Rhoades v. County Commission of Marion County

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

CLARKSBURG

CHRISTY J. RHOADES, in her

capacity as the Administratrix and

Personal Representative of

the estate of Philip Jontz Rhoades,

Plaintiff,

v. Civ. Action No. 1:18-CV-186

(Judge Kleeh)

DAVID FORSYTH, in his official and

individual capacity,

Defendant.

MEMORANDUM OPINION AND ORDER DENYING

PLAINTIFF’S RULE 59 MOTION FOR NEW TRIAL

Plaintiff, Christy J. Rhoades (“Plaintiff”), filed a timely

“Rule 59 Motion for New Trial” seeking a new jury trial. [ECF No.

226]. For the reasons that follow, the Court DENIES the relief

sought by Plaintiff.

I. BACKGROUND1

This matter concerns the shooting and killing of Phillip Jontz

Rhoades (“Rhoades”) by David Forsyth (“Forsyth”). At the time of

the incident, Forsyth was an on-duty officer working for the Marion

1 This background is limited to those facts relevant to the pending

motion. A full recitation of the factual background of this case

can be found in the Court’s Memorandum Opinion and Order [ECF No.

136] and Order Addressing Motions in Limine [ECF No. 179].

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County Sheriff’s Department. After taking flight in a vehicle,

Rhoades attempted to hide from police on a dead-end dirt road

leading to a gas well site. See Am. Compl., ECF No. 22, at ¶ 42.

Deputy Love and Forsyth learned where Rhoades was hiding and

pursued him pursuant to outstanding warrants for his arrest. Id.

¶ 43. When Love and Forsyth entered the clearing, Forsyth left his

cruiser and discharged his firearm seven times — killing Rhoades.

Id. ¶ 45. Defendants state that Forsyth instructed Rhoades to “stop

the car, show [him] his hands,” etc. See Def. MSJ, ECF No. 62, at

5. Defendants also state that Rhoades was reversing the Jeep and

then revved the engine and drove the Jeep directly at Forsyth in

an aggressive manner. Id. Defendants state that Forsyth saw Rhoades

reach for something in the console area. Id. Forsyth interpreted

the revving, spinning tires, and aggressive movement of the Jeep

as a lethal threat. Id. After shooting Rhoades, and with the help

of Love, Forsyth removed Rhoades from the vehicle and provided

first aid. Id. at 6.

This case was tried to verdict by a jury on April 9, 2021.

The jury found in favor of the defendant on the only question

before it, Count I: 42 U.S.C. § 1983 - Excessive Use of Force. The

Court ordered any post-trial motions due on or before May 21, 2021,

and responses thereto on or before June 4, 2021. Replies were due

June 11, 2021. Plaintiff now moves for a new trial under Rule 59

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of the Federal Rules of Civil Procedure. The motion is fully

briefed and ripe for decision.

II. LEGAL STANDARD

Under Rule 59(a) of the Federal Rules of Civil Procedure, a

motion for new trial may be granted on all or some issues “after

a jury trial, for any reason for which a new trial has heretofore

been granted in an action at law in federal court.” Fed. R. Civ.

P. 59(a). When determining whether to grant a new trial under Rule

59(a), the Court is “permitted to weigh the evidence and

consider the credibility of witnesses.” Cline v. Wal–Mart Stores,

Inc., 144 F.3d 294, 301 (4th Cir. 1998) (citation omitted). This

Court, however, may only grant a new trial if “[]the verdict is

against the clear weight of the evidence, . . . is based upon

evidence which is false, or [] will result in a miscarriage of

justice, even though there may be substantial evidence which would

prevent the direction of a verdict.” Atlas Food Sys. & Servs.,

Inc. v. Crane Nat’l Vendors, Inc., 99 F.3d 587, 594 (4th Cir.

1996).

The Fourth Circuit has noted that “[u]nder the applicable

legal principles, a trial court ‘should exercise its discretion to

award a new trial sparingly,’ and a jury verdict is not to be

overturned except in the rare circumstance when the evidence

‘weighs heavily’ against it.” United States v. Smith, 451 F.3d

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209, 216-17 (4th Cir. 2006) (quoting United States v. Perry, 335

F.3d 316, 320 (4th Cir. 2003)). A new trial should not be granted

“where the moving party has failed to timely object to the alleged

impropriety giving rise to the motion.” Dennis v. General Elec.

Corp., 762 F.2d 365, 367 (4th Cir. 1985).

III. ANALYSIS

In the Motion for New Trial, Plaintiff argues that a new trial

is warranted because: (1) the district court erred in instructing

the jury; (2) the defendant’s expert, Samuel Faulkner, committed

perjury and prejudiced Plaintiff; and (3) defense counsel’s

improper statements during closing argument prejudiced the jury.

See ECF No. 227.

A. Fleeing Instruction

First, Plaintiff argues the jury instruction on fleeing from

a police officer contravenes Tennessee v. Garner. “A jury

instruction is erroneous if it misleads the jury as to the correct

legal standard or does not adequately inform the jury on the law.”

Velez v. City of New York, 730 F.3d 128, 134 (2d. Cir. 2013).

The instruction given to the jury, Defendant’s proposed

instruction 7 as modified, stated:

Fleeing from a Police Officer

There has been evidence presented in this case

that the decedent, Philip Rhoades,

intentionally fled or attempted to flee from

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law enforcement officers at the time of the

shooting. The jury is instructed that in West

Virginia, it is a crime for any person to flee

or attempt to flee in a vehicle from law

enforcement after officers have given a clear

visual or audible signal directing the person

to stop. You may consider the conduct of the

decedent, Philip Rhoades, as part of the

totality of the circumstances, when

determining whether the use of deadly force by

the Defendant David Forsyth was reasonable.

[ECF No. 211]. Plaintiff argues giving such an instruction was

“clear legal error.”

“The use of deadly force to prevent the escape of all felony

suspects, whatever the circumstances, is constitutionally

unreasonable.” Tennessee v. Garner, 471 U.S. 1, 11 (1985).

Plaintiff argued this Court previously stated a suspect’s flight

is irrelevant to the deadly force question and the key issue is

whether “Rhoades was driving his vehicle at Forsyth and therefore

using his vehicle as a weapon” such that Forsyth faced an imminent

threat that would justify the use of deadly force. [quoting ECF

No. 136 at 12]. Plaintiff argues it was improper and unduly

prejudicial to Plaintiff for the Court to suggest that anything

Rhoades had purportedly done was a crime under West Virginia law.

Plaintiff argues Rhoades was never charged or convicted of that

conduct, and such instruction is prejudicial against Plaintiff.

Plaintiff also asserts that the Court contravened its own

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evidentiary rulings because it ruled that any evidence of prior

criminal conduct was inadmissible. [ECF No. 188].

“As a general matter, a district court has an obligation to

give instructions to the jury that ‘fairly state[ ] the controlling

law.’” United States v. Alvarado, 816 F.3d 242, 248 (4th Cir. 2016)

(citing United States v. Cobb, 905 F.2d 784, 789 (4th Cir. 1990)).

“[The United States Court of Appeals of the Fourth Circuit]

accord[s] the district court much discretion and will not reverse

provided that the [jury] instructions, taken as a whole, adequately

state the controlling law.” Teague v. Bakker, 35 F.3d 978, 985

(4th Cir. 1994). Further, the jury instructions must be studied as

a whole, and cannot be reviewed in fragmentary terms. “In reviewing

the adequacy of jury instructions, [the Fourth Circuit]

determine[s] “whether the instructions construed as a whole, and

in light of the whole record, adequately informed the jury of the

controlling legal principles without misleading or confusing the

jury to the prejudice of the objecting party.” United States v.

Kivanc, 714 F.3d 782, 794 (4th Cir. 2013) (internal citation

omitted).

In crafting its jury instructions, the Court is faced with

balancing whether the given instruction is a correct statement of

law and to prevent jury confusion. United States v. Kivanc, 714

F.3d 782, 794 (4th Cir. 2013). The test for reasonableness, a

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necessary discussion at the heart of this case and this fleeing

instruction, “requires careful attention to the facts and

circumstances of each particular case, including the severity of

the crime at issue, whether the suspect poses an immediate threat

to the safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight.” Graham

v. Connor, 490 U.S. 386, 396 (1989); see Tennessee v. Garner, 471

U.S. at 8–9, (the question is “whether the totality of the

circumstances justifie[s] a particular sort of . . . seizure.”).

The given instruction was a correct statement of law and did

not mislead or confuse the jury. Because the “reasonableness of a

particular use of force must be judged from the perspective of a

reasonable officer on the scene,” the Court’s fleeing instruction

was required to prevent misleading or confusing the jury. Id.

(internal quotation and citation omitted). Most important and not

mentioned by Plaintiff is that Rhoades’s alleged flight on August

2 is well captured on the radio traffic. At the charge conference,

Plaintiff objected to the fleeing jury instruction. The Court

overruled Plaintiff’s objection and revised the instruction to

include “as part of the totality of the circumstances.” The Court

found this to be an accurate statement of the law, and noted that

evidence was presented to the jury, particularly in the radio

traffic, indicating law enforcement believed that Rhoades was

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fleeing, thus requiring an explanation as to how Rhoades and the

officers arrived where they did.2 The instruction is an appropriate

part of the calculus of the totality of the circumstances. [See

Trial Trans. ECF No. 223, page 722].

As the parties are well aware, Defendant’s trial testimony

also included detailed information regarding law enforcement’s

belief that Rhoades was fleeing, and described the pursuit of that

alleged flight. To combat the risk of misleading or confusing the

jury, the Court inserted in its instruction “as part of the

totality of the circumstances in determining whether the use of

deadly force by David Forsyth was reasonable.” ECF No. 223, 722:11-

723:8. In addition, to the extent Plaintiff asserts the Court

insinuated an officer can use deadly force to prevent an escape,

the Court instructed the jury the following curative measure:

An officer may not use deadly force to prevent

a suspect from escaping; unless deadly force

is necessary to prevent the escape and the

officer has probable cause to believe that the

suspect poses an immediate, significant threat

of death or serious physical injury to the

officer or others.

2 The introduction of the radio traffic evidence was consistent

with the Court’s pretrial evidentiary rulings limiting the

evidence to that which framed the “totality of the circumstances”

and, arguably to Plaintiff’s benefit, excluding matters outside

that scope.

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ECF No. 223, 750:14-18 (emphasis added). Because the

reasonableness test under Graham required reflection within the

Court’s jury instructions, the fleeing instruction neither

prejudiced, misled, or confused the jury, and instead mirrored an

accurate statement of the law. Thus, the Court finds this ground

does not present a sufficient basis upon which to order a new

trial.

B. Reasonable Person Instruction

The Court twice used the “reasonable person” language in lieu

of the “reasonable law enforcement officer” standard. See ECF No.

211. Plaintiff argues the Court erred in instructing the jury that

a police officer is not liable if he acted as a reasonable person

would. Plaintiff states that due to this error, “coupled with the

other erroneous jury instructions, Plaintiff’s fate was sealed.”

ECF No. 227 at 9.

Plaintiff relies on Pinkus v. United States, 436 U.S. 293,

301 (1978). “Every man is likely to think of himself as the happy

exemplification of ‘the reasonable man’; and so the standard he

adopts in order to fulfill the law’s prescription will resemble

himself, or what he thinks he is, or what he thinks he should be,

even if he is not.” Id.

The Court again balances whether the given jury instruction

was a correct statement of law and whether its instructions

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prevented jury confusion. The given instruction at issue here was

a correct statement of law and did not mislead or confuse the jury

when read as a whole. United States v. Kivanc, 714 F.3d 782, 794

(4th Cir. 2013). The Court discussed “reasonableness” and other

likenesses of the word several times throughout its instructions

to the jury:

To determine whether the Defendant David

Forsyth’s acts caused Philip Rhoades to suffer

the loss of a Constitutional right, you must

determine whether the amount of force used in

attempting to effect the arrest was that which

an objective reasonable officer would have

employed in effecting the arrest under similar

circumstances.

. . .

To determine whether the Defendant David

Forsyth’s acts caused Philip Rhoades to suffer

the loss of a Constitutional right, you must

determine whether the amount of force used in

attempting to effect the arrest was that which

a reasonable officer would have employed in

effecting the arrest under similar

circumstances. Whether or not the force used

was excessive is an issue for you to decide on

the basis of that degree of force that a

reasonable and prudent law enforcement officer

would have applied under the same

circumstances disclosed in this case. The test

of reasonableness requires careful attention

to the facts and circumstances including, but

not limited to, whether Philip Rhoades posed

an immediate threat to the safety of the

officer or others; whether Philip Rhoades was

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actively resisting the arrest, and the

severity of the injury to Philip Rhoades.

. . .

The reasonableness of a particular use of

force must be judged from the perspective of

a reasonable officer on the scene, rather than

with the 20/20 vision of hindsight. With

respect to a claim of excessive force, the

standard of reasonableness at that moment

applies.

. . .

The reasonableness inquiry is an objective

one. The question is whether an officer’s

actions are objectively reasonable in light of

all the facts and circumstances confronting

Defendant Forsyth, without regard to Defendant

Forsyth’s underlying intent or motivation.

Evil intentions will not make a constitutional

violation out of an objectively reasonable use

of force; and good intentions will not make an

unreasonable use of force proper.

. . .

If you find that the amount of force used was

greater than a reasonable person would have

employed, the Plaintiff will have established

the claim of loss of a federal right by Philip

Rhoades and your verdict should be for the

Estate of Philip Jontz Rhoades.

. . .

If after considering all of the evidence, you

should find the amount of force used was not

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greater than a reasonable person would have

employed, the Plaintiff will have failed to

establish the claim of loss of a federal right

by Philip Rhoades and your verdict should be

for the Defendant David Forsyth.

