Needham v. Coordinated Apparel Group, Inc.
Annotate this Case
Needham v. Coordinated Apparel Group, Inc. (99-360); 174 Vt. 263;
811 A.2d 124
[Filed 28-Jun-2002]
[Motion for Reargument Denied 7-Oct-2002]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 1999-360
Stephanie Needham, b/n/f Supreme Court
Marilee and James Needham, and
Marilee and James Needham, Individually On Appeal from
Addison Superior Court
v.
Coordinated Apparel Group, Inc., et al. November Term, 2000
Dean B. Pineles, J.
Robert B. Hemley, Norman Williams and Rebecca C. Raskin of Gravel
and Shea, Burlington, for Plaintiff-Appellee.
Robert D. Rachlin and Christopher D. Roy of Downs Rachlin & Martin,
PLLC, Burlington, and Michael J. Goldman of Hawkins & Parnell, LLP
(Of Counsel), Atlanta, Georgia, for Defendants-Appellants.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
DOOLEY, J. Defendants, comprised of the manufacturers, distributors
and retailers of a cotton garment that ignited, injuring Stephanie Needham,
appeal from a judgment based on a jury verdict in favor of plaintiffs,
Stephanie and her parents, on their negligence, breach of warranty and
products liability claims. Defendants contend the court erroneously: (1)
denied their motion for judgment as a matter of law because the evidence
established that the accident could not have happened as plaintiffs
contended, and did not support their failure-to-warn products liability
claim; (2) admitted a Congressional subcommittee hearing report; and (3)
denied a motion for mistrial
following plaintiffs' closing argument. We reject the first contention,
but agree with the second, and therefore reverse and remand for a new
trial. (FN1)
Construed in the light most favorable to the judgment, see Haynes v.
Golub Corp., 166 Vt. 228, 233, 692 A.2d 377, 380 (1997), the main evidence
presented to the jury was as follows. On the morning of January 10, 1995,
while she was "lean[ing] up against the chair that is in front of the
[wood] stove to watch television," Stephanie Needham's cotton turtleneck
suddenly burst into flame. Stephanie, her brother and her parents
testified that at the time of the incident, the door to the wood stove was
closed and there were no open flames or sparks. Stephanie recalled that
she "heard a whooshing sound . . . then I turned my head and saw the
flames." She immediately ran outside and rolled in the snow. After she
stood up, however, the shirt reignited. Stephanie's brother then threw her
to the ground and extinguished the flames.
The Hearthstone stove in question had a front window and a loading
door on the left side which could be opened only with a special tool.
Stephanie was not permitted to open the stove door, and had never done so.
She had been "told not to sit on the hearth," and the chair which she
leaned against at the time her shirt ignited was located approximately
three feet from the stove.
Plaintiffs' expert, Dr. Charles Beroes, testified about how a cotton
garment could ignite in the absence of an open flame:
When cotton is heated, it begins to decompose into . . . pyrolysis
gas. . . . These gases are highly flammable . . . [and] are
generated at low temperatures, 380 degrees . . . depending upon
what's on the fabric. There may be polymers or plastics . . . and
dyes. . . . [T]he spontaneous ignition temperature is that at
which the gases will ignite
without any outside assistance, no energy from the outside, no
spark, no match, no flame. They will ignite spontaneously . . .
automatically when one reaches temperatures like 875 degrees.
Dr. Beroes also offered an explanation as to how the turtleneck could
have ignited without Stephanie feeling excessive heat:
It was very cold that morning, 10 to 20 degrees below zero and she
was trying to keep warm. The back of her . . . turtleneck was
hanging. The importance of this is she wouldn't sense heating of
that lower part of the undershirt and its gasification and so on
because it wasn't in contact with her skin. . . . [T]he shirt
became heated to 380 degrees . . . and [began] to pyrolyze
profusely. . . . Now, while this is going on . . . chimneys we all
know have a draft . . . drawing in air from the surrounding
environment and now some of this vapor becomes heated sufficiently
to its spontaneous ignition temperature, that is 875 degrees.
The evidence showed that cotton was combustible and had "hidden
unknown dangers]." Specifically, evidence showed that cotton garments are
self-propagating, or not self-extinguishing, so that they will continue to
burn after the source of ignition is removed, and that "there is a very
rapid flame spread."
Stephanie received first, second and third degree burns across 18 - 20
percent of the surface of her skin, requiring extensive medical
intervention to induce healing and reduce scarring. The incident also had
a significant psychological impact on Stephanie; she experienced nightmares
and was diagnosed with post-traumatic stress disorder and a body image
disturbance, both of which interfered with her normal activities.
The garment that ignited was in full compliance with all applicable
federal and industry flammability standards. (FN2) Ordinary clothing of
the type in question rarely includes flammability warnings. The published
ignition temperature for cotton is 752 degrees Fahrenheit. Plaintiffs filed
suit in Addison Superior Court against the manufacturers, distributors and
retailers of the cotton turtleneck, asserting theories of strict liability,
negligence and breach of warranty. After a five-day trial, the jury
returned a verdict in favor of plaintiff Stephanie Needham finding
defendants were negligent and breached their warranty and that they were
strictly liable in tort. They awarded damages in the amount of $3 million,
but reduced that amount by 50% to reflect their finding of her
proportionate fault. As to the parents' claims, the jury concluded that
they were 75% at fault and therefore found for defendants. Defendants
moved for judgment notwithstanding the verdict, and in the alternative for
a new trial. Both motions were denied. This appeal followed. We first
consider defendants' contention that the court should have granted their
motions for judgment as a matter of law because acceptance of that
contention would end this litigation. The trial court denied these motions
because it found that Dr. Beroes testimony provided "sufficient evidence to
get the case to the jury."
Defendants renew their claim on appeal that the evidence was
insufficient to support any theory of how the accident happened that would
give rise to their liability. We review motions for judgment as a matter
of law to determine "whether the result reached by the jury is sound in law
on the evidence produced." Brueckner v. Norwich University, 169 Vt. 118,
122, 730 A.2d 1086, 1090 (1999) (internal citations omitted). "If evidence
exists that may fairly and reasonably support all
elements of the nonmoving party's claim, judgment as a matter of law
is improper." Id. "We view the evidence in the light most favorable to
the nonmoving party and exclude the effect of any modifying evidence."
Haynes, 166 Vt. at 233, 692 A.2d at 380.
Defendants' argument is based on their view that the evidence supports
only two possible ways in which the accident occurred: (a) the turtleneck
came in contact with the fire in the stove or (b) because of proximity to
the stove, the temperature of the turtleneck reached 800 degrees
Fahrenheit. They characterize the second possibility as incredible because
plaintiff would have felt the heat before the fire started. They submit
that the first possibility is what really occurred, but that such contact
represents product misuse and controlling negligence as a matter of law.
We do not have to get into the underlying law to reject this argument.
The problem with it is that plaintiffs' expert witness presented a third
theory which does not have the deficiencies that defendants cite. The
expert's theory was that the lower part of the turtleneck, which did not
touch plaintiff's skin, reached 380 degrees Fahrenheit and emitted
pyrolysis gases. Those gases were sucked down to the stove by the air
intake system and ignited when they came in contact with the stove. They,
in turn, ignited the turtleneck. As the trial court held, this theory was
sufficient to support the jury verdict.
Defendants next argue that judgment as a matter of law should have
been granted on plaintiffs' failure-to-warn claim. We note at the outset
that this is only one of the theories underlying the jury verdict. See
Lorrain v. Ryan, 160 Vt. 202, 209, 628 A.2d 543, 548 (1993) (where verdict
rests on multiple theories appellant must show error with respect to all
theories). In any event, we find no error in the rejection of the motion.
The applicable law is set out in Webb v. Navistar International
Transportation Corp., 166 Vt. 119, 127, 692 A.2d 343, 347 (1996):
A manufacturer also has a duty to warn users and consumers when it
knows or has reason to know of dangers inherent in the product at
the time the product is sold, or when the product is dangerous to
an extent beyond that which would be contemplated by an ordinary
consumer. To establish strict liability for an inadequate
warning, a plaintiff must prove that the inadequate warning made
the product unreasonably dangerous and was the proximate cause of
the injury.
(citations omitted). See Town of Bridport v. Sterling Clark Lurton Corp.,
166 Vt. 304, 307-08, 693 A.2d 701, 704 (1997). Again, the testimony of
plaintiffs' expert witness supported the need to warn of the flammability
of the cotton turtleneck, and specifically the explosive nature of the fire
and the rapid spreading of the flames. Defendants argue that they were not
required to warn of patent and obvious dangers, see Menard v. Newhall, 135
Vt. 53, 55, 373 A.2d 505, 507 (1977), and the dangers of cloth being
ignited by excessive heat or flame falls in that category. Again, we
believe that defendants are warring with the facts before the jury. The
fact that a cotton turtleneck could ignite without warning when its wearer
stands three feet from a wood stove could be found to be a latent danger
beyond the knowledge of an ordinary consumer.
