City of Cleveland v. Peter Kiewit Sons' Co.
1980 U.S. App. LEXIS 16528, 624 F.2d 749 (1980)
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Rule of Law:
Pervasive and deliberate attorney misconduct, including prejudicial appeals to a party's wealth, corporate status, and insurance coverage, may so poison the proceedings that curative instructions are insufficient, requiring a new trial on all issues, including liability, not just damages.
Facts:
- The City of Cleveland (City) owned a dilapidated waterfront dock built in 1908 that was no longer used for its original commercial purposes.
- In 1973, Peter Kiewit Sons' Co. (Kiewit), a construction firm, entered into a permit agreement with the City to use a 100x400 foot portion of the dock for several months.
- Kiewit used the site to load blast furnace slag onto barges for a separate dike construction project it was performing for the Army Corps of Engineers.
- Kiewit's operations concluded, and it vacated the dock on October 8, 1973.
- On October 24, 1973, after Kiewit had surrendered possession, portions of the dock collapsed.
- The collapse occurred in a small section of the area Kiewit had leased, but the major portion of the collapsed area was outside the section Kiewit had used.
Procedural Posture:
- The City of Cleveland sued Peter Kiewit Sons' Co. in the Court of Common Pleas of Cuyahoga County, Ohio (state trial court).
- Kiewit removed the action to the United States District Court for the Northern District of Ohio (federal trial court) based on diversity of citizenship.
- Following a six-day trial, the jury returned a general verdict in favor of the City for $350,000.
- Kiewit filed a motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial, alleging attorney misconduct.
- The District Court denied the JNOV but found the verdict 'grossly excessive' and ordered a remittitur of $175,000.
- The court's order stated that if the City did not accept the remittitur, a new trial would be granted on the issue of damages only.
- The City declined to accept the remittitur.
- The District Court ordered a new trial solely on the issue of damages.
- Kiewit appealed this order to the U.S. Court of Appeals for the Sixth Circuit, arguing the new trial should cover liability as well.
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Issue:
Does an attorney's persistent and pervasive misconduct, which includes improper references to a party's wealth, out-of-state status, and insurance coverage, warrant a new trial on all issues, including liability, when the trial court found the misconduct likely influenced the jury's damages award?
Opinions:
Majority - Weick, Circuit Judge
Yes. When an attorney engages in a continuing pattern of misconduct so pervasive that it prejudices the jury against a party, a new trial on all issues is required. The City's counsel persistently made improper and prejudicial remarks about Kiewit's large size, wealth, international operations, out-of-state headquarters, and the existence of liability insurance. The court reasoned that such appeals to passion and prejudice, particularly contrasting the wealth of an out-of-state corporation with the local taxpayers' interests, are inadmissible and fundamentally unfair. Although the trial judge repeatedly sustained objections and issued curative instructions, the misconduct was so flagrant and continuous that its prejudicial effect could not be erased. The grossly excessive verdict confirmed that the jury was influenced, and this prejudice likely 'spilled over' from the damages calculation to the liability determination, especially in a case where the evidence of causation was weak. Therefore, a new trial limited to damages is insufficient to cure the prejudice, and a complete new trial on both liability and damages is necessary.
Analysis:
This decision reinforces the principle that appellate courts will intervene to police egregious attorney misconduct, even when a trial court has attempted to mitigate the harm with curative instructions. It establishes that when misconduct is pervasive and likely affects the verdict's size, an appellate court can infer that the prejudice also tainted the jury's finding on liability, particularly in a factually close case. The ruling serves as a strong warning to trial lawyers against using improper arguments about a party's financial status or insurance coverage. It also clarifies that a remittitur or a new trial on damages alone may be an inadequate remedy where the fundamental fairness of the liability verdict is called into question by counsel's behavior.
