In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3490
HAROLD WHITING and LEATRICE WHITING,
individually and as husband and wife, and
KATRINA WHITING,
Plaintiffs-Appellees,
v.
RICKY L. WESTRAY, RICHARDSON MOVING AND
STORAGE, INC., MIAMI VALLEY MOVING AND STORAGE,
INC., BEKINS VAN LINES COMPANY and
THE BEKINS COMPANY,
Defendants-Appellants.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:98 CV 585 RL—Rudy Lozano, Judge.
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ARGUED MAY 20, 2002—DECIDED JUNE 28, 2002
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Before EASTERBROOK, ROVNER, and EVANS, Circuit
Judges.
EVANS, Circuit Judge. An appellate record is a bad place
to seek a nuanced portrayal of a trial that the losing side
thinks was unfair because the attorney for the winners
allegedly poisoned the case. For 4 days last May, attor-
ney John W. Patton, Jr. defended this case against Timo-
thy Schafer, the plaintiffs’ counsel. The trial transcript
discloses that, at scattered times during the proceedings,
2 No. 01-3490
Schafer made inappropriate remarks during his opening
statement; persisted in making “speaking” objections (com-
menting on evidence rather than stating a legal ground
against its admissibility) despite the trial judge’s in limine
order, and repeated admonitions, barring them; charged, in
front of the jury, that videotape evidence offered by the
defense was “altered”; interrupted both the judge and Pat-
ton; made occasional crass comments in response to Pat-
ton’s objections and arguments; passed a few (what ap-
pear to have been) sarcastic observations on the quality
of defense testimony during cross-examination; and in-
cluded some fairly pointed remarks about Patton in his
summation. In sum, Schafer appears to have exasperated
Patton and, to some extent, the district judge (Lozano, J.).
His excitability aside, Schafer also won his case: the jury
returned a large verdict in favor of his clients. The defen-
dants brought a motion for a new trial under Federal Rule
of Civil Procedure 59, asserting that Schafer’s misconduct
denied them a fair trial. The district judge denied that
motion, finding that although Schafer’s actions were not “a
model for acceptable courtroom behavior,” the defendants
had not been prejudiced. The defendants appealed.
We review the denial of a motion for a new trial for an
abuse of discretion. Goodwin v. MTD Products, Inc., 232
F.3d 600, 606 (7th Cir. 2000). To obtain a new trial on at-
torney misconduct grounds, the defendants must show
both that misconduct occurred and that it prejudiced their
case. Brandt v. Vulcan, Inc., 30 F.3d 752, 758 (7th Cir.
1994); see also Wiedemann v. Galiano, 722 F.2d 335, 337
(7th Cir. 1983). We’ll assume that Schafer’s various shenan-
igans constituted misconduct and turn to the key question
of whether the defendants were prejudiced. Given the dis-
trict judge’s familiarity with the parties, the litigation as
a whole, the credibility of the evidence presented during
the trial, and the effect of the evidence and any impropri-
eties on the jury—not to mention the slim hope that any
No. 01-3490 3
of these factors can be accurately portrayed in an appellate
record—our resolution of this question is necessarily def-
erential. See Miksis v. Howard, 106 F.3d 754, 757 (7th Cir.
1997) (“We defer to the district court because of its unique
position to view the evidence and the course of the trial.”).
The prejudice inquiry turns the focus away from the
lawyers and to the sad facts of this case. Harold Whiting
and his daughter Katrina were in their car waiting at a
red light. They were severely injured when Ricky Westray
rear-ended them in the tractor-trailer he was driving for
Richardson Moving and Storage (which had an agency
relationship with the other defendants). Westray’s vehicle
was going approximately 50 mph at the time, and the
impact of the crash pushed the Whitings’ car 260 feet.
Harold, Katrina, and Leatrice Whiting (Harold’s wife and
Katrina’s mother) brought suit against the defendants,
who conceded Westray’s negligence. The case went to trial
only on the issue of damages. We review the evidence, of
course, in the light most favorable to the verdict.
Most of the fighting at trial concerned Harold’s claim.
