See Appellee's Brief

Supreme Judicial Court for the Commonwealth Full Court: SJC-12937 Filed: 7/22/2020 8:44 PM

Supreme Judicial Court FOR THE COMMONWEALTH OF MASSACHUSETTS NO. SJC-12937

MEAGHAN FITZPATRICK, PLAINTIFF-APPELLANT,

WENDY’S OLD FASHIONED HAMBURGERS OF NEW YORK, INC., AND JBS SOUDERTON, INC., DEFENDANTS-APPELLEES.

ON APPEAL FROM A JUDGMENT OF THE SUFFOLK SUPERIOR COURT

BRIEF FOR THE DEFENDANTS-APPELLEES, WENDY’S OLD FASHIONED HAMBURGERS OF NEW YORK, INC., AND JBS SOUDERTON, INC.

Christopher A. Duggan (BBO#544150) Pauline A. Jauquet (BBO#670103) H. Reed Witherby (BBO#531600) SMITH DUGGAN BUELL & RUFO LLP 55 Old Bedford Road Lincoln, MA 01773 (617) 228-4444 [email protected] [email protected] [email protected]

Dated: 07/22/2020

BATEMAN & SLADE, INC. STONEHAM, MASSACHUSETTS

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CORPORATE DISCLOSURE STATEMENT OF WENDY’S OLD FASHIONED HAMBURGERS OF NEW YORK, INC.

Pursuant to Supreme Judicial Court Rule 1:21, the parent company of Wendy’s Old Fashioned Hamburgers of

New York, LLC (f/k/a Wendy’s Old Fashioned Hamburgers of

New York, Inc.) is Wendy’s International, LLC. No publicly held corporation owns 10% or more of its stock.

The parent company of Wendy’s International, LLC is

Wendy’s Restaurants, LLC. No company of Wendy’s

Restaurants, LLC is The Wendy’s publicly held corporation owns 10% or more of its stock. The parent

Company, a publicly held corporation. No publicly held corporation owns 10% or more of The Wendy’s Company’s stock.

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CORPORATE DISCLOSURE STATEMENT OF JBS SOUDERTON, INC.

Pursuant to Supreme Judicial Court Rule 1:21, JBS

Souderton, Inc. states that it is a wholly-owned subsidiary of JBS USA Food Company, a Delaware

Corporation. JBS USA Food Company is a privately held company, thus no publicly owned company owns more than

10% of the its stock.

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TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT OF WENDY’S OLD FASHIONED HAMBURGERS OF NEW YORK, INC...... 2

CORPORATE DISCLOSURE STATEMENT OF JBS SOUDERTON, INC...... 3

TABLE OF AUTHORITIES...... 7

ISSUES PRESENTED...... 10

STATEMENT OF THE CASE...... 11

Nature of the Case...... 11

Prior Proceedings...... 14

STATEMENT OF FACTS...... 19

The Underlying Claim...... 19

Plaintiff’s Closing Argument...... 22

SUMMARY OF THE ARGUMENT...... 25

STANDARD OF REVIEW...... 27

ARGUMENT...... 27

I. THE TRIAL COURT APPROPRIATELY FOLLOWED THE PROCEDURE TWICE ENDORSED BY THIS COURT TO AWAIT A JURY VERDICT BEFORE RULING ON THE MISTRIAL MOTION, AND THERE IS NO REASON THAT TRIAL JUDGES SHOULD TREAT CIVIL CASES DIFFERENTLY FROM CRIMINAL TRIALS IN THESE CIRCUMSTANCES...... 27

A. Justice Brieger properly followed the process endorsed by this Court in dealing with plaintiff’s closing argument which violated longstanding rules of trial conduct...... 28

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B. Because double jeopardy is not implicated, judicial economy, fairness and common sense are even stronger reasons for a trial judge to defer ruling on a mistrial motion based upon an improper closing argument until after verdict in a civil case than in a criminal action...... 34

C. Left unchanged, the Appeals Court’s decision unwisely deprives trial judges of an important tool for ensuring advocates stay within the bounds of the law, provides the last lawyer to speak an unfair advantage in closing arguments, and penalizes the lawyers, and their clients, who follow the rules...... 37

D. The trial judge was justified in declaring a mistrial based upon an improper and inflammatory argument and was not first required to consider alternative remedial measures before declaring a mistrial but in fact did so as her opinion and the record establish...... 41

i. Justice Brieger’s decision to order a Mistrial was Justified...... 41

ii. Given the timing of the misconduct, the trial judge had few alternative measures available to ensure a fair trial based upon the facts...... 44

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II. WHEN A TRIAL JUDGE RESERVES DECISION ON A MOTION FOR MISTRIAL THAT IS BASED UPON AN IMPROPER CLOSING ARGUMENT, THE JUDGE DOES NOT LOSE THE AUTHORITY TO DECLARE A MISTRIAL, AND THE MISTRIAL MOTION IS NOT AUTOMATICALLY TRANSFORMED INTO A MOTION FOR A NEW TRIAL, WHEN THE JURY’S VERDICT IS RECEIVED AND THE JURY IS DISCHARGED BUT, AS HERE, NO JUDGMENT HAS ENTERED...... 46

III. CRITICISMS OF THE TRIAL JUDGE’S FINDINGS AND RULINGS LACK MERIT...... 50

A. Defendants’ objections to the Plaintiff’s Closing Argument was Timely and Sufficiently Specific...... 50

B. The Appeals Court Failed to Give the Trial Judge, Who Presided over the Whole Trial, Including the Plaintiff’s Closing Argument First-Hand, Before Ruling on the Defendants’ Motion for a Mistrial, the Considerable Deference She is Due from a Reviewing Court...... 53

CONCLUSION...... 58

ADDENDUM...... 60

CERTIFICATE OF COMPLIANCE...... 116

CERTIFICATE OF SERVICE...... 117

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TABLE OF AUTHORITIES

CASES:

Abramian v. President & Fellows of Harvard College, 432 Mass. 107 (2000)...... 30, 41, 55

Barrett v. Leary, 34 Mass.App.Ct. 659 (1993)...... 36

Brangan v. Com., 477 Mass. 691 (2017)...... 35

Brangan v. Com., 478 Mass. 361 (2017)...... 35

Bucchiere v. New England Telephone & Telegraph Co., 396 Mass. 639 (1986)...... 35, 54, 55

Chambers v. RDI Logistics, Inc., 476 Mass. 95 (2016)...... 54

Com. v. Babb, 389 Mass. 275 (1983)...... 35

Com. v. Brangan, 475 Mass. 143 (2016)...... passim

Com. v. Johnson, 374 Mass. 453 (1978)...... 51

Com. v. Murchison, 392 Mass. 273 (1984)...... passim

Com. v. Olmande, 84 Mass.App.Ct. 231 (2013)...... 51

Com. v. Randolph, 438 Mass. 290 (2002)...... 40-41, 58

Com. v. Walker, 443 Mass. 213 (2005)...... 55

Companioni v. Tampa, 51 So. 3d 452 (Fla. 2010)...... 33

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Cruz v. Com., 461 Mass. 664 (2012)...... 34, 35, 54, 55

Curley v. Boston Herald-Traveler Corp., 314 Mass. 31 (1943)...... 28, 34, 41, 55

Ed Ricke and Sons, Inc. v. Green, 468 So. 2d 908 (Fla. 1985)...... 33, 36, 37, 39, 47

Fialkow v. DeVoe Motors, Inc., 359 Mass. 569 (1971)...... 28, 37, 38-39

Fitzpatrick v. Wendy’s Old Fashioned Hamburgers of New York, Inc. et al., 96 Mass.App.Ct. 410 (2019)...... passim

Gath v. M/A-Com, Inc., 440 Mass. 482 (2003)...... passim

Hess v. Boston Elevated Ry., 304 Mass. 535 (1939)...... 27

Holder v. Gilbane Bldg. Co., 19 Mass.App.Ct. 214 (1985)...... 47, 48, 49

Leone v. Doran, 363 Mass. 1 (1973)...... 57

London v. Bay State St. Ry., 231 Mass. 480 (1919)...... 29, 43, 45

NES Rentals v. Maine Drilling & Blasting, Inc., 465 Mass. 856 (2013)...... 52

O’Neill v. Ross, 250 Mass. 92 (1924)...... 27

Oregon v. Kennedy, 456 U.S. 667 (1982)...... 35

Riley v. Davidson Const. Co., Inc., 381 Mass. 432 (1980)...... 28

Royal Indem. Co. v. Blakely, 372 Mass. 86 (1977)...... 52

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Shea v. D & N Motor Transp. Co., 316 Mass. 553 (1944)...... 28, 31, 40, 56

STATUTES:

Mass. G.L. c. 93A...... 14

RULES:

Mass. R. Civ. P. 59...... passim Mass. R. Civ. P. 68...... 14

Mass. R. Crim. P. 30(b)...... 31

Massachusetts Guide to Evidence, §1113(b)(3)...... 17, 25, 45

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ISSUES PRESENTED

1. In a civil case, where the defendant moves for a mistrial on the ground that the plaintiff’s closing argument was improper and the trial judge reserves ruling on the motion until after the jury verdict, a procedure endorsed in Com. v. Brangan, 475 Mass. 143,

147-48 (2016), does the jury’s verdict deprive the trial judge of the authority to declare a mistrial?

2. Was the trial court’s declaration of a mistrial an abuse of discretion where (1) the court found that the plaintiff’s closing argument repeatedly violated well-established standards and limits for closing arguments in a way that likely affected the justice of the verdict, (2) the defendants were denied a fair trial as a result and (3) there were no other practical alternative actions open to the court that were not explored?

3. Was the Appeals Court correct when it held that the trial judge abused her discretion by following this

Court’s endorsed procedure in Com. v. Brangan, 475 Mass. at 147-48, and that the entry of the verdict deprived the trial court of the authority to declare a mistrial, even while recognizing that counsel’s summation was replete with violations of long established rules of

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proper argument that likely affected the justice of the verdict?

STATEMENT OF THE CASE

Nature of the Case

This case arises out of a practice that is becoming all too common in our trial courts: closing arguments that flagrantly violate longstanding rules governing the boundaries of fair and appropriate summation. The trial court, Brieger, J., found that the closing argument given by plaintiff’s counsel was rife with improper argument including appeals to bias, violations of the

Golden Rule, repeated insertion of personal opinion and resort to matters not in evidence, all made in a calculated effort to prey on juror prejudices against corporations rather than decide the case based upon the facts in evidence. RA 276-91.

Defense counsel moved for a mistrial at the close of the argument. The trial court, following the procedure twice endorsed by this court, reserved ruling pending return of the jury verdict. Com. v. Murchison,

392 Mass. 273, 275 (1984), and Com. v. Brangan, 475 Mass. at 147-48 (“Brangan I”). The jury returned a plaintiff’s verdict for $150,005.64.

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Before entry of judgment, the trial judge addressed the pending mistrial motion. She ordered a copy of the trial transcript, accepted briefs, heard extensive argument, took the motion under advisement, and then allowed the motion. In a 15-page Memorandum and Order, the trial judge detailed her reasons. The trial judge held that the many violations tainted the verdict and deprived the defendants of a fair trial.1 When the case was tried again, this time according to the rules, the plaintiff received a $10,000 verdict, 15 times lower than the first verdict.

The Appeals Court reversed. Fitzpatrick v. Wendy’s

Old Fashioned Hamburgers of New York, Inc., et al., 96

Mass.App.Ct. 410, 430-32 (2019). Although it agreed that the plaintiff’s closing argument was highly improper,

Id. at 432, it also found that, by reserving on the mistrial motion, the trial judge had unwittingly converted the mistrial motion into a Rule 59 post- judgment motion, Id. at 427-38. Further, the Appeals

Court held that the trial judge had committed an error of law by following Brangan I, and that the mistrial

1 The trial judge’s Memorandum of Decision and Order on Defendants’ Motion for a Mistrial is reproduced in the Record Appendix (“RA”) at pp. 276-91 and is also attached to this brief for the Court’s convenience.

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motion had to be evaluated according to Rule 59(a) standards. Id. Finally, the Appeals Court held that Rule

59(a) motions are held to a different standard than mistrial motions, although it is not clear exactly how they differ when the trial judge is evaluating an improper closing argument. Id. at 430-32.

The narrow issue before this Court is whether a civil trial judge may, in her discretion, reserve on a motion for mistrial based on attorney misconduct in closing argument pending the jury verdict, a procedure endorsed in Brangan I and Murchison without losing the authority to rule on a mistrial (rather than a new trial) motion, and to declare a mistrial if appropriate.

Although Brangan I was a criminal case, it specifically relied on two civil cases when it condoned this practice, indicating that the common sense, fairness and judicial economy underpinning Brangan I should continue to apply equally in both civil and criminal cases, as the trial judge in this case held. More broadly, the appeal presents the question whether trial judges in civil cases continue to have power to police their courtrooms to ensure that attorneys abide by well-established rules, especially in closing arguments, and, when they

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do not, can take appropriate action to make sure verdicts are just and based upon the facts and law.

Prior Proceedings

Plaintiff Meaghan Fitzpatrick broke a tooth when she bit into a tiny bone fragment in a hamburger that she purchased from a Wendy’s restaurant in January of

2011. The particle was 3/32 inch in diameter. She asserted claims against Wendy’s and its ground beef supplier, JBS Souderton, Inc. (“JBS”). RA 3-10.

Defendants denied liability. RA 11-24. During discovery, defendants served a $25,000 Offer of Judgment under

Mass. R. Civ. P. 68, which plaintiff rejected. RA 295-

96.

The case was tried before Superior Court Justice

Heidi Brieger on plaintiff’s breach of implied warranty of merchantability claims against both defendants. The

Court reserved cognate counts under Mass. G.L. c. 93A.

In his closing argument, plaintiff’s counsel repeatedly made inappropriate and prejudicial remarks and exhortations that violated the basic rules that govern the limits of closing arguments in Massachusetts, as the Superior Court eventually found (RA 276-91), and the Appeals Court agreed (Fitzpatrick, 96 Mass.App.Ct. at 430-32). He argued facts not in evidence, inserted

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personal opinions, asked the jury to put themselves in the position of the plaintiff, improperly made “us vs. them” arguments, and urged the jury to decide the case on their own personal interest rather than based upon the facts and law in the case. RA 612-26.

Immediately after plaintiff’s closing argument, defendants moved for a mistrial. RA 627:19. In a sidebar conference, with the jury still in the courtroom,

Justice Brieger stated that she had concerns of her own about plaintiff’s closing argument and even had “a list of objectionable statements” that plaintiff’s counsel had made.

Following this Court’s ruling in Brangan I, 475

Mass. at 147-48, Justice Brieger decided not to rule on the mistrial motion immediately. Instead, she deferred ruling on the motion, stating, “I’m going to let it go to the Jury and we’ll see what happens after that. All right?” RA 628:25-629:1. Counsel for both parties agreed. Mr. Duggan: “Okay.” Mr. Fogelman: “Thank You.”

RA 629:2-3. No one suggested that the return of a verdict while the motion was pending would change the character of the motion or the standards applicable to it, as the

Appeals Court later maintained. Fitzpatrick, 96

Mass.App.Ct. at 427-48.

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After lunch, the court charged the jury (RA 630-

52). The jurors began deliberating late that Friday afternoon. The following Monday, the jurors resumed their deliberations and returned a verdict in plaintiff’s favor for $150,005.64. RA 670-71.2

After the verdict, defendants renewed their mistrial motion. They offered to present oral argument on the spot, or to wait for a transcript and then submit briefs. RA 671. The court decided to order a complete transcript of the trial and asked for briefs from both parties. RA 671-73.

The parties submitted briefs (RA 25-275), and the court heard argument on the defendants’ mistrial motion on February 17, 2017. RA 682-729. On July 7, 2017,

Justice Brieger issued her Memorandum of Decision and

Order declaring a mistrial. RA 276-91.

In her Memorandum, the trial judge detailed her findings and carefully explained the bases for her conclusion that plaintiff’s counsel, in his closing argument, had repeatedly crossed the line into impermissible advocacy. She identified four areas of

2 This amount was mistakenly transposed as $105,005.64 in the Superior Court’s Memorandum and Order, p. 1 (RA 276). Nothing in the record indicates the exact length of deliberations.

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such impermissible argument in plaintiff’s closing: (1) making pervasive “us versus them” arguments (RA 279-81);

(2) suggesting that the jury use its verdict as the

“voice of the community” to send a message to large corporations (RA 281-83); (3) making an impermissible

Golden Rule argument by asking the jurors to put themselves in the shoes of the plaintiff (RA 284); and

(4) urging the jury to draw inferences unsupported by the record and interjecting counsel’s personal opinions

(RA 285). The judge’s Memorandum explained how each of these improper practices violated longstanding rules governing permissible closing argument, as set forth in

Massachusetts case law and in the applicable subsections of the Massachusetts Guide to Evidence, §1113(b)(3).

RA 276-91.

The judge explained why her jury charge, which she altered to try to respond to the improper closing, had not been sufficiently strong to counteract the prejudicial effects of counsel’s repeated and serious violations, and that, on reflection, stronger curative instructions should have been given. Id. She also noted that the repeated violations of the rules were not mistakes or the result of over-zealous advocacy.

Instead, they were carefully borrowed, in some cases

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wholesale, from the Reptile Lawyer manual, a book that urges plaintiffs’ lawyers to make such arguments.

RA 286-87. This proved beyond doubt that the plaintiff’s argument was not accidental, a point that plaintiff’s counsel conceded. RA 725.