ECF No. 211 at 10-13; see also ECF No. 223 at 748:18–750:3

(emphasis added). The instruction at issue includes the

“reasonable person” standard in lieu of the pertinent “reasonable

officer” standard: “If you find that the amount of force used was

greater than a reasonable person would have employed, the Plaintiff

will have established the claim of loss of a federal right by

Philip Rhoades”; and “If after considering all of the evidence,

you should find the amount of force used was not greater than a

reasonable person would have employed, the Plaintiff will have

failed to establish the claim of loss of a federal right by Philip

Rhoades and your verdict should be for the Defendant David

Forsyth.” Absent the party substitution of “Defendant David

Forsyth” for “Defendants” at the end of the instruction, the same

was taken verbatim from Defendant’s Proposed Jury Instruction

number 4, filed with the Court on January 14, 2020, approximately

fifteen (15) months prior to the jury trial in this case. ECF No.

101 at 9.

While Defendant filed objections to Plaintiff’s proposed jury

instructions [ECF No. 171], Plaintiff failed to file objections to

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Defendant’s proposed jury instructions. Similarly, at the charge

conference on April 9, 2021, the Court notified the parties that

it incorporated Defendant’s proposed instruction four (4) as

modified, over no objection by either party. ECF No. 223, 717:7-

10 (“Defendant’s three, portions of it were incorporated, as I am

sure the parties saw, so that one is modified. Number four, same.

Portions of it were incorporated in part, so it has been

incorporated as modified.”). Plaintiff failed to raise an

objection to this instruction; therefore, the Court’s review is

for plain error. See Fed. R. Civ. P. 51(d)(2) (“A court may

consider a plain error in the instructions that has not been

preserved as required by Rule 51(d)(1) if the error affects

substantial rights.”).

Under the plain error standard of review, the

plaintiffs are not entitled to a new trial

unless they can establish that (1) there was

an instructional error; (2)

that error is plain; (3) that error affected

the plaintiffs’ substantial rights; and (4)

that error seriously affected the fairness,

integrity or public reputation of the court’s

proceedings.

Gray v. Bd. of Cnty. Com’rs of Frederick Cnty., 551 F. App’x 666,

672 (4th Cir. 2014) (internal citation omitted); see also United

States v. Olano, 507 U.S. 725, 731-32 (1993).

First, the Court agrees there was an error on the face of the

jury instructions. The Court certainly committed a typographical

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error by including “person” in lieu of “police officer” twice in

its lengthy instructions to the jury. For error to be “plain,”

juxtaposed to “harmless,” the error must “affect substantial

rights.” United States v. Olano, 507 U.S. 725, 731-32 (1993).

“[T]he error must have been prejudicial: It must have affected the

outcome of the district court proceedings.” Id. at 734 (internal

citations omitted). “While Rule 52(a) precludes error correction

only if the error ‘does not affect substantial rights’ [], Rule

52(b) authorizes no remedy unless the error does ‘affec[t]

substantial rights.’ Id. at 735.

The Court fails to see how the error affected Plaintiff’s

substantial rights and seriously affected the fairness, integrity,

or public reputation of the proceedings. Id. at 732. Plaintiff has

not made a specific showing of prejudice. Plaintiff argues the

Court sua sponte lowered the standard by which the jury should

have been charged to deliberate and “turn[ed] Graham and its

progeny on its head,” thereby prejudicing Plaintiff. ECF No. 227

at 9. Because the Court must evaluate whether the error affected

Plaintiff’s substantial rights and seriously affected the

fairness, integrity or public reputation of the court’s

proceedings, the Court cannot find in favor of Plaintiff on this

issue. When reading the instructions as a whole, the Court made

clear to the jury the sole issue for it to decide is whether,

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according to an objectively reasonable police officer under the

circumstances, without regard to his underlying intent, the force

used is excessive. Graham v. Conner, 490 U.S. 386, 397 (1989).