Harold and Leatrice Whiting both testified to the effect the
accident had on their lives. Prior to the accident, Harold
was a valued motor inspector at U.S. Steel and an active,
productive member of the Whiting household. Now, Harold
has childlike communication skills (sometimes stuttering
“one, two, three” before articulating a thought), memory
problems, loss of sexual function, constant pain, and a se-
vere limp, which causes him to fall over on occasion. He
requires the almost constant care and attention of his wife
or daughter. Attorney Schafer offered the testimony of six
physicians who examined and/or treated Harold at various
points since the accident. The doctors testified that Harold
suffered permanent brain damage and a spinal cord in-
jury and was totally disabled. Schafer also presented the
testimony of an economics professor, who calculated Har-
old’s past and future economic losses at just over $6 million.
4 No. 01-3490
Although the defendants tested the Whitings’ medical
testimony on cross-examination, they did not present any
medical testimony of their own, choosing not to put their
medical expert on the stand. Nor did the defense present an
economic expert to rebut the evidence concerning Harold’s
economic losses.
Instead the defense opted to show that there were “two
Harold Whitings,” one who pretended to be severely injured
when it advantaged him and one who, when no one was
watching, was not as severely injured as he claimed. To
substantiate this defense, the defendants offered three wit-
nesses. First, they presented Ivan Buchanan, a Gary, Indi-
ana, police officer who caught Harold driving 70 mph in a
45 mph zone a year and a half after the accident. Harold
ostensibly was unable—or at least not supposed—to drive.
Buchanan testified that Harold did not seem impaired,
although his speech was “a little bit slow.” Second, they
offered Gary Conner, a self-employed contractor hired by
the Whitings to install replacement windows in their home.
Conner twice met briefly with Harold, after which he was
contacted by a defense investigator. He told the investiga-
tor that Harold talked slowly but did not repeat himself.
Conner told Harold about this meeting, after which, Conner
said, Harold spoke in backward sentences, repeated him-
self, and stuttered. Last, the defendants put on Christopher
Witt, a private investigator, who conducted video surveil-
lance of Harold. His tapes, which showed Harold ambling
around in various settings, were played for the jury.
The jury heard all this testimony and awarded $6 million
to Harold, $1.22 million to Leatrice (for the loss of ser-
vices, society, and companionship of Harold), and $80,000
to Katrina.
With that context in mind, we return to the question
of whether Schafer’s conduct prejudiced the defendants.
We note, as did the district judge, that a fair amount of
No. 01-3490 5
Schafer’s alleged misbehavior occurred during sidebars,
outside the earshot of the jury. Moreover, the majority of
Schafer’s alleged misbehavior occurred right out of the
gate; it did not permeate the trial. Judge Lozano himself
commended both attorneys on the second day for “being less
argumentative.” On the fourth day, he noted that things
had been “going along . . . smoothly.” Last, the defendants
are not very precise about their prejudice. With one ex-
ception, they do not specify how Schafer impeded the pre-
sentation of their case. Schafer’s misbehavior did not pre-
vent the jury from hearing any pieces of defense evidence
and, aside from the occasional (and, it seems to us, typical)
disruption, the defendants were able to cross-examine the
Whitings’ witnesses.1
Now for the one exception. The defendants argue that
Schafer tainted Witt’s videotapes by suggesting that they
had been “altered.” The episode went like this:
Mr. Patton: Okay. Your Honor, at this time I would
move to have [the videotapes] admitted
into evidence.
The Court: Any objection?
Mr. Schafer: We’re just concerned, Your Honor that—
The Court: Counsel, state the objections, not your
concerns.
Mr. Schafer: I object. We have reason to believe that
the tapes were not ongoing and were al-
tered.
1
Turnabout is fair play. It should be noted that, as in any law-
suit, both attorneys at times, deliberately or not, hindered the pre-
sentation of evidence. The district judge admonished Patton a
number of times not to interrupt witnesses in mid-answer, and
his warnings to counsel were often addressed to both Patton and
Schafer. Judge Lozano seems to have experienced some level of
frustration with both lawyers.
6 No. 01-3490
The Court: Counsel, approach.
(Bench Conference.)
(Outside the hearing of the Jury.)
The Court: Mr. Schafer, you are coming close to get-
ting yourself a mistrial. You’re making
an accusation. Are you going to have wit-
nesses come here and testify to that?
Mr. Schafer: Judge, the tapes shows [sic]—
The Court: Are you going to have witnesses come in
and testify to that?
Mr. Schafer: No, I’m going to do it through him.
The Court: Then you can do it during cross-examina-
tion.
Mr. Schafer: Right.
The Court: What the question is right now: Is there
any objection to—
Mr. Schafer: Oh, okay.
The Court: —having them admitted?