We are no more persuaded when defendants recast their argument as one
of proximate cause and note that because plaintiff was warned not to get
close to the stove and ignored the warning, any additional warning would be
useless. We recognize a presumption that, if a manufacturer has a duty to
warn and fails to discharge the duty, the user would have heeded an
adequate warning if it had been given. See Town of Bridport, 166 Vt. at
308, 693 A.2d at 704. In this case, the jury could find that plaintiff
heeded the warning her parents had given and, in any event, would have
heeded an
adequate manufacturer's warning about the events that occurred here. See
id. at 309-10, 693 A.2d at 704.
Finally, defendants argue that plaintiffs' expert's testimony should
not have been admitted under Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993). The problem with this argument is that defendants
have changed it between the trial court and this Court. In the trial
court, defendants argued that Dr. Beroes's training and experience as a
chemical engineer did not qualify him as an expert on the topic of "warning
labels for garments in the textile industry," nor on behavioral responses
to such warnings. The court found Dr. Beroes qualified to testify
regarding the latent flammability characteristics of the garment, and thus
whether the garment was unreasonably dangerous and should have carried a
warning. In this Court, defendants advance a different argument: that Dr.
Beroes's testimony should have been excluded because it was scientifically
unsound under V.R.E. 702 and the standard articulated by the United States
Supreme Court in Daubert. Because this argument was not made in the trial
court, it was not preserved. See Morais v. Yee, 162 Vt. 366, 372, 648 A.2d 405, 410 (1994); see also State v. Valley, 153 Vt. 380, 398, 571 A.2d 579,
588 (1989) ("On appeal, defendant is bound by the specifics of her
objection.").
Defendants next contend that the court erred in admitting a transcript
of a Congressional subcommittee hearing dealing with proposed amendments to
the federal Flammable Fabrics Act. To understand the nature of the
contention, and our ultimate conclusion that the report was not only
erroneously admitted, but that its admission compels reversal of the
judgment, requires a somewhat detailed description of the contents of the
transcript. The transcript is of a hearing held thirty-four years ago by
the Consumer Subcommittee of the Senate Commerce Committee on a bill which
would have "increase[d] the protection afforded consumers against injurious
flammable fabrics." Almost twenty witnesses testified over a three-day
period, stating positions on all or part of the bill. Four of the
witnesses were representatives of trade organizations for a segment of the
apparel industry: The National Cotton Council of America, American Apparel
Manufacturers' Association, American Textile Manufacturers' Institute,
Inc., and American Retail Federation. The non-industry witnesses generally
sought higher flammability standards and supported those sections of the
proposed bill which they felt would bring about those standards.
In his opening statement, the subcommittee chair, Senator Magnuson,
opined that "burns from ignition of clothing and other household fabrics
clearly constitute an extremely serious health problem in the United
States," and claimed that "[t]housands of men, women, and children are
burned, many fatally, when their clothing catches fire." The next witness,
an official from the Department of Commerce, asserted that persons in the
lowest income brackets suffer more frequently from clothing burns, and that
"children, the disabled, and the elderly, are particularly susceptible to
burn injury." An official from the Department of Health, Education and
Welfare followed with the startling information that "clothing ignition is
involved in about 150,000 cases" annually, and underscored that "the most
tragic aspect of these fabric burns is that a large proportion claim as
their victims those who are least able to help themselves - the aged, the
disabled, the poor, our very young children."
This statement was followed, in turn, by a witness actually igniting a
piece of cotton cloth to demonstrate that after the flame is extinguished
it retains, in the witness's words, "an afterglow that we have been told is
much higher [in] temperature than the original." This assertion echoed
plaintiffs' theory at trial that cotton garments often reignite after being
extinguished. A Special
Assistant to the President for Consumer Affairs, Betty Furness, followed
with additional statistics underscoring the vast number of clothing fires
per year, and urged that "the consumer must be assured that the fabrics he
buys are reasonably safe." The chairman of the Federal Trade Commission
testified that most injuries and deaths result from articles of clothing
that would pass the federal flammability test. A news correspondent
described in vivid detail how his eleven-year-old daughter "became the
victim of a flaming piece of cotton" which - according to his unimpeached
testimony - initially appeared to be extinguished and then somehow
reignited - a scenario again reminiscent of plaintiffs' description of the
accident in this case. The anguished father concluded:
I took the remains of Carole's burned blouse to have it tested. I
was told that the cotton fabric from which it was made lies within
the burning-time [federal] standards. Nothing, in other words,
could be done under existing law to prevent another Carole from
having to undergo the same torture from a burn caused by the same
or similar fabric. . . . The public must be made aware of the
seriousness of the problem.
