Court: Motions for new trial require review of full case.

Byline: Kris Olson

Attorneys say that a pair of Appeals Court decisions has clarified the standard trial judges should be applying when considering whether attorney conduct requires a new trial.

In both cases Wahlstrom v. JPA IV Management Company, Inc., et al. and Fitzpatrick v. Wendy's Old Fashioned Hamburgers of New York, Inc., et al. the trial judges granted motions for a new trial after jury verdicts in the plaintiffs' favor because their attorneys had improperly questioned witnesses or gone over the line in opening or closing statements.

At the defendants' urging, both judges applied the four-factor framework for considering claims of prejudicial attorney misconduct that the Appeals Court had articulated in its 2014 decision Fyffe v. Massachusetts Bay Transp. Auth.

Critically, the fourth prong of the Fyffe test states that the court should probe "whether the error, in the circumstances, possibly made a difference in the jury's conclusion."

In Wahlstrom, Superior Court Judge Paul D. Wilson noted "with great regret" that he could not eliminate such a possibility. In Fitzpatrick, Judge Heidi E. Brieger reached a similar conclusion.

Their decisions voided, at least temporarily, jury awards of $4 million for a woman raped in a Boston parking garage and $150,000 for a woman who had to endure two years' worth of oral surgery after biting into a bone in a fast-food hamburger.

But in the parking garage case, the Appeals Court said that Fyffe "did not articulate a standard to be utilized by trial judges in evaluating motions" but instead an appellate standard of review.

The court said the appropriate standard could be found in Evans v. Multicon Construct. Corp. That case provides that a judge is to conduct a "survey of a whole case" and determine whether a "miscarriage of justice" would result if the jury's verdict were upheld, Judge Peter J. Rubin wrote for the panel in Wahlstrom.

The Appeals Court reiterated that holding in the hamburger case, concluding that it had been an abuse of discretion for Brieger to have allowed a new trial using the Fyffe test.

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Wahlstrom v. JPA IV Management Company, Inc., et al., Lawyers Weekly No. 11-069-19 (17 pages)

Fitzpatrick v. Wendy's Old Fashioned Hamburgers of New York, Inc., et al., Lawyers Weekly No. 11-149-19 (38 pages)

THE ISSUE: Is the four-factor framework that the Appeals Court articulated in its 2014 decision Fyffe v. Massachusetts Bay Transp...