The Fourth Circuit has demonstrated what constitutes

prejudice affecting the substantial rights of a party in the

context of granting or denying a motion for new trial or directed

verdict. See, e.g., United States v. Medley, 972 F.3d 399, 415

(4th Cir. 2020) (district court’s failure to instruct the jury as

to an essential element of a crime prejudiced the defendant,

affected the defendant’s substantial rights, and was therefore

plain error); United States v. Johnson, 945 F.3d 174, 178 (4th

Cir. 2019) (district court’s failure to sua sponte give a limiting

jury instruction for “other acts or crimes” evidence, based on

references to marijuana found in defendant’s car, did not amount

to plain error); United States v. Howard, 309 Fed.App’x. 760, 767

(4th Cir. 2009) (jury instruction to determine quantity of cocaine

base involved in conspiracy on special verdict form, but which did

not specifically require that jury find the drug amounts

attributable to each individual defendant was not plain error);

United States v. Posey, 294 Fed.App’x. 765, 768 (4th Cir. 2008)

(district court’s jury instruction on drug quantity in a conspiracy

to distribute crack cocaine charge did not affect defendant’s

substantial rights and therefore did not constitute plain error);

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United States v. Patterson, 142 Fed.App’x. 740, 741 (4th Cir. 2005)

(district court did not commit plain error when failing to instruct

the jury as to the five-year statute of limitations because there

was sufficient evidence of the conduct occurring within that time

frame); United States v. Locust, 95 Fed. App’x. 507, 516 (4th Cir.

2004) (district court’s failure to instruct jury on assessing the

credibility of police officer testimony was not plain error where

court gave general witness credibility instruction); United States

v. Stewart, 256 F.3d 231, 252 (4th Cir. 2001) (“failure to instruct

the jury on an element of an offense does not constitute error per

se”); Sit-Set, A.G. v. Universal Jet Exchange, Inc., 747 F.2d 921,

926-27 (4th Cir. 1984) (finding judicial commentary in front of

the jury regarding dispositive issues prejudicial and requiring

the verdict to be set aside).

Within the twenty-two (22) pages of jury instructions, the

Court twice used the phrase “reasonable person.” The jury

instruction concerning the excessive force claim charged the jury

with determining whether Forsyth’s actions were reasonable, and

directed the jury, four distinct times, to consider whether a

reasonable police officer would have used a similar amount of force

under the circumstances presented. When the instructions are read

as a whole, this instruction provided the jury with the governing

inquiry and “substantially covered” the proper legal standard,

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leaving room for the parties to argue whether the deadly force

deployed by Forsyth was, in fact, reasonable. Gray, 551 F. App’x

at 674 (quoting Noel v. Artson, 641 F.3d 580, 586-87 (4th Cir.

2011). To the extent the “reasonable person” language appears

twice in the Jury Charge, and the Court instructed the jury on the

reasonable officer standard at least four (4) times, the Jury

Charge as a whole is an accurate statement of the law and there is

no prejudice against the Plaintiff. Plaintiff’s motion is denied

on this ground.

C. Samuel Faulkner’s Testimony

Plaintiff alleges Samuel Faulkner, Defendant’s liability

expert and sole witness, committed perjury when he took the stand,

specifically that “Faulkner lied at trial about lying during his

deposition in this case.” Plaintiff argues that Faulkner lied about

the date he accepted a position as a law enforcement officer at

the John Glenn Columbus International Airport, formerly known as

the Port Columbus International Airport, and continued to lie when

pressed on the witness stand by Plaintiff’s counsel. [ECF No. 223,

682:24-685:13]. Faulkner maintains that he volunteered at the

airport in 2001 after the terrorist attacks on September 11, 2001,

but Plaintiff asserts Faulkner worked for pay at the airport in

2000. Plaintiff argues this testimony persuaded the jury to reach

the verdict it did. Plaintiff submits Faulkner’s employment

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documents, dated 1999, as proof sufficient for the Court to be

“reasonably well satisfied” that Faulkner provided false testimony

at trial.

Plaintiff reaches here. The Fourth Circuit has established

the standard for granting a new trial due to a witness’s alleged

perjury:

(1) the trial court is “reasonably well

satisfied” that a material witness gave false

testimony; (2) in the absence of the false

testimony, the jury may have reached a

different conclusion; and (3) the party

requesting the new trial was “taken by

surprise” when the false testimony was given,

and was unable to address it or was not aware

of its falsity until after the trial.

United States ex rel. Davis v. U.S. Training Ctr., Inc., 498 F.

App’x 308, 321 (4th Cir. 2012) (citing United States v.

Wallace, 528 F.2d 863, 866 (4th Cir. 1976)). “[N]ew evidence going

only to the credibility of a witness does not generally warrant

the granting of a new trial.” United States v. Custis, 988 F.2d

1355, 1359 (4th Cir. 1993) (citing United States v. Stockton, 788

F.2d 210, 220 (4th Cir. 1986)). “There may be an exceptional ‘rare

case’ that would justify granting a new trial solely on the basis

of newly discovered impeachment evidence.” Id. (internal citation

omitted).

First, Plaintiff believes the Court can be “reasonably well

satisfied” that Faulkner gave false testimony on the stand because

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his employment documents from the airport show Faulkner’s work

application dated August 24, 1998, and an Employee Transaction

Form dated May 28, 1999. ECF No. 227-2. However, the Court is not

reasonably well satisfied that the testimony was false. As

Defendant pointed out in his response brief, “whether or not Mr.

