There are limits to what a lawyer can say in closing arguments, and calling for a blow against big business is one of them, court rules

A lawyer who successfully argued his client was owed damages after biting into a tooth-destroying bit of bone in a hamburger at a Medford Wendy's went too far in a closing argument that urged the jury to strike a blow against big corporations everywhere and protect the little people, the Massachusetts Appeals Court ruled today.

But even though the trial judge in the case came to a similar conclusion and dismissed the verdict and ordered a new trial, she did so for the wrong legal reasons, the court said, in a decision that could mean a third trial on the damage to Meaghan Fitzpatrick's molar.

Fitzpatrick had sued Wendy's and its meat purveyor after enduring two years of painful dental problems and work after a bit of bone in her burger split one of her molars in half in 2011. According to the court's summary of her case, she realized she had a problem not long after she sat down to eat her small plain hamburger with no toppings, and side of fries, for which she'd paid $5.64 at the Medford Wendy's.

On the third or fourth bite, she heard a loud crack and crunching, and felt a pain shoot up into her upper left gum. She spit out the half-eaten food and discovered that her mouth was bleeding and one of her upper left molars (tooth 14) was split in two.

At trial, the issue was whether the incident was a "breach of the implied warranty of merchantability," under state business and consumer-protection laws, specifically in this case, as her lawyer argued, that consumers do not expect to find bits of potentially tooth-destroying bone in fast-food hamburgers.

Wendy's and JBS Souderton did not dispute that a bit of bone might have somehow wound up in the burger, but tried to cast doubt on the theory that it caused her molar to split, because she had already had some problems with the tooth in question and that the issue might have been with a bad filling.

But the jury agreed with Fitzpatrick and awarded her $150,005.64 in damages.

In today's ruling, the appeals court concluded that her lawyer got carried away in trying to turn a question of an errant bit of bone into a sort of social-justice campaign in his closing statement:

The undisputed evidence was that both Wendy's and JBS were large multinational corporations, and plaintiff's counsel was entitled to characterize them as such in his closing. In addition, counsel was permitted a certain amount of latitude to counter the defendants' counsel's attempts to portray the defendants as "fine companies," doing the "right thing," doing the best they could in America. But that latitude did not extend to arguing that the defendants were part of a community of "big companies" who try to shirk responsibility, come up with "excuses," and "confuse things." Nor did it justify counsel's argument that "when Wendy's and JBS sells all those burgers, they are more than happy to take our money. We pay for the burger. It goes to them. But when a burger hurts somebody, no responsibility. No accountability. Shame on them, honestly - shame on them."

Nor was counsel permitted to invoke future possibilities of harm or that the jury through their verdict could protect the community from such dangers or that a defendants' verdict would give the defendants a "pass" or "reward" them. Finally, we see no justification for the final portion of the plaintiff's counsel's argument, which attempted to draw the jury into imagining a hypothetical future moment when they might think about their jury service and remember that "safety rules were violated and that you helped to make a wrong right. You made it right and you held them responsible and accountable."

Judge Heidi Brieger reached a similar conclusion after the verdict was read - she declared a mistrial. After a second jury trial, Fitzpatrick won just $10,000 in damages.

Even though it agreed with Brieger's basic premise, the appeals court dismissed the results of the second trial and ordered Brieger to use a different legal chain of thought to consider whether to toss the first jury's verdict: Rather than nullifying the first jury verdict as punishment for the lawyer going to far in his closing argument, she should have looked at "a survey of the whole case," to determine whether the lawyer's mistake in his closing statement was so serious that allowing it would represent "a miscarriage of justice."

The appeals court said that its view of the jury deliberations is that the jury was not wrongly swayed by the lawyer's comments, because jurors took their time - they spent almost as much time deliberating as the trial itself took - did not send the judge any unusual questions and settled on an award that did not seem designed to severely punish the companies, but to reimburse Fitzpatrick for her costs. Still, that's a matter for the trial judge to consider, the court said:

[T]he judge need not reconsider whether aspects of plaintiff's counsel's closing were impermissible; we agree that they were. Instead, the question for the judge will be whether the impermissible advocacy resulted in a miscarriage of justice such that a mistrial is required.