United States District Court, District of New Jersey
June 25, 1991
ELLIOT FINEMAN AND THE INDUSTRY NETWORK SYSTEMS, INC., PLAINTIFFS,
ARMSTRONG WORLD INDUSTRIES, INC., DEFENDANT.
The opinion of the court was delivered by: Bissell, District Judge.
I. FACTS AND BACKGROUND
The present matter arises pursuant to several remaining
motions in this action. First, defendant Armstrong has moved
under Fed.R.Civ.P. 59 for a new trial, as an alternative to its
motion for J.N.O.V. Second, Armstrong has separately moved
under Rule 49 (pertaining to inconsistent verdicts) for a new
trial. Finally, the plaintiffs have moved for "reformation of
the judgment," requesting this Court to allow them to recover
both the tort and antitrust awards.
The latter motion, even if it was not rendered moot by this
Court's Opinion granting defendant's motion for J.N.O.V., would
be (and is) denied for the reasons enunciated in its Opinion
Regarding Entry of Judgment filed on May 6, 1991. Nothing
presented in the papers supporting this
motion has persuaded the Court that its prior determination is
Armstrong's motion under Rule 49*fn1 may be disposed of as
quickly as plaintiffs' motion concerning the judgment. This
motion relates to jury answers to interrogatories concerning
"overlap" amounts between compensatory awards for the tort
claims and the antitrust claims.*fn2 This motion is denied
without further discussion. This Court has vacated the judgment
based upon the verdict in its earlier Opinion granting
defendant's motion for J.N.O.V. Furthermore, even if the
verdict remained, this Court grants defendant's motion for a
new trial on the grounds enunciated below, and thus denies the
motion under Rule 49 because such motion is unnecessary.
This Court issued its Opinion as to the motion for J.N.O.V.
on June 20, 1991, granting defendant's motion in full. The
present Opinion is to be considered in conjunction therewith,
and so will not repeat the pertinent facts and background
contained therein as such discussion is hereby incorporated by
The present opinion is required in light of the fact that
this Court granted the defendant's motion for J.N.O.V. in its
If the motion for judgment notwithstanding the
verdict, provided for in subdivision (b) of this
rule, is granted, the court shall also rule on the
motion for a new trial, if any, by determining
whether it should be granted if the judgment is
thereafter vacated or reversed, and shall specify
grounds for granting or denying the motion for the
new trial. If the motion for a new trial is thus
conditionally granted, the order thereon does not
affect the finality of the judgment. . . .
The defendant asserts three grounds for its motion under Rule
59. First, it contends that the verdict is contrary to the
clear weight of the evidence. Second, Armstrong asserts that it
is entitled to a new trial because of improper, prejudicial
arguments made to the jury by the plaintiffs' counsel. Third,
Armstrong asserts that both the compensatory and punitive
awards in this case are so grossly excessive as to shock the
conscience, thus requiring a new trial.
A. Standards Governing Motions for a New Trial
In general, a trial court should grant a motion for a new
trial when, in its opinion, "the verdict is contrary to the
great weight of the evidence, thus making a new trial necessary
to prevent a miscarriage of justice." Roebuck v. Drexel
University, 852 F.2d 715, 736 (3d Cir. 1988). "The authority to
grant a new trial . . . is confided almost entirety to the
exercise of discretion on the part of the trial court." (Id. at
735 (quoting American Bearing Co. v. Litton Industries,
729 F.2d 943, 948 (3d Cir.), cert. denied, 469 U.S. 854, 105 S.Ct.
178, 83 L.Ed.2d 112 (1984)). Such discretion reflects the fact
that "the district court was able to observe the witnesses and
follow the trial in a way that [the Appellate Court] cannot
replicate by reviewing a cold record." (Id., citing Semper v.
Santos, 845 F.2d 1233, 1237 (3d Cir. 1988)).
The discretion of the court is not unlimited, however.
Necessarily, when a motion for a new trial based on the weight
of the evidence is granted, the court has:
to some extent at least substituted his judgment
of the facts and the credibility of the witnesses
for that of the jury. Such an action effects a
denigration of the jury system and to the extent
that new trials are granted the judge takes over,
if he does not usurp, the prime function of the
jury as the trier of facts.
Williamson v. Consolidated Rail Corp., 926 F.2d 1344
, 1352 (3d
Cir. 1991) (quoting Lind v. Schenley Indus., Inc., 278 F.2d 79
90 (3d Cir.) (in banc), cert. denied, 364 U.S. 835
, 81 S.Ct.
58, 5 L.Ed.2d 60 (1960)). As with a motion for J.N.O.V., "[a]
district court may not substitute its own judgment for that of
the jury simply because the court might have come to a
different conclusion." Grace v. Mauser-Werke Gmbh, 700 F. Supp. 1383,
1387 (E.D.Pa. 1988) (citing Douglas W. Randall, Inc. v.
A.F.A. Protective Systems, Inc., 516 F. Supp. 1122, 1124
(E.D.Pa. 1981), aff'd mem., 688 F.2d 820
(3d Cir. 1982)).
However, a careful analysis of permissible inferences the jury
could reasonably draw from the evidence presented at trial does
not invade the exclusive domain of the jury. Nebel v. Avichal
Enterprises, Inc., 704 F. Supp. 570, 574 (D.N.J. 1989) (citing
Roebuck, 852 F.2d at 736). Where the verdict is based on
inferences which are "mere speculation", a new trial becomes
necessary. (Id.) Thus, "the district court ought to grant a new
trial on the basis that the verdict was against the weight of
the evidence only where a miscarriage of justice would result
if the verdict were to stand." Williamson, 926 F.2d at 1352
(citing EEOC v. Delaware Dep't of Health & Social Servs.,
865 F.2d 1408
, 1413 (3d Cir. 1989)).
B. The Weight of the Evidence
As this Court's J.N.O.V. opinion demonstrates, the record in
this matter is critically devoid of that quantity and quality
of evidence from which a jury might reasonably afford relief
for the plaintiffs. Of necessity, the verdict is therefore also
contrary to the great weight of the evidence for the same
reasons as detailed in the J.N.O.V. Opinion. The verdict in
this matter is the product of impermissible speculation,
sympathy, and emotion. The jury decided this case with its
viscera, not its reasoning, and therefore permitting the
verdict to stand would constitute the gravest miscarriage of
justice. Accordingly, the defendant's motion for a new trial on
the basis that the verdict is contrary to the weight of the
evidence is granted.
C. Attorney Misconduct
Although the first ground for the new trial is sufficient on
its own, this Court also chooses to consider the defendant's
arguments concerning the conduct of plaintiffs' counsel. This
conduct, particularly the repeated appeals to sympathy,
speculation and passion rather than reason, is undoubtedly what
produced the jury's verdict. Furthermore, conduct such as that
engaged in by plaintiffs' counsel requires judicial attention,
even if only to award a new trial. The Court determines,
whether considered separately or in conjunction with the lack
of evidence to support the verdict, Mr. Kramer's conduct
demands the granting of a new trial.
In considering a motion for a new trial based on attorney
misconduct, "the trial judge has considerable discretion in
determining whether conduct by counsel is so prejudicial as to
require a new trial." Draper v. Airco, Inc., 580 F.2d 91, 97
(3d Cir. 1978) (citing Lewis v. Penn Central, 459 F.2d 468 (3d
Cir. 1972); Corbett v. Borandi, 375 F.2d 265 (3d Cir. 1967)).
The Third Circuit has noted:
[W]e wish to emphasize that we do not expect
advocacy to be devoid of passion. . . . But jurors
must ultimately base their judgment on the
evidence presented and the rational inferences
therefrom. Thus, there must be limits to pleas of
pure passion and there must be restraints against
blatant appeals to bias and prejudice. These
bounds of conduct are defined by the Code of
Professional Responsibility and the case law.
(Draper, 580 F.2d at 95); see e.g. Salas by Salas v. Wang,
846 F.2d 897
, 907-908 (3d Cir. 1988) (Draper standard reiterated
and distinguished because there was only one "impassioned"
statement). Of particular concern to this Court is Rule 3.4(e):
A lawyer shall not . . . (e) in trial, allude to
any matter that the lawyer does not reasonably
believe is relevant or that will not be supported
by admissible evidence, assert personal knowledge
of facts in issue except when testifying as a
witness, or state a personal opinion as to the
justness of a cause, the credibility of a
witness, [or] the culpability of a civil litigant
(RPC 3.4(e)) (emphasis added). Violations of this rule and
others, when the court determines that there is a "reasonable
probability" that the jury's verdict has been influenced by the
improper conduct of counsel, require the court to grant the
motion for a new trial. See e.g. Commercial Credit Business
Loans, Inc. v. Martin, 590 F. Supp. 328
, 332-335 (E.D.Pa. 1984)
(Trial court granted plaintiff's motion for new trial where
counsel offered his opinion, expressed indignation and outrage
at the accused conduct, commented upon the conduct of witnesses
and vouched for their credibility, all to the extent that there
was a reasonable probability that the verdict was influenced by
such conduct.); Polansky v. CNA Insurance Co., 852 F.2d 626
628 (1st Cir. 1988) ("Courts have long recognized that
statements of counsel's opinions or personal beliefs have no
place in a closing argument of a criminal or civil trial.")
Cautionary instructions may be used to attempt to eliminate
the prejudice resulting from improper statements by counsel.
This Court made several such instructions, both immediately
following the conduct and during its final instructions as to
the relevant law.*fn3 It is beyond refute, however, that
cautionary instructions do not necessarily remove the
probability of prejudice:
[T]he bench and the bar are both aware that
cautionary instructions are effective only up to a
certain point. There must be a line drawn in any
trial where, after repeated exposure of a jury to
prejudicial information . . . cautionary
instructions have little, if any, effect in
eliminating the prejudicial harm.
City of Cleveland v. Peter Kiewit Sons' Co., 624 F.2d 749
(6th Cir. 1980) (quoting O'Rear v. Fruehauf Corp.,
554 F.2d 1304
, 1309 (5th Cir. 1977)); Draper, 580 F.2d at 96-97.
For the most part, this Court adopts the arguments of the
defendant as they pertain to plaintiffs' counsel's conduct
during the course of this trial, and particularly throughout
his closing arguments. Armstrong has exhaustively briefed the
issue, and quoted extensively from the transcripts.*fn4
Accordingly, this Court only summarizes the prejudicial conduct
for purposes of this Opinion. See e.g. Draper, 580 F.2d at 97
("In reaching this decision, we do not rely on any of the
individual instances or types of impropriety. Rather, we have
assessed the argument as a whole").
Mr. Kramer, during the course of his closing arguments in
particular, repeatedly testified as to his own truthfulness and
trustworthiness, although of course he was not a witness.
(See Tr. quoted at Defendants' Main Br. at 36-38). His
testimony on summation included supplying "facts" not in the
record about what he knew, didn't know, found out, etc.
(Defendants' Reply Br. at 31-34). He also expressed his
opinion, on countless occasions, that Armstrong concealed
information and lied during the course of the trial.
(Defendants' Main Br. at 38-43). Furthermore, Mr. Kramer
repeatedly referred to a crime and to a conspiracy in which
Armstrong supposedly engaged, despite the fact that this Court
directed a verdict in Armstrong's favor as to plaintiffs' civil
conspiracy claims and there are, of course, no criminal claims
involved in this civil lawsuit. (Id. at 70-72). References to
crimes and criminals (often comparing witnesses to such
celebrated figures as Jack Palance) undoubtedly persuaded the
jury to fictionalize the claims herein and act out of a sense
of drama rather than reality. (See e.g. Henker v. Preybylowski,
216 N.J. Super. 513, 518-519, 524 A.2d 455 (App. Div. 1987)) (In
granting the motion for a new trial, court
described plaintiff's attorney's use of defendant's attorney as
a target; "[p]erhaps none of these comments standing alone is
out of bounds, but taken together they represent a deliberate
effort by plaintiffs' attorney to have the jurors see
themselves as destroyers of evil forces, personified by
defendant and his attorney, that have been depriving his
clients of justice . . .").
Throughout his closing argument, Mr. Kramer repeatedly
expressed his opinion as to the merits of Armstrong's case, the
credibility of witnesses, and the culpability of Armstrong even
as to claims not legitimately set forth by the plaintiffs.
(Id. at 43-50; 70-72). On more than one occasion, this Court
admonished Mr. Kramer to refrain from including his personal
opinion in his argument;*fn5 despite such orders, he continued
to assert his views with vigor.
