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Wahlstrom v. LAZ Parking Limited, LLC

Superior Court of Massachusetts, Suffolk

May 19, 2016

Kira Wahlstrom
v.
LAZ Parking Limited, LLC et al. [1] No. 134125

          MEMORANDUM OF DECISION AND ORDER ON CERTAIN DEFENDANTS' MOTION FOR A NEW TRIAL

          Paul D. Wilson, Justice

         Plaintiff 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").

         I 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.

         After considerable post-trial procedural motion practice between Plaintiff and the losing Defendants, JPA IV and JPA I (collectively the " JPA Defendants"), [2] 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.[3] 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.[4] Plaintiff also filed a post-hearing Supplemental Memorandum of Law in opposition to the new trial motion.[5]

         For the reasons set forth below, I will allow the motion for new trial.

         1. Overview of the Trial

         This 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 garage.

         About 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.

         Plaintiff 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.

         The 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.

         Jury 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.

         Following the completion of jury selection, [6] 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 were denied.

         Both 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.

         2. 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).

         I must 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).

         The JPA 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).

         Plaintiff 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 Plaintiff's counsel.

         Plaintiff 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 or isolated.

         On the 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 . . . at 55.

         Having 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.

         3. The Behavior of Plaintiff's Counsel at Trial Cited by the JPA Defendants

         In 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 Defendants rely.

         Before 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." [7] 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.

         I 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 ...


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