Additional witnesses followed, including an officer of the American
Trial Lawyers Association (ATLA). This testimony is particularly relevant
to the issue before us because it contains the argument why a jury should
ignore the fact that a fabric met federal flammability standards. The ATLA
witness described a client coming into a lawyer's office because a "child's
dress suddenly went up in flames . . . almost spontaneously." According to
the witness, if the lawyer is aware of the federal standards, the lawyer
will send the fabric of the dress for testing and "almost invariably" find
it meets federal standards. At that point, according to the witness, the
lawyer will disbelieve the client or go to court, where the manufacturer
will offer the "very compelling
testimony" that the dress met federal flammability standards, creating an
"almost insuperable obstacle in terms of jury psychology." The witness
went on to argue:
But in a real sense the existence of the act has been a deterrent
to the lawyer on carrying out the normal therapeutic process of
liability litigation, because the lawyer will, in the face of an
obstacle he must overcome in the courtroom, tend to either settle
the case or postpone it, settle it for a nominal amount, and he
does not believe that he has much of an opportunity to overcome
the burden that the defendant imposes on him by showing that the
article has complied with the standards.
. . . .
Because otherwise, sir, the adoption of these standards which are
going to represent and must in our system represent the views of
the manufacturer will turn out to be a shield for a delinquent
manufacturer rather than an aid to the consumer.
Because we believe that the therapy of a good lawsuit and a good
damage recovery - and these damage recoveries in burn cases can be
quite substantial - represent a great goal to the manufacturer to
accelerate what research they have started in order to develop
flame-retardant materials.
The witnesses continued with an orthopaedic surgeon who described the
grim circumstances of an incident involving a little girl whose nightgown
was ignited by a space heater.
The evidentiary issues that led to the admission of the transcript in
this case arose in the context of the parties' dispute over the weight to
be accorded the federal standard on the flammability of cotton clothing and
the fact that the cotton turtleneck worn by Stephanie Needham met this
standard. In their opening statement, defendants stressed the longevity of
the standard, and the fact that it had been periodically reviewed by
Congress and remained unchanged. Plaintiffs countered that the standard
was inadequate and the product of industry pressure. On redirect
examination of their key expert witness, Dr. Beroes, plaintiffs' counsel
first produced the transcript
of the 1967 subcommittee hearings - marked for identification but not yet
admitted into evidence - and asked Dr. Beroes whether a representative of
the National Cotton Council appeared at the hearings and made certain
statements. Defense counsel objected on hearsay grounds, and plaintiffs'
counsel responded that the document came within a hearsay exception for
ancient documents, V.R.E. 803(18), and would also be offered as part of the
basis for Dr. Beroes's opinion. The court allowed the examination, after
noting that defendant had elicited testimony about the longevity of the
standard and the frequency of reviews of it by government agencies. Dr.
Beroes testified that the industry representative stated that the
flammability standard lacked precision, but that proposed modifications
unfairly promoted other fibers over cotton. He also testified that these
statements, as well as those of government officials, were relied upon by
him in forming his opinion that the flammability standard was inadequate.
Later, plaintiffs' counsel returned to the subject, asking defendants'
expert witness - over objection - whether he was aware that the cotton
industry had spent "great time and money" to influence politicians with
respect to the flammability standards. When that question did not produce
an affirmative response, counsel walked the witness through the testimony
of the National Cotton Council representative at the 1967 subcommittee
hearing. Following the testimony of defendants' expert witness, counsel
offered the transcript of the subcommittee hearings, asserting that the
transcript fit within hearsay exceptions in V.R.E. 803(8) (public records)
& (16) (ancient documents) and was self-authenticating under V.R.E. 902(5).
Over objection, the court admitted the entire transcript.