Most importantly, the trial judge explained how this grossly improper argument likely impacted the jury and undermined the justice of the verdict. RA 290-91.

She concluded that, as a result, the defendants had been denied a fair trial, and that the only sufficient remedy, which she ordered reluctantly, was to declare a mistrial and try the case anew. RA 291.

When the case was tried again in late October 2017

(RA 296, 678), there was no repeat of the tactics that lead to the mistrial. The jury awarded plaintiff $10,000 in damages. RA 680, Dkt. #74. Judgment, with interest, entered in the amount of $15,027.12. RA 308, 680.

Plaintiff appealed only on the allowance of the motion for mistrial.

On November 7, 2019, the Appeals Court reversed the trial court’s ruling. Fitzpatrick v. Wendy’s, 96 Mass.

App.Ct. 410. The Appeals Court agreed with the trial judge that plaintiff’s counsel had repeatedly crossed the line from zealous advocacy into improper,

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inflammatory and prejudicial argument violative of the rules. Id. at 430-32. Still, the Appeals Court held that, when the jury returned its verdict, the trial court thereby lost the authority to declare a mistrial, despite this Court’s holding in Brangan I, specifically endorsing the practice. Further, the Appeals Court held that the trial judge committed an error of law by not treating the mistrial motion as if it were a motion for a new trial under Rule 59(a). Id. at 427-28.

This Court granted the defendants’ application for further appellate review on April 17, 2020.

STATEMENT OF FACTS

The Underlying Claim

The gravamen of plaintiff’s case was that hamburger with any bone fragment, no matter how small, is per se defective. Massachusetts law requires that plaintiff must prove that the food consumed did not meet

“reasonable consumer expectations” to prevail on such claims, but Plaintiff introduced no expert testimony or market studies to prove what the “reasonable consumer” of a fast food hamburger would expect in January of 2011, the date of plaintiff’s incident. RA 5, ¶ 7.

In contrast, the undisputed evidence established that both Wendy’s and JBS took extensive steps to

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minimize the chance of bone fragments or foreign objects in their hamburger. For example, Donald Turcotte, a

Wendy’s district manager (RA 336-74), testified that

Wendy’s specified that the final grind, or diameter, of its ground beef not exceed 3/32” (2.381 mm), a standard that exceeds FDA safety guidelines (RA 344) and is the most stringent in the industry (RA 343, 363-65). Mr.

Turcotte also testified that he had found no other incidents of bone in a Wendy’s burger during the year prior to the incident, and he had not heard of any similar incidents in the eight years he has worked at

Wendy’s. RA 368.

Similarly, Howard Mercedes, Training and

Development Manager for JBS Souderton (RA 442-530) detailed the requirements of the Food Safety Inspection

Service (FSIS) of the U.S. Dept. of Agriculture (RA 466) and Hazard Analysis Critical Control Points (RA 470-71).

He explained that FSIS inspectors shadow JBS plant employees at identified critical control points to make sure they are complying with hazard reduction requirements. RA 472, 514-19. He confirmed that the final grind plate used for Wendy’s hamburgers is 3/32”

(2.381 mm), which prevents anything larger, such as bone fragments or gristle, from being in the final product.

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RA 474-75. This is smaller than the industry standard of

1/8” (3.175 mm), and well within the USDA recommendations, which state that anything smaller than

1/8” is safe for human consumption. RA 476.

Mr. Mercedes outlined in detail the steps for making hamburger, from steer to patty (RA 484-519) and the many safety steps throughout the process for ensuring the meat is safe and unadulterated (RA 485-90).

There is an x-ray earlier in the processing line to check for small bits of metal or large pieces of bone, but not at the end because, as Mr. Mercedes explained, a 1995

FSIS study, still used by the industry, found that bone smaller than one centimeter (i.e., 10 mm) is not a food safety hazard. RA 507. As a result, an additional x-ray is not needed after the final grind. RA 508. RA 505-06.

All these steps are overseen by FSIS inspectors, JBS

Quality Assurance personnel (RA 510-12), Wendy’s own inspectors (RA 513), and the Food Safety Network

Services (FSNS), an independent third party, performs an annual three-day audit (RA 514, 518-19).

Finally, Mr. Mercedes testified that JBS Souderton sold Wendy’s 15,268,271 pounds of hamburger in the thirteen months prior to plaintiff’s incident, the equivalent of 60 million hamburgers. There was no

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evidence of any other complaints of bone in any of that hamburger. RA 523.

Plaintiff, over objection, testified that she personally did not expect to find a tiny bone fragment in the hamburger. RA 564:16-21. She could not testify as to what the “reasonable consumer” might expect, however, so plaintiff’s counsel was left with no direct evidence on this point before the case went to the jury.3

Plaintiff offered no evidence of lost wages, lost earning capacity or medical expenses.

Plaintiff’s Closing Argument

Without expert testimony or market studies as to what “reasonable consumers” might expect in fast food hamburgers in 2011, plaintiff was left to argue that the jury could make that determination itself without evidence in the record. Perhaps recognizing the weakness in his case, counsel resorted to a closing argument that

3 Contrary to the assertion that the defendants did not challenge the extent of her pain and suffering in the first trial (Plaintiff’s Brief pp. 10-11, 17, 32), defense counsel spent considerable time during her cross-examination doing just that. For instance, defense counsel elicited from plaintiff several significant admissions: that within two and a half months after the incident she told her dentist that the subject tooth felt fine (RA 574:11-575:2); that she was feeling better within two weeks of having the implant placed (RA 578:23- 579:19); and that she did not have any issues with that area of her mouth for two years since (RA 581:6-16).

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repeatedly crossed clear and well-established lines. It started almost immediately with an assertion that the plaintiff, the jurors and plaintiff’s counsel himself were together the “reasonable consumers” and formed a common front against the corporate defendants. This “us versus them” advocacy, as the trial court recognized, appeared repeatedly throughout the argument. For example:

It’s very important ladies and gentlemen, it’s not what JBS reasonably expects. It’s not what Wendy’s reasonably expects. It’s what we reasonably expect. Us, the average people. Not them.

RA 614:3-6 (emphasis added). Plaintiff’s counsel was only warming up:

The customer is always right. That’s what [Mr. Turcotte of Wendy’s] said. Really? What does do the right thing mean to these companies? . . . They have not accepted one shred of responsibility. Not one. They have not learned anything from this . . . Instead what have we heard . . . what we’ve heard for three days is a long list of excuses. One after another. Attempt to confuse things. That’s what they do, these big companies.

RA 619:1-13 (emphasis added).

To deflect the jury from the evidence that JBS had not received a single complaint about tiny bone fragments passing through the final grind despite processing over 15 million pounds of hamburger for

Wendy’s in the year before the incident, plaintiff’s

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counsel then equated JBS and Wendy’s with all of corporate America and condemned them all again with no basis in evidence:

[W]e all use thousands of things and we all eat thousands of food, and companies manufacture thousands of products. Things that only hurt people once in a while. Maybe something hasn’t hurt somebody yet. But when a product hurts somebody, the company always says, oh, that never happened before. The safety rule says that the company must make food safe. And the law says that if they did not make safe food and you reasonably expect it, we reasonably expect it to be safe, they’re responsible. Because if you add up all the people that are hurt by the things that hardly ever hurt anyone, that adds up to a lot of dangerous things. And sooner or later the danger is going to claim a victim.

RA 622:5-16 (emphasis added).4 There was more appeal to raw emotion and bias:

But you know what, when Wendy’s and JBS sells all those burgers, they are more than happy to take our money. We pay for the burger. It goes to them. But when a burger hurts somebody, no responsibility. No accountability. Shame on them, honestly – shame on them.

RA 622:20-623:2 (emphasis added).

Counsel finished with a flourish. After telling the jury that they were the “voice of the community,” he

4 The awkward syntax is not a mistake or a typographical error. The argument was copied, almost verbatim, from the so-called Reptile litigation tactic manual. RA 85-86. In other words, what happened at trial was not an oversight – it was intentional.

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made this naked appeal to emotion and bias, again devoid of any basis in the evidence:

[T]his may be the kind of case that triggers something for you a month from now or a year from now. You might be eating a burger . . . And when you – when that triggers, when that happens to you, because it will happen, you’ll think back to today when we left Suffolk Superior Courthouse and I want you to be proud and say we did the right thing. We did the right thing.

RA 626.

When counsel finished, defendants immediately moved for a mistrial. RA 627:19. In a detailed opinion, the trial judge found that the closing argument violated established rules for permissible closing arguments, as set forth in the case law and the Massachusetts Guide to

Evidence, §1113(b)(3). The court declared, “the prejudicial aspects of the closing argument likely influenced the jury’s verdict, thereby depriving

[defendants] of a fair trial.” RA 290-91. Accordingly, she declared a mistrial. Id.

SUMMARY OF THE ARGUMENT

I. The trial court correctly followed the procedure endorsed by this court in Com. v. Brangan when faced with a motion for mistrial triggered by a grossly improper closing argument by the plaintiff’s counsel.

The judge reserves the motion until after the verdict,

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in the event that a ruling was not necessary. This Court has ruled that deferring on mistrial motions in these circumstances until after a verdict does not change their character by converting them into post-judgment motions, and there is no reason to treat civil cases differently from criminal cases in this regard. All litigants are entitled to a fair trial and removing this power from civil trial judges would rob them of an important tool for ensuring that trial counsel stay within the boundaries of proper argument. pp. 27-45.

II. The Appeals Court below incorrectly ruled that that the trial judge had inadvertently lost the authority to declare a mistrial and had converted the character of the mistrial motion to a post-judgment motion. In that case, judgment had already entered. For its proposed rule of law, the Appeals Court cited only one inapposite case in which judgment had already entered. Thus, when the Appeals Court held that the trial judge committed an error of law in declaring a mistrial after the verdict, it was in fact the Appeals Court that committed the error of law. pp. 46-50.

III. The defendants properly and timely objected to the plaintiff’s counsel’s improper closing argument. pp. 50-52.

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IV. The Superior Court’s decision easily survives

“abuse of discretion” review. Under such review, the judge who declared the mistrial, who was also the trial judge, is entitled to great deference from the appellate court. The trial judge, after careful consideration, found that the defendants had been denied a fair trial, and that decision was not unreasonable, arbitrary or capricious. pp. 53-58.

STANDARD OF REVIEW

The defendants agree with the plaintiff that the standard of appellate review in this case is abuse of discretion. That applies both to the trial judge’s decision to reserve on the motion for mistrial and the trial court’s order allowing the motion for mistrial.

ARGUMENT

It is the trial judge’s “primary obligation to see that a fair trial is had and that no undue advantage is taken by either side.” O’Neill v. Ross, 250 Mass. 92, 96

(1924); Hess v. Boston Elevated Ry., 304 Mass. 535, 541

(1939). “When misconduct of counsel is alleged, a trial

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judge ‘has discretion to decide whether any action is required and, if it is, what it should be and when it should be taken.’” Fialkow v. DeVoe Motors, Inc., 359

Mass. 569, 572 (1971). This includes the decision to grant or deny a motion for mistrial based upon conduct of counsel. Riley v. Davidson Const. Co., Inc., 381 Mass.

432, 444 (1980); Shea v. D & N Motor Transp. Co., 316

Mass. 553, 555 (1944); Curley v. Boston Herald-Traveler

Corp., 314 Mass. 31, 31-32 (1943) (the decision to declare a mistrial “is ordinarily within the discretion of the trial judge who is in the best position to determine whether or not anything has happened likely to affect the justice of the verdict”)(citations omitted).

A. Justice Brieger properly followed the process endorsed by this Court in dealing with plaintiff’s closing argument which violated longstanding rules of trial conduct.

Justice Brieger was faced with an egregious closing argument that exceeded well-established rules in many respects. The argument was an overt appeal to the jury to take into consideration their personal interest as consumers of any products and to punish big, faceless corporations. RA 279-83. This was not subtle; rather, it was an open plea to make the corporations “feel the power of the jury.” This style of advocacy has been condemned

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by this Court at least since London v. Bay State St.

Ry., 231 Mass. 480, 485-86 (1919).

This misconduct put the trial judge in a difficult position. The evidence was closed and summation concluded. The last lawyer to speak had given an improper argument which the trial judge recognized was extremely problematic. RA 628.

Defendants immediately moved for a mistrial. The court heard argument briefly at side bar while the jury was still in the courtroom and announced that she would reserve a ruling on the motion but return to it, if necessary, after the verdict. In this, she followed this

Court’s holdings in Com. v. Murchison, 392 Mass. at 277, and Brangan I, 475 Mass. at 147-48 (“[T]he judge’s decision to defer action on the defendant’s motion for a mistrial until after the verdict was one of fairness and common sense”). Both counsel accepted her decision without objection. RA 150.

The common sense of this approach is obvious, as

Brangan I explained. If the jury could put aside the inflammatory remarks and decide only on the evidence, there would be no need for a ruling; but if the trial judge found, based upon her observations in the courtroom, that the improper argument had undercut the

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justice of the verdict, she could then address the mistrial motion. Brangan I, 475 Mass. at 148; Murchison,

392 Mass. at 275.

After the jury returned a plaintiff’s verdict, defendants renewed their pending motion for mistrial.

RA 671. Before ruling, the trial judge ordered production of the entire trial transcript for her review, had briefing, and heard argument on the motion.

Only thereafter did she allow the motion.

In her Memorandum, the trial judge carefully explained why she decided that a mistrial was “thus the fair resolution of the issue before the court.” RA 291.

Having witnessed the trial, heard the arguments and seen the jury’s reaction, she found that these repeated violations were “likely to affect the justice of the verdict” which required that the motion for mistrial be allowed. RA 290-91; see Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 120 (2000).

This is precisely the procedure this Court endorsed in Brangan I, 475 Mass. at 143-45. Defense counsel there moved for a mistrial at the close of the Commonwealth’s summation on the basis of a single remark in the prosecutor’s argument that the trial judge found was not grounded in the evidence. The trial judge took the motion

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under advisement and allowed the jury to deliberate to verdict. After a deliberation that lasted 11 hours over three days, Id. at 145, n.6, the jury returned a guilty verdict.5 The trial judge then turned to the mistrial motion, ordered briefing and held a non-evidentiary hearing on the defendant’s mistrial motion, after which the trial court allowed the motion for mistrial.

The Commonwealth argued that, by reserving decision until after the verdict, and holding a hearing with briefing, the trial judge had converted the mistrial motion into a post-verdict motion for new trial under

Mass. R. Crim. P. 30(b), or a motion for a required finding, which are analogous to Mass. R. Civ. P. 59 in the civil context. Id. at 146. If so, the ruling, now

5 Plaintiff argues that the length of the deliberation in the first trial proves that the jury were not swayed by his improper argument. (Brief pp. 17, 20, 25-26, 43, 51). He made this argument, as well, to the trial judge who considered oral and written arguments before issuing her ruling. The actual length of deliberations is not clear from the record, but it was much shorter than the deliberation in Brangan I. Further, the trial judge found that the jury likely had been impacted in a way that denied defendants a fair trial, regardless of the length of deliberation. RA 290- 91. The test is the effect the improper, prejudicial statement might reasonably have made upon the jury in the eyes of the presiding judge based upon her view of the trial, not the length of deliberations. Shea, 316 Mass. at 555 (emphasis supplied).

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re-fashioned as a decision on a post-verdict motion, would be appealable.

This Court rejected that argument for several good reasons. First, there was “no question” that the trial judge intended to grant a mistrial, not rule on post- verdict motions. Id. at 147. Second, the defendant had brought his motion for mistrial “as soon as procedurally possible” (after the Commonwealth’s argument), “well before the jury returned their verdict.” Id. Finally, the fact that the mistrial was granted after the verdict was not a result of any action of the parties, but instead due to the trial judge’s decision to take the mistrial motion under advisement. Id. at 147.

Each of those factors is present here. There was no doubt that the trial judge ruled on a mistrial motion, not a new trial motion. The judge had expressly reserved decision on that motion, made at the close of the plaintiff’s argument, until after the verdict with the agreement of both counsel. Second, the mistrial motion was made at the exact same time as in Brangan I – the end of the opposing counsel’s closing argument. Finally, the decision to reserve was the trial judge’s decision, and not because of any action of defendants. The trial

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judge followed exactly the process laid out in Brangan

Brangan I and its predecessor, Murchison, were grounded in concerns for basic fairness, common sense and judicial economy. These concerns apply equally to civil and criminal cases. Indeed, Brangan I recognized this by citing two civil cases in support of its holding,

Companioni v. Tampa, 51 So. 3d 452, 455 (Fla. 2010) and

Ed Ricke and Sons, Inc. v. Green, 468 So. 2d 908, 910

(Fla. 1985).

The facts in Ricke track closely both Brangan I and the situation faced by Justice Brieger. Plaintiff’s counsel moved for a mistrial based upon an improper defense closing argument which the trial judge reserved until after the jury returned a verdict. Following a defense verdict, plaintiff renewed the mistrial motion which the trial court then allowed. Affirming the trial court, the Florida Supreme Court noted that the trial judge followed a practical, sensible and fair approach:

“When, as here, the prejudicial comments occur during closing argument, it is quite reasonable for a trial judge to reserve ruling until after the jury deliberates in the hope that the jurors can rise above the alleged prejudice and cure the error.” Id.

