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, v. 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 - 1 - 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. - 2 - 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. - 3 - 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 - 4 - 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 - 5 - 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 - 6 - 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 - 7 - 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 - 8 - 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 - 9 - 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 - 10 - 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