Ruling that liability could not be “fairly determined” after attorneys made comments on race and other comments on the size and wealth of cable giant Comcast Corp., the state Superior Court has granted Comcast a new trial on both liability and damages in an automobile collision case.
A Philadelphia Court of Common Pleas judge had initially granted Comcast a new trial solely on the $350,000 jury award in the underlying case, in which a Comcast van driven by Richard A. Schulgen collided with a bus operated by Latin Express, on which plaintiff Olga Mirabel was riding.
But the unanimous three-judge panel reversed, saying the judge abused her discretion by not granting an entirely new trial considering the attorneys’ remarks.
A pretrial order in response to a motion in limine from Comcast’s counsel barred any references to Comcast’s size and wealth.
But the trial court only gave the jury a curative instruction on the plaintiff’s attorneys’ comments regarding race, according to the opinion; it made no such jury instruction on both the plaintiff’s and a co-defendant’s attorneys’ remarks on the size and wealth of Comcast, Judge Jack A. Panella said, writing for the panel.
The jury attributed 25 percent of the negligence to Rolando Morales, the driver of the Latin Express bus, and the remainder to Schulgen and Comcast. Morales and Latin Express settled for an undisclosed amount before trial, but both remained in the case to defend against cross-claims asserted by Comcast.
After trial, the lower court judge found the verdict to be excessive, noting the size of the award related to the injuries suffered showed that the racial and wealth-related comments impacted the jury’s decision, Panella said. However, there was more than sufficient evidence at trial for the jury to find Comcast and the driver liable, the trial court decided.
Finding the curative instruction the racial comment was insufficient to erase the prejudice, the panel disagreed.
“The statements by Mirabel’s counsel in his closing — where he tried to use race to appeal to the jury — were so offensive and egregious that the curative instruction given by the trial court was insufficient to remedy the prejudice,” Panella said.
The panel, which also included President Judge Correale F. Stevens and Judge Susan P. Gantman, first filed the opinion as an unpublished memorandum in September, but, following a motion for publication from Comcast, posted the opinion on the court’s website this month.
The court in Mirabel v. Morales relied on the state Supreme Court’s decision in Mittleman v. Bartikowsky from 1925, in which the justices said racial remarks regarding counsel’s opposing party were “so glaringly out of place” that the high court could not say the underlying verdict came from an impartial jury.
In the instant case, according to the opinion, the jury had 11 African-American members and one white member. Mirabel is Hispanic and her attorney, David P. Thiruselvam, is East Indian.
According to the opinion, in Thiruselvam’s closing argument, he made the comment that the courtroom looked like a “movie studio when you walked in that first day. … I walked in, I was like, is this Warner Brothers? No, it’s Comcast Brothers. Well, maybe no brothers, but it is — you know, you got my point.”
Thiruselvam declined to comment on the opinion.
The Latin Express driver, Morales, is also Hispanic. Latin Express’ attorney, John G. Devlin, is white.
According to the opinion, Devlin made references to the “big machinery” of Comcast and offered the jury an opportunity to talk to “Mr. Comcast,” its voice being the verdict.
According to Panella, Devlin apparently also tried to compare the size of Comcast with the small size of Latin Express by saying “‘Latin Express is run in a hole in the wall.’”
Devlin declined to comment, as well.
The Comcast representatives are white and the trial attorney for Comcast, Michael T. Droogan Jr. of Litchfield Cavo, and his staff are white.
Comcast was represented on appeal by Ronald P. Schiller of Hangley Aronchick Segal Pudlin & Schiller.
Schiller did not return a call requesting comment.
In the underlying case, Mirabel said she was injured in 2007 while riding a bus that runs to Miami on the Latin Express bus line, when the bus was in a collision with the Comcast van on Interstate 95, the Law Weekly has previously reported.
The plaintiff testified that she had pain in her shoulders, neck and back after bracing her arm on the seat in front of her during the collision, according to the trial court’s opinion. Mirabel, who had continued on to Miami for a visit with her family, did not get treatment until three weeks after the accident because her insurance plan provided coverage only in New Jersey. The injury required shoulder surgery.
(Copies of the 21-page opinion in Mirabel v. Morales, PICS No. 12-2099, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •