Union Pacific Railroad was denied a fair trial in St. Clair County Circuit Judge Heinz Rudolf's court because of plaintiff counsel's "inflammatory and improper" closing argument, the Fifth District Appellate Court ruled April 28.
The court reversed a 2019 multi-million dollar verdict awarded to former locomotive inspector John McCarthy who sued the railroad and former supervisor Glen Elliot in 2017 on harrassment claims.
McCarthy claimed that after Elliot had become aware of neck and back injuries he had sustained in a car crash, Elliot intentionally grabbed him by the neck and head, aggravating his injuries. McCarthy claimed Union Pacific was aware of Elliot’s conduct but took no action to prevent or stop the alleged harassment.
In a 2-1 decision ordering a new trial, the majority agreed with Union Pacific that an award of $3.14 million against the railroad and $10,000 against Elliot represents "a potentially inconsistent verdict and is evidence that the jury was influenced by the improper closing argument."
"We find that no reasonable judge could conclude that the plaintiff’s improper closing argument did not prejudice this verdict," wrote Justice James Moore. Justice Barry Vaughan concurred; Justice Thomas Welch dissented.
Ahead of trial, according to the Rule 23 decision, Heinz had granted Union Pacific's motion in limine prohibiting "any argument, comment or suggestion that the jurors act as safety advocates in this lawsuit or that they send a message to the corporate defendant with their verdict on the grounds that such argument is improper and inflammatory."
During closing, though, plaintiff's counsel repeatedly violated the court's order, starting with: "Make no mistake. This case is about more than one man getting hurt at work. You have an opportunity to do more for the safety of your community than you will likely ever again in the rest of your lives.”
The appellate court decision does not identify the plaintiff's closing attorney. The St. Clair County docket identifies plaintiff's counsel as Charles Armbruster and Michael Blotevogel.
Union Pacific also objected to the plaintiff counsel's next statement - that there were 2.8 million workplace injuries in 2018 - as that had not been presented during the trial by any witness.
The court sustained the objection.
Next, plaintiff's counsel stated: “The simple truth is, some employers don’t take safety seriously. Union Pacific is one of those employers.” Union Pacific again objected and the court sustained.
More objections followed and were sustained after plaintiff's counsel attempted to lay out "11 reasons" why the jury could award the plaintiff $5 million:
"1. Safety rules will be enforced. Union Pacific will be safer; every place of employment will be safer. Keep in mind, your verdict today isn’t just about this case. Your verdict will set a precedent. Your verdict today will be looked at in the future to say--"
Moore wrote that plaintiff counsel’s "blatant disregard of both the sustained objections and order which granted Union Pacific’s motion in limine, cannot be ignored."
In Welch's dissent, he indicated he would affirm the verdicts, including the damages assessed against each defendant.
"First, regarding the plaintiff’s counsel’s closing argument, the statements made by counsel during closing argument do not rise to the level requiring reversal, especially where any prejudicial effect was cured by the trial court’s numerous sustained objections and multiple admonishments to the jury," Welch wrote.
He wrote that Union Pacific was granted all requested remedies, except for one overruled objection.
"Additionally, each amount awarded to the plaintiff was clearly accounted for on the jury forms and was $1.2 million less than what the plaintiff was seeking. The highest categorized amount awarded to the plaintiff was for compensation of lost wages.
"This is important to note because the plaintiff was 30 years old, was unable to work, and was previously earning $82,000 per year when he was employed by Union. There were also outstanding medical bills that the plaintiff submitted to establish those costs. Nothing about the jury’s verdicts, neither the total amount nor the individual amounts provided on the verdict form, indicates that the jury was influenced by the statements made by the plaintiff’s counsel during closing argument."
Welch also disagreed with the majority's view that the verdicts against Union Pacific and Elliot were "irreconcialably inconsistent."
Union Pacific was represented by Thomas Jones and Harlan Harla.