During his closing, Mr. Kramer continuously asserted that all
of Armstrong's witnesses were liars and perjurers, while
emphasizing that this was a federal Court and the jury a
federal jury. (Id. at 50-58). At the same time, Mr. Kramer
accused the witnesses and Armstrong itself of various crimes,
including theft and conspiracy (as noted above).
Perhaps most troubling to this Court is the unadorned,
disparaging attack upon defense counsel throughout Mr. Kramer's
closing argument. See e.g. Draper, 580 F.2d at 96 ("The final
category of improper conduct committed by counsel is the
repeated vituperative and insulting references to the
defendants and defendants' counsel") (citations omitted); see
also RPC 3.2 ("A lawyer . . . shall treat with courtesy and
consideration all persons involved in the legal process.")*fn6
Indeed, he began his closing by pointing out the
"misrepresentations" made by defense counsel in his closing
argument, and continued to refer to defense counsel as liars
despite this Court's admonition and cautionary instruction to
the jury. (Defendants' Br. at 58-67). Mr. Kramer's argument to
the contrary, that "[a]t no point in his closing argument did
plaintiffs' counsel ever say that Mr. Wilson had lied,"
(Plaintiffs' Br. at 55), is contrary to the record. Indeed he
pressed his own personal credibility and, having disparaged
that of Mr. Wilson, then asked the jurors to contrast them.
Mr. Kramer even went so far, in a particularly egregious
example of misconduct, as to infer that one defense attorney
either counselled a witness to lie (as was suggested by the
language he used), or engaged in sexual misconduct with a
witness (as was suggested by his tone and the inuendo inherent
in his statements):
[Referring to defense witness Alan Abrahamson]:
Look, when he got up here on the witness stand
after spending 22 hours with Edith Payne, hold
[sic] up in a conference room God knows what he
was doing for 22 hours for three hours of
That's perjury. He's admitting it. I cannot
believe my ears. I really cannot. This is the same
Alan Abrahamson, yeah, Ms. Payne's in the room.
She's in the second row. There, flower dress. She
spent 22 hours held up in a conference with Alan
Now, what, ladies and gentlemen of the jury, Mr.
Abrahamson's direct examination with Mr. Wilson
was maybe three hours, three and a half hours? But
they had to spend 22 hours with Mr. Abrahamson
to prepare him. And ask yourself something.
Now, I'm the first to admit you get up on the
witness stand, it's your first time. Of course
you're going to be nervous, that's natural. The
first time I got up to do this I was scared to
death. That's natural.
But I mean, if you're going to tell the truth, why
do you have to be terrified? Why do you have to
spend 22 hours preparing if all you're going to do
is get up there, tell it the way it is, as they
Do you need 22 hours to prepare? To do what?
I know what they did. You know what they did. I
don't have to tell you what they did during those
(Tr. 39.12:10-13; 39.74:5-24).*fn7
Thus, the essence of Mr. Kramer's closing concerning defense
counsel was that counsel had lied to the jury, had suborned
perjury from witnesses (flavoring these comments with the
titilating remarks regarding Ms. Payne), and had done it for
money. He argued further that the jury could and should award
punitive damages against Armstrong based in large measure upon
such alleged conduct. Indeed, on the chart he placed before the
jury, Mr. Kramer included "misrepresentations by counsel" as
one of the reasons the jury should award punitive damages. At
the next recess, this Court expressed concern with the
propriety of alleged trial conduct as a basis for punitive
damages, and asked plaintiffs' counsel to remove it from the
chart. He did so, but continued to assert in his arguments that
"perjury" and the misconduct of counsel constituted a basis for
an award of punitive damages.
Mr. Kramer's opposition to this portion of the defendant's
motion is singularly unconvincing. For example, Mr. Kramer
quotes himself saying "To me, I'm not the smartest guy in the
world. But I think overlap and compete are pretty close to me."
(Tr. 39.20), and argues that this does not constitute opinion.
Instead, he says, the statement is only a "rhetorical device"
which defendant has taken literally. (Plaintiff's Br. in Opp.
to Rule 59(b) Motion at 14-15). Mr. Kramer argues that his use
of mere sarcasm could not work to inflame the jury and that
many of his statements are "inferences," not testimony.