Defense counsel returned to the issue the next day, and before the
transcript was to go to the jury for deliberation, and reiterated that the
transcript fit within no hearsay exception and contained
extensive advocacy statements like those summarized above. The court
suggested redaction of all but the statement of the industry
representative, but plaintiffs' counsel objected to this limitation, saying
the document had "good and bad . . . for everybody." The court and
plaintiffs' counsel then engaged in the following colloquy, which became
the ruling of the court:
THE COURT: If I remember the cross-examination right, Mr. Hemley's
point was to try to get Dr. LeBlanc to concede that there are a
lot of industry pressures being brought to bear in 1967 when the
act was up for reconsideration. And, you know, I think that's a
fair point.
But I didn't understand the - the offer to be that what so-and-so
witness said was - was true and should be accepted by the jury as
true. It was simply to point out that this is a congressional
hearing where there are pressures being brought to bear on the
politicians. Hardly any surprise there.
MR. HEMLEY: That's precisely correct. I'm not suggesting that any
of these statements are or are not true.
THE COURT: And I think because of the limited purpose for which
it's being offered I'm going to overrule the objection. But I
don't think that - I'm not saying that Mr. Hemley should be waving
that document in front of the jury saying look what this guy said
back in 1967, that this product is unsafe and, you know, there are
"x" number of injuries and so forth. This was not the reason why
it was introduced.
So I agree with Mr. Goldman as to the - the details. But the
document is in evidence for the limited purpose for which it was
offered and I'll expect that you will tailor your argument to
reflect that - that limited purpose.
In closing argument, plaintiffs' counsel did precisely what the court
prohibited. He argued:
[Y]ou will have in the jury room Exhibit No. 66 which are the
hearings before Congress in 1967 that were - when Congress was
considering amending the act to make it more protective of people,
the ordinary people like ourselves. And you'll be able to read
that to yourselves in the jury room.
One of the things that you'll be able to see is that William
Siegel who was head of the Cotton Council of America, the same
organization you will remember that Dr. LeBlanc worked for and
which promotes the interest of cotton in the United States, when
he was testifying before Congress what he said to you, very
similar to what Mr. Goldman said to you, is there is a very real
danger that stricter standards would promote the use of certain
specialized fire resistant fibers at the expense of other fibers
which may be more combustible.
Thanks to the effort of Mr. Siegel and other industry
spokesmen the standards adopted in 1953 have never been changed
even though according to Betty Furness, some of you may recall
whose testimony is also in Exhibit 66, who was then special
assistant to President Johnson for consumer affairs, she told the
senate committee, which then did not change the law under the
influence of these lobbyists, that each year a million people are
seriously burned in their homes. 150,000 of these burns are from
clothing fires. 2,000 to 3,000 people die each year in clothing
fires.
Congress heard this compelling testimony from her and from
others and ignored it because of the influence of the cotton
lobbyists. But one of the great features of this government and
of this system is that there will be no cotton lobbyists in the
jury room when you retire.
(Emphasis supplied). In a later part of the argument, plaintiffs' counsel
returned to the exhibit and said that when the jury has a chance to look at
it "you'll see that the hearing that took place in 1967 was the first time
anybody had even bothered to look at this standard."
We note, at the outset, that the trial court's initial decision to
admit the entirety of the Congressional hearing and transcript cannot be
sustained under either of the hearsay exceptions advanced by plaintiffs at
trial. Rule 803(8) permits the admission of "records, reports, statements,
or data compilations in any form of a public office or agency setting forth
its regularly conducted and regularly recorded activities . . . or factual
findings resulting from an investigation made pursuant to authority granted
by law." V.R.E. 803(8)(A). The hearsay exception may be sufficient
to overcome the first level of hearsay involved in a written government
document, but it does not overcome the fact that the statements of
witnesses represent a second layer of hearsay. See Pearce v. E.F. Hutton
Group, Inc., 653 F. Supp 810, 815 (D.D.C. 1987) (equivalent federal
exception covers governmental factual findings but not witness testimony at
a Congressional hearing); see generally 30B M. Graham, Federal Practice and
Procedure: Evidence § 7049 at 476-77 (Interim Edition 2000). For the same
reason, the "ancient documents" exception, V.R.E. 803(16), does not apply.
The age of the public hearing transcript may overcome the first level of
hearsay, but there is no general hearsay exception for "ancient"
declarations of witnesses.
