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There is nothing inherently improper or prejudicial about per diem arguments if they are made under the ordinary supervision and control of the trial court. The court permits counsel reasonable latitude in the closing argument phase of the trial to summarize the evidence, to persuade the jury to accept or reject a plaintiff's claim, and to award a specific lump sum. If a lump sum is to be suggested to the jury, it is not impermissible to explain how the lump sum was determined.
Customer Susanne Debus was injured when boxes full of canned food fell on her. Defendant Grand Union appealed from a jury verdict and award of personal injury damages made to Debus on her premises-liability claim. Grand Union contended the trial court erred by allowing Debus to make a per diem damage argument to the jury, and claims that such arguments are overly prejudicial and should not be allowed.
Did the trial court err by allowing Debus to make a per diem damage argument to the jury?
The court affirmed finding that there was nothing inherently improper or prejudicial about Debus’ per diem argument to the jury because her counsel was permitted reasonable latitude to persuade the jury to award a specific lump sum and it was not impermissible to explain how the lump sum was determined. The court found that Debus’ per diem argument was not improper because her counsel said it was only a suggestion and did not argue that customer's pain was constant or uniform, store had a full opportunity to rebut it and did so, the judge gave appropriate instructions that arguments of counsel were not evidence, and the jury returned a verdict lower than the figure suggested by Debus. The court also found that store was not entitled to a new trial based on allegations that Debus deliberately elicited testimony from store's employee regarding insurance coverage because it was reasonable to expect store to advise its employee not to refer to insurance, especially when it was not insured.