SPRINGFIELD – Supreme Court Justices chose not to disturb an appellate court decision that Union Pacific deserved a second trial because St. Clair County Circuit Judge Heinz Rudolf allowed inflammatory and improper closing argument.
The Justices denied leave to appeal the decision, which wiped out a $3,140,000 verdict for former railroad employee John McCarthy.
He sued the railroad and supervisor Glen Elliot in 2017, claiming Eliot aggravated back injuries from a traffic accident by grabbing his neck and head.
He claimed the railroad failed to stop Eliot’s harassment.
Prior to trial in 2019, Rudolf prohibited any argument or suggestion that jurors act as safety advocates or send a message to Union Pacific.
After evidence jurors heard argument for McCarthy from counsel Fifth District judges didn’t identify.
Charles Armbruster and Michael Blotevogel of Maryville and Shaun Lieser of St. Louis represented McCarthy.
Counsel told jurors, “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.”
Union Pacific objected and Rudolf told jurors to disregard it.
McCarthy’s counsel told jurors there were 2.8 million workplace injuries in 2018.
Union Pacific objected that no witness said that and Rudolf sustained the objection.
McCarthy’s counsel told jurors some employers don’t take safety seriously and, “Union Pacific is one of those employers.”
Union Pacific objected and Rudolf sustained the objection.
McCarthy’s counsel pushed ahead, repeating his message and telling jurors safety rules would protect people “if jurors choose to enforce them.”
“As we all know, conduct rewarded is conduct repeated,” he said.
“What other safety rules are they ignoring?”
He said if the railroad wouldn’t enforce safety rules, “the burden falls to you.”
He said he had 11 reasons for jurors to award $5 million, and as he recited them Union Pacific kept objecting and Rudolf kept sustaining.
“If you want to live in a community where employers hurt people and then try to avoid responsibility, absolutely return a verdict for the railroad and Glen Elliot," he concluded.
Rudolf called the lawyers to his bench and Union Pacific moved for a mistrial.
Rudolf denied it and jurors awarded $2.1 million against Union Pacific for lost salaries and benefits, $500,000 for medical care, $300,000 for pain and suffering, $140,000 for emotional distress, and $100,000 for loss of normal life.
They awarded $10,000 against Eliot.
Fifth District judges interpreted the disparity between millions against the railroad and thousands against Elliot as evidence for the effect of the closing argument.
Justice Randy Moore found he and Justice Barry Vaughan couldn’t ignore blatant disregard of Rudolf’s order on argument and objections he sustained.
“We find that no reasonable judge could conclude that the plaintiff’s improper closing argument did not prejudice this verdict,” he wrote.
Justice Thomas Welch dissented, finding counsel’s statements didn’t rise to a level requiring reversal.
He found Rudolf cured any prejudicial effect by sustaining objections and admonishing jurors.
Jonathan Amarilio and James Eaton of Chicago represented Union Pacific.