Jon Campisi Nov. 15, 2012, 11:31am

A Pennsylvania appeals court panel has granted cable giant Comcast of Philadelphia’s

request for a new trial in an automobile injury case, reversing a Philadelphia judge’s decision to retry the case solely on damages.

The underlying matter was a personal injury case stemming from a Feb. 11, 2007, vehicle accident in which plaintiff Olga Mirabel was traveling from Union City, N.J. to Miami on a bus operated by Latin Express Inc. that collided with a Comcast van at the intersection of Aramingo Avenue and Cumberland Street in Philadelphia’s Port Richmond neighborhood.

Both the operator of the bus and the driver of the Comcast van later testified at trial that they each believed they had green lights at the time of the collision.

Mirabel and her husband, Jorge, initially filed suit in December 2008 against Comcast, the van’s driver, Richard Schulgen, Latin Express, and bus operator Rolando Morales.

In mid February of last year, a Philadelphia jury found the defendants liable for injuries Olga Mirabel sustained during the vehicle collision, which included back and shoulder pain that ultimately required surgery.

Twenty-five percent of the negligence was attributed to Morales, the bus driver, while the remaining liability was determined to lie with Schulgen and Comcast.

The plaintiffs had actually settled with Morales and Latin Express for an undisclosed amount of damages prior to trial, and the only claims addressed in the courtroom were Mirabel’s claims against Schulgen and Comcast, as well as the cross-claims between Morales and Latin Express, and Schulgen and Comcast.

The $350,000 jury verdict was soon challenged by the defense over comments made by the plaintiffs’ attorneys regarding race and the size and wealth of Comcast.

Philadelphia Common Pleas Court Judge Marlene Lachman, who presided over the trial, ended up granting the defense request for a new trial solely on damages, although the defendants appealed on the grounds that the trial court abused its discretion by not granting a new trial on both liability and damages.

The defense motion stemmed from a motion in limine that had been filed by lawyers for Schulgen and Comcast prior to trial in which they sought to preclude all parties from making statements about the size and wealth of Comcast.

The race issue was also a factor, with defense attorneys objecting to inappropriate statements about race made by counsel for both Mirabel and Latin Express during closing arguments.

The Philadelphia jury was comprised of 10 black women, one black man and one white woman.

At trial, according to the court record, Mirabel’s attorney emphasized the fact that his client is Hispanic, and was being treated poorly by Comcast because of her race.

The record also shows that counsel for Latin Express violated the pre-trial order excluding discussion on the size and wealth of Comcast when the lawyer referenced such information at closing.

Rather than declaring a mistrial, the appellate court’s ruling reads, the trial court issued a “curative instruction,” telling the jury to disregard any statements made during closing arguments concerning race.

However, the trial court did not instruct the jury to disregard statements at closing concerning the size and wealth of Comcast.

In its 21-page, Nov. 2 opinion, the three-judge state Superior Court panel wrote that the trial court judge did, in fact, err in not granting a new trial on both liability and damages.

“The statements by Mirabal’s [sic] counsel in his closing – where he tried to use race to appeal to the jury – were so offensive and egregious that the curative instruction given by the trial court was insufficient to remedy the prejudice,” the ruling states. “Moreoever, counsel for Mirabal’s [sic] emphasis of the fact that Mirabal [sic] is Hispanic, and was treated poorly because she is Hispanic, was irrelevant to a determination of whether the defendants were negligent or a determination of the damages Mirabal [sic] was owed. Rather, counsel was blatantly attempting to appeal to the perceived passions and prejudices of the jury to get a favorable verdict.”

The appellate opinion further states that both counsel for Mirabel and Latin Express admitted at trial that they discussed the wealth and size of Comcast in their respective closing arguments to highlight the economic disparities between the parties, another violation of the pre-trial order.

“These statements were in clear violation of a pre-trial order; thus, Schulgen and Comcast are entitled to a new trial because of these statements,” the opinion states.

In granting a new trial solely on what she viewed as “excessive” damages, and not on liability, the trial court judge had determined that there was more sufficient evidence at trial for the jury to find Schulgen and Comcast liable, the opinion states.

The appellate judges, however, found that the Philadelphia judge abused her discretion in finding that the prejudicial statements made by the attorneys only affected the jury in awarding damages.

Citing case law, the Superior Court panel wrote that a trial court abuses its discretion when it orders a new trial solely on damages in cases where liability was not “fairly determined.”

“Liability is ‘fairly determined’ if there were no errors on the record that might have affected the jury’s verdict on liability,” the opinion states. “The numerous statements made by counsel for Mirabal [sic] and Latin Express were errors that could have affected the jury’s verdict on liability.”

The appellate court remanded the case back down to the lower court for a new trial on both liability and damages.

The opinion was penned by Superior Court Judge Jack Panella. President Judge Correale F. Stevens and Judge Susan Peikes Gantman joined in the decision.

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