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Sunday, December 15, 2019

Wendy's might still get mistrial in bone-in-burger case as court says lawyer's closing arguments went too far

State Court

By Charmaine Little | Nov 18, 2019

Wendys

BOSTON (Legal Newsline) - Fast-food chain Wendy’s was sued after one of its burgers allegedly caused extensive damages to a customer’s tooth. but it was the woman’s lawyer who caused controversy - according to the Massachusetts Court of Appeals, which is leaving open the possibility of a mistrial.

“In this appeal we conclude that it was an abuse of discretion to allow a new trial based on statements in plaintiff’s counsel’s closing arguments that crossed the bounds of permissible advocacy,” the appeals court ruled. “We reach this conclusion because, among other things, the judge did not apply the correct legal standard and, as a result, failed to conduct a survey of the whole case, as she was required to, to determine whether a miscarriage of justice would result absent a new trial.”

Meaghan Fitzpatrick says she bit into a Wendy’s burger and heard a crunch, along with an indescribable pain in her tooth. She realized that there was a bone in the burger that caused severe damage to her teeth. She had to have an emergency root canal among other treatments. 

She was later prescribed to oxycodone to help deal with the pain. She received an implant that will require care in the future. She later sued Wendy’s and JBS Souderton, Inc., the company that produced and supplied the hamburger, based on Wendy’s specifications.

Ultimately, she and her lawyer Matthew Fogelman scored a $150,000 verdict, though Wendy's had moved unsuccessfully for a mistrial at the conclusion of Fogelman's closing arguments.

Later, the judge in question invalidated the jury’s verdict and green-lighted a new trial as a type of sanction for the closing arguments. The opinion provides many excerpts from Fogelman.

"(D)efendants' counsel contended that plaintiff's counsel had improperly attempted to 'integrate himself with the jury,' and had impermissibly spoken about not rewarding the defendants' conduct, punishing big companies, and what might happen in the future," the opinion said.

Judge Gabrielle Wolohojian authored the opinion. Judges Amy Lyn Blake and Sookyoung Shin concurred, ruling that some of the lawyer's statements were inappropriate.

They vacated the mistrial ruling, but remanded the case for the judge to consider the first mistrial request.

"(W)e see no justification for the final portion of the plaintiff's counsel's argument, which attempted to draw the jury into imagining a hypothetical future moment when they might

think about their jury service and remember that 'safety rules were violated and that you helped to make a wrong right.  You made it right and you held them responsible and accountable,'" the opinion says.

"We therefore conclude, as did the judge, that portions of the plaintiff's counsel's closing were outside the bounds of permissible argument."

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