Faulkner began working for the Port Columbus International Airport

before September 11, 2001 is certainly not inconsistent with

volunteering services in the years following September 11, 2001.”

ECF No. 228, p. 12. This fact paired with Plaintiff’s reliance on

an application for work at the airport and related employee

document dated 1998 and 1999, as opposed to an employment

agreement, and unverified by pay stubs and the like, fail to

persuade the Court to be reasonably well satisfied that Faulkner

committed perjury.

Second, the Court cannot conclude that without the

alleged false testimony, the jury would have found in favor of

Plaintiff on her excessive force claim. The

alleged false testimony, in great part, concerned only

insignificant details that would likely have had no material

consequence on the jury’s verdict. Indeed, the testimony at issue

was regarding Faulkner’s employment start date at the Columbus

airport and whether it was a paid or unpaid position. ECF No. 223,

682:24-685:13.

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Third, “surprise does not warrant a new trial unless it

deprives the party of a fair hearing.” Twigg v. Norton Co., 894

F.2d 672, 675 (4th Cir. 1990). The alleged false testimony did not

take Plaintiff by surprise, and she was able to adequately confront

it at trial. Her counsel cross-examined Faulkner on the alleged

inconsistent statement, which first allegedly occurred during

deposition, regarding the start date of the employment and whether

it was paid. Further, Plaintiff must prove she was reasonably and

genuinely surprised, and that such surprise “resulted in actual

prejudice.” Id. Here, even if Plaintiff was “reasonably and

genuinely surprised,” she suffered no actual prejudice by

Faulkner’s alleged false testimony.

Accordingly, Plaintiff’s motion for a new trial based on the

alleged perjured testimony of Faulkner is denied.

D. Improper Remarks at Closing

Finally, Plaintiff argues the following statement made by

defense counsel during closing argument inflamed the jury and

warrants Plaintiff a new trial: “[a]nd we know a vehicle can be a

deadly weapon, ladies and gentlemen. We heard in the news just

over the last week or so that a Capitol police officer was killed

in D.C. with a vehicle by a suspect, so we know it is possible.”

ECF No. 223, 796:14-20. She also argues that the Court failed to

cure the prejudice. “A new trial may be granted based on improper

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jury argument.” Caudle v. D.C., 707 F.3d 354, 359 (D.C. Cir. 2013)

(citation omitted). However, “[c]ourts routinely deny new trials

if improper remarks by counsel, when placed in the broader context

of trial and the evidence, did not likely influence the verdict.”

Finch v. Covil Corp., 388 F. Supp. 3d 593, 613 (M.D.N.C. 2019),

aff'd, 972 F.3d 507 (4th Cir. 2020). “Of the many details of trial

management necessarily committed to broad trial court discretion,

perhaps none is more due appellate deference than conduct of non-

judicial participants in the process that is asserted unfairly to

have prejudiced the jury.” Arnold v. Eastern Air Lines, Inc., 681

F.2d 186, 194 (4th Cir. 1982).

Plaintiff urges the Court to consider the guidance of the

Supreme Court of Appeals of West Virginia in Crum v. Ward, 122

S.E.2d 18, 26 (W. Va. 1961). The Court will instead assess this

claim of error under the binding precedent of the Fourth Circuit.

“This standard is met only where there is a ‘reasonable

probability’ that the conduct improperly influenced the jury in

reaching its verdict, i.e., the conduct ‘effective[ly] subver[ted]

. . . the jury's reason or . . . its commitment to decide the

issues on the evidence received and the law as given it by the

trial court.’” Minter v. Wells Fargo Bank, N.A., 762 F.3d 339,

351 (4th Cir. 2014) (quoting Arnold, 681 F.2d at 197); see also

Hemmings v. Tidyman’s Inc., 285 F.2d 1174, 1192 (9th Cir. 2002)

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(“Generally, misconduct by trial counsel results in a new trial if

the flavor of misconduct sufficiently permeate[s] an entire

proceeding to provide conviction that the jury was influenced by

passion and prejudice in reaching its verdict.”).

The Fourth Circuit has recognized the advantages of the

district court’s viewpoint and commends this question to the trial

court’s discretion. See id. The “totality of the circumstances”

guides on whether a new trial is appropriate including “the nature

of the comments, their frequency, their possible relevancy to the

real issues before the jury, the manner in which the parties and

the court treated the comments, the strength of the case (e.g.

whether it is a close case), and the verdict itself.” Id.