Mr. Schafer: My only objection is, was he told to turn
the camera off . . . the camera was turned
off.
The Court: You can do that during cross-examina-
tion.
Mr. Patton: Just for the record, the comment he made
to the Court implying the tapes have
been altered comes to the prejudice—
The Court: He said we believe.
Mr. Patton: We, him, all right, it’s now in front of the
Jury. I have asked every single day not to
have these types of speaking objections.
No. 01-3490 7
You have made your orders clear that he
is not to do that. If I may finish.
Mr. Schafer: All right.
Mr. Patton: And I have said, I don’t want him saying
anything that comes to the prejudice of
the Defendants and, Your Honor, there is
nothing more prejudicial than implying
that some misdeed or misconduct has
been done by the Defendants—
. . . [T]he bell has been rung. And I’m
moving . . . for a mistrial, based on that
statement, just to protect the record.
The Court: Counsel, I will take it under advisement.
Although Schafer should have raised this problem in a
sidebar, we don’t think his statement prejudiced the de-
fendants. First, nothing more was ever heard of the defen-
dants’ mistrial motion. The judge never ruled on it and
defense counsel did not reiterate it until his post-trial mo-
tion. Second, the tapes were admitted and shown in full to
the jury. Defense counsel had ample opportunity, after
Schafer’s fleeting remark, to present the evidence. Third,
the jurors were instructed that “any statements, questions,
objections or arguments made by the lawyers are not evi-
dence in the case” and that “[o]pening statements, closing
arguments and other statements of counsel should be
disregarded to the extent they are not supported by the
evidence.” See Jones v. Lincoln Elec. Co., 188 F.3d 709, 732
(7th Cir. 1999) (noting curative effect of instructions, which
juries are presumed to follow). Last, defense counsel himself
addressed the “alteration” accusation in his closing argu-
ment. In sum, the defense had a full opportunity to present
the videotapes to the jury and to persuade it to give them
due weight, independent of Schafer’s “alteration” charge.
That leaves a final argument. The defendants claim that
the excessiveness of the jury’s award itself proves prej-
8 No. 01-3490
udice.2 That argument faces a couple of problems. First, the
Whitings presented considerable evidence, in the form of
the Whitings themselves and, as we have said, six different
physicians who said Harold suffered brain damage and a
spinal cord injury. The defense offered no medical testimo-
ny of its own. The jury likely believed that Harold was se-
verely injured. There is plenty of evidence to support that
determination and the resulting award. Second, and more
specifically, the Whitings presented unrebutted, expert tes-
timony that Harold sustained just over $6 million in econ-
omic losses. It is hard to see how a $6 million verdict could
be termed excessive with this evidence in the record.
Third, the jury had a front row seat for Schafer’s antics,
no matter how they are viewed. And if they were as bad as
the defense claims, it seems odd for us to assume, in the
face of the judge’s and Patton’s frustration with Schafer,
that the jurors were enamored of him. Typically, misbehav-
ior and admonition by a judge reflect badly on a trial law-
yer. Plus, one could say that the award itself even provides
a colorable argument (but it’s only “colorable,” for attor-
neys often ask for the stars while only hoping for the moon)
that Schafer may have prejudiced his own case. Schafer
requested approximately $20 million for Harold; the jury
gave him $14 million less than that. Schafer requested ap-
proximately $250,000 for Katrina; the jury awarded about
a third of that. These awards were closer to the defendants’
recommendations than to Schafer’s. (The defense recom-
mended that the jury award $700,000 to Harold and
$36,800 to Katrina.) Also, the fact that the jury chose
$6 million as the magic number for Harold seems particu-
larly significant. Although breaking down jury awards is
2
We do not understand the defendants to be seeking a remitturer
because the verdict was excessive. They cite the excessiveness
of the verdict to show the prejudice that Schafer’s misconduct
caused.
No. 01-3490 9
a bit like reading tea leaves, the total award to Harold was
almost exactly the amount his expert set as his economic
damages. Assuming the jury trusted the expert’s calcula-
tions, it seems at least possible that the jury gave Harold
nothing for pain and suffering, disfigurement, mental an-
guish, and other non-economic losses. This possibility is just
a guess, but one that seems at least as likely as the defen-
dants’ scenario, and thereby illustrates the difficulty of
basing prejudice on the size of a jury verdict alone.
In sum, the defendants cannot show that Schafer’s antics
prejudiced their case and denied them a fair trial.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—6-28-02