Per diem arguments are permissible in Maryland; however, upon request or when the trial judge sua sponte deems it appropriate, the jury must be instructed that the per diem argument made by counsel is not evidence but is merely a method suggested by a party for the purposes of calculating damages.
A customer slipped and fell in a grocery store and won a verdict against the store in a personal injury action. During closing argument, counsel for the customer suggested that the jury use a per diem calculation to award pain and suffering damages, breaking down the amount of money per day that the customer should be awarded, and then multiplying this number out by 43 years. Counsel for the store contended it should be allowed to offer a specific cautionary instruction in response to remind the jury of their responsibility in calculating damages. The trial court denied this special instruction.
Did the trial court err in denying the cautionary special instruction?
While there were general instructions given by the trial court to remind the jury that statements of counsel were not evidence, these were insufficient to place the per diem argument in proper perspective for the jury. “Also, we do not believe that the statement made by Ms. Satterfield's counsel, that it is the jury's task to determine compensation, was the equivalent of a precise instruction from the trial judge addressing specifically the per diem argument. For these reasons, we believe that the trial court erred in allowing a per diem argument to be made without a specific cautionary instruction to the jury.”