(internal quotations and citations omitted). A key question is

whether the “attorney misconduct” permeated the trial thereby

repeatedly exposing the jury to inappropriate argument or whether

the improper comments are isolated in nature. See id. at 351-52

(comparing cases from different circuits); see also Insurance Co.

of America, Inc. v. U.S. Gypsum Co., Inc., 870 F.2d 148, 154 (4th

Cir. 1989) (finding a remark made during opening statement of a

three-week trial between “two large corporations” insufficient to

be prejudicial); Stemmons v. Missouri Dept. of Corrections, 82

F.3d 817, 822 (8th Cir. 1996) (affirming verdict because of

“isolated incident” during closing argument); Cooper v. Firestone

PLAMIENMTOIRFAFN’DSU MR UOLPEI N5I9O NM OATNIDO NO RFDOERR NDEEWN YTIRNIGA L

Tire & Rubber Co., 945 F.2d 1103, 1107 (9th Cir. 1991) (declining

to award a new trial because, among other things, comment was

isolated rather than persistent).

The Fourth Circuit has also cautioned district courts are

empowered to address inappropriate conduct at trial.

[W]here counsel’s references to inadmissible

or unprovable facts are so flagrant or

inflammatory as to affect the fairness of the

trial, it is within the sound discretion of

the trial judge to take such remedial action

as he deems proper, including, if he considers

such action appropriate, a mistrial and the

exercise of such discretion will not

ordinarily be disturbed unless clearly

erroneous.

Bright v. Coastal Lumber Co., 962 F.2d 365, 370-71 (4th Cir. 1992)

(citing Maxworthy v. Horn Elec. Serv., Inc., 452 F.2d 1141, 1144

(4th Cir. 1972) (footnotes omitted)).

The Court agrees with Plaintiff that defense counsel’s

comment was completely inappropriate for closing argument.3 The

3 While the Court believes defense counsel’s remarks about the

Capitol police officer killing to be highly unsuitable for closing

argument, all counsel of record in this case would benefit from

remembering what Justice Gorsuch (then Judge Gorsuch of the Tenth

Circuit) called the “cardinal rule” of closing argument: “that

counsel must confine comments to evidence in the record and to

reasonable inferences from that evidence.” Whittenburg v. Werner

Enterprises Inc., 561 F.3d 1122, 1128-29 (10th Cir. 2009) (citing,

among other things, Model Rules of Prof. Conduct R. 3.4) (Gorsuch,

J.) (see Trial Transcript ECF No. 223, 785:25-786:6 “Folks, myself,

Mr. Hogan, Mr. Prince, we all spent some or all of our childhoods

living in a trailer. Mr. Hogan here, he was born in a trailer. And

as I stand here today, each of the three of us, are ranked in the

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only question before the Court on this issue is whether it is

grounds for new trial. The Court’s finding is that it is not.

While defense counsel’s remarks were improper, Plaintiff cannot

show sufficient prejudice to warrant a new trial.

top two and a half percent of attorneys in the state of West

Virginia”; see also id. at 786:19-788:2 “And I am going to tell

you a story. A story about my own life. That is my dad . . . This

is me. And this is the first fish I ever caught, okay. Now, I

remember this day very well. So I am -- my parents were divorced.

I am down at my dad's. At the time he is living with one of his

buddies from the Army down on the shores of Alabama. Me and my

little brother were there, and we were fishing off of a little

dock, and I remember I was so excited, you know. I saw the pole

hit. I started yelling for my dad, ‘Daddy, daddy,’ I was probably

only about five years old, okay. He comes over, and we reel this

fish in, and I was so excited. I kept telling him, ‘I caught

dinner, I caught dinner, daddy.’ I was so excited. And we go to

the store, grab a few things, go home. I vividly remember seeing

the fish frying in the pan. And before that, we had gone out in

the yard and –”).

The Court, not so divorced from the practice of law and the

emotional rigors of litigation, also notes Justice Gorsuch’s

qualifying comment on the “cardinal rule” – “[w]e also emphasize

that closing argument need not, nor should, be a sterile exercise

devoid of passion. Parties are entitled to have someone speak with

eloquence and compassion for their cause. . . . Arguments may be

forceful, colorful, or dramatic, without constituting reversible

error. . . . Counsel may resort to poetry, cite history, fiction,

personal experiences, anecdotes, biblical stories, or tell jokes.”

Whittenburg, 561 F.3d at 1133 (quotations and citations omitted).

Here, however, both sides warrant reminder to remain closer to the

boundaries of the safe harbor provided by the “cardinal rule” and

further from emotional pleas based on inappropriate argument.

Regardless, the improper argument of counsel, to which objections

were sustained, was insufficient to taint the trial proceeding

requiring a new trial.

