perhaps all, of the trial.
The Legal Standard
A new trial may be granted on the ground of prejudicial
misconduct of counsel that is not cured by the judge's
instructions to the jury." Gath v. M/A-Com,
Inc., 440 Mass. 482, 492, 802 N.E.2d 521 (2003)
(citations omitted). The JPA Defendants argue this is what
happened here. Because of the misbehavior of Plaintiff's
counsel at trial, they contend, the " jury failed to
exercise an honest and reasonable judgment in accordance with
the controlling principles of law." Hartman v.
Boston Herald Traveler Corp., 323 Mass. 56, 60, 80
N.E.2d 16 (1948).
order a new trial, the JPA Defendants suggest, because it
should " appear 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). Plaintiffs' counsel
" 'play[ed] fast and loose' with our judicial
system, " the JPA Defendants argue, in precisely the
manner that recently caused the Appeals Court to order a new
trial in Fyffe v. Massachusetts Bay Transportation
Authority, 86 Mass.App.Ct. 457, 475, 17 N.E.3d 453
(2014), review denied, 470 Mass. 1105, 23 N.E.3d 107 (2014),
quoting Polansky v. CNA Ins Co., 852 F.2d 626, 632
(1st Cir. 1998). As result, the jurors " allow[ed]
themselves to be misled, were swept away by bias or
prejudice, or for a combination of reasons, including
misunderstanding of applicable law, failed 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).
Defendants' new trial motion relies most heavily on
Fyffe, a case that provides the most recent
appellate guidance on whether a new trial is required by
attorney misconduct. The overarching inquiry, the Appeals
Court there explained, is whether " the errors committed
by plaintiff's counsel, considered in their totality,
'injuriously affected the substantial rights' of the
defendants, and deprived them of a fair trial." 86
Mass.App.Ct. at 458, citing G.L.c. 231, § § 119,
132. Fyffe also laid out a four-factor framework for
considering claims of prejudicial attorney misconduct. Those
four factors are: " (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." 86 Mass.App.Ct. at 472, citing
Commonwealth v. Lewis, 465 Mass. 119, 130-31, 987
N.E.2d 1218 (2013).
responds to the reliance of the JPA Defendants on
Fyffe by citing MacCuish v. Volkswagenwerk
A.G., 22 Mass.App.Ct. 380, 398, 494 N.E.2d 390 (1986),
aff'd, 400 Mass. 1003, 508 N.E.2d 842 (1987) (rescript),
for the proposition that a new trial should not be ordered
unless damages were excessive. While that argument might be
relevant to the companion motion for remittitur, it misses
the point of the new trial motion, which focuses not on the
size of the verdict, but rather on the conduct of
also attempts to distinguish today's case from
Fyffe by arguing that Fyffe involved a
two-day trial rife with attorney misconduct, while here the
JPA Defendants complain about only a few isolated instances
in a much lengthier trial. I disagree with that
characterization, concluding, as will be seen below, that the
unfortunate behavior of Plaintiff's counsel was not rare
subject of such alleged misconduct, Plaintiff argues that
Gath says that a new trial may be granted because of
prejudicial misconduct of counsel only if that misconduct is
not cured by the judge's instructions to the jury. 440
Mass. at 492. At the hearing on the new trial motion, I asked
Plaintiff's new counsel whether Plaintiff believes "
that it is okay for a plaintiff's counsel to continually
go too far so long as the judge fixes it either immediately
or at the end of the case in instructions. If it's fixed,
there is no basis for a new trial." Plaintiff's
counsel replied, " Exactly." Exhibit A to The JPA
Defendants' Opposition to Plaintiff's Motion to
Strike Untimely and Jurisdictionally Barred New Claims . . .
laid out the relevant law, and the parties' positions, I
now consider some, but certainly not all, of the specific
conduct about which the JPA Defendants complain.
The Behavior of Plaintiff's Counsel at Trial Cited by the
their new trial arguments, the JPA Defendants recite a litany
of behavior by Plaintiff's counsel that, the JPA
Defendants suggest, " played fast and loose with our
judicial system" and was intended to sweep away the jury
with bias or prejudice. Below I will discuss what I regard as
the most serious matters raised in the new trial motion,
providing specific factual detail as necessary. Because those
matters, perhaps individually and certainly collectively,
require me to order a new trial, I do not reach the many
other instances of alleged misconduct on which the JPA
addressing the specific issues, however, I will briefly
comment on the complaint by the JPA Defendants that
Plaintiff's counsel followed the " Reptile"
playbook at trial. As defense counsel informed me in a
pretrial Bench Memorandum, Plaintiff's counsel Mr. Keenan
travels the country teaching seminars to plaintiffs'
personal injury lawyers based on his book entitled "
Reptile, The 2009 Manual of the Plaintiff's
Revolution."  Mr. Keenan teaches that
plaintiffs' lawyers should appeal to the primitive,
reptilian portions of jurors' brains, which will cause
them to decide cases based on a subconscious desire to
protect themselves and their loved ones from the danger posed
by the allegedly negligent behavior of any defendant. The
" Major Axiom" of the book, Mr. Keenan states at
its outset, is this: " When the Reptile [apparently a
reference to a primitive part of the juror's
subconscious] sees a survival danger, even a small one, she
protects her genes by impelling the juror to protect himself
and the community." Id. at 8.
mention this argument at the outset because the new trial
motion of the JPA Defendants is sprinkled with references to
particularly inflammatory portions of Mr. Keenan's book,
coupled with alleged examples of how Plaintiff's counsel
allegedly put Mr. Keenan's Reptile theory into practice
at this trial. Both before and at trial, I paid little
attention to Mr. Keenan's philosophy, instead focusing on
particular actions of Plaintiff's counsel without
considering whether they were ...