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Justice Brieger was forced to address an improper and highly prejudicial closing argument that she found

“likely influenced the jury’s verdict” and “deprived the

Defendant[s] of a fair trial.” RA 290-91 (emphasis added). She followed the procedure specifically endorsed by Brangan I and Murchison for addressing prejudicial and inflammatory closing arguments. Counsel for both parties agreed to this sensible approach. Plaintiff’s lawyer even thanked the judge. RA 629. Having agreed to follow this procedure on the record, plaintiff should not now be heard to complain about it.

“The decision to declare a mistrial is committed to the sound discretion of the trial court.” Cruz v. Com.,

461 Mass. 664, 669-70 (2012). The trial judge “is in the best position to determine whether or not anything has happened likely to affect the justice of the verdict.”

Curley v. Boston Herald-Traveler Corp., 314 Mass. at 32

(affirming mistrial order). Under the abuse of discretion standard, the trial court’s action will be upheld absent “‘whimsy, caprice, or arbitrary or

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idiosyncratic notions.’” Cruz, 461 Mass. at 670, quoting

Bucchiere v. New England Telephone & Telegraph Co., 396

Mass. 639, 641-42 (1986).

The trial court’s power to declare a mistrial in a criminal case is well-established. Com. v. Babb, 389

Mass. 275 (1983). When, as in Brangan I, the court grants a mistrial based upon a prosecutor’s closing argument after a verdict is returned, the double jeopardy clause of the Fifth Amendment might preclude retrial. Id. at

311; Oregon v. Kennedy, 456 U.S. 667, 676 (1982) (double jeopardy prevents retrial where the government’s conduct is intended to goad the defendant into moving for a mistrial). This claim was in fact argued in Brangan. See

Brangan v. Com., 477 Mass. 691, 695 n.9 (2017) (“Brangan

II”); Brangan v. Com., 478 Mass. 361 (2017) (“Brangan

III”).

These concerns are not present in civil cases.

Thus, the practice of reserving on a mistrial motion based upon an improper closing argument until after a jury verdict, endorsed by this Court in Murchison and

Brangan I, is even more appropriate in a civil than in a criminal case. The same benefits of judicial economy, fairness and common sense apply in both contexts, but the potential complications from double jeopardy issues

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do not exist in the civil context. There is, therefore, no reason to treat civil cases differently than criminal ones in this regard. “Surely parties in a civil action are entitled to the same assistance and protection of the judge throughout the trial as are defendants in criminal cases.” Barrett v. Leary, 34 Mass.App.Ct. 659,

662 (1993).

The Murchison/Brangan procedure makes good sense in all cases. It allows for the possibility that improper and prejudicial closing remarks in fact might not sway a jury. But it also empowers the trial judge, who was present and witnessed first-hand the impact of such wrongful remarks, to take appropriate action and to declare a mistrial if necessary to ensure the justice of the verdict and fairness for all parties. The Ricke Court cogently explained the many benefits and fundamental fairness of the Murchison/Brangan procedure in the civil context:

The power of a trial court judge to reserve ruling on a motion for a mistrial will not only conserve judicial resources but may also operate to prohibit a wrongdoer from profiting from his own intentional misconduct. Unfortunately, it is common practice for some trial attorneys to make prejudicial remarks during closing argument when the posture of his case is doubtful. In these instances, the opposing counsel is forced to make a motion for mistrial. . . . Now that it is clear that a trial judge may wait until after the jury deliberates

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before ruling on a motion for a mistrial, the incentive to intentionally make prejudicial remarks during closing argument will be minimized.

Ed Ricke and Sons, Inc. v. Green, 468 So. 2d 908, 910

(Fla. 1985).

The goal in all cases is a fair trial for all.

Judges should not allow conduct, found to be improper by the trial judge, to be rewarded. Fialkow v. DeVoe Motors,

359 Mass. at 572 (faced with improper conduct, the trial judge is empowered to take whatever action she thinks necessary to “safeguard the rights of the parties” including declaring a mistrial).

Removing from civil trial judges the power to reserve ruling on a mistrial motion at the closing argument stage as judges have in criminal trials has multiple consequences, all of them detrimental to good trial practice. First, faced with an obviously improper, prejudicial argument, the judge is unfairly thrust into a Hobson’s choice of either declaring a mistrial immediately, after days or more of testimony, or allowing lawyers who violate the rules to profit from

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their own wrongdoing. Second, the parties lose the chance to brief the issues and argue them as the lawyers had here and in Brangan I. Third, the judge must make a snap judgment, losing the opportunity for reflection and the benefit of briefing and argument. This does not require that trial judges must always reserve decision on a mistrial motion made after closing argument. But the trial court should have the same opportunity for reflection in a civil as in a criminal case, if the judge decides the issues are serious enough to merit further examination and thought.

Removing from a civil trial judge the

Murchison/Brangan power to reserve on a mistrial motion following an improper and prejudicial closing argument deprives the judge of one important tool to ensure that counsel abide by the rules throughout the entire trial.

In Fialkow, this Court explained how important it is for trial judges to have a full panoply of tools available to deal with improper conduct and to use them with sound discretion as the judge determines based upon what she sees:

[The trial judge] should and does have broad discretion to take whatever action [s]he thinks is necessary to cope with and control the situation and to safeguard the rights of the parties. The trial judge, with the benefit of [her] presence in

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a vantage position when the alleged improper statement or argument is made, is in the best position to decide what corrective measures, if any, are required . . . [S]he has discretion to decide whether a mistrial should be declared . . .

Fialkow v. DeVoe Motors, Inc., 359 Mass. at 572.

Automatically converting a deferred mistrial motion into a Rule 59(a) motion after a verdict is returned as suggested by the Appeals Court below rewards the wrongdoer and punishes the victim. Fitzpatrick, 96

Mass.App.Ct. at 410-11. This is especially true if there are higher standards for allowance of a Motion for New

Trial under Mass. R. Civ. P. 59(a) than exist for a mistrial motion. The last lawyer to speak can say almost anything with impunity unless the judge has a real tool, a mistrial, available if necessary. Opposing counsel has no opportunity to respond and, without the power to declare a mistrial, the court has little meaningful power to ensure that the jury is not unfairly prejudiced by even grossly improper statements made in the last closing arguments. That is precisely the evil the

Murchison/Brangan I procedure empowers the trial court to combat. Ed Ricke and Sons, Inc. v. Green, 468 So. 2d at 910.

Rule 59(a) Motions for New Trial have different standards and are focused on different things than are

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motions for mistrial. Whereas a Rule 59 motion addresses whether a new trial is necessary for a variety of reasons set forth under Rule 59(a), and often must be based upon a review of the entire case, a mistrial motion in this setting focuses on the impact an improper closing argument “might reasonably have had upon the minds of the jurors.” Shea v. D & N. Motor Transportation Co.,

316 Mass. at 555 (“the presiding judge is in a position

(we are not) to determine the effect which the statement might reasonably have had upon the minds of the jurors and whether the impression created was too strong to be removed”).

Here, Justice Brieger found that the inflammatory argument indeed was likely to impact the jury and that her instructions were not adequate to overcome that unfair and prejudicial impact. RA 290-91. As in

Murchison, there was nothing else the trial judge could have said in her instructions to wipe these arguments from the jurors’ minds. See Murchison, 392 Mass. at 275-

76.6

6 In this case, defendants were entitled to a new trial whether analyzed under a mistrial or Rule 59 standard. Justice Brieger specifically found that plaintiff’s closing argument and its impact deprived Defendants of a fair trial- a miscarriage of justice under any standard. Com. v. Randolph, 438 Mass. 290, 297

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Justice Brieger was confronted by a serious problem of plaintiff’s making. To ensure each party received a fair trial and the ends of justice were met, she felt compelled to award a mistrial. Thereafter the case was retried, fairly, and both sides followed the rules. The procedure laid out by Brangan I was followed and both sides had a fair trial before an untainted jury.

i. Justice Brieger’s decision to order a Mistrial was Justified.

In the wake of plaintiff’s improper closing argument, Justice Brieger was required to address one issue: were the prejudicial and inflammatory arguments

“likely to affect the justice of the verdict,” thereby depriving the defendants of a fair trial? Abramian v.

President & Fellows of Harvard College, 432 Mass. at

120; Curley v. Boston Herald-Traveler Corp, 314 Mass. at

31-32. In her detailed and lengthy opinion, the trial

(2002). There is no reason to deprive civil trial judges of an important tool in controlling their courtrooms when the impact on the parties in this case will not change.

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judge found that they were. Her analysis focused on the many improprieties in the closing argument and the likely effect they had on the justice of the verdict.

Justice Brieger identified the repeated violations of known and established rules of conduct and demonstrated how they were tailored, intentionally, to inflame the jury rather than to achieve a just result after a fair trial. RA 290. In her discretion she found that declaring a mistrial was “the fair resolution of the issue before the court.” RA 291.

Addressing a remarkably similar argument, the Court in Gath v. M/A-Com, Inc., 440 Mass. 482 (2003), decried the unfairness and unprofessionalism of the closing argument, and re-affirmed the Court’s confidence in the trial court to address such actions properly:

We comment further on the closing argument . . . In our view, it was most improper. The hypothetical references to airplane crashes and baseball players’ salaries had no support in the record, and were obviously intended to suggest by such hyperbolic analogy what is expressly prohibited by specific request . . . Judges need not await an objection from opposing counsel before preventing the unfair advantage that such an argument seeks to obtain. The premise of such argument is antithetical to principles of fairness. It is improper, unprofessional, and should be cut short at the earliest opportunity.

Gath v. M/A-Com, Inc., 440 Mass. at 495.

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Gath was decided 13 years before the Fitzpatrick case was tried. The arguments decried by this Court as

“most improper” were reprised: airplane crashes and baseball players became what “big companies” always do; dismissing the undisputed evidence that there had been millions of hamburgers sold without incident counsel stated: with “I don’t know if that is true or not,” implying that he knew something the jury did not. The plaintiff’s lawyer repeatedly referred to violations of corporate safety rules when the undisputed evidence was diametrically opposed – both defendants had far exceeded any government or industry standard. These arguments echoed those condemned in Gath and London v. Bay State

St. Ry., 231 Mass. at 485-86, and many others in between.

They should not be rewarded or condoned.

Reviewing the argument as a whole, Justice Brieger concluded, “These arguments impermissibly urged the jury to infer that this was not the first time a consumer was injured by a bone fragment in Defendants’ burgers in contravention of the trial evidence” (RA 285), and that the only way to ensure a just verdict, based on the evidence, was to try the case properly, within the rules.

Nothing else is required of a trial judge when faced

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with comments that the trial judge finds might infect a jury rendering a verdict unjust.

In Gath, this Court noted, “The judge was in the best position to evaluate the effect on the jury of the improper argument. We defer to his view that the improper remarks made no difference.” Gath, 440 Mass. at 495

(emphasis supplied). There is no less reason to defer to the trial judge when she finds that an improper argument in fact did make a difference in the verdict.

ii. Given the timing of the misconduct, the trial judge had few alternative measures available to ensure a fair trial based upon the facts.

Faced with an improper argument by the last lawyer to speak, the trial judge had few alternatives available to her at that time. One was to defer ruling under

Murchison/Brangan I to see if the jury could overcome the improper argument, which she did. The second was to attempt to address the inflammatory and improper argument with her jury instructions, which she attempted to do. RA 281, 283-85. The judge modified her instructions to address the overreaching argument in the hope that the jury would not be swayed by the improper leas to emotion and suggestion that they put themselves in the plaintiff’s shoes and act for their own benefit.

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RA 284. After the jury returned its verdict, she gave counsel a chance to fully brief and argue the matter.

Only then did she determine that even her modified instructions were not enough to overcome the improper closing argument. RA 281, 283-85.

Neither then, nor ever, has plaintiff suggested any additional instruction that could have fairly overcome the unfair prejudice thrust into the case by this argument. The reason for that omission is simple: no such instruction is conceivable. See Com. v. Murchison,

392 Mass. at 275 (the trial judge concluded that no jury instruction could cure the implications of the highly prejudicial question).

The problem in this case was easily avoided if plaintiff’s counsel had not made an inflammatory, improper argument in the first place. The rules and boundaries of closing argument are plainly set and easily found. See Mass. G. Evid. §1113(b)(3). This Court in London and Gath and many other cases has described what is proper and what is not. Having caused the problem, plaintiff should not be able to profit by plaintiff’s own misdeeds, as Justice Brieger in her discretion ruled.

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The Appeals Court’s decision in this case is, at its core, based upon the proposition that a trial judge in a civil case who reserves decision on a motion for a mistrial based upon an improper closing argument loses the authority to declare a mistrial, and the mistrial motion is automatically transformed into a motion for a new trial, once the jury’s verdict is received.

Fitzpatrick, 96 Mass.App.Ct. at 427-28.

That ruling severely undermines, if not eliminates, any application of Brangan to civil cases. The Appeals

Court’s decision recognizes that “[a] trial judge may, for reasons of efficiency, decide to defer ruling on a motion for a mistrial until after receiving the jury’s verdict,” Id. at 426-27 (citing Brangan I), but its holding effectively renders the procedure that Brangan

I endorsed a nullity. After acknowledging the trial judge’s right to defer action on a mistrial motion based on an improper closing argument, the Appeals Court robs from the trial judge that very right, by holding that

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when a trial court reserves a decision as in Brangan, the judge “is deprived of authority to declare a mistrial once ‘the jury verdict ha[s] been received, recorded and proclaimed and the jury ha[s] been discharged.’” Id. at

428, quoting Holder v. Gilbane Bldg. Co., 19

Mass.App.Ct. 214, 218 (1985).

The decision asserts that receipt of the verdict and discharge of the jury automatically transform the mistrial motion into a motion for a new trial under Mass.

R. Civ. P. 59(a). Such a transformation effectively nullifies the mistrial motion. This deprives the trial court of at least one important tool to exercise meaningful control over the closing arguments and, as

Ricke points out, creates incentives for less scrupulous lawyers to stray from the rules with impunity. Ed Ricke and Sons, Inc. v. Green, 468 So. 2d at 910.

If the Appeals Court decision stands, trial judges will be pressured to decide mistrial motions immediately, with all the effort and potential disruptions that doing so may entail, even though doing so may turn out to have been unnecessary. Alternatively, the trial courts might simply deny even meritorious motions without fair consideration. Thus, the Appeals

Court decision, while paying lip service to Brangan I,

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effectively nullifies Brangan’s utility as a practical matter, to the detriment of trial judges, the parties and the judiciary alike.

The Appeals Court’s decision confidently announced this new rule of law without identifying any reliable supporting precedent. The sole decision the Appeals

Court cites for the proposition that a judge is deprived of authority to declare a mistrial once the verdict has been received and the jury has been discharged, Holder v. Gilbane Bldg. Co., 19 Mass.App.Ct. at 218, does not support that proposition.7

In Holder, neither party moved for a mistrial at any time, before or after the judgment. After judgment had entered, plaintiff’s counsel moved to amend the judgment based upon an inconsistency in the jury’s answers to special questions. The trial judge (Garrity,

J.) decided to recall jurors to ask them whether their verdict had been accurately recorded two weeks after the trial was over. Id. at 216. When counsel objected to the scope of the judge’s questioning of the recalled jurors,

“the judge became irate and declared a mistrial.” Id. at

7 It would not be an exaggeration to say that Holder is truly a sui generis case. Regardless, it certainly has no bearing on what happened at the Fitzpatrick trial.

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215-16. He specifically stated that he was declaring a mistrial because he believed that counsel for both parties were trying “to obstruct me at every move that

I was trying to make,” and then, without giving counsel time to respond, he walked off the bench. Id. at n.2.

The Appeals Court (Kass, J.) dealt with this situation diplomatically, by “looking upon [the trial judge’s] declaration of mistrial as a “misnomer.” Id. at 220.

The circumstances and posture of Holder are nothing like what Justice Brieger faced or did in this case.

Holder recognized that the verdict had been received and the jury discharged, but in the same breath (which the

Appeals Court decision omits), Holder also noted that “a judgment had entered.” Id. at 218. Indeed, unlike the

Appeals Court’s proposed rule, Holder turned upon the entry of judgment. In this case, no judgment was entered on the first verdict. Instead, after Justice Brieger’s mistrial order, a second trial was held, and it was only after that trial that a final judgment entered. Here there was no misnomer or mistake.

The Superior Court’s consideration and allowance of the motion for a mistrial were within the authority of the Superior Court and were accomplished without being limited by the Appeals Court’s purported rule of law for

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which the Appeals Court could find no precedent or other authority in support. When the Appeals Court claimed that the Superior Court’s decision allowing the motion for a mistrial constituted error of law, in fact it was the Appeals Court that committed such error. Justice

Brieger followed this Court’s precedent precisely and came to a reasoned decision to ensure that both parties received a fair trial.

III. CRITICISMS OF THE TRIAL JUDGE’S FINDINGS AND RULINGS LACK MERIT.

A. Defendants’ objections to the Plaintiff’s Closing Argument was Timely and Sufficiently Specific.

The Appeals Court and plaintiff assert that the defendants’ failed to object to plaintiff’s improper argument. (Brief, pp. 7, 16, 34-35; Fitzpatrick, 96

Mass.App.Ct. at 410, 425, 427, 429). Not only does this mischaracterize what happened at trial, it also misstates the law of this Commonwealth. Defense counsel stood up as plaintiff’s counsel finished his closing argument. He then immediately moved for a mistrial. The judge, eager to allow the jury to get to lunch, heard defendants’ objection at sidebar as the jury was exiting the courtroom. RA 627. The jury was still present while

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defendants stated their objections to plaintiff’s closing on the record.

