Court Serves Senor Frog a Withering Appeal Rebuke


     (CN) – The 1st Circuit upheld a jury award of $450,000 to a California woman who one witness said “appeared to be dead” after her car was slammed by a drunken driver in a Mitsubishi Mirage registered to the infamous party bar Señor Frog.




     Judge Rogeriee Thompson repeatedly states in the ruling for a three-judge appellate panel that Señor Frog lost most of its challenges because it did not provide transcripts of the trial. “But regardless, Señor Frog’s arguments have no traction,” Thompson concluded.
     Even though the party bar challenged “nearly every aspect of the district judge’s performance,” according to the Boston-based federal appeals court, it failed to convince the judges that it had found “any reversible error.”
     Paloma Rodriguez came into contact with the drunken driver in December 2004 as she prepared to have her car towed from a highway in San Juan, Puerto Rico. Two tires on Rodriguez’s Mazda had blown out over a pothole, ruining the engine, and she had pulled her car to the side of the road. A police officer spotted her and waited as a tow truck arrived on the scene.
     Surrounded by the flashing lights of the police cruiser and tow truck, as well as a spotlight on the work area and traffic cones, “Rodríguez got back into the Mazda either to grab some personal items or to do something to help out with the towing process,” according to the ruling
     “That is when Carlos Estrada closed in, speeding in a Mitsubishi Mirage registered to Señor Frog,” Thompson wrote. “His headlights were off. He had a blood-alcohol level nearly double the legal limit in Puerto Rico. And he smashed that Mitsubishi right into the rear of Rodríguez’s Mazda. Rodríguez was hurt, and apparently hurt badly. ‘She was thrown inside the vehicle,’ the officer later said. Covered in blood, she had no vital signs – ‘she appeared to be dead.’ But she survived and sued Señor Frog in district court under diversity jurisdiction, alleging negligence and negligent entrustment.”
     A federal jury in Hato Rey, Puerto Rico, awarded Rodriguez, a California resident, $450,000 for her diversity-based personal-injury case. The case went to Boston on appeal after U.S. District Judge Aida Delgado-Colón in Puerto Rico denied Señor Frog’s motion for a new trial or an order to scale back the damages award.
     Señor Frog argued that the case should not have been heard in District Court because Rodriguez should be considered a citizen of Puerto Rico, just like the bar. Under the statute of diversity jurisdiction, federal courts are empowered to hear and decide suits between citizens of different states where the amount in controversy is more than $75,000. (The 1st Circuit noted that, for the purposes of this statute, “Puerto Rico is a state.”)
     Rodriguez had moved to California three months before filing her complaint against Señor Frog in December 2005, but Señor Frog claimed that Rodriguez did not give enough evidence to prove her California residency.
     “Searching for a ‘gotcha!’ moment, Señor Frog notes too that Rodríguez said at trial that she ‘lived in Mayaguez,’ Puerto Rico, ‘all my life’ – testimony it says should have caused the judge to dismiss the case for lack of diversity jurisdiction straightaway, without bothering with an evidentiary hearing,” Thompson wrote. “We cannot buy into these arguments.”
     The court found that Rodriguez had backed up her “claim” by showing that she had attended college in California, where she also maintained a bank account and driver’s license.
     Señor Frog also tried to claim that it did not own the car involved in the crash, but Thompson rejected that argument, too, noting that the bar had already stipulated to its ownership of the Mitsubishi Mirage.
     “Señor Frog tells us that the judge also stumbled in denying its new-trial motion,” Thompson continued, but the court nixed those claims as well.
     The decision states that Señor Frog failed to show that it was harmed when Rodríguez’s counsel improperly gave jurors parameters for computing damages during opening and closing arguments.
     “Certainly the fact that the jury gave Rodríguez exactly what her lawyer asked for suggests prejudice,” Thompson wrote. “But that does not tell us all we need to know. The key here lies in the jury instructions. Did the judge tell the jury to disregard the lawyer’s suggested numbers as she had promised? If yes, were her words strong enough to draw all the sting from counsel’s comments? Also, what did the judge tell the jury about pain-and-suffering damages under Puerto Rico law? And viewing the record through that legal lens, was the pain-and-suffering evidence so overwhelming that counsel’s remarks mattered not in the grand scheme of things? We can answer none of these questions, however, because Señor Frog has not presented us with a transcript of the judge’s final charge, which means Señor Frog loses this aspect of its new-trial bid.”
     Addressing the last prong of Señor Frog’s defense, Judge Thompson said, “Finally, Señor Frog cries foul over Rodríguez’s counsel’s remark in closing that Estrada had been deported back to Mexico under the terms of a plea agreement – a statement that supposedly turned the jury against Estrada.
     “Even if we assume for the sake of discussion that Rodríguez’s lawyer exceeded the bounds of fair argument, we cannot see how this fleeting comment could have unfairly prejudiced Señor Frog, and critically, Señor Frog spends no time explaining how it could have,” Thompson continued. “Ultimately, then, this new-trial argument, like the others, cannot succeed.”
     Failing to furnish the court with a transcript also sealed the bar’s fate in its bid for a remittitur on what it called a “conscience-shocking” compensation, the judges found.

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