An important reminder: When Plaintiff’s counsel attempts to inject prejudicial statements into litigation, object. A failure to do so can be perilous indeed. In Wicklund v. Pacific Cycle, L.L.C., No. 08-CV-486-GKF-FHM, 2010 WL 3368924 (N.D. Okla. August 23, 2010), Judge Frizzell of the Northern District of Oklahoma considered whether repeated references by the plaintiffs’ attorney to the Chinese origin of the alleged defective product, a bicycle, was grounds for a new trial or relief from judgment. Counsel for the defendant, Pacific Cycle, argued that the plaintiffs’ attorney “repeatedly, deliberately and impermissibly played to the perceived anti-Chinese prejudice of the jurors, thereby irrevocably tainting the verdict.”
For instance, the plaintiffs’ attorney said, “Pacific Cycle has elected to buy cheap Chinese products rather than buying products made in the U.S.” In his closing, the attorney said that “‘Made in China’ are the three words that unfortunately have become somewhat of a concern in this country. Finally, he said:
You know, businesses that have chosen to export jobs to China for cheap labor, for cheap goods, I mean from a business side it’s understandable, but when you choose to do that, if you get quality control issues you have to pay when people get harmed from those. And that’s all that this case is basically about.
The jury awarded the plaintiffs $1,100,107.06 in damages, which did not include any punitive damages but represented $1 million over and above the actual damages, ostensibly for pain and suffering.
The court ruled that it could not award a new trial or relief from judgment because defense counsel had not preserved the issue by objecting at the appropriate times. Nevertheless, we find it a helpful reminder as to what is and is not permissible to state to a jury. A new trial may be granted when, as the court noted, “remarks about a case are made which the court believes may have influenced the jury to the prejudice of either party.” The test is “whether or not improper remarks made it reasonably probable that the verdict was influenced by prejudicial statements.”
The design and manufacture of products continues to become a more international endeavor; the “Japanese” car could be made in the next state, with parts from Germany, the United States, and France. When trying a products case, listen carefully for arguments and remarks which may play to perceived prejudices by members of the jury, and object at the appropriate times to call the court’s attention to the tactic and to preserve the issue on appeal.