Neither the Appeals Court nor plaintiff cite to a single case stating opposing counsel must stand up and object during a closing to each offending statement.

This is because there is none. This Court has repeatedly held that an objection to a closing argument before the jury charge is acceptable, as happened here. Com. v.

Johnson, 374 Mass. 453, 457-58 (1978).

While at side bar, defense counsel listed several reasons supporting the oral motion. RA 627:23-628:13.

“[T]rial counsel need not achieve perfection in identifying every impropriety . . . so long as the objection alerts the judge to the grounds on which trial counsel objected to the [] closing argument.” Com. v.

Olmande, 84 Mass.App.Ct. 231, 235 (2013). Defendants’ objection was more than adequate to alert the trial judge to the numerous and repeated improprieties in plaintiff’s closing, especially where the court indicated that she had “her own list” or problematic statements.

Given this scenario it is not surprising that plaintiff failed to lodge any objection to the timing or scope of the objection earlier, because no such argument

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could be made. She did not raise these issues to the trial court either in her Opposition to Defendants’

Motion for a Mistrial (RA 217-37), or during oral argument on the motion (RA 682-730). In fact, in her

Opposition to the mistrial motion, plaintiff conceded that defendants objected: “[h]ere, although Attorney

Duggan ‘objected’ to the closing at sidebar (after the closing), he did not object during the closing argument.” (RA 235).8

This Court has repeatedly held that “objections, issues, or claims — however meritorious — that have not been raised at the trial level are deemed generally to have been waived on appeal.” NES Rentals v. Maine

Drilling & Blasting, Inc., 465 Mass. 856, 860 n.8 (2013);

Royal Indem. Co. v. Blakely, 372 Mass. 86, 87–88 (1977)

(issues not presented below “need not be considered on appeal”). To the extent Fitzpatrick raises this argument for the first time now, it has been waived.

8 Plaintiff now takes the position that defendants did not object but instead complained of one “improper comment” made during the closing. (Brief pp. 7, 42). Plaintiff does not explain the difference between making an objection and alerting the judge of improper comment(s) made during argument, nor can she. There is none. And both the transcript (RA 627:23-628:13) and the briefs (RA 25-275) demonstrate that defense objected to numerous parts of the closing argument, virtually all of which were sustained by the trial judge.

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Finally, the core of the Appeals Court’s opinion is that Justice Brieger committed an error of law by following this Court’s holding in Brangan I. Without authority, the Appeals Court declared that the trial court had inadvertently converted the mistrial motion into a post-judgment, Rule 59(a) motion by reserving decision until after the verdict, despite the fact that this Court had endorsed the procedure and both trial counsel agreed to this approach on the record. RA 628-

29. Thus, it was the Appeals Court, not the Superior

Court, whose decision was erroneous. The Appeals Court cited no precedential authority on point to demonstrate or support that its novel proposed rule of law actually exists, and it contradicts this Court’s decisions in

Brangan I and Murchison.

Without an “error of law” basis for vacating

Justice Brieger’s mistrial order, the trial court’s order must stand absent a finding of abuse of discretion.

An abuse of discretion occurs when the trial judge’s decision rests upon “a clear error of judgment in

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weighing the factors relevant to the decision . . . such that [it] falls outside the range of reasonable alternatives,” or “when the judge’s decision constitutes a “significant error of law.” Chambers v. RDI Logistics,

Inc., 476 Mass. 95, 110 (2016)(citation omitted). Put another way, the trial court’s discretionary action will be upheld absent “whimsy, caprice, or arbitrary or idiosyncratic notions.” Cruz v. Com., 461 Mass. at 670, quoting Bucchiere v. New England Tel. & Tel. Co., 396

Mass. at 641. Although the Appeals Court does articulate some criticisms of the decision with respect to some of the particular considerations that contributed to weighing and balancing considerations relevant to the motion, the Appeals Court does not assert that the

Superior Court’s determination was beyond the range of reasonableness, arbitrary or capricious, nor could it.9

Neither Appeals Court nor the plaintiff have identified a single Massachusetts case in which an appellate court has ever held that a trial court abused its discretion by a decision allowing or denying a motion for mistrial based upon an overreaching closing

9 In truth, it is impossible to read the trial judge’s comprehensive Memorandum and Order and suggest that she was unreasonable, arbitrary or capricious.

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argument. As this Court has said time and again,

“declaring of a mistrial is ordinarily within the discretion of the trial judge who was in the best position to determine whether or not anything has happened [that is] likely to affect the justice of the verdict.” Abramian, 432 Mass. at 120; quoting Curley v.

Boston Herald-Traveler Corp., 314 Mass. at 31-32.

Under an abuse of discretion standard, “[t]he appellate court does not disturb the trial court judge’s ruling simply because the court might have reached a different result; the standard of review is not substituted judgment.” Cruz v. Com., 461 Mass. at 670, quoting Bucchiere, 396 Mass. at 642. Considerable deference must be granted to the trial judge (in both mistrial and new trial contexts), because the “[trial] judge is in the best position to evaluate the effect on the jury of the improper argument.” Gath v. M/A–Com,

Inc., 440 Mass. at 492, 495. See also, Com. v. Walker,

443 Mass. 213, 225 (2005) (reversal for abuse of discretion is rare where the judge acting on the motion was also the trial judge). Justice Brieger, as the presiding judge was in the best position to “determine the effect which the [improper] statement might reasonably have had upon the minds of the jurors and

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whether the impression created was too strong to be removed.” Shea v. D. & N. Motor Transp. Co., 316 Mass. at 555. Only she was able to assess the atmosphere in the courtroom at the time of plaintiff’s closing argument – not the Appeals Court. Her opinion is entitled to the deference shown in Gath, Shea and a plethora of other cases. Under these circumstances, it would be unwise to undermine the power of trial judges to enter mistrials when necessary to ensure a fair proceeding, and rob them of the deference this Court has shown trial judges historically.

In a further attempt to avoid the considerable deference due to trial judges in these situations, the

Appeals Court stated that Justice Brieger abused her discretion by “fail[ing] to conduct a survey of the whole case, as she was required to, to determine whether a miscarriage of justice would result absent a new trial”

(as required under Rule 59 new trial motions).

Fitzpatrick, 96 Mass.App.Ct. at 410-11. There are numerous problems with this statement.

First, when a motion for mistrial or even a motion for new trial is based upon an improper closing argument, the trial court may allow the motion based on “the prejudicial conduct of counsel not cured by the judge’s

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instructions to the jury . . .” Gath, 440 Mass. at 492;

Leone v. Doran, 363 Mass. 1, 16-19 (1973). No

“miscarriage of justice” need be found.

Second, the record establishes beyond question that the trial judge in fact did examine the record of the entire trial. Indeed, it was the trial judge who ordered the transcript well before the hearing on the motion for mistrial, and the trial judge took briefs from and heard lengthy arguments from both counsel. The Appeals Court decision disregards numerous instances demonstrating that Justice Brieger, who, of course, was the same judge who presided over the trial, and so was thoroughly familiar with the case to start with, did consider the trial as a whole10 in determining that the “prejudicial

10 Justice Brieger reviewed the trial as a whole before ruling on the motion for mistrial as the record shows. Before ruling, the trial judge: (1) ordered that the entire trial transcript be reproduced for her review (RA 671:24-672:4, “I think we actually have to have a transcript of the trial”); (2) requested a copy of the entire trial transcript at the beginning of argument on the mistrial motion (RA 684:8-22); and (3) stated numerous times in her Memorandum and Order that she did evaluate plaintiff’s closing in light of the entire trial: (a) “[v]iewed in the context of the evidence” when referring to the “us against them” tactic (RA 280), (b) in finding her instruction not to act on sympathies or prejudices inadequate (RA 281), (c) in considering whether her charge on the purpose of damages was sufficient (RA 283, n.9), (d) in determining that her charge failed to address plaintiff’s impermissible golden rule argument (RA 284), (e) in noting that

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aspects of [plaintiff’s] closing argument were “likely to affect the justice of the verdict” (RA 290), thereby depriving the defendants of a fair trial.

Third, the trial judge found that plaintiff’s closing argument was so prejudicial that the defendant had been denied a fair trial. RA 290-91. A miscarriage of justice exists when there is “serious doubt whether the result of the trial might have been different had the error not been made.” Com. v. Randolph, 438 Mass.

290, 297 (2002). That is the essence of a miscarriage of justice. Far from an abuse of discretion, the trial court’s opinion was carefully crafted and her reasoning well-grounded in established Massachusetts law.

CONCLUSION

For the reasons set forth above, this Court should affirm the Superior Court’s Order granting defendants’ motion for a mistrial.

plaintiff’s closing suggested, without evidence, that safety rules had been violated (RA 284, n.11), (f) in noting that counsel’s interjection of his personal opinion on the evidence regarding the amount of product the defendants had sold was “in contravention to the trial evidence” (RA 285), and (g) in stating that she “reviewed the totality of the closing argument and the evidence presented at trial” in concluding her opinion (RA 290).

- 58 -

Respectfully submitted,

Wendy’s Old Fashioned Hamburgers of New York, Inc., and JBS Souderton, Inc.

By their attorneys,

/s/ Christopher A. Duggan Christopher A. Duggan (BBO#544150) Pauline A. Jauquet (BBO#670103) H. Reed Witherby (BBO#531600) SMITH DUGGAN BUELL & RUFO LLP 55 Old Bedford Road Lincoln, MA 01773 (617) 228-4444 [email protected] [email protected] [email protected]

Dated: July 22, 2020

- 59 -

ADDENDUM

- 60 -

ADDENDUM TABLE OF CONTENTS

Memorandum of Decision and Order on Defendants’ Motion for a Mistrial...... 62

Appeals Court Order to Vacate...... 78

- 61 - COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, 55. SUPERIOR COURT CIVIL ACTION NO. 2013-304S-F

MEAGHAN FITZPATRICK

vs.

WENDY'S OLD FASHIONED HAMBURGERS OF NEW YORK, INC. & another'

MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION FOR A MISTRIAL

PlaintitIMeaghan Fitzpatrick ("Fitzpatrick") filed the instant action to recover damages for personal injuries sustained when she bit into a fragment of bone contained in a hamburger she purchased from Defendants Wendy's Old Fashion Hamburgers of New York, Inc. ("Wendy's") and 18S Souderton, Inc. ("18S") (collectively, the "Defendants"). The case was tried to a jury beginning on September 21, 2016 (Brieger, J. , presiding) . After Plaintiffs counsel' s closing argument, Defendants moved for a mistrial. This court reserved decision and sent the matter to the jury, which concluded that Defendants' breach of the implied warranty of merchantability was a substantial contributing cause of Fitzpatrick's injuries and awarded her $105,005.64 in damages. The matter is now before the court on Defendants' motion for a mi strial based upon remarks in the closing argument made by Fitzpatrick' s counsel. l After a hearing and careful

, JBS SOlld elton, Inc . 1 The in stant motion is a motion for mi strial and is not a motion for relief from judgment under Mass. R. Civ. P. 59 or a motion for a new trial under Mass. R. Civ. P. 60. See Commonwea lth v. Bran~an , 475 Mass. 143, 14 7-48 (20 I 6) (reservin g decision on motion for mistrial and allow ing a case to proceed to the jury does not au tomatically transfonn a motion for mi stri al into a motion for post-judgment relief).

- 62 - consideration of the parties' submissions, and for the reasons set forth below, Defendants'

Motion for a Mistrial is ALLOWED.

DISCUSSION

This trial unfolded before ajury that was asked to consider whether Fitzpatrick's dental injuries were caused by Defendants' breach of the implied warranty of merchantability that their meat products were safe to consume.3 During the trial, the jury heard testimony from multiple witnesses, including Fitzpatrick herself, as well as a number of Defendants' representatives who explained the nature of the manufacturing process beginning from wholesale beef purchase and ending with retail hamburger sale.

The instant motion arises from Fitzpatrick' s counsel' s closing argument, parts of which

Defendants contend were unfairly prejudicial because they crossed the line from zealous advocacy to improper argument. Defendants ask the court to exercise its discretion and declare a mistrial. Such requested relief is a matter of considerable concern given the substantial resources expended in the trial of this case, including the time and effort the jurors contributed in order to reach a verdict. Defendants nonetheless contend that a mistrial is warranted because Ihey were substantially prejudiced by Plaintiffs counsel's repeated urging to decide the case on matters other than the evidence. In particular, Defendants argue that the closing argument consisted of multiple emotional, inflammatory and prejudicial statements; improper exhortations to the jury to deliver a message by their verdict as the "voice of the community;" requests that the jury put

3To prove her claim for breach of warranty under G. L. c. 106, § 2- 3 14, Plaintiff was required to prove that ( I) her burger contained an injury-causing object, i.e., the bone fra gment , for which Defendants we re th e source; and (2) a consumer would not reasonably have expected to find th e bone ITagment therein. See Webster v. Blue Sh ip Tea Room. Inc ., 347 Mass. 421 , 423-427 ( 1964); Phillips v. West Springfield, 405 Mass. 41 1, 412-413 ( 1989).

- 63 - itself in Fitzpatrick's place in violation of the prohibition against use of golden rule arguments; impermissible expressions of personal opinions; and arguments based on facts that were not in evidence, which, in combination, worked to taint the jury's deliberati ons.

While closing arguments are not evidence, as the court so instructed in the instant trial, closing arguments play an important role in conveying to the jury which inferences counsel want them to draw from the admitted evidence. "In closing argument, counsel may argue the evidence and the fair inferences which can be drawn from the evidence " .. Counsel 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 (1999) (internal citati ons and quotati on marks omitted). The scope of proper closing argument is limited, however, to comment on facts admitted in evidence and those relevant to the issues before the jury, as well as the fa ir infe rences drawn therefro m. See Mason v. General Motors Corp. , 397 Mass. 183, 185 (1986); Leone, 23 1

Mass. at 17-1 9 (scope of argument limited to evidence and reasonable inferences).'

Isolated inappropriate comments in a closing argument, especiall y where combined with appro pri ate curative instructions, standing alone, would not justify allowing the instant motion.

Fyffe, 86 Mass. App. Ct. at 472. Instead, thi s court must consider: "(I) whether [Defen dants] seasonably obj ected; (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 mi stake; and (4) whether the error, in the circumstances, possibly made a di ffe rence

' Massac husetts Guide To Ev id ence, Section I 11 3 characterizes pe rmi ss ible argum ent as fo ll ows:

ClOSi ng argument must be based on the ev idence and th e fa ir in fere nces from the evidence. II may conta in enthusiasti c rhetoric, strong advocacy, and excusable hyperbole .... In civi l acti ons, in the Superior COllrt, parties, th ro ugh th eir cou nse l may suggest a spec ific monetary amount for damages at trial.

- 64 - in the jury's conclusion." Id. In other words, the challenged remarks must be examined against the backdrop "of the entire [closing] argument, as well as in light of the evidence at tri al and any instructions," to determine whether the cumulative effect of the closing argument so permeated the jury's deliberations as to deprive Defendants of a fair trial. Commonwealth v. Pontes, 402

Mass. 3 11 ,3 16 (1988), citing Commonwealth v. Lamrini, 392 Mass. 427, 432 (1984). See Fyffe,

86 Mass. App. Ct. at 458. The court addresses each of the Defendants' arguments regarding improper argument in tum.s

Im proper Argument: U\' versus Them

Defendants first argue that the closing argument improperl y encouraged the jury to decide the case on an "us versus them" basis, thereby encouraging them to depart from neutrality and decide the case based on bias against big corporations in contravention of Mass. G. Evid .,

Sec. I I 13(b)(3)(C). In particular, Defendants take issue with the fo llowing argument by

Fitzpatrick's counsel:

The customer is always right. That's what [Mr. Turcotte] said. Really? What does do the right thing mean to these companies? One of the largest fast food companies and one of the largest beef manufac turers in the world. What does that mean, do the right thing? They have not accepted one shred of responsibility. Not one. They have not learned anything from this. Have they learned that they can' t serve meat with bone in it that's going to hurt somebody? No. Instead what have we heard ... what we've heard for three days is a long li st of excuses. One after another. Attempt to confuse things. That's what they do, these big companies. That's what they do. They take something simple and they make it all confusing.

See what [Plaintiff] did not know, and what JBS and Wendy's did know,

S Defendants also argue th at cou nse l improperly asked th e jury in clos ing argu ment to co nsid er a range of damages in violation of G.L. c. 231 § 138. The cou rt has found no auth ority for Defendants suggestion th at arguing a "specific" amou nt for damages (contempl ated by th e plain language of the statute) prec lu des an argume nt for a ··range" of damages. Accordingly. the co urt dec lines to grant a mistri al on th at ground.

- 65 - is that bone can get into the final burger. They have insider knowledge. They're the ones who know what goes into the meat process .... They know all that. But you know who doesn't know that? We don't know that. The average customer. The regular customer. We don' t have the knowledge that they do .... And because we don't have that knowledge, we don't have the expectation ....

It's very important ladies and gentlemen, its not what JBS reasonably expects. It's not what Wendy's reasonably expects. Its what we reasonably expect. Us, the average people, not them.

[W]hen Wendy' s and JBS sells all those burgers, they are more than happy to take our money. We pay for the burger. It goes to them. But when a burger hurts somebody, no responsibility. No accountability. Shame on them, honestly- shame on them.

