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Fifteen million dollar damage award upheld; discussion of race questions in jury selection

A recent case against an airport shuttle operator provided insights into the operation of damage claims where there is a "deep pocket" who has admitted fault.  It also addressed questions of race in the context of jury selection, and the threshold for proving head injury under the no fault law. 

Anthony Pellegrino sued in Wayne County Circuit Court after his wife was killed and he suffered a head injury when a shuttle bus collided with a concrete barrier.  The owner of the shuttle admitted fault and the case was tried in Wayne County Circuit Court on the issue of damages only.  In a long opinion by the Court of Appeals majority, and an equally thorough opinion by a dissenting judge, the Court addressed several major issues.

First, the attorney for the Pellegrino family objected when the insurance attorney attempted to use a peremptory challenge to exclude a second black juror.  The plaintiff attorney felt that the defense attorney was improperly attempting to exclude blacks from the jury, however, the defense attorney claimed that he was actually attempting to exclude persons who were likely to empathize with the plaintiffs because of their own recent experiences with a death in the family and continuing grief.  A comparison of the opinions of the majority and dissent offers an explanation of the complicated issue of race in jury selection:  attorneys cannot exclude jurors solely on the basis of race, however, their challenges should not be interefered with if the attorney can identify a separate logical basis for the challenge. 

Furthermore, Michigan's Supreme Court has recently held that the court should not undertake to achieve racially-balanced or neutral juries, and it has authored several opinions suggesting that errors ocurring in jury selection are not autmatically reversible error.  Ultimately, the court in Pellegrino concluded that the issue of race had not been handled properly, but that the mistakes that occurred were "harmless error".

The next issue the court was compelled to confront was the threshold medical testimony required to establish a compensable head injury.  The court reviewed the conflicting testimony offered by both sides of the case and ultimately concluded that it would be improper to disturb the jury's ultimate decision in weighing the conflicts in the experts' opinions.

The Court then analyzed the plaintiff attorney's recitation of a poem on organ donation in closing argument, and noted that the admission of evidence of post-mortem organ donation had recently been held to be an improper evocation of sympathy and irrelevant in a death claim.  Ultimately, the majority decision considered the reading of this poem, without any evidence or suggestion of organ donation in the instant case, not to be reversible error, despite its lack of relevance. 

Finally, the defendant attacked the award of damages as excessive and argued for a reduction in the award or a new trial.  The majority of the Court of Appeals concluded that there was a foundation for each item of damages awarded and therefore refused to "second guess" the jurors' decision-making.

This case presented a tough conflict for the Court:  there are virtually always small errors and inconsistencies in any trial, and jurors rarely return decisions which are completely satisfactory to both parties and the reviewing judges.  (The cases where this is possible, by definition, don't make it to trial:  they settle.)   For this very reason, Courts are very reluctant to disturb a verdict and to send cases back for a "second bite at the apple".

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
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