Nor, finally, does the trial court's ultimate decision to admit the
report for the limited purpose of showing that "there are pressures being
brought to bear on the politicians" withstand analysis. Even assuming that
the document was relevant and admissible for this limited purpose, (FN3) it
was incumbent upon the trial court to exclude those extensive portions
which were not only unrelated to this subject, but highly prejudicial to
defendants. Confronted with a document partially relevant at best, the
trial court was required to exclude it or to require that the irrelevant
and objectionable
matter within it be redacted. See 1 Wigmore on Evidence § 17, at 787-88
(Tillers rev. 1983) ("If several facts are included in the offer, some
admissible and others inadmissible, the whole (if properly objected to) is
inadmissible; in other words, it is for the proponent to sever the good and
the bad parts."); State v. Raymond, 148 Vt. 617, 622, 538 A.2d 164, 167
(1987) (when part of offer is relevant, and part is not relevant, court
must admit only the relevant part); Bristol v. Noyes, 106 Vt. 418, 423, 174 A. 924, 926 (1934) (when part of the evidence included in an offer is
inadmissible, entire offer is vitiated); Brooks v. City of Mt. Vernon, 720 N.Y.S.2d 832, 833 (App. Div. 2001) (mem.) (court erred by refusing to
permit party offering document into evidence to redact inadmissible
portion).
The trial court here considered redaction but acceded to plaintiffs'
counsel's position that he was entitled to the admission of the whole
transcript. That ruling was clearly error. Bristol, 106 Vt. at 423, 174 A. at 926; Brooks, 720 N.Y.S.2d at 833. As demonstrated earlier, moreover,
the irrelevant matter that was improperly admitted was highly prejudicial,
including the untested hearsay testimony of the father of a child scarred
for life when her cotton blouse burst into flames, just as plaintiff's
cotton blouse here ignited; the testimony of the President's advisor that
2000 to 3000 persons die every year from clothing fires; and the testimony
of a representative of a trial lawyers' association on the therapeutic
value of large damage awards in clothing burn cases, and the alleged misuse
of federal flammability standards by defense lawyers.
Compounding the prejudicial effect of these statements was plaintiffs'
counsel's disregard of the court's instruction not to cite the document for
other purposes, such as the number of injuries
from clothing fires. (FN4) Counsel, in fact, not only violated the
instruction by quoting Betty Furness on the number of people who die from
clothing fires each year, but went well beyond anything supported by the
evidence in pursuit of plaintiffs' theory that proper safety standards
would exist if it were not for the actions of "cotton lobbyists." Thus,
counsel asserted that the industry standard had remained static for thirty
years because of "industry spokesmen;" that Congress "ignored" the
testimony of consumer advocates such as Furness when, in fact, Congress
enacted the bill before it; and that cotton lobbyists had spent "billions
of dollars" to prevent label warnings, sacrificing "a few kids get[ting]
burned to a crisp" out of purely venal interests. In fact, no evidence,
not even the improperly admitted hearing transcript, supported such claims.
In addition to the above arguments, plaintiffs' counsel twice drew the
jury's attention to the opportunity they would have to read the transcript
once they reached the jury room.
In sum, it is impossible to read the arguments to the jury without
concluding that the inadmissible transcript of a largely irrelevant
Congressional hearing held 30 years before the trial, containing highly
prejudicial, irrelevant, and inadmissible hearsay testimony, became a
central focus in a theory that the jury should send a message to cotton
lobbyists through a large verdict for plaintiffs. We conclude, therefore,
that defendants were denied a fair trial, and that the judgment must be
reversed.
Because of our disposition, we do not separately consider defendants'
argument that the closing argument was itself grounds for reversal.
Reversed and remanded.
FOR THE COURT:
_______________________________________
Associate Justice
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Footnotes
FN1. We grant appellee's motion to file a surreply brief and deny
appellant's motion to strike the surreply brief.
FN2. Commercial Standard 191-53, 16 C.F.R. pt. 1610, has been the federal
flammability testing standard since 1953.
FN3. Although we do not ground our decision on this point, we cannot
conclude that the transcript supports plaintiffs' proffer that it was
relevant to show that evidence of serious injuries to the public were
ignored by Congress "because of the influence of the cotton lobbyists."
The transcript is of a public Congressional hearing in which witnesses
testified on their position on proposed legislation, a part of which would
give the Secretary of Commerce authority to create and amend flammability
standards. The proposed legislation would not have made flammability
standards more strict; it did not directly address those standards.
