Lawyers Have Latitude in Closing Arguments

Issue of the Case:A Tennessee appellate court was asked to determine whether the comments made by a pharmacy?s lawyer during closing arguments were so prejudicial that they called for a new trial.

Facts of the Case:The plaintiff had a long history of lupus erythematosus, which was controlled by steroid medication. Her physician gave her a prescription for prednisone 5 mg, which she had filled by the defendant pharmacy. Unfortunately, the plaintiff was mistakenly dispensed prednisone 10 mg. After taking the tablets for 4 days, she developed a severe headache on the left side of her head.

The plaintiff was admitted to the hospital, where doctors determined that she had suffered a stroke, resulting in partial blindness. When it was later determined that a dispensing error had occurred, the plaintiff sued the pharmacy and the dispensing pharmacist for her injury.

During the closing argument to the jury, the pharmacy?s attorney noted that there was no evidence that the erroneous dose of prednisone caused the plaintiff?s optic damages. He stated that, if the evidence existed, ?the plaintiff?s attorney would have a videotape in here showing you this lady had a problem with her face.?

The attorney went on to say that ?the plaintiff?s lawyer is trying to sell you something, just as lawyers have sold juries on McDonald?s responsibility for coffee spills.? It?s lawyers who sell the cases in which you use hedge trimmers to try to cut your grass and instead cut your toe. That?s what has caused drug manufacturers to put in their warnings every conceivable thing on earth.?

At this point, the plaintiff?s attorney objected because no evidence had been introduced concerning the manufacturer?s product insert or warnings associated with the drug. The court instructed the jury, ?What lawyers say is not evidence. The evidence has come to you in the form of testimony. We give lawyers a great deal of latitude in making jury arguments. Some people may think that we give them too much, but I have great confidence in jurors, and I think jurors know how to receive this information. We like to give lawyers latitude and let them go at it.?

The Court?s Ruling:The jury returned a verdict in favor of the pharmacy and the pharmacist. The plaintiff asked for a new trial, but the court refused. The plaintiff appealed, claiming that the court allowed the defendants to use improper arguments in their closing statements to the jury. The Tennessee appellate court affirmed the trial court decision and held that nothing improper had occurred.

The Court?s Reasoning:An appellate court will not overturn a decision in this type of situation unless there was an abuse of discretion. The plaintiff argued that the defendant?s attorney improperly referred to the resources of the law firm representing the plaintiff, which was designed to appeal to the passions and prejudices of the jury.

The appellate court noted that the plaintiff?s attorney did not object to the statement regarding the resources of his firm at the time it was made, nor did he move for a curative instruction to the jury or for a mistrial. Under these circumstances, it was determined that the trial court did not err in refusing to grant the motion for a new trial.

The plaintiff also contended that the defendant?s lawyer appealed to the prejudices of the jury by attacking the civil justice system and large jury verdicts granted in actions against McDonald?s or pharmaceutical companies.

At this point, the plaintiff?s counsel objected that the argument consisted of facts outside the record. The judge admonished the members of the jury that they should draw appropriate inferences from what they had heard and that attorneys have a great deal of latitude in their closing arguments.

The trial court also instructed the jury that there was no evidence in the record concerning why pharmaceutical companies include a large amount of information in their package inserts. Therefore, the jury was admonished 3 times. Under these circumstances, the appellate court found it unlikely that the conduct of the pharmacy?s lawyer affected the outcome of the trial.

Larry M. Simonsmeier is Emeritus Professor of Pharmacy Law at Washington State University College of Pharmacy.