Commercial Litigation and Arbitration

Appeals: Trial Counsel’s Misconduct Reversible Only If Pervasive — Waiver by Failure to Object to Argument or Detail Complaints — Broad Statements, References in Passing in Brief Not Enough

Leonard v. Stemtech Int’l Inc., 2016 U.S. App. LEXIS 15565 (3d Cir. Aug. 24, 2016):

1. Counsel's Conduct

Stemtech complains that Leonard's counsel made comments during the trial that so prejudiced the jury that the District Court should have granted a new trial. Counsel's conduct "constitutes reversible error" only where he or she engaged in "argument injecting prejudicial extraneous evidence," Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 210 (3d Cir. 1992), such that the "improper statements . . . so pervade[d] the trial as to render the verdict a product of prejudice," Draper v. Airco, Inc., 580 F.2d 91, 96 (3d Cir. 1978). "Because the trial judge was present and able to judge the impact of counsel's remarks, we defer to his assessment of the prejudicial impact." Fineman, 980 F.2d at 207; Draper, 580 F.2d at 94 (recognizing that the trial judge has "considerable discretion in determining whether conduct by counsel is so prejudicial as to require a new trial"). We thus review the decision to grant or deny a motion for a new trial based upon counsel's conduct for abuse of discretion. Fineman, 980 F.2d at 206.

Stemtech first argues that Leonard's counsel "repeatedly referred to Stemtech as an international, multinational or global corporation" to highlight [*49]  the financial disparity between Leonard and Stemtech. Appellant's Br. 45 (emphasis omitted). Contrary to Stemtech's assertions, reference to Stemtech's international status was not a prominent "theme" throughout the trial, and thus even if improper, these isolated references do not constitute "argument injecting prejudicial extraneous evidence."21 Fineman, 980 F.2d at 210.

21   Similarly, Stemtech's claim that Leonard's counsel improperly insinuated that the company operated as a pyramid scheme is not a basis for a new trial. Not only were these references sporadic, but they also accurately describe Stemtech's top-down business structure. In any event, the "pyramid" references do not make it "reasonably probable" that the jury's verdict was influenced by these statements, Fineman, 980 F.2d at 207, and therefore do not warrant a new trial.

Stemtech next argues that Leonard's counsel used the wrong damages standard in his closing statement, but it did not object to these arguments during closing, and so the argument is waived. See Dunn v. HOVIC, 1 F.3d 1371, 1377 (3d Cir. 1993) (failure to make timely objection to statements of counsel during closing argument is a waiver to challenging them on appeal).

Finally, Stemtech complains of "occasions that [Leonard's counsel] argued unsupported issues[, which] are too numerous to discuss." Appellant's Br. 53. This broad statement does not suffice to preserve a claim of error on appeal. See Santomenno ex rel. John Hancock Trust v. John Hancock Life Ins. Co. (U.S.A), 768 F.3d 284, 292 n.3 (3d Cir. 2014) (discussing an issue in a single sentence may result in waiver); Long Hao Li v. Att'y Gen., 633 F.3d 136, 140 n.3 (3d Cir. 2011) ("stray references" result in waiver); John Wyeth & Brother Ltd. v. CIGNA Int'l Corp., 119 F.3d 1070, 1076 n.6 (3d Cir. 1997) (raising an issue "in passing" without "squarely argu[ing it]" results in waiver).23

23   Similarly, Stemtech's argument that a new trial is warranted due to counsel's "additional unsupported and improper statements and arguments," Appellant's Br. 55 (capitalization omitted), that amounted to "pleas of pure passion . . . [and] blatant appeals to bias and prejudice," Draper, 580 F.2d at 95, has been waived. Stemtech did not object to any of the summation statements it claims were directed to bias and passion. See Dunn, 1 F.3d at 1377. Even if Stemtech had preserved these claims of error, "at least for civil trials, improper comments during closing arguments rarely rise to the level of reversible error." Id. (quotation marks, citation, and alteration omitted).

To the extent Stemtech has provided any [*51]  details concerning such alleged misconduct, none provides a basis for granting a new trial.

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