(Tr. p. [34, at ~~ 6- 17; p. 135, at ~~ 3-6; p. 140, at ~~ 1-13; p. 143, at ~~ 23-25; p. 144, at ~~ 1-2).

Viewed in the context of the evidence, some of Plaintiffs counsel's above-quoted remarks were properly directed toward the expectations of a reasonable consumer. Many were not. Counsel improperly sought to create a dichotomy between Defendants on one hand, and the jury and Fitzpatrick on the other, an "[u]s, the average people" versus "them" the bi g corporations dichotomy. For example, Plaintiffs counsel suggested that "they are more than happy to take our money. We pay for the burger. [t goes to them. But when a burger h1ll1S somebody, no responsibility. No accountability. Shame on them, honestly - shame on them."

(Tr. p. 143 , at ~~ 23 -25 ; p. 144, at ' I ~ 1-2). Plaintiffs counsel also argued "What does do the right thing mean to these companies? One of the largest fast food companies and one of the largest beef manufacturers in the world .... They have not accepted one shred of responsibility.

Not one." (Tr. p. 140, at ~~ 1-5). Not only do these arguments have very little, if any, bearing on the ultimate issue before the jUlY, but there can be no doubt that Plaintiffs counsel intended to stain the corporate character of Defendants by conveying to the jury that this case was about the

- 66 - Plaintiff, an average person, like them, who was pitted against large, wealthy corporations, both of which were devoid of sympathy or conscience and concerned only with the bottom line.

Such an inappropriate invitation to the jury to act on passion and prejudice against large corporations was improper. See London, 231 Mass. at 485-486. See also Leone, 363 Mass. at

17. The court gave no contemporaneous curative instruction, but included in the jury charge a caution that: "[y]our job is not to make any distinctions or hold any sympathies or prejudices based on whether a party is a big company or a small company or a buyer or a seller," (Tr. p. 157, at ~~ 14-19). Upon reflection and review of the entire record, a stronger and more focused instruction was warranted here to overcome the cumulative effect of the "us versus them" narrative recurring throughout the closing argument. See, e.g., Commonwealth v. Kellv, 417

Mass. 266, 271 (1994) (curative instructions should be specifically focused on the error);

Commonwealth v. Ward, 28 Mass. App. Ct. 292, 296- 297 (1990) ("[T]o counteract [] poisonous effect," curative instructions must be directed against the improper comments). Cf. London, 231

Mass. at 486 (distinguishing general instruction with specific instruction to disregard argument).

Improper Argument: Voice ofthe Community

Defendants next complain that Plaintiffs counsel improperly suggested that the jury decide the case as "the voice of the community" to "send a message" beyond the courtroom in contravention of Mass. O. Evid., Sec. 1 I 13(B)(3)(C). Defendants contend that in so doing,

Plaintiffs counsel overstepped the bounds of permissible argument by appealing to the jury's generalized community safety concerns. Plaintiffs counsel repeatedly asked the jury whether the

"safety rules" at issue were "important in our community," and "if those are important, you need to speak to that and your verdict needs to speak to that. You're verdict will speak vo lumes

- 67 - echoing outside of thi s Courthouse." (Tr. p. 144, at ~~ 3-7). Specifically, Defendants obj ect to the following argument:

Are these important rul es in our community? Are we going to enforce them? Are you go ing to enfo rce them? If the rules that we talked about here, the safety rules, if those are important you need to speak to that and your verdict needs to speak to that. Your verdict will speak volumes echoing outside of this Coul1house. If these rul es are not imp0l1ant, if its okay for them to serve burger with bone and someone gets hurt once in a while, and if they get injured, too bad for them. Then you know what? Give these guys a pass. Give them a pass .... They will not take responsibility and you know what? They think you're going to give them a pass. They do .... [Pl ainti ff] is entitled to be compensated for her harm . As I said, you have the power. You' re the jury. You' re the boss . ... You are the vo ice of the communi ty.

(Tr. p. 144, at ~~ 3-1 2).

The use of "conscience of the community" arguments is permissible so long as it is not specifically designed to infl ame the jury. Compare Commonwealth v. Fitzmeyer, 414 Mass. 540,

546-547 (1993) (proper to argue that jury is "community'S collective conscience" in assessing whether the killing had occurred with extreme atrocity or cruelty); Commonwealth v. Lawrence,

404 Mass. 378 , 391- 393 (1989) (when jury had to assess whether killing occurred with extreme atrocity and cruelty it "did speak as representati ve of the community's conscience"), with

Commonwealth v. Smith, 41 3 Mass. 275, 282 n.6 (1 992) (improper to urge jury that as

"conscience of the community" it had a duty to convict in the case). Similarl y, there is support fo r Plaintiffs claim that so-call ed "send a message" arguments are not Ql

Clifton v. Massachusetts Bay Transp. Auth., 445 Mass. 6 11 , 624 (2005) ("A pro per puniti ve damage award in this case would be a sufficient amount to send a clear message to the MBT A' s management of condemnation for its reprehensible behavior and of warning .... "); Smith v.

Kmart Corp ., 177 FJ d 19, 25 ( 1st CiT. 1999) (intimating that counsel's argument that jury "send

- 68 - a message about the unsafe conditions that caused the accident" may be proper in the context of punitive damages).

Plaintiffs counsel's arguments here though are reasonably interpreted as prejudicial pleas intentionally delivered to arouse in the jury a sense of duty to safeguard the community and to send a message - and a punitive message at that - that the community will not tolerate

Defendants' conduct9 Counsel's argument identifying the jury as the "voice of the community" was joined with his entreaty to return a verdict for Plaintiff so to send a message not just to

Defendants, but also to similarly situated corporations insofar as Plaintiffs verdict would then

"echo outside of thi s Courthouse.,,10

9 To the extent that Plai ntiff co ntends th at it was pennissible fo r co unse l to suggest that th e jury co nsider the deterrent effe ct of a verdict for Pl aintiff, th e court di sagrees. Plaintiff is correct insofar as she contends th at "[I]he und erpinnings of comm on law tort li ability," are "compensati on and deterrence," Glenn v. Aiken, 409 Mass. 699, 707 (1991 ), and that Massachusetts products liabi lity law is based, in part, on the underlyin g "policy of holding accountable those whose defective products cause injuries." Cosme v. Whitin Mac h. Works, 417 Ma ss. 643 , 648 ( 1994). The iss ue here though is that the only damages issue are compensatory damages, whi ch "are intended to redress th e concrete loss that the plaintiff has suffered by reason of the defendant'S wrongfu l conduct," Cooper Indus .. Inc. v. Leathennan Tool Grn .. Inc., 532 U.S. 424, 43 2 (200 I), while pun it ive damages serve a broader function ~ they are appropriate "where a defendant's conduct warrants condemnation and deter,.ence," Bain v. Springfie ld, 424 Mass. 758, 767 ( 1997) (emphasis added). In sofar as punitive damages were not at iss ue here, Pl aintiffs co un sel improperly suggested that the jury co nsid er the reprehensibi li ty of Defendants' co ndu ct and punish Defendants with their verdict. Although th e court's charge to the jury clarified th at damages, "are assessed for the purpose of compensating an injured party for losses sustained," and not "to punish the Defendants," (Tr. p. 167, at ~~ 19-20), the court did not give a contemporaneous instruction th at the jury disrega rd Plaintiffs co un sel's improper arg um ents. The court's jury charge, when considered aga inst the enti re co ntext of Plaintiffs counsel's repeated impassioned and prejudic ial pleas, was likely insufficient to correct any mi sapprehension created by these arguments.

10 Plaintiffs counsel's reliance on the Massachu sens Trial Co urt Ori entation Video to authorize hi s "voice of th e communi ty" argument is su rely mi spl aced. Thejury is in our system of justi ce is the voice of the co mmuni ty in so far as its function is to detennine - based on the law as instructed and th e facts before it - whether Defe ndants were liable for breach of the implied warranty of merchantabil ity. A care ful review of Plainti ffs counsel's argum ents support the co nclusion that this was not the message conveyed by th e closin g argum ent.

- 69 - Improper Argument: Golden Rule

The above arguments were followed by what Defendants contend were improper "golden

rule" arguments in contravention of Mass. G. Evid., Sec. 1113(b)(3)(D) asking the jury "to put

themselves ' in the shoes' of[Fitzpatrick], or otherwise [urge the jury] to identify with

[Fitzpatrick]." Commonwealth v. Bizanowicz, 459 Mass. 400, 420 (2011), citing

Commonwealth v. Thomas, 400 Mass. 676, 684 (1987). In particular:

And this may be the kind of case that triggers something for you a month from now or a year from now. You might be eating a burger. Maybe you' ll read an article that someone else got hurt by a food product. Or you' ll be telling your wife or your husband about the case. That somebody ate a burger and they did not expect to get hurt. And that safety rules were violated and that you helped to make a wrong right. You made it right and you held them responsible and accountable. And when you-when that something triggers, when that happens to you, because it will happen, you ' ll think back to today when we left Suffolk Superior Courthouse and I want you to be proud and say we did the right thing. We did the right thing.

(Tr. p. 147, at ~~ 7-20).

These arguments are universally prohibited because they infect the jury's objectivity by

"encourag[ing] the jury to depart from neutrality and to decide the case on the basis of personal

interest and bias rather than on the evidence." Forrestal v. Magendantz, 848 F.2d 303, 309 (I st

Cir.1988) (internal quotation marks omitted). Here, Fitzpatrick's counsel expressly invited the jury to put themselves in her shoes, urging them to imagine the effect her case will have on them

in the future, perhaps when "[they] are eating a burger." The argument implicitly urged the jury

to identify with Fitzpatrick, and therefore, were impermissible." The court gave no

contemporaneous instruction, and a review of the court's charge to the jury shows that it

contained no instruction addressed particularly to these statements.

liThe argument al so - without evidence - suggested that "safety rules were violated."

- 70 - Improper Argument: Personal Opinion

Defendants also challenge the portions of the closing argument urging the jury to draw inferences unsupported by the record and injecting counsel' s personal opinion and beliefs into the jury's deliberation in contravention of Mass. G. Evid., 1113(b)(3)(B). The jury heard testimony that JBS sold hamburger meat for more than sixty million burgers and but there had never been a complaint of injury. Plaintiffs Counsel argued that, "[w)hen a product hurts somebody, the company always says, oh, that never happened before .... [I)fyou add up all the people that are hurt by things that hardly ever hurt anyone, that adds up to a lot of dangerous things. And sooner or later the danger is going to claim a victim." (Tr. p. 143 , at ~~ 12-16).

Plaintiffs counsel also argued " [s)ixty million burgers, I don't know if that' s true or not." (ld. at

~ 20). Defendants also claim that Plaintiffs counsel impermissibly injected hi s personal opinions into the closing argument, citing to counsel's frequent lise of the first person pronoun.

For example, Plaintiffs counsel argued that "you' ll think back to today when we left Suffolk

Superior Courthouse and 1 want you to be proud and say we did the right thing. We did the ri ght thing." (Tr. p. 147, at~~ 18-20).

These arguments impermissibly urged the jury to infer that this was not the first time a consumer was inj ured by a bone fragment in Defendants' burgers in contravention of the trial evidence. The coul1 did not give an immediate curative instruction and its instructions during the jury charge were insufficient to correct any misapprehension arising from these statements.

- 71 - So-Called "Reptile " Litigation Tactics

Finally, Defendants argue that Plaintiffs counsel relied upon the so-called "reptile approach" during his closing argument. 12 The central tenant underlying the so-called reptile approach is the "Triune Brain" theory espoused by neuroscientist Paul MacLean in the I 960s, 13 theorizing that there are three discrete parts to the brain reflecting the stages of evolution: a reptilian complex at the core of the brain (primitive and survival-based), a paleomammalian complex located in the mid-brain (focused on emotion, reproduction, and parenting), and a neomammalian complex at the top (capable of language, logic, and planning).

Applying this theory to courtroom tactics requires a lawyer to trigger ajuror's fear of danger to the community as a result ofa defendant's conduct. Using words to communicate thi s fear of danger is accomplished by constructing a narrative using words like "rules", "threat,"

"community standards" and "community protection." The next step is to demonstrate that the jury has the power to improve community safety by rendering a verdict, to "send a message" and reduce or eliminate the dangerous conduct. The thesis is that once danger is suggested, the cure is fair compensation for the plaintiff to diminish the danger within a community.

Defendants here argue that Plaintiff's counsel drew from these theories in his closing argument, in particular his focus on future community safety concerns, safety rules, and the need to send a message with a verdict for Fitzpatrick. In several instances, the closing arguments

12 The so-ca ll ed "repti le revolution," described in the book Reptile: The 2009 Manual ofrhe ptaintif!,s Revolution, (the "Manu al of the Pl aintiffs Revolution") is promoted as a guid e for attorneys see king favorab le verdicts. See generally, Al ex Craigie, Preparing Your Witness for a "Reptile" Deposition. At Counsel Table (20 13); Ken Broda Bahm, Taming the Reptile : A Defendant's Response to the Plaintiffs Revolution (20 13); Stephanie West Allen , Jeffrey M. Schwartz, and Diane Wyzga, Atticus Finch Would Not Approve: Whv a Courtroom Full of Repti les is a Bad Idea (20 I 0). IJ See Reptil e: The 2009 Manu al of the Plaintiffs Revolution, at p. 13 .

- 72 - tracked - nearl y verbatim - the Manual For The Plaintiff's Revoluti on. For example,

Plaintiffs counsel argued:

When a product hurts somebody, the company always says, oh, Ihal never happened before. The safety rule says that the company must make food safe. And Ihe law says Ihal if lhey did not make safefood and you reasonably expecl it, we reasonably expect ilto be sale, they 're responsible. Because ifyou add up all the people Ihal are hurt by things that hardly ever hurl anyone, that adds up to a lot ofdangerous things. And sooner or later the danger is goi ng to claim a victim.

(Tr. p. 143, at ~~ 12-16). The Manual OfThe Plaintiff's Revolution says:

When the dangerous design of one of those things hUl1s someone, even though the company knew there was danger they say 'But it never hurt anyone before,' or ' it hardly ever hurts someone! ' The solely rule and the law says that whelher it ever hurt anyone or nOI. if the manufacturer knew it could injure, Ihe company was required lofix it. Because ifyou add up all the people who are hurl by diflerenl products Ihat 'hardly ever hurt anyone. ' Ihey add up to a major danger evelY day to every member of the p ublic.

See Reptile: The 2009 Manual of the Plaintiffs Revolution, at pp. 71-72 (emphasis added).

Plaintiffs counsel also argued:

Are these important rules in our community? Are we going to enforce them? Are you going to enforce them? If the rules that we talked aboUl here. the salety rules. ifthose are important you need to speak to thaI and your verdict needs to speak to thaI. Your verdict will speak volumes echoing outside of this Courthouse. If these rules are not important, if its okay for them to serve burger with bone and someone gets hurt once in a while, and if they get injured, too bad fo r them. Then you know what? Give these guys a pass. Give them a pass .... They will not take responsibility and you know what? They think you're go ing to give them a pass. They do. ... [Plaintiff] is entitled to be compensated for her harm . As I said, you have the power. You're the jury. You're the boss .... You are the voice of the community.

(Tr. P. 144, at ~~ 3-12). The Manual of the Plaintiff's Revolution suggests:

llYou think ils okay to break Ihese safely rules, Ihen say so- which you can do by just all owing less than the full amount of compensation. Tfyou think its not okay to break the safety rules and endanger the community, then say so- which yo u can do simply by

- 73 - deciding on full compensation . . .. if/hey gel a pass on this. what do you think they I·vill get a pass on next lime.

See Reptile: The 2009 Manual of the Plaintiffs Revolution, at pp. 148-149 (emphasis added).

The court concludes that in the context of the admitted evidence in thi s case, such arguments were improper. The white lines bounding permissible closing argument as set out in the Massachusetts Guide to Evidence, Section I I 13, are designed to protect the adversarial system and prevent its abuse by advocates - for either party - from exacting a "win" at the expense of justice. 14 Courts in other states have addressed motions in limine seeking to exclude use of reptile tactics at trial. See Tillotson v. Ban'agan, 20 I 6 WL 4 162300 (Utah Dis!. Ct.);

Upton v. Northwest Arkansas Hospitals. LLC, 20 I 2 WL 12055084 (Ark. Cir. Ct.); Scheirman v.

Picemo, 2015 WL 4993845 (Colo. Dist. Ct.); Albright v. AntJes, 2016 WL 7174563 (Wash.

Super. Ct.); Colman v. Home Depot U.S.A .. Inc., No. I: I 5-CV -2 I 555-UU, 2016 WL 4543 119

(S.D. Fla. Feb. 9, 2016); Bunch v. Pac. Cycle. Inc .. No. 4:13-CV-0036-HLM, 20 15 WL

11622952 (N.D. Ga. Apr. 27, 2015); Sifuentes v. Savannah at Riverside Condominiums Assoc ..

Inc., 2015 WL 12803937 (Fla. Cir. Ct.). Recently, this court, Wilson, J. , ordered a new trial arising from plaintiffs counsel's impennissible use of rep Ii Ie tactics in Wahlstrom v. LAZ

Parking Ltd .. LLC ,. In that decision, the court highlighted the fact that all parties are at risk from use of these tactics:

I am aware of the immense efforts devoted to the trial of thi s case by all counsel. I am aware that fourteen jurors took weeks away from their fanlilies, their jobs, and their ordinary pursuits to hear evidence and ultimately to issue a verdict. I am acutely aware of how difficult it was for Plaintiff to relive the rape as she described it on the stand. For these reasons and others, it is with great regret that I issue this rUling. l'At the hearing in this maner, Plaintiffs counse l argued that he - like all lawyers - just want to '·win.'· His desire to "win" at trial was manifest when he pumped hi s fist - in front of the jury - as th e Ass istant Clerk read the verdict.

- 74 - Wahlstrom, 2016 WL 3919503, at *12. Indeed, all counsel benetit from the wisdom of the cout1 in Fyffe:

[W]e do not view favorably any attempt ' to play fast and loose' with our judicial system. Too often a lawyer loses sight of his primary responsibility as an officer of the court. While he must provide 'zealous advocacy' for his client's cause, we encourage this only as a means of achieving the court's ultimate goal, which is finding the truth. Deceptions, misrepresentations, or falsities can on ly frustrate that goal and wi ll not be tolerated within our judicial system.

Fyffe, 86 Mass. App. Ct. at 475, quoting Polansky v. CNA Ins. Co., 852 F.2d 626, 632 (1st Cir.

1988).15

Fitzpatrick's counsel's response is two-fold: first, the jury is the voice of the community, and therefore it was appropriate for counsel to make arguments addressed to the jury in that role.

Moreover, counsel' s arguments were not intended to suggest that the jury should punish

Defendants, but instead to suggest that the jury should hold the Defendants accountable - one of the goals of tort law. Fitzpatrick' s counsel also argues that his closing arguments were intended simply to imply that a reasonable consumer would not expect to find bone fragments in her hamburger, so the focus of the argument was directed to the two corporate Defendants in this case, not to corporations in general. 16 The court is not persuaded by these arguments.

15 During oral arguments on th e instant motion , Plaintiff s counsel suggested that any failure to police th e white lin es in hi s closin g argument is to be bome by this court. Whereas "[t]he judge ought to be always th e guiding spirit and the controlling mind at a trial." Goldman v. Ashkin s, 266 Mass. 374, 380 (1929), guarding against improper argument, as courts mu st, O'Neill v. Ross, 250 Mass. 92, 95- 97 ( 1924), does not auth ori ze counsel to engage in improper argument in relian ce on the co urt to give a curative in struction. Birbiglia v. Saint Vincent Hasp .. Inc. , 427 Mass. 80, 88-89 (1998). See also Mass. R. Prof. Condo 3.4(e). 16 To the extent that PlaintiFrs counsel argues that he simply responded to Defendants' improper closin g arguments, thi s argument is unavailing. Not on ly did Plaintiff's counse l fail to object to any portion of Defendants' closin g argum ent, but it is we ll-sett led that counsel is not permitted to "'fight fire with fire ,' and exceed the normally proper limits of argument becau se [opposing] coun sel made an improper, excessi ve argument" fi rst. Commonwealth v. Kozee, 399 Mass. 5 14, 5 t9 (1987).

- 75 - While there is undoubtedly - and properly - some measure of emotion raised by way of closing argument - and effective advocacy - in almost every trial, it is essential to our legal system that jury verdicts are the consummation of application of law to the facts and do not ari se from sympathy, passion, prejudice or any other arbitrary emotional factor. See London v. Bav

State St. Ry. Co., 23 1 Mass. 480, 485 (19 19); Commonwealth v. Haas, 373 Mass. 545, 557

(1977). To that end, the court may, in the exercise of sound discretion, declare a mistrial where it appears from examination of the record that any counsel's closing argument interjected purely emotional, inflammatory, or prejudicial elements into the jury's deliberation to such a degree that is "likely to affect the justice of the verdi ct."" Abramian v. President & Fellows of Harvard

College, 432 Mass. 107, 120 (2000), quoting Curley v. Boston Herald-Trave ler Corp., 314 Mass.

31 , 31-32 (1943). See also Hess v. Boston Elevated Ry., 304 Mass. 535 , 541 (1939); Fvffe v.

Massachusetts Bay Transp. Auth., 86 Mass. App. Ct. 457, 475 (2014) (ordering new trial because of over-reaching closing argument). 18 Counsel have an obligation to play the game within the white lines and according to the rules. 19 Here, in reviewing the totality of the closing argument and the evidence presented at trial, the court concludes that Plaintiffs counsel did not do so, and the prejudicial aspects of the closing argument li kely influenced the jury's verdict, thereby

17 An order all owing a motion for mi strial is not appealable. Brangan, 475 Mass. at 146-48. 18 See also, Forrestal v. Ma~endantz , 848 F.2d 303, 309 (1st Cir. 1988) (quotation marks omitted), suggesting that th e court exam in e the closing argument in the context of the evidence at trial , taking into accou nt, "the nature of the comments, their frequency, th ei r possible relevancy to the real issues before the jury, the manner in which the parties and th e court treated the comments, the strength of the case [J , and the verdict itself," to determine whether th e cumulative effect of Plaintiff s counsel 's closing argument s so penneated the jury's deliberations as to deprive Defendants of a fair trial. 19 Judge Learned Hand Michael Herz, "Do Justice! ": Variations Of A Thrice-told Tale, 82 VA . L. REV. III , III ( 1996), quoting Learned Hand, A Personal Confession, in the Spirit of Liberty, 302, 306-307 (Irving Dillard ed., 3d.).

- 76 - depriving the Defendant of a fa ir tri al. Allowance of Defendants' motion is thus the fa ir resolution of the issue before the court. Birbiglia, 427 Mass. at 88-89.

ORDER

For the foregoing reasons, it is hereby ORDERED that Defendants' Moti on fo r a Mi strial is ALLOWED.

Heidi

Dated at Boston, Massachusetts, this 7th day of July, 20 17.

- 77 - NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; [email protected]

18-P-1125 Appeals Court

MEAGHAN FITZPATRICK vs. WENDY'S OLD FASHIONED HAMBURGERS OF NEW YORK, INC., & others.1

No. 18-P-1125.

Suffolk. March 13, 2019. - November 7, 2019.

Present: Wolohojian, Blake, & Shin, JJ.

Practice, Civil, Argument by counsel, Mistrial, New trial.

Civil action commenced in the Superior Court Department on August 9, 2013.

The case was tried before Heidi E. Brieger, J., and a motion for a mistrial was heard by her.

Matthew J. Fogelman for the plaintiff. Christopher A. Duggan (Pauline A. Jauquet also present) for Wendy's Old Fashioned Hamburgers of New York, Inc., & another.

WOLOHOJIAN, J. In this appeal we conclude that it was an abuse of discretion to allow a new trial based on statements in plaintiff's counsel's closing argument that crossed the bounds of permissible advocacy. We reach this conclusion because,

1 JBS Souderton, Inc., and Willow Run Foods, Inc.

- 78 - 2 among other things, the judge did not apply the correct legal standard and, as a result, failed to conduct a survey of the whole case, as she was required to, to determine whether a miscarriage of justice would result absent a new trial.

Instead, it appears the judge nullified the jury's verdict and allowed a new trial as a form of sanction for counsel's closing.

This she could not do. A "new trial motion is not a mechanism for addressing individual errors at trial. It is an opportunity to allow the judge to take 'a survey of the whole case' to ensure that a 'miscarriage of justice' has not occurred."

Wahlstrom v. JPA IV Mgt. Co., 95 Mass. App. Ct. 445, 447 (2019), quoting Evans v. Multicon Constr. Corp., 6 Mass. App. Ct. 291,

295 (1978). For this reason, we vacate the order allowing the defendants' motion for mistrial, and remand for further proceedings.

Background. On January 23, 2011, the plaintiff, a thirty- four year old woman with good teeth, paid $5.64 for a small plain hamburger with no toppings and French fries from a Wendy's restaurant in Medford and took them home to eat for dinner. On the third or fourth bite, she heard a loud crack and crunching, and felt a pain shoot up into her upper left gum. She spit out the half-eaten food and discovered that her mouth was bleeding

- 79 - 3 and one of her upper left molars (tooth 14)2 was split in two.

The injury was caused by a piece of bone in the hamburger.3

The bone had split tooth 14 well below the gum line, and the dental nerve was sheared, bleeding, and exposed.4 The bone also caused minor damage to the opposing lower molar (tooth 19), which was easily repaired with a filling. But repairing tooth

14 was not a simple matter and required at least twenty-three trips to various dentists over the next two years. To begin with, the disengaged part of tooth 14 (which was moving loosely) had to be removed. In addition, the plaintiff had to undergo an immediate root canal by an endodontist, who subsequently had to perform a second root canal. The initial goal was to try to save the remaining portion of tooth 14 and to restore it with a cap. To accomplish this, the dentist, over several appointments, performed a gingivectomy5 (necessary because of the

2 Tooth 14 is the first upper left molar and an important grinding tooth.

3 The plaintiff saved the half-eaten food, and one of the objects in it was tested and determined to be bone. The defendants did not contest the fact that there was bone in the hamburger.

4 The plaintiff's dentist testified that the bone fragment's density and hardness, rather than its size, determined its ability to damage a tooth, and that bone is among the hardest of materials.

5 As the plaintiff's dentist explained at trial, the gingivectomy "removed about two millimeters of the gum tissue on the palatable side with something called electrocautery,

- 80 - 4 depth of the break), implanted a titanium post in the tooth's canal, fitted a temporary crown, and then cemented in a permanent crown.

But the plaintiff's anatomy was not "ideal" for the crown and, as a result, the tooth required ongoing special cleaning.

Within about a month, the plaintiff's gum was sore and throbbing and X-rays revealed bone loss caused by an inflammatory process most likely due to the fact that tooth 14 could not be cleaned efficiently. At this point, the plaintiff was prescribed a prescription-strength mouthwash and referred to a periodontist to see if tooth 14 could be saved.

The periodontist identified two possible treatment options.

The first (which the periodontist did not favor) was to surgically "re-contour the gum and the bone around the crown to see if the final result would make [tooth 14] cleansable and sustainable." The second option was to extract tooth 14, and replace it with a dental implant. This was the periodontist's favored solution based on how deep the original fracture had extended under the gum. Unfortunately, however, the plaintiff did not have sufficient "sinus elevation" or quality of bone in which to anchor an implant. Thus, this option required sinus elevation surgery to push up the floor of the sinus, along with

basically, cut[ting] with radio waves but you can think of it as a burning, controlled burn."

- 81 - 5 bone grafts to increase the span of bone to hold the implant.

The bone grafts could be done using the patient's own bone (in which case additional surgery would be required to harvest bone from elsewhere in the patient's body), freeze-dried animal bone, or bone taken from a human cadaver. Once the graft surgeries healed and the grafts grew, the periodontist would insert a metal implant to which the dentist would then attach a new permanent crown.

The plaintiff opted for the recommended option using a cadaver bone to avoid the additional surgery that would be necessary to harvest her own bone for the graft. All told, the various surgeries, grafts, and other procedures were not completed until February 7, 2013, two years after the original injury. Along the way, the plaintiff suffered pain requiring strong medication (oxycodone), bruising and black eyes as a result of the procedures, and mental distress. She was required to take antibiotics and steroids. As an ongoing matter into the indefinite future, because the implant is prone to infection, it requires special, continuing cleaning by the plaintiff.

The plaintiff sued Wendy's Old Fashioned Hamburgers of New

York, Inc. (Wendy's), which operated the restaurant from which the plaintiff bought the hamburger, JBS Souderton, Inc. (JBS), which produced and supplied the hamburger according to Wendy's specifications, and Willow Run Foods, Inc., which distributed

- 82 - 6 the hamburger to Wendy's. By the time of trial, only Wendy's and JBS remained in the case, and the only claims against them were for breach of the implied warranty of merchantability,

G. L. c. 106, § 2-314, and violation of G. L. c. 93A.6

The breach of warranty claim went to trial in 2016, with the judge reserving the c. 93A claim for herself. We recite the trial proceedings in detail given that they must be considered in their entirety. During his opening statement, plaintiff's counsel began by stating that the case was about "safety rules that protect all of us" from dangerous food products "only if jurors like yourselves enforce those rules in Court. You decide what is safe in our community." He then identified the two defendants, noting that JBS is one of the leading meat processors in the world. Counsel proceeded to outline the multistep production process for hamburger meat, noting that bone can get through if it is smaller than the size of the final grind plate. He then stressed that, although JBS had X-ray technology available to it to examine the final grind for bone, it did not use that technology. Counsel outlined the facts we set out above concerning the plaintiff's injury and treatment, which he then followed by remarking on the fact that the

6 The plaintiff's claims for negligence and negligent infliction of emotional distress had earlier been voluntarily dismissed, as were all claims against Willow Run Foods.

- 83 - 7 plaintiff received no response from Wendy's when she called to report what had happened. He next described the defendants' policies of providing safe food to their customers, and stated that these "safety rules" are to apply to all consumers. He then focused on the question of a consumer's reasonable expectations, noting that consumers do not expect to find bone in their hamburger (unlike when one eats, for example, a chicken wing), and that hamburgers will not be inspected by the consumer before being eaten. Counsel concluded by giving some biographical information about his client, noting that she had no prior history of serious dental problems, and outlining the course of the medical procedures she underwent. No objection was lodged to any aspect of the opening.

Wendy's and JBS were represented by the same counsel, which obviously constrained any defense premised on one blaming the other. Defense counsel's opening began with the importance of the right to trial by jury. He then described Wendy's as having been founded in 1969 by Dave Thomas. He described JBS as "one of the leading meat processors in the whole world." Counsel described in detail the hamburger production process and the many steps that are taken to ensure that the meat is safe, biologically, chemically, and physically. He noted that, by the end of the process, the meat is produced to Wendy's specifications in a seventy-five/twenty-five meat/fat ratio, and

- 84 - 8 put through a final grind plate of three thirty-seconds of an inch (3/32"). Counsel noted that the Wendy's grind specification was much smaller than that specified by the United

States Food and Drug Administration (FDA) (one centimeter) as safe for human consumption, and also much smaller than the industry standard (one-eighth of an inch). Counsel pointed out that meat could not be ground any finer and still be made into hamburger. He acknowledged that pieces of gristle and bone might get through the final grind if they were less than 3/32", but "that is way past what is safe under our FDA regulations."

He then described the many quality assurance measures in place at JBS and at Wendy's. Finally, defense counsel did not dispute that the plaintiff broke her tooth after biting into a Wendy's hamburger and stated, "[T]here's no doubt that there was a small, small tiny fragment of a bone" in the hamburger. But he stressed that the plaintiff's tooth 14 was compromised before the injury and raised a question about the filling material her dentist used in 2006 (several years earlier) to treat it.

Counsel ended on the theme that there was nothing more the defendants could do and still sell hamburgers in the United

States, and that the defendants had met the reasonable expectations of their customers.

The trial was not long; testimony required only two one- half days of trial, and all the trial exhibits came in by

- 85 - 9 agreement. The plaintiff first called Wendy's district manager, who testified that Wendy's strove to serve safe food and not to put its customers at risk. He confirmed that "food safety is the number one priority at Wendy's and to our customers," that this policy pertains to all customers, and that "Wendy's customers expect to be served safe food." The witness confirmed that Wendy's does not expect to serve hamburgers with bone in them and does not expect to receive hamburger meat containing bone from JBS. The witness acknowledged that Wendy's does not warn its customers that there might be bone in its products.

Plaintiff's counsel then established through the witness that utensils are not usually provided with a hamburger, that it is served between two pieces of soft bread, and that it is intended to be picked up by the consumer's hands and eaten. Wendy's does not expect its customers to cut the hamburger into tiny pieces to inspect it before consumption.

On cross-examination, defense counsel asked the witness to describe Wendy's corporate history, eliciting that the company was started in 1969 and that it "kind of centers around just, you know, do the right thing and just be nice." The company has roughly 6,500 restaurants internationally. Counsel then elicited a description of the training that Wendy's employees receive and the "extensive testing" of its products. The witness testified that JBS supplies the hamburger to Wendy's

- 86 - 10 specification that it be ground to 3/32" and "that this was the

-- smallest grind, I believe, that we could get and still meet customer's expectations of what a hamburger should taste like."

Over objection, defense counsel was permitted to ask whether

"any restaurant in the United States of America . . . pledges absolute perfection in anything," and the witness replied that perfection is not possible because of the nature of the product.

The witness continued, if "you're eating an animal, there's always the potential for bone, cartilage, a different a -- a tendon perhaps," noting that he himself had had that experience.

Next, the witness testified that the Wendy's restaurant in

Medford sells 160 pounds of beef daily, the equivalent of 800-

900 hamburgers of the size the plaintiff ordered. The witness knew of not a single incident during his time with the company of a customer being injured by a piece of bone or cartilage getting through the final 3/32" grind of the hamburger.

The plaintiff next called her treating dentist, who testified to the medical course we set out above. On cross- examination, defense counsel elicited testimony that the plaintiff had a history of grinding her teeth at night, of a crack in tooth 14 dating back to 2004, and of fillings to tooth

14 in 2006, which the dentist contemporaneously noted may require a future crown. Defense counsel attempted to establish that the composite resin filling material used by the dentist

- 87 - 11 was inferior to the alternate available material, amalgam.

Defense counsel also conducted a detailed examination into the plaintiff's fillings in other teeth. He concluded his examination by noting that the dentist's records did not reflect that the plaintiff had ongoing problems with her dental implant.

After redirect, on further cross-examination, defense counsel elicited testimony that it was not uncommon for people to break teeth on "small, small pieces of -- of bone even in . . . sausage and hamburger and the like."

