Monday, September 25, 2023
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Attorney’s Imagination Prompts Award Reversal

(CN) - The 10th Circuit reluctantly reversed a $3.2 million award for a driver injured in a collision with a tractor-trailer, because his attorney "spent the bulk of his argument placing before the jury fictitious admissions never uttered by defendants and launching vituperative and unprovoked attacks on defendants and their counsel."

Plaintiff Mack Whittenberg collided with a rig owned by Werner Enterprises, after its driver-in-training got stuck doing a U-turn in the middle of a highway.

Whittenberg sued Werner, its driver management company and the individual drivers for negligence and personal injuries.

In his closing argument, Whittenberg's attorney asked the jury to "imagine" with him that, shortly after Whittenberg left the house on the night of the accident, Werner delivered a letter to Whittenberg's children. The letter included fictitious admissions of guilt, such as, "Once stuck on the highway, our drivers will ignore the law, and they will ignore our company procedures, and recklessly set a trap for your dad."

The jury found the defendants 75 percent responsible for the wreck and awarded Whittenberg $3.2 million.

The federal appeals court in Denver said the attorney's inappropriate arguments compelled a new trial.

"Their volume and volubility, the fact they went unrebuked despite contemporaneous objections, and the apparent influence they had on the jury's verdict, collectively lead us to the reluctant conclusion that, not only were they improper, but a new trial is required," Judge Gorsuch wrote.

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