Attorney wanting new trial claims defense unfairly labeled defendants 'as good people'

By Amelia Flood | Nov 5, 2009



It's rare when a winning party in a lawsuit asks for a new trial at the same hearing as the losing party, but that's what happened in Madison County Circuit Judge Barbara Crowder's court Wednesday.

Plaintiff's attorney Gordon Broom and defense attorney Victor Avellino each asked Crowder for a new trial in a suit over a Moto Mart customer's slip and fall injuries.

At trial in September, Broom wanted a jury to award John and Linda Linkes $2 million. But jurors, whose only task was to consider the amount of damages, awarded $320,000, which included $50,000 in punitive damages.

Avellino represents defendant FKG Oil Company, the owner of the Moto Mart gas station chain. The case centered on John Linkes' knee injuries sustained after slipping on a wet floor at an Edwardsville Moto Mart.

In lieu of a new trial, Broom asked Crowder to add to the punitive damage award, acknowledging that such a move would be "a landmark decision."

Avellino shot down Broom's request.

"This isn't a case that requires a landmark decision," Avellino said. He and Broom continued sparring -- a feature commonly on display during the September trial.

Avellino moved for a new trial based on "cumulative errors" in the court's handling of the case, namely Crowder's order directing the jury's verdict on the negligence issue as a sanction for FKG's conduct during the course of litigation.

Crowder told both attorneys she would take their motions under advisement.

During the September trial, various witnesses, including FKG President Robert Forsyth, admitted the company had not followed its own safety procedures when the floor at the store was mopped and signs were not placed marking it in the way the company mandated.

Crowder directed the verdict before the case closed due to what she called "cavalier" conduct by FKG. Crowder had sanctioned FKG prior to the trial over its conduct during discovery.

Broom argued that the "wanton and willful" conduct of FKG warranted higher punitive damages than those the jury awarded. He contends that improper arguments by Avellino during closings confused the jury as to the proper amount.

"He painted them [the defendants] as good people and I object to that," Broom said. "The issue is not whether they care about the store but whether they cared about the customer." Broom argued that the jury didn't punish FKG adequately because of Avellino's portrait of the defendants as caring people who made a mistake rather than those who admitted they disregarded their own policies.

Avellino countered that he had merely argued his case as he had a duty to. He took issue with Broom's request for added damages.

"For the plaintiff to now ask the court to add to the punitive damages is unheard of," Avellino said. "It's never been done before."

Broom cited one case to Crowder involving a court changing damages. In the case, he said, the court had reduced the punitive damages awarded by the jury and that should provide precedent for adding to the $50,000.

Avellino contended that the jury had properly awarded the smaller amount for punitive damages and had added more to its pain and suffering damages as a balance.

In arguing his motion for a new trial, Avellino argued that the directed verdict was improper and that it had prevented the defense from arguing points of fact and trying to present them in a light more favorable to his clients.

Avellino also took issue with earlier rulings on evidence and motions in limine that Crowder made. He argued they had deprived the defendant of evidence that could have shown that John Linkes contributed to his accident and that the incident was not indicative of a pattern of conduct.

He also told Crowder that she erred in not separating the negligence issue and the damages issue. Broom agreed.

With that in mind, Avellino said, there should be a new trial on the negligence and one on the damages and that Crowder should reverse earlier rulings she had made if she granted the new trial motion. A new trial without reversing certain earlier rulings would not be beneficial, according to Avellino.

Crowder took a moment to ask Avellino for clarification.

"You either want either two new trials or no new trials?" Crowder asked Avellino.

"Yes," he replied."

The case began in 2007. Its trial ended Sept. 22.

The case is Madison case number 08-L-410.

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