A lawyer’s courtroom remarks about two unrelated CSX Transportation workplace deaths and the company’s manpower in a railroad injury lawsuit were prejudicial enough for the Pennsylvania Superior Court to grant a new trial and upend a nearly $600,000 judgment in favor of his client.
The court granted defendants American Premier Underwriters, Conrail and CSX’s request for a new trial, finding that plaintiff Mike Buttaccio’s lawyer violated a preclusion order prohibiting him from raising the subject of CSX’s manpower and mentioning the two deaths.
Buttaccio’s lawyer, Michael Lockard of David Lockard & Associates in Philadelphia, did not return a call seeking comment.
Robert Palumbos of Duane Morris, who represents the defendants, said, “We’re pleased with the decision and are looking forward to the next steps at the trial court.”
Buttaccio, a railroad carman since 1973, sued the defendants for carpal tunnel injuries sustained from years of heavy work involving maneuvering in awkward positions, which he claims could have been avoided if the defendants minimized “exposures to these risk factors,” according to Superior Court Judge James J. Fitzgerald’s opinion.
Fitzgerald was joined by Judges Paula Francisco Ott and Lillian Harris Ransom.
The jury found in Buttaccio’s favor and awarded him $600,000, which the trial court molded to $597,000 based on the jury’s finding that he was 0.5 percent comparatively negligent. The defendants subsequently appealed, claiming that Buttaccio’s experts should not have been allowed to testify, but chiefly asking for a new trial based on Lockard’s remarks.
“Appellee does not contest that his counsel’s references to ‘manpower’ violated the trial court’s pretrial order. Instead, appellee contends that they caused no prejudice,” Fitzgerald said. “We disagree. In the first place, appellee did not proffer any expert testimony that the railroads provided insufficient manpower, so appellee had no foundation to claim insufficient manpower.”
He continued, “By repeatedly injecting the manpower issue into the case, counsel drew attention to a theory that the jury never should have heard and invited the jury to decide the case on an improper basis. Although the trial court issued several curative instructions to disregard counsel’s improper remarks, the sheer number of counsel’s improper references prejudiced appellants; they were ‘too numerous to be harmless.’”
Fitzgerald also noted that the trial court rebuked Lockard’s mentioning of two CSX employees killed on the job as “‘a shameless attempt to prejudice this jury’” but still did not grant a mistrial. The trial court also did not issue a curative instruction to the jury, the appeals panel added.
“The trial court compounded its error by failing to issue a curative instruction to the jury,” Fitzgerald said.