Moreover, although the industry representatives testified against the
proposed legislation, it passed over their objection. See Flammable
Fabrics Act Amendments, Pub. L. No. 90-189, 81 Stat. 568-69 (1967)
(codified as amended at 15 U.S.C. §§ 1191-1204). In addition, the
transcript was of a hearing that occurred thirty-two years before the
trial, and the system of flammability regulation has changed since that
time. See Wilson v. Bradlees of New England, Inc., 96 F.3d 552, 555 (1st
Cir. 1996) (describing history of current regime). Events that are remote
in time necessarily lose their logical relevancy. See State v. Raymond,
148 Vt. 617, 623, 538 A.2d 164, 167 (1987).
FN4. Ignoring the error in admission of the highly prejudicial evidence,
the dissent argues that the failure of defendant's counsel to object to the
closing argument resulted in a waiver of any claim on appeal. We reiterate
that the fundamental error was in the admission of the congressional
hearing transcript, and not the closing argument based upon it. Once the
court admitted the hearing transcript, plaintiff's counsel was entitled to
try to persuade the jury to read it during deliberations.
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Dissenting
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 1999-360
Stephanie Needham, b/n/f Supreme Court
Marilee and James Needham, and
Marilee and James Needham, Individually On Appeal from
Addison Superior Court
v.
Coordinated Apparel Group, Inc., et al. November Term, 2000
Dean B. Pineles, J.
Robert B. Hemley, Norman Williams and Rebecca C. Raskin of Gravel
and Shea, Burlington, for Plaintiff-Appellee.
Robert D. Rachlin and Christopher D. Roy of Downs Rachlin & Martin,
PLLC, Burlington, and Michael J. Goldman of Hawkins & Parnell, LLP
(Of Counsel), Atlanta, Georgia, for Defendants-Appellants.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
AMESTOY, C.J., dissenting. I agree that the Congressional
subcommittee hearing report was erroneously admitted, but I disagree with
the ultimate conclusion of the majority that its admission compels reversal
because "defendants were denied a fair trial." I therefore respectfully
dissent.
No task of an appellate court is more difficult than attempting to
assess from a cold record the fairness of a trial. The challenge is
particularly difficult when, as here, experienced trial counsel for both
parties test the bounds of advocacy in an emotionally charged case
involving traumatic
injury to a young child. I do not quarrel with the majority's assessment
that the tactics of plaintiffs' counsel merit disapproval, but for the
reasons set forth below I do not believe we should find reversible error
where an "experienced trial judge on the scene put the matter soundly to
the jury." State v. Slocum, 132 Vt. 476, 480, 321 A.2d 51, 54 (1974).
Although the majority correctly characterizes the evidentiary issues
that led to the admission of the Congressional subcommittee report as
having arisen in the context of the parties' dispute over the weight to be
accorded to the federal standard on the flammability of cotton, the
characterization does not fully capture the nature of the defense in this
case. A recurring theme repeatedly emphasized by defendants was that the
flammability of cotton clothing was obvious to an ordinary consumer. (FN1)
By both explicit and implicit argument, defendants sought to convey to
the jury the message that a finding of liability would subject cotton
manufacturers to lawsuits which in turn could compromise the economic
vitality of an industry. Thus, for example, defendants' counsel began his
opening argument as follows:
There's no real question in the case about Stephanie's injuries .
. . . We feel sorry about that. And we are not here to really
talk much about that at all . . . . What this case is about,
however, . . . what Mr. Hemley is asking you to find, that this
ordinary routine thing that we are all intimately familiar with .
. . that we all own . . . that this is somehow a dangerous and
defective product that you people should say should not be on the
market. That's what he is asking you . . . .
Defendants coupled their assertion that plaintiffs were asking the
jury to find that cotton "is some kind of defective, dangerous, bad
product and they want you to say take it off the market" with the
representation that the garment issued passed a flammability standard that
although unchanged since 1953, "is periodically reviewed by Congress by the
Consumer Product Safety Commission to see if it is a good standard."
The plaintiffs' aggressive counter-arguments relating to flammability
standards should be viewed within the context of plaintiffs' counsel
seeking to overcome defendants' specific defense to plaintiffs' factual
allegations and defendants' more general defense that a verdict for
plaintiffs would put a staple of American life - the manufacture of cotton
garments - at risk.
This context was well understood by the trial judge in assessing the
use to which the disputed Congressional report was to be put by plaintiffs'
counsel. As the majority accurately points out, the court considered the
document in evidence for the limited purpose of depicting cotton industry
lobbying of the flammability standards. The majority's identification of
the potentially prejudicial testimony contained within the exhibit is much
more specific than that made by defense counsel at the time of the
objection. Although defense counsel certainly preserved his objection, his
description of the report's contents - "It's basically just a bunch of
testimonials from a lot of people who have an interest one way or another
on this thing" - cannot be said to have alerted the trial court to the
potential prejudicial impact, now so apparent to an appellate court with
the advantages of hindsight and reflection.
I accept the majority's assessment that closing argument of
plaintiffs' counsel was improper, most egregiously in its disregard of the
trial court's evidentiary ruling that the exhibit was not to be cited for
purposes such as the number of injuries from clothing fires. It is, in
fact, defendants' failure
to afford the trial court the opportunity to cure the improper use to which
the disputed exhibit was put in plaintiffs' closing argument that should
govern our resolution of this appeal.
The general rule "is that a timely objection is necessary to bring to
the trial court's attention alleged errors in the conduct of a trial."
Woods v. Burlington N. R.R. Co., 768 F.2d 1287, 1292 (11th Cir. 1985),
rev'd on other grounds, 480 U.S. 1 (1987). "The rule is applied to
argument of counsel, even argument found to be inflammatory, prejudicial
and improper." Id.
Defendants failed to request a corrective charge to the jury to
address any statements they deemed improper. We recently re-emphasized our
reluctance "to overturn a jury verdict based on the arguments of counsel."
Brown v. Roadway Express, Inc., 169 Vt. 633, 635, 740 A.2d 352, __ (1999)
(mem.). This is particularly true where, as here, defendants' counsel
expressed the view that a curative charge would be futile. See id. (where
counsel did not seek a curative instruction because he thought it likely to
"do more harm than good," trial court did not abuse its discretion in not
giving a more strongly worded admonition to the jury).
In the instant case, the trial court instructed the jury that
"arguments made by the lawyers are not evidence in the case." See Greenway
v. Buffalo Hilton Hotel, 143 F.3d 47, 51 (2d. Cir. 1998) (noting that
claims of improper appeals to juror bias must be evaluated "in the context
of the entire trial" and standard jury instructions that arguments of
counsel are not evidence). Although defendants argue strenuously that
plaintiffs' counsel's closing argument must have had a prejudicial effect,
the burden of such a demonstration is on the appellant. See Debus v. Grand
Union Stores of Vermont, 159 Vt. 537, 544-45, 621 A.2d 1288, 1293 (1993)
("heavy handed" closing argument of plaintiff does not entitle defendant to
new trial where defendant makes no showing that plaintiffs' argument had a
prejudicial effect, nor can one be found in the record).
Even where we have disapproved of counsel's "argumentative tactics,"
Slocum, 132 Vt. at 479, 321 A.2d at 54, or have found that counsel's
argument "exceed[ed] the bounds of propriety," State v. Bailey, 144 Vt. 86,
100-01, 475 A.2d 1045, 1054 (1984) abrogated on other grounds by Arizona v.
Youngblood, 488 U.S. 51 (1988), we have not found reversible error. The
tactical decisions of sophisticated trial counsel to neither ask for a
limiting instruction to reduce the risk of juror misuse of the erroneously
admitted exhibit, see Haynes v. Golub Corp., 166 Vt. 228, 236, 692 A.2d 377, 382 (1997), nor to seek a curative instruction to address prejudicial
remarks in closing argument, see Bailey, 144 Vt. at 101, 475 A.2d at 1054,
should not compel reversal where an experienced trial judge - in a far
superior position to evaluate prejudicial effect than an appellate court -
has not found prejudice. See State v. Mears, 170 Vt. 336, 345-46, 749 A.2d 600, 607 (2000) (trial court in best position to evaluate any prejudicial
effect, therefore, we will uphold its ruling "unless the court's discretion
was either totally withheld or exercised on grounds clearly untenable or
unreasonable" (internal quotation marks and citations omitted)). I do not
believe that the erroneous admission of the disputed exhibit was so
prejudicial as to deny defendants a fair trial. Therefore, I respectfully
dissent. I am authorized to state that Justice Morse joins me in this
dissent.
___________________________
Chief Justice
------------------------------------------------------------------------------
Footnotes
FN1. Defendants counsel sought to make the point in cross-examination of
the child's mother:
Q: Ms. Needham, you're not telling the jury that you
didn't know clothing would burn, are you?
R: No. I said I didn't know that it would burn like that.
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