The plaintiff next called the training and development manager of JBS, who had previously been the company's technical services manager.7 Without objection, counsel elicited that JBS was one of the leading beef processors in the world, selling to customers around the world. This witness confirmed that JBS's mission was to provide safe food to all of its customers, even those whose teeth may be compromised. The witness acknowledged two important points: first, that a piece of bone could have gotten into the hamburger if it was small enough to pass through the holes in the final grind plate; and second, that although the hamburger was put through the metal detection process after the final grind, the hamburger was not put through an X-ray to inspect for bone, even though it would have been practical to do

7 In the latter role, he was responsible for quality assurance.

- 88 - 12 so and a more effective measure of protection. Counsel also established that bits of bone could have been missed on an upstream X-ray earlier in the production process. On cross- examination, defense counsel elicited detailed testimony about the numerous safety measures taken by JBS at multiple steps in the production process and that Wendy's specifications for their hamburgers far exceeded government and industry standards. The witness testified that bone less than one centimeter in size was not a food safety hazard and, therefore, there was no need to X- ray the meat after it had passed through the final grind.

Finally, the witness testified that JBS sold over fifteen million pounds of hamburger to Wendy's in the thirteen months preceding January 2011 and there was not a single complaint of anyone getting injured by a piece of bone during that period.

After the JBS witness's testimony, a sidebar took place to discuss plaintiff's counsel's desire to introduce Wendy's third- party complaint against JBS as a judicial admission that JBS was responsible for the piece of bone in the plaintiff's hamburger.

The judge denied the request, noting:

"Well, this particular fact is, as I understand it, been admitted and testified to by virtually every witness so far, which was that there was a foreign object, a bone, less than the size of three thirt -- two [sic] thirty seconds that was in that hamburger. It was actually marked into evidence. I think it's Exhibit 3. The Jury has seen it. So, there has already been an admission by defendants and their witnesses that it was a bone or bone like matter."

- 89 - 13

The plaintiff was the last witness to testify, and we will not repeat her testimony about her injury and subsequent treatment as we have set it out above. In addition to that testimony, the plaintiff testified to her expectations and habits as a consumer and how they differed depending on the particular food involved. For example, she ate foods known to contain pits or bones differently than a hamburger, which she did not expect to contain bone. Wendy's provided no warning that there might be bone in her hamburger, and she did not inspect the hamburger before eating it. She testified to the period when she had to live without tooth 14 and described it as

"difficult." She noted that she continued to be distrustful because she "trusted that [she] was going to be served something that wouldn't physically harm me." She testified that she felt betrayed because "everyone else [at Wendy's and JBS] knew [that] there was the possibility of the bone being in the burger but me." She called this "inside information." Cross-examination of the plaintiff focused on the course of her dental treatment and established that she did not know for certain which of the two pieces of foreign matter that were in her hamburger (and marked as exhibits) was the one that caused the injury to her tooth.

- 90 - 14

The plaintiff then rested, and the defendants' motion for a directed verdict was denied. The defendants rested without calling any witnesses and renewed their directed verdict motion, which was again denied. The judge then conducted a charging conference, the details of which are not pertinent here.

We now turn to the closing arguments, which are the central focus of this appeal. The defendants' counsel began his closing in a manner similar to his opening, by focusing on historical context. This time, however, counsel homed in on the jury's role of "speak[ing] the truth." Counsel then drew the jury's attention to exhibits 3.1 and 3.2, one of which was gristle and the other bone, both about 2.2 millimeters (less than 3/32") in size. He noted that both were hard substances and that either might cause a tooth to fracture, as could many other hard foods such as popcorn. Counsel then went step-by-step through the production process of the hamburger, focusing at each point on the safety measures taken at JBS. He stressed that the final grind of the meat was done to a specification far finer than the industry standard and the standard identified by the Federal government as safe for human consumption. He argued that, as a result, the 3/32" grind was "safe." He then went through the huge amounts of beef processed by JBS for Wendy's the year before the incident at issue and noted that it was the equivalent of 61.2 million hamburgers. He stressed that there

- 91 - 15 had not been a single "claim of a bone fragment or anything else in the hamburger." Counsel then turned to the legal standard and argued that it did not require perfection, only that the product be reasonably fit. He argued that "JBS made this hamburger as good as can be possible and still make hamburger, for all of us to eat, the reasonable consumer can expect no more." He then turned to questioning why the plaintiff was injured by the bone or gristle when no one else had been and suggested to the jury that the plaintiff's tooth 14 was compromised by a previous crack that had been inadequately filled. He suggested that, if the preexisting condition of the plaintiff's teeth was the reason why her tooth 14 broke on the piece of bone when no one else's had, then the defendants had met the reasonable expectations of their consumers. At this point, counsel returned to the production process and explained why X-ray examination after the final grind, although possible, was not necessary. He then turned to the verdict slip and used it to reinforce his points that the hamburger needed only to be reasonably fit, not perfect, that perfection could not be achieved in any event, and that the defendants met the expectations of the reasonable consumer. He then stated "that

61.2 [million] hamburgers doesn't lie" and concluded his argument with the statement "[t]hat both of these fine companies did precisely what we would want all of the companies in America

- 92 - 16 to adhere to." Notably, defense counsel did not speak at all to the topic of damages, nor to the monetary value that might be placed on the plaintiff's pain and suffering.

Plaintiff's counsel began by asking the jurors to imagine the plaintiff's surprise when she bit into the hamburger thinking it was safe, only to discover bone in it. He then said:

"See what [the plaintiff] did not know, and what JBS and Wendy's did know, is that bone can get into the final burger. They have insider knowledge. They're the ones who know what goes into the meat process. How big the holes are in the plate. Whether x-ray is used and when the x-ray is used. They know all that. But you know who doesn't know that? We don't know that. The average customer. The regular consumer. We don't have the knowledge that they do. You have it now because you've been sitting here for three days. So now when you go out you know more than you did on Wednesday morning. But you didn't know that before you came to Court on Wednesday. How could you."

Counsel then tied knowledge to expectation and stated, "It's very important, ladies and gentlemen, it's not what JBS reasonably expects. It's not what Wendy's reasonably expects.

It's what we reasonably expect. Us, the average people, not them."

Plaintiff's counsel then placed the role of the jury into historical context and stressed the power and importance of the jury. He touched briefly on the reasonable consumer standard and the preponderance of the evidence standard, noting that the jury would receive the law from the judge.

- 93 - 17

Counsel then returned to the theme of "tools" that he had referred to in his opening, which he again equated to safety rules. He referred the jury to the testimony of the JBS and

Wendy's employees who testified that the defendants were required to serve safe food, that safe food was their mission, and that the mission applied to all customers -- even those with fillings in their teeth. He then stated:

"I asked them about warnings. What did they say. JBS, they know that bone can get in the burger. I asked them, do you tell Wendy's? No. Wendy's knows that bone can get in the burger. I asked Wendy's, do you tell your customers? No. How are people supposed to know if they're not told? They don't have the insider knowledge."

Plaintiff's counsel then spoke at length about a reasonable consumer's expectations with respect to eating a hamburger, noting that consumers do not expect it to contain bone and accordingly eat it with their hands without inspecting it beforehand and bite down without restraint. He concluded this portion of his argument with, "Do we go to Wendy's and expect to get injured? No, we don't. If we expected to find something in there we wouldn't eat it the way that we do."

Counsel then proceeded to the topics of accountability and responsibility, and gave an example of how parents teach their children about responsibility. He then stated:

"Did Wendy's and JBS make it right? Here's something to think about. [Wendy's regional manager], on Thursday, I wrote this down, you might have written it down too. He said we do the right thing. We do the right thing when it

- 94 - 18

comes to our customers. The customer's always right. That's what he said. Really? What does do the right thing mean to these companies? One of the largest fast food companies and one of the largest beef manufacturers in the world. What does that mean, do the right thing? They have not accepted one shred of responsibility. Not one. They have not learned anything from this. Have they learned that they can't serve meat with bone in it that's going to hurt somebody? No. Instead what have we heard? . . . What we've heard for three days is a long list of excuses. One after another. Attempt to confuse things. That's what they do, these big companies. That's what they do. They take something simple and they make it all confusing."

Counsel then segued to examining the so-called "excuses" given by the defendants. The first was that the plaintiff's teeth were compromised beforehand or had been improperly filled before. Counsel then identified the plaintiff's and her dentist's testimony to the contrary. The second so-called

"excuse" defense that counsel identified was that nothing could get through the final 3/32" grind or that, if something did, it could not cause such extensive damage. Here, counsel pointed out that, not only did the defendants present no evidence to this effect, the plaintiff's dentist had testified to the contrary. Another "excuse" was relying on the studies upon which the Federal government guidelines were based. Here, counsel noted that the studies were not in evidence. Next, counsel turned to the fact that JBS did not X-ray the meat after the final grind. Finally, counsel turned to the defendants'

- 95 - 19 argument that, based on the massive number of hamburgers produced without complaint, "this is a fluke."

"Well you know what, we all use thousands of things and we all eat thousands of food, and companies manufacture thousands of products. Things that only hurt people once in a while. Maybe something hasn't hurt somebody yet. But when a product hurts somebody, the company always says, oh, that never happened before. The safety rules says that the company must make safe food. And the law says that if they did not make safe food and you reasonably expect it, we reasonably expect it to be safe, they're responsible. Because if you add up all the people that are hurt by things that hardly ever hurt anyone, that adds up to a lot of dangerous things. And sooner or later a danger is going to claim a victim. That's why the law does not care how many times it happened before. The law asked was the bone there and should we have reasonably expected it to be there. That's the law. Not how many times it happened.

"Sixty million burgers, I don't know if that's true or not. But there's no -- I don't know if there's any evidence of that before you. [Defendants' counsel] said it. That's fine. But you know what, when Wendy's and JBS sells all those burgers, they are more than happy to take our money. We pay for the burger. It goes to them. But when a burger hurts somebody, no responsibility. No accountability. Shame on them, honestly -- shame on them.

"Are these important rules in our community? Are we going to enforce them? Are you going to enforce them? If the rules that we talked about here, the safety rules, if those are important you need to speak to that and your verdict needs to speak to that. You[r] verdict will speak volumes echoing outside of this Courthouse. If the rules are not important, if it's okay for them to serve burger with bone and someone gets hurt once in a while, and if they get injured, too bad for them. Then you know what? Give these guys a pass. Give them a pass.

"I don't think you can. I don't think you can give them a pass. I don't think you can say it's okay to have a burger with bone in it or hard gristle and sell burgers. If you say that their conduct is okay then you're essentially rewarding their conduct by giving them a pass."

- 96 - 20

Counsel then turned to the question of compensation, commenting on the extent, duration, and nature of the plaintiff's injuries.

He suggested a range of $150,000 to $250,000 in compensatory damages, stressing several times that the range was only a suggestion and entirely up to the jury to decide based on their assessment of the evidence of the harm to the plaintiff, including her pain and anxiety. See Mass. G. Evid. § 1113(b)

(2019) ("In civil actions in the Superior Court, parties, through their counsel, [in closing] may suggest a specific monetary amount for damages at trial"). It should be noted that, by stipulation of the parties, no evidence of the plaintiff's medical bills or expenses was introduced or referred to.

Plaintiff's counsel closed his argument with the following:

"And I think I speak for everyone here, what we want from your verdict is that when you leave this courthouse later today with your head held high, proud of what you did, you gave up time from work and from family, and I want you to know that it mattered. It was important. And you should be comfortable with -- with -- with what happened here. And this may be the kind of case that triggers something for you a month from now or a year from now. You might be eating a burger. Maybe you'll read an article that someone else got hurt by a food product. Or you'll be telling your wife or your husband about the case. That somebody ate a burger and they did not expect to get hurt. And that safety rules were violated and that you helped to make a wrong right. You made it right and you held them responsible and accountable.

"And when you -- when that something triggers, when that happens to you, because it will happen, you'll think back to today when we left Suffolk Superior Courthouse and

- 97 - 21

I want you to be proud and say we did the right thing. We did the right thing."

Immediately after the closing, the judge dismissed the jury for lunch.

Defendants' counsel did not lodge objections to any specific components of plaintiff's counsel's closing, nor did he move to strike any of the statements made. Instead, counsel orally moved for a mistrial based on plaintiff's counsel's argument. Specifically, defendants' counsel contended that plaintiff's counsel had improperly attempted to "integrate himself with the jury," and had impermissibly spoken about not rewarding the defendants' conduct, punishing big companies, and what might happen in the future. Defendants' counsel then referred to an entirely separate case previously tried before the same judge in which she had allowed a motion for a new trial based on improper closing argument, and stated, "this is the

Demoulas case in spades."8

In response, plaintiff's counsel briefly stated that he had not crossed any lines of advocacy. But the judge terminated this discussion, stating that she had noted several

8 See Stiles v. Demoulas Super Mkts., 94 Mass. App. Ct. 1116 (2019). We note that closing argument in that case was markedly different than the one at hand; among other things, plaintiff's counsel repeatedly argued matters not in evidence, suggested that defense counsel had concealed evidence, and improperly argued damages.

- 98 - 22 objectionable statements in his argument. She then said, "I recently set aside a verdict based on Plaintiff's improper closing argument. I urge you to read that. I have not yet decided how close you were to that line but it was close. I'm going to let it go to the Jury and we'll see what happens after that. All right?" Neither counsel objected to this proposal.

Importantly, defendants' counsel did not ask for instructions designed to cure the supposedly improper aspects of the argument -- either immediately after the argument was made or during the judge's final instructions to the jury.

Notwithstanding the absence of such a request, the judge included several instructions relevant here. For example, the judge instructed the jury:

"You should determine the facts here solely on a fair consideration of the evidence. You are to be completely fair and impartial, and you are not to be swayed by any prejudice, person[al] likes or dislikes towards either side, or by any personal view you may have about the nature of the claims or the defenses in this case.

"You are also not to consider the effect that your verdict may have on any party or on any person or any reaction that any party or anyone might have to your verdict.

"You may not decide the case based on sympathy for any party or for the witness or for anyone else. Sympathy is entirely proper and appropriate in some circumstances, but it is entirely irrelevant to your determination of the facts in this case."

The judge also gave instructions targeted to the closing argument in particular:

- 99 - 23

"As I mentioned before, the opening statements and the closing arguments of lawyers are not evidence. In fact, during closing arguments you may found -- you may have found that counsel argued matters that were not admitted into evidence. Your collective memory is what controls your deliberations in this case. You are not to consider matters or arguments that were not admitted into the trial as evidence.

"I want to stress to you that it is not your job as a juror to send a message to anyone inside or outside of this Courtroom. Your job is not to deter any conduct or to punish any party. Your job is not to make distinctions or hold any sympathies or prejudices based on whether a party is a big company or a small company or a buyer or a seller.

"In the end your job, as sworn Jurors, is to answer the question of whether [the plaintiff] has proved her case by a preponderance of the admitted evidence, and the closing arguments are only assisted -- intended to assist you in understanding the contentions of the parties and the inferences that the lawyers want you to draw from the properly admitted evidence."

As to damages, the judge instructed the jury that they

"should bear in mind that damages are assessed for the purpose of compensating an injured party for losses sustained as a result of a wrong that was done by another. . . . The object is not to punish anybody and it is not to reward anybody. The object is simply to put the injured person back in the position she would have been in had the wrong not occurred."

Defendants' counsel did not object to the instructions given, nor did he request (or object to the absence of) additional instructions designed to mitigate any potential impermissible effect of plaintiff's counsel's closing argument.

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The case was given to the jury on a Friday afternoon.

After some period of deliberation, the jury posed a question asking to see the JBS witness's deposition transcript, answers to interrogatories, and charts he had drawn of the floor of the plant where the hamburger was processed. The jury then continued to deliberate until the end of the day, when they were discharged for the weekend. On the following Monday morning, defendants' counsel requested that the judge supply additional instructions to the jury -- none bearing on plaintiff's counsel's closing. The jury resumed their deliberations for several more hours, and the total deliberations lasted almost as long as the trial testimony. At the end, the jury reached a plaintiff's verdict against both defendants, and awarded

$150,005.64 in damages, the sum of the lowest figure suggested by plaintiff's counsel during his closing plus the amount the plaintiff spent on her Wendy's meal.

After the jury's verdict was received and recorded, and the jurors were discharged, the defendants orally renewed their motion for mistrial, which the judge deferred ruling on until she received briefing. In accordance with a schedule set by the judge, the defendants filed their written motion for a mistrial approximately two months later. They did not move for remittitur.

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Ultimately, the judge allowed the mistrial motion in a written decision in which she concluded that plaintiff's counsel's closing argument (1) improperly created an "us versus them" dichotomy designed to distinguish "'us,' the average people" from "'them,' the big corporations"; (2) "improperly suggested that the jury decide the case as 'the voice of the community' to 'send a message' beyond the courtroom," and sought

"to arouse in the jury a sense of duty to safeguard the community" from generalized safety concerns; (3) improperly invoked the "golden rule" by asking the jurors to place themselves in the plaintiff's shoes; (4) improperly interjected counsel's own personal opinions and beliefs; and (5) resorted to rhetorical principles "described in the book [D. Ball & D.

