Under Missouri personal injury law, asking the jury to "send a message" with their verdict is generally reserved for punitive damage cases and typically not allowed in cases where compensatory damages are the only damages sought. Most personal injury cases are compensatory damage cases; most car accident lawsuits do not alleged punitive damages, unless the driver was drunk or did some sort of other reprehensible or intentional act. So can a good Missouri trial lawyer ask the jury in closing argument to "send a message' if punitive damages are not an issue? Maybe, depending on the judge, and then it must be done correctly and carefully.
First, the judge must allow it and not sustain an objection by the defense, or even grant a mistrial because the judge feels the reference to sending a message is so prejudicial that it ruins the jury's ability to properly determine a verdict. The objection is a likely scenario and different judges will rule differently on the issue. The mistrial is and extreme reaction to the argument, however, it can happen.
Generally, Missouri courts have left it in the discretion of the trial court judge to what extent "send a message" arguments can be allowed, ruling that it has been ok in some cases because it was not prejudicial or that an objection and curative instruction corrected any potential error or prejudice. "Given the cold record on appeal, appellate courts of this state uniformly uphold trial courts' determinations of the prejudice injected by "send a message" arguments." Pierce v. Platte-Clay Electric Cooperative, Inc., 769 S.W.2d 769 (Mo 1989).
It appears it is not reversible error in compensatory damage cases if (1) the injury lawyer argues the message to be sent by the verdict is to be sent just the Defendant, and (2) the plaintiff's counsel is clear that they are asking for damages supported by the evidence. Limiting the message being sent to just the defendant avoids the argument of deterrent effect to others (reserved for punitive damage claims) and by referring to only the damages supported by the evidence a good attorney avoids the argument that they are asking for punitive damages, since they are only asking for damages supported by the evidence, not additional damages for deterrence, which is punitive in nature.
The two issues discussed above for not crossing the line into punitive damage arguments are discussed in Dickerson v. St Louis Southwestern Railway Company, 674 S.W. 2d 165 (Mo Ct App ED 1984). In this case, during the closing arguments the Missouri accident attorney stated, when referring to the verdict:
"It is going to be heard by this railroad all of the way out to the home office in San Francisco, and I ask you to make it for an amount that's proven by the evidence that we've talked about that they'll hear about loud and clear for all times.
But I ask you to make it as generous as you possibly can and let them know when you come back down here, "Mr. Railroad, we have done our job. Here is the price tag."
The defense lawyer objected to the argument and the trial court overruled the objection, meaning they allowed the closing argument. The defendant lost the trial and they appealed the case, in part claiming the arguments above were improper "send a message" arguments that are reserved for punitive damage cases. The Eastern District Appeals Court upheld the trial court's ruling, thus agreeing that the argument was permissible, because:
1. Trial court has broad discretion in ruling on propriety of jury argument
2. The argument does not expressly request the jury to punish the defendant
3. Plaintiff limited his damages request to "an amount proven by the evidence"
4. Plaintiff limited his message to be sent to defendant's corporate headquarters
5. Plaintiff did NOT refer to the deterrent effect the verdict might have on others.
Additionally, the best Missouri injury lawyers know not to make the "Send a message" argument the theme of their closing, they state it and move on. "When the send a message argument becomes the theme of the entire closing, it constitutes reversible error." Smith v. Courter, M.D., 531 S.W.2d 743 (Mo 1973).
The Courts have also allowed defense lawyers to argue to a jury to reject the plaintiff's claim and in doing so send a message to society that litigation is too common and must be deterred. In the case of Beis v Dias, 859 SW2d 835 (Mo 1993), send a message was argued by the defense to send a message to a litigious society not to sue doctors for complications that are accepted risks of the surgery.
Defense argument to jury:
"[Y]ou have a golden opportunity here to help correct one of the most litigious societies--the most litigious society in the world. You have an opportunity--
(objection - overruled)
"You have an opportunity here to take the burden off of Dr. Dias's back and place it where it belongs. These people should not recover any money whatsoever. We cannot encourage this type of activity. Folks, look, I don't deny and I've never tried to deny and I told you this up front, that she had complications develop as a result of the surgery. But they are accepted risks of the surgery. They are known risks of this surgery and unfortunately, it happened to this lady. But we are here to determine whether or not Dr. Dias in any way was negligent. Did he fall below an acceptable standard of care with reference to his treatment, his care, his surgery of this woman?"
The trial court overruled the Plaintiff's objection to this argument and the Southern District Court of Appeals held that this argument was not prejudicial because:
1. It was not the ongoing theme of defendant's closing;
2. After objection defense counsel moved from the argument even though the objection was overruled;
3. Again holding that the trial court has "superior opportunity to appraise the impact of the argument to the jury, we accord the trial court broad discretion in this area of closing argument"
I personally disagree with the court's ruling in this situation, as the defense lawyer was improperly asking the jury not to determine their verdict based on the evidence, but was asking them to send a message to society about the dislike for medical malpractice lawsuits. He was not asking for punitive damages in the form of a money verdict, but a sort of punitive damages by a defense verdict and that would send a message to society.
The case law really comes down to the fact that the trial court has discretion to make these decisions and that the court of appeals will not tamper with that decision unless their is abuse of discretion by allowing very improper arguments to be made. So depending on the judge, a good lawyer may be able to argue "send a message", and if they keep it within the parameters discussed above, the court of appeals should not second guess it.
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