(Id.) Considered with the other improprieties in his summation,
however, these remarks also add to its prejudicial impact.
Contrary to Mr. Kramer's assertions, defense counsel did
object to Mr. Kramer's conduct throughout the trial. Motions
in limine were filed to limit certain prejudicial evidence and
testimony; a motion was filed to limit closing argument;*fn8 a
motion requesting a restraining order was filed, and numerous
objections were made throughout. Requiring defense counsel to
object to every single instance in this over-laden record in
which plaintiffs' counsel acted objectionably would cause
considerable prejudice in the eyes of the jury. This is
particularly true where so much of the accused conduct occurred
during plaintiffs' closing argument. Furthermore, even if this
Court found that defense counsel failed to make timely
objections to Mr. Kramer's conduct, it would nonetheless grant
the new trial motion in light of the extremely prejudicial
conduct which occurred and the gross miscarriage of justice
which resulted. In this regard, the Second Circuit has stated:
We are of the opinion that even absent these
objections a new trial should have been granted in
this case. It was the trial judge's affirmative
duty to protect appellants from the grossly
adopted by counsel for the appellee. This he
failed to do.
The single most important task of a district
judge presiding at a trial before a jury is to
exercise that degree of control required by the
facts and circumstances of each case to assure the
litigants of a fair trial. This obligation does
not arise only when objections are raised by one
of the litigants or his counsel. Repeated
improprieties by one counsel severely prejudice
his adversary. Every trial lawyer knows that
frequent objection is a potentially dangerous
course of action the effect of which upon the jury
cannot be estimated. Thus, the burden falls on the
federal district judge to use his authority,
whenever it becomes necessary, in such a way that
the proceedings in the courtroom remain devoted to
a reasoned and reasonable search for justice
between the parties. Brown v. Walter, 62 F.2d 798
(2d Cir. 1933).
Koufakis v. Carvel, 425 F.2d 892
, 900-901 (2d Cir. 1970).*fn9
Furthermore, contrary to Mr. Kramer's assertions, this Court
was acutely aware of the fact that objections to closing
argument are undesirable: "I might add Mr. Wilson that as far
as objections on the summations are concerned, this goes to
both sides obviously anybody ought to be reluctant to object to
anyone else's summation." (Tr. 37.137).*fn10
Particularly unconvincing is plaintiffs' counsel's effort to
distinguish Draper on the question of attacking opposing
counsel. In Draper, the attack on counsel was "without
provocation or basis in fact." 580 F.2d at 95. Mr. Kramer
therefore argues that his attack against defense counsel herein
was based on evidence, including "factual discrepancies and
inaccuracies to [defense counsel's] argument to the jury."
(Plaintiffs' Br. at 29). Thus, he claims, it has a basis in
fact and so was not prejudicial. (Id. at 37). Furthermore, he
claims that because he raised the issue of credibility of
counsel, "[t]his issue could be `prejudicial' to a defendant
only if the jury was more likely to find that defense counsel
had been untruthful . . ." (Id. at 38). This is a ludicrous
argument. First, Mr. Kramer launched a full assault against the
credibility and tactics of defense counsel without any basis
whatsoever, except that he, Mr. Kramer, disagreed with Mr.
Wilson's assessment of the evidence. It is one thing to dispute
an adversary's position and argue that it is incorrect; it is
quite another to accuse an attorney of making intentional
misrepresentations for pecuniary gain or to justify his fee to
his client. Second, in no way was counsel's veracity ever an
"issue" upon which the jury could make "findings." Mr. Kramer,
however, encouraged the jury to balance his and Mr. Wilson's
personal credibility. (Tr. 40.7:5-9). The only issues for the
jury to decide were those it was instructed to consider;
plaintiffs' counsel could not suddenly create an "issue" for
the jury in his closing argument.
Mindful of the considerable time and resources expended by
the parties and the Court itself, this Court attempted to cure
the numerous improprieties by instructions to the jury.*fn11
As is evidenced by the verdict in this matter, such
to no avail. There is no doubt in this Court's mind that the
verdict in this matter is the result of passion, prejudice,
sympathy and totally unjustified outrage, instilled and
fertilized by plaintiffs' counsel. The inferences which counsel
asked the jury to make were unreasonable and illogical; only by
prejudicing the jurors (as exemplified most dramatically in Mr.