Keenan,] Reptile: The 2009 Manual of the Plaintiff's

Revolution" (book).9 The judge acknowledged that she had given curative instructions but deemed them inadequate without explanation. Although she stated (and we accept) that she

9 As the judge explained, "the central ten[e]t underlying the so-called reptile approach is the 'Triune Brain' theory espoused by neuroscientist Paul MacLean in the 1960s, theorizing that there are three discrete parts to the brain reflecting the stages of evolution: a reptilian complex at the core of the brain (primitive and survival-based), a paleomammalian complex located in the mid-brain (focused on emotion, reproduction, and parenting), and a neomammalian complex at the top (capable of language, logic, and planning). Applying this theory to courtroom tactics requires a lawyer to trigger a juror's fear of danger to the community as a result of a defendant's conduct."

- 102 - 26 reviewed the entire trial transcript, she did not address the evidence (or its strength) in her decision and did not explain how or why the closing argument might have affected the jury's consideration of the evidence. She did not address the several indications that the jury were not carried away by the argument.

Specifically, she did not address the length of the jury's deliberation (which was almost as long as the testimony), the jury's focus on the evidence (as evidenced by their question), and the precision of the damages award. Nor did she address the amount of the award, or suggest or conclude that it was disproportionate to the evidence of harm. Finally, she made no mention of the fact that the defendants did not make specific objections to the closing, move to strike any portion of it, request curative instructions, request instructions beyond those the judge gave, or request additional instructions.

Nonetheless, the judge concluded that "the prejudicial aspects of the closing argument likely influenced the jury's verdict, thereby depriving the Defendant[s] of a fair trial."

Thereafter, the case was retried to a different jury before the same judge, which again found in the plaintiff's favor and awarded $10,000. The judge, who had reserved the c. 93A claim to herself, ruled in favor of the defendants on that claim and allowed the defendants' motion to recover costs pursuant to

Mass. R. Civ. P. 68, 365 Mass. 835 (1974), leaving the plaintiff

- 103 - 27 with a net recovery of $5,964.52. This appeal followed, in which the sole issue is the allowance of the motion for mistrial.

Discussion. We turn first to the judge's decision, relying on Commonwealth v. Brangan, 475 Mass. 143 (2016), S.C., 478

Mass. 361 (2017),10 to defer ruling on the defendants' motion for

10 Brangan, 475 Mass. at 148, held that the Commonwealth is not entitled to an immediate appeal from a decision allowing a motion for mistrial simply because the motion was decided after the verdict. In reaching this conclusion, the court explained that the nonappealable nature of the ruling on the motion did not change simply because of its timing. In this context, the court stated that the deferred ruling on the mistrial motion was based in practicality and efficiency: "[w]here a defendant's motion for a mistrial is brought during closing arguments and presents a close question, a judge's decision to defer ruling on the motion until after the jury return their verdict enhances judicial efficiency and preserves valuable judicial resources by 'obviating the need for a retrial should the verdict result in an acquittal.'" Id. at 148. The court concluded that in such circumstances, the mistrial motion, even though decided posttrial, was not immediately appealable. Id.

Brangan is a criminal case, where the preclusive effect of an acquittal is grounded in the double jeopardy clause, which "protects against a second prosecution for the same offense after acquittal." North Carolina v. Pearce, 395 U.S. 711, 717 (1969). "'[A] verdict of acquittal [in our justice system] is final,' the last word on a criminal charge, and therefore operates as 'a bar to a subsequent prosecution for the same offense.'" Bravo-Fernandez v. United States, 137 S. Ct. 352, 357–358 (2016), quoting Green v. United States, 355 U.S. 184, 188 (1957). See Conkey v. Commonwealth, 452 Mass. 1022, 1023 (2008), quoting Commonwealth v. Lopez, 383 Mass. 497, 499 (1981) ("[A] defendant cannot be tried by the same sovereign for an offense the conviction of which would require the readjudication of a factual issue which previously has been determined in his or her favor").

- 104 - 28 a mistrial until after she received the jury's verdict. A judge may, for reasons of efficiency, decide to defer ruling on a motion for a mistrial until after receiving the jury's verdict.

Brangan, supra at 148. But independent of that decision, the judge has an obligation to consider whether alternate, lesser remedial measures would suffice to remediate counsel's improper argument.

Here, the judge did not consider such alternatives or ask the parties to propose any. True, the judge was not aided by the defendants' counsel's failure to object to any specific statements in the closing, move to strike them, or propose curative instructions -- whether to be delivered immediately or later as part of the final instructions.11 Nor was she helped by the fact that neither party objected to her proposal to defer ruling on the motion. But the fact remains that the judge had

This case, by contrast, is a civil action. In civil cases, there is no equivalent finality from a verdict since either party (or both, depending on the outcome) can appeal or otherwise seek relief from the judgment or seek a retrial. See Bravo-Fernandez, 137 S. Ct. at 358 ("In civil suits, inability to obtain review is exceptional; it occurs typically when the controversy has become moot. In criminal cases, however, only one side [the defendant] has recourse to an appeal from an adverse judgment on the merits").

11 The absence of objection, motions to strike, and requests for curative instructions means that any supposed errors (whether in the closing or the instructions) are unpreserved for appellate review. See Gath v. M/A-Com, Inc., 440 Mass. 482, 492 (2003). See also Mass. R. Civ. P. 51 (b), 365 Mass. 816 (1974).

- 105 - 29 an independent responsibility to "take 'rigorous and emphatic action' to counteract prejudicial statements made in front of the jury." Rolanti v. Boston Edison Corp., 33 Mass. App. Ct.

516, 529 (1992), citing Goldstein v. Gontarz, 364 Mass. 800, 811

(1974). Of course, the judge had discretionary latitude to determine what those measures should be in this particular case.

See Santos v. Chrysler Corp., 430 Mass. 198, 214 (1999); Fialkow v. DeVoe Motors, Inc., 359 Mass. 569, 572 (1971). But she did not have the discretion to simply defer dealing with the issue until after trial when those remedial measures would no longer be available to her. See Mass. G. Evid. § 1113(d) (2019) ("A trial judge has a duty to take appropriate action to prevent and remedy error in opening statements and closing arguments").

This is especially so where, as here, the judge stated she was unsure whether a mistrial was required when the motion was made.

See Abramian v. President & Fellows of Harvard College, 432

Mass. 107, 120 (2000) (trial judge is in best position to determine whether mistrial is needed); Sullivan v. Commonwealth,

383 Mass. 410, 414 (1981) (in civil case, judge must find that there is "high degree of necessity for a mistrial"). The judge shortchanged her obligation to allow the parties to be heard on the topic of whether less drastic measures would suffice as well as her own ability to consider and craft such measures when they still could have made a difference.

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Because the judge decided to defer ruling on the motion until after receiving the jury's verdict, the motion was then to be treated as a motion for new trial rather than one for mistrial. A judge is deprived of authority to declare a mistrial once "the jury verdict ha[s] been received, recorded and proclaimed and the jury ha[s] been discharged." Holder v.

Gilbane Bldg. Co., 19 Mass. App. Ct. 214, 218 (1985). At that point, "[t]he time for declaring a mistrial ha[s] gone by" because there is no longer any trial to interrupt. Id.

("Mistrial connotes an interruption of the trial because justice may not be done if the trial continues"). Moreover, the judge was required to apply the new trial standard as of the moment she decided the motion rather than as of the moment the motion was made. Put another way, having decided to wait to see what the jury did before ruling on the motion, the judge could not then ignore the verdict in her analysis of the motion for a mistrial.12 See Gath v. M/A-Com, Inc., 440 Mass. 482, 494 (2003)

(in assessing posttrial motion for new trial "the judge considered, as he must, the possible influence of counsel's conduct on the verdict" [emphasis added]).

12 Given that she assessed the adequacy of her instructions but did not consider the jury's verdict in her analysis, it appears that the judge chose to assess the motion from the vantage point of the moment the case was submitted to the jury. This was error.

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Instead of employing the new trial standard, the judge, at the defendants' urging, used the incorrect "four-factor framework for considering claims of prejudicial attorney misconduct that we articulated in Fyffe v. Massachusetts Bay

Transp. Auth., 86 Mass. App. Ct. 457, 472 (2014)." Wahlstrom,

95 Mass. App. Ct. at 446. But "the Fyffe factors are simply a way of determining whether a preserved claim of error arising out of attorney misconduct is prejudicial under the appellate prejudicial error standard of review." Id. at 448.13

"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 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 (1993), and cases cited. In conducting the correct assessment, "the judge should not take it upon himself to nullify a jury's verdict by granting a new trial unless it appears on a survey of the whole case that otherwise a miscarriage of justice would result." Evans, 6 Mass. App. Ct. at 295. See Salter v. Leventhal, 337 Mass. 679, 698 (1958)

13 Because no objections were lodged below to the closing or the instructions, see note 11, supra, any claim of error is waived, and we have no reason to apply the Fyffe appellate prejudicial error standard.

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("The effect of the [improper] remark and the sufficiency of the steps taken to overcome it must, as in every case, be judged with reference to the entire case as it stood before the jury").

"[T]he new trial motion inquiry focuses on the harmful impact of the errors. It is not the egregiousness of, or the disrespect to the court shown by, attorney misconduct that the new trial motion addresses." Wahlstrom, supra at 449-450.

Had she taken a survey of the whole case, the judge would have had to consider many features of the trial proceedings that she did not take into account. For example, the evidence was largely uncontested. No one disputed that the plaintiff's tooth

14 was injured by a small piece of bone that was in a hamburger sold by Wendy's and produced by JBS. Nor was there any serious contest concerning the extent or nature of the dental treatments the plaintiff was required to undergo, their severity, or their duration. Although the beef was ground very fine, and the defendant JBS took many measures to ensure that the meat was safe, the defendants did not contend that a small piece of bone could not end up in a hamburger or that it did not land in the one at issue here.

Moreover, because this was not a negligence case, the reasonableness of the defendants' actions was not at issue.

Instead, as the jury were instructed, the test for the plaintiff's breach of the warranty of merchantability claim is

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"whether the consumer reasonably should have expected to find the injury-causing substance in the food." Phillips v. West

Springfield, 405 Mass. 411, 412-413 (1989) ("the reasonable expectations test is the appropriate one to apply in determining liability for breach of warranty of merchantability under G. L. c. 106, § 2–314 [2] [c], by reason of a bone or other substance in food that caused harm to a consumer"). As to this inquiry, there was also no serious dispute; the plaintiff did not expect an injury-producing bone in her Wendy's hamburger, and the defendants did not expect their customers to receive hamburgers with injury-producing bone in them.

The judge was correct to factor her instructions into her analysis, but she considered them inadequate even though they were not objected to and she gave them sua sponte. To be sure, the presumption that jurors follow the instructions they are given may be displaced if there is some evidence that the instructions were disregarded. See Fyffe, 86 Mass. App. Ct. at

475 ("the rubric that jurors are presumed to follow the judge's instructions does not mean that a curative or cautionary instruction always suffices to remove the stain of what otherwise would be prejudicial error"). Here, however, the judge did not explain why the presumption should be displaced in this case. Nor does our own review of the record reveal any reason to think the jury failed to follow the judge's well-

- 110 - 34 crafted instructions. To the contrary, the record contains numerous indications that the jury were not "misled, . . . swept away by bias or prejudice," or otherwise "failed to come to a reasonable conclusion." W. Oliver Tripp Co., 34 Mass. App. Ct. at 748. The jury took their time deliberating over the case; their question to the judge revealed that they were focused on the evidence; and their damages award was neither disproportionate to, nor unsupported by, the evidence. Contrast

Fyffe, supra at 473-474 (fact that $1.2 million award was "in the upper range of what may be borne by the evidence" supports conclusion that jury's assessment of damages was affected by counsel's improprieties). In addition, the damages award was not of a size to suggest that it was intended to be punitive rather than compensatory. Importantly, we note that the judge did not find that the jury were in fact misled, swayed, or influenced by the improper aspects of the closing, or that the jury's verdict on liability was against the weight of the evidence, or that their damages award was disproportionate to the evidence.

Because the motion was decided under the incorrect legal standard, the judge's order allowing the motion must be vacated, the verdict from the second trial must be set aside, and a remand is necessary to permit the judge to consider the motion under the correct standard. On remand, for the reasons set out

- 111 - 35 next, the judge need not reconsider whether aspects of plaintiff's counsel's closing were impermissible; we agree that they were. Instead, the question for the judge will be whether the impermissible advocacy resulted in a miscarriage of justice such that a mistrial is required. We note in this regard that a judge is not to "act merely as a '13th juror' [to] set [the] verdict[s] aside simply because he would have reached a different result had he been the trier of facts." Clapp v.

Haynes, 11 Mass. App. Ct. 895, 896 (1980), quoting Borras v.

Sea-Land Serv., Inc., 586 F.2d 881, 887 (1st Cir. 1978). Nor is a mistrial to be allowed as a form of sanction for attorney misconduct in closing argument. See Wahlstrom, 95 Mass. App.

Ct. at 449-450. We note, in addition, that the outcome of the retrial would not support a conclusion that the first jury were misled or swept away if for no other reason than that both juries reached the same conclusion as to liability and, although the second jury made a smaller damages award, the dollar value of the plaintiff's harm was not contested by the defendants during the first trial.

We now turn to plaintiff's counsel's closing, keeping in mind that closing argument "may contain enthusiastic rhetoric, strong advocacy, and excusable hyperbole," Mass. G. Evid.

§ 1113(b)(2), but that certain types of argument are improper.

Specifically,

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"[t]he following are not permissible in a closing argument:

(A) to misstate the evidence, to refer to facts not in evidence (including excluded matters), to use evidence for a purpose other than the limited purpose for which it was admitted, or to suggest inferences not fairly based on the evidence;

(B) to state a personal opinion about the credibility of a witness, the evidence, or the ultimate issue of guilt or liability;

(C) to appeal to the jurors' emotions, passions, prejudices, or sympathies;

(D) to ask the jurors to put themselves in the position of any person involved in the case;

(E) to misstate principles of law, to make any statement that shifts the burden of proof, or to ask the finder of fact to infer guilt based on the defendant's exercise of a constitutional right; and

(F) to ask the jury to disregard the court's instructions."

Id. at § 1113(b)(3). We agree with the judge that certain aspects of the closing fell within categories (C) and (D) of

§ 1113(b)(3).

Specifically, counsel's repeated references to "we" and

"us" impermissibly integrated the jurors with the plaintiff (and counsel) within a community of the "average customers."

Certainly, counsel could permissibly argue that the jurors could use their common sense and life experience to determine the reasonable expectations of a consumer. He could also permissibly argue that the plaintiff was an average consumer.

- 113 - 37

But what he could not do was to draw the jurors into the position of the plaintiff.

The undisputed evidence was that both Wendy's and JBS were large multinational corporations, and plaintiff's counsel was entitled to characterize them as such in his closing. In addition, counsel was permitted a certain amount of latitude to counter the defendants' counsel's attempts to portray the defendants as "fine companies," doing the "right thing," doing the best they could in America. But that latitude did not extend to arguing that the defendants were part of a community of "big companies" who try to shirk responsibility, come up with

"excuses," and "confuse things." Nor did it justify counsel's argument that "when Wendy's and JBS sells all those burgers, they are more than happy to take our money. We pay for the burger. It goes to them. But when a burger hurts somebody, no responsibility. No accountability. Shame on them, honestly -- shame on them."

Nor was counsel permitted to invoke future possibilities of harm,14 or that the jury through their verdict could protect the

14 "[I]f you add up all the people that are hurt by things that hardly ever hurt anyone, that adds up to a lot of dangerous things. And sooner or later a danger is going to claim a victim."

- 114 - 38 community from such dangers,15 or that a defendants' verdict would give the defendants a "pass" or "reward" them.

Finally, we see no justification for the final portion of the plaintiff's counsel's argument, which attempted to draw the jury into imagining a hypothetical future moment when they might think about their jury service and remember that "safety rules were violated and that you helped to make a wrong right. You made it right and you held them responsible and accountable."

We therefore conclude, as did the judge, that portions of the plaintiff's counsel's closing were outside the bounds of permissible argument.

Conclusion. For these reasons, we vacate the order allowing the defendants' motion for a mistrial, and remand for reconsideration of that motion by the judge in the first instance, consistent with what we have laid out in this opinion.

So ordered.

15 "Are these important rules in our community? Are we going to enforce them? Are you going to enforce them? If the rules that we talked about here, the safety rules, if those are important you need to speak to that and your verdict needs to speak to that."

- 115 - CERTIFICATE OF COMPLIANCE PURSUANT TO RULE 16(k) OF THE MASSACHUSETTS RULES OF APPELLATE PROCEDURE

I, Christopher A. Duggan, hereby certify that the foregoing brief complies with the rules of court that pertain to the filing of briefs, including, but not limited to: Mass. R. A. P. 16 (a)(13) (addendum); Mass. R. A. P. 16 (e) (references to the record); Mass. R. A. P. 18 (appendix to the briefs); Mass. R. A. P. 20 (form and length of briefs, appendices, and other documents); and Mass. R. A. P. 21 (redaction). I further certify that the foregoing brief complies with the applicable length limitation in Mass. R. A. P. 20 because it is produced in the monospaced font Courier New at size 12 point, 10½ characters per inch, and contains 49 total non-excluded pages prepared with Microsoft Word 2013.

Dated: July 22, 2020

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CERTIFICATE OF SERVICE

Pursuant to Mass.R.A.P. 13(d), I hereby certify, under the penalties of perjury, that on July 22, 2020,

I have made service of this Appellees’ Brief upon the attorney of record for each party, by the Electronic

Filing System on:

FOR MEAGHAN FITZPATRICK Matthew J. Fogelman Fogelman & Fogelman LLC 189 Wells Avenue, Suite 302, Newton, MA 02459 [email protected]

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