PROVIDENCE, R.I. (Legal Newsline) - A defense attorney who urged jurors to reject a lawsuit against a children’s hospital so it could continue to take in “the sickest kids” crossed the line into illegal argument, the Rhode Island Supreme Court ruled, ordering a new trial over a premature baby’s injuries.
Katherine Baker and Morgan McCarthy sued Women & Infants Hospital of Rhode Island after Autumn McCarthy, born at 34 weeks, suffered tissue injuries the plaintiffs blamed on an improperly inserted intravenous feeding line in her foot while she was in the neonatal intensive care unit.
In closing arguments, the hospital’s defense lawyer told jurors: “So, ladies and gentlemen, by your verdict, please tell [WIH] and their NICU to continue to take in the sickest kids, the youngest —”
The plaintiffs’ attorney jumped up to object, saying “whoa, whoa, whoa,” and Judge Sarah Taft-Carter sustained the objection. But she rejected a motion for new trial, saying she had repeatedly instructed the jurors not to consider closing arguments to have the same weight as evidence.
The Rhode Island Supreme Court, in a Feb. 22 decision by Justice Erin Prata, reversed.
“This Court has recognized that counsel enjoys “the privilege of engaging in all fair comment on behalf of his [or her] client,” the court said, but the privilege is “not limitless.” Arguments designed to “appeal solely to the prejudice and passion in the minds of the jurors, thereby diverting their minds from the case at issue,” are not allowed, the court said.
In this case, the court said, “defense counsel, in no uncertain terms, directed the jury to send a message.” The trial judge herself found that defense counsel’s closing argument was “certainly over the top” and “he went to the line—perhaps over it—in his argument,” the court observed, before deciding the jury’s decision was nevertheless supported by the evidence.
The judge was supposed to determine whether the remarks influenced the verdict, however, not whether the evidence supports it, the court ruled.
“After careful consideration, it is apparent to us that defense counsel’s directive to the jury to send a message to WIH that it should continue to take in the sickest children in all probability prejudiced the jury and rendered the jury unable to properly apportion liability,” the court concluded.