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Here, the nature of defense counsel’s comment, while relative

to the instant proceedings only in that both incidents involved a

vehicle and a law enforcement officer, were too removed from these

facts to be remotely relevant to Plaintiff’s case. Taking the

totality of the circumstances, however, the Court cannot find

defense counsel’s isolated statement in a lengthy4 closing argument

sufficient to grant a new trial. See City of Malden, Mo. v. Union

Elec. Co., 887 F.2d 157, 164 (8th Cir. 1989) (“Defense counsel's

comments were brief and were made in the context of a lengthy

closing argument . . .”). Plaintiff cannot show prejudice was

suffered by defense counsel’s single remark in closing argument.

Arnold v. Eastern Air Lines, Inc., 681 F.2d 186, 197 (4th Cir.

1982). The Court sustained Plaintiff’s objection to the closing

remarks. United States v. Dorsey, 45 F.3d 809, 818 (4th Cir. 1995);

Arnold v. Eastern Air Lines, Inc., 681 F.2d 186, 197 (4th Cir.

1982). The Court cannot find that defense counsel’s single

reference to inadmissible facts infected the trial with unfairness

4 The closing argument at issue here was one minute shy of an hour

in length. See ECF No. 223, 790:8-822:17. The challenged remark

was early in that presentation, at roughly ten minutes into

counsel’s closing argument. Defendant’s summation followed

Plaintiff’s closing argument which exceeded an hour in length. See

ECF No. 223, 763:13-789:7. Plaintiff followed with an eleven-

minute rebuttal. ECF No. 223, 822:23-828:8. The one-time, isolated

remark from counsel, albeit inappropriate, can hardly be

considered so prejudicial floating in a sea of words.

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such that Plaintiff was denied a fair trial. See Bright v. Coastal

Lumber Co., 962 F.2d 365, 370-71 (4th Cir. 1992); see also United

States v. Wilson, 135 F.3d 291, 297 (4th Cir. 1998).

Plaintiff also takes issue with the Court’s ruling sustaining

Plaintiff’s objection, but failure to grant her motion to strike.

The Court instead cautioned defense counsel to “[s]tay within the

confines of this case.” ECF No. 223, 796:14-24. However, Plaintiff

overlooks the Court’s instructions of law to the jury both during

preliminary instructions and the final jury charge. Indeed, the

Court’s lengthy instructions to the jury that “[s]tatements and

arguments of attorneys are not evidence in the case,” “[a]ny

evidence to which [the court] sustained an objection during the

course of trial, and any evidence that [the court] ordered stricken

from the record, must be entirely disregarded by you in your

deliberations,” and

Objections to questions are not evidence.

Lawyers have an obligation to their clients to

make an objection when they believe evidence

being offered is improper under the rules of

evidence. You should not be influenced by the

objection or by the Court’s ruling on it. If

the objection is sustained, ignore the

question. If it is overruled, treat the answer

like any other. If you are instructed that

some item of evidence is received only for a

limited purpose, you must follow that

instruction

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cured any prejudice that might have arisen from defense counsel’s

comments. ECF No. 211 at 5(D)-(F) (emphasis added). “[J]uries are

presumed to follow their instructions.” United States v. Chong

Lam, 677 F.3d 190, 204 (4th Cir. 2012) (quoting Richardson v. Marsh

481 U.S. 200, 211 (1987)). Nothing in the record suggests this

jury failed to comply with those instructions and Plaintiff points

to nothing which could overcome that presumption. See United

States v. Dorsey, 45 F.3d 809, 818 (4th Cir. 1995) (finding

no prejudice where “the district court’s curative instructions

properly informed the jury of the types of evidence that they

should and should not consider in reaching its verdict”).

As the Tenth Circuit observed, “courts must exercise great

caution in setting aside a jury’s verdict due to an improper

argument . . . Even if some statements exceeded the bounds of

permissible argument, a judgment will not be disturbed unless it

clearly appears that the challenged remarks influenced the verdict

. . . .” Burke v. Regalado, 935 F.3d 960, 1026 (10th Cir. 2019)

(quotation and citation omitted). Again, the Court finds nothing

before it to suggest the verdict in this case was improperly

influenced by defense counsel’s rogue remark at the outset of a

lengthy closing argument. Plaintiff’s motion is denied on this

ground.

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IV. CONCLUSION

For the stated reasons, Plaintiff’s motion for new trial is

DENIED.

It is so ORDERED.

The Court directs the Clerk to transmit copies of this Order

to counsel of record.

DATED: February 1, 2022

/s/ Thomas S. Kleeh

THOMAS S. KLEEH

UNITED STATES DISTRICT JUDGE