Kramer's summation) were plaintiffs able to obtain a verdict.
Disparaging witnesses and defense counsel to such an extent
undoubtedly added fuel to the flames of the jury's passion
engendered by the other colorful yet prejudicial arguments of
counsel. This Court's opinion regarding the defendant's motion
for J.N.O.V., particularly those portions analyzing the
evidence and the reasonable inferences therefrom, demonstrates
the considerable extent to which this jury was led by the
inflammatory rhetoric of plaintiffs' counsel down a path that
fatally diverged from the evidence.
This Court notes that Mr. Kramer's conduct throughout the
course of this trial has led to the imposition of a restraining
order, consideration of motions for a mistrial,*fn12 delays
resulting therefrom, and more. The defense counsel, as a result
of plaintiffs' counsel's acts, were required to commit
substantial time and energy to addressing tangential issues at
key points during the trial.*fn13 For example, upon the close
of plaintiffs' case and the motions for directed verdict,
counsel and this Court were distracted from trial issues by Mr.
Kramer's meddlesome letters to the New York Stock Exchange and
the Securities and Exchange Commission. (See Tr. before
Magistrate Haneke, March 4, 1991, and this Court's Opinion
affirming, March 19, 1991 (Tr. 25.1-25.8)). Similarly
astounding were this attorney's inexcusable letters directly to
the directors of Armstrong which delayed summations by one
week.*fn14 (See Op. Regarding
Entry of Judgment filed May 6, 1991 at 14). The only conclusion
that this Court is able to reach is that plaintiffs' counsel
deliberately set out to sabotage Armstrong's defense in every
way possible, without regard to rules of conduct, rules of law,
and orders and directions from this Court.
Other actions by Mr. Kramer are pertinent to the
circumstances under which a new trial may be conducted. He
effected a unilateral de facto cancellation of a date before
this Court to settle the form of judgment upon the jury
verdict, in order to attend a press conference (with Mr.
Fineman) at Armstrong's corporate headquarters. (Id. at 15-16).
In a further, bizarre development which just came to the
Court's attention, a circumstance which might even be
considered humorous if presented in isolation, the Court has
learned that, since October 11, 1990, Mr. Kramer has been
unauthorized to practice law in the State of New Jersey for
failure to make his required contributions to the Clients'
Security Fund.*fn15 Considered in the context of Mr. Kramer's
other conduct in connection with this case, however, both
inside and outside the courtroom, this development is but
further evidence of Mr. Kramer's complete disregard for rules
and procedures governing the propriety and civility of an
attorney's conduct. Regretfully, his transgressions of this
sort have not been limited to the present matter.*fn16
Of course this Court is not going to void the present verdict
and grant a new trial solely because of the lack of Mr.
Kramer's authority during the trial to practice law before the
courts of the State of New Jersey. If, as and when any new
trial transpires in this matter the issue of his standing
before the bar can be addressed at that time. Once again,
however, considered in connection with his other conduct in
this case which (given its pervasivness) is substantially
likely to recur upon any retrial, this Court, should this
action be remanded for a new trial on any issue, will then
entertain a motion, and might even issue its own order to show
cause, as to why Mr. Kramer should not be replaced as
plaintiffs' trial counsel, in the event that the plaintiffs
don't make that choice voluntarily.*fn17
This Court was present during the entire trial and has
carefully reviewed the record herein. It observed the conduct
and demeanor of plaintiffs' trial counsel, and
recalls vividly both the contents and tone of his remarks.
Based on this experience with the record, and with the
atmosphere which pervaded this trial, this Court finds that
failure to grant the defendant's motion for a new trial would
constitute a gross miscarriage of justice. The Court's curative
instructions were to no avail in the face of Mr. Kramer's
pervasive and flagrant appeals to speculation, sympathy,
outrage and revenge from the jury. The cumulative effect of all
such conduct is far greater than that experienced by the Court
on a day-to-day basis. Indeed there could be no stronger
testament to the success of plaintiffs' improprieties than the
indefensible verdict reached by the jury. For all the reasons
set forth above, the defendant's new trial motion is