On January 15, 2006, the plaintiff slipped and fell on ice and snow at her apartment complex. Bodine v. Kuser Village Apartments, No. A-4856-09 (App. Div. July 28, 2011). The plaintiff filed suit against defendants Kuser Village Apartments and Legow Management Company, L.L.C., the owner and manager of the apartment complex. The jury returned a no-cause verdict. On appeal, the plaintiff argued that the trial court should have granted her request for a mistrial based on statements made by defense counsel in opening and closing statements that suggested that her counsel was the motivating force behind her lawsuit. Although troubled by defense counsel's statements, the Appellate Division nonetheless affirmed because the impact of those statements was "ameliorated by counsel's retraction and the judge's curative instruction[.]"
During both his opening and closing statements, defense counsel suggested that the plaintiff's law firm was the driving force behind the plaintiff's lawsuit. For example, in the opening counsel stated: "'What brings us here together today is a complaint. [Plaintiff], through her lawyers, filed a complaint against the property owner, and in their complaint they aver that as a result of a carelessness, recklessness, and negligence of the defendants, she was caused to suffer injuries. They don't say it was because of an accident, because if they said it was the result of an accident, there would be no case. In order to sue somebody and recover damages in New Jersey, you have to prove negligence.'"
That notion -- that the plaintiff's law firm was the true party in interest -- was revisited during closing statements when defense counsel stated: "'[Plaintiff] is a very nice, lovely woman. . . . We like this lady. We disagree with the averments contained in the lawsuit filed by the [plaintiff's] law firm. We vigorously deny that we were negligent.'" Defense counsel made several other statements in closing that furthered the theme that the only reason that the plaintiff pursued the lawsuit was because of her lawyers. Nonetheless, later in his summation defense counsel attempted to counteract his prior statements, as he acknowledged that he did not intend to infer that there was anything negative about the filing of a lawsuit and that the plaintiff's lawyers were "'fine good people[.]'"
At the beginning of the jury instructions, the court addressed this issue, as it issued the following curative instruction: "'Okay, now, before you deliberate I will be the last person that you hear. And what I'm going to do is give you the charges as to the law. But before I do that I want to give a curative statement or make a statement correcting or telling you not to consider statements or comments made during the closing argument by [defense counsel]. He made references to the firm of [plaintiff,] Stark & Stark. This lawsuit is not Stark & Stark against Kuser Village Apartment, Legow Management.’”
“‘It's Mary Bodine against the defendants. She's represented by Mr. Bratman who's a lawyer at Stark & Stark just like Mr. Devlin is an attorney with Devlin Associates, he's representing the defendants. So therefore you're not to consider the fact that whose representing what particular party [sic] in this case. There's no evidence presented in this case that there was any motivation or any cause that Stark & Stark had any reason to cause this litigation. The evidence that's been presented in this case deals with Mary Bodine and her allegations against her landlord arriving out of the accident that occurred on January 15th, 2006. That's all that you're to consider. You're not to consider and disregard any comments made by Mr. Devlin with respect to Stark & Stark.'"
After reviewing the record, the Appellate Division commented that "[w]e have no doubt that the statements made by defense counsel regarding the role of [plaintiff's firm] were designed to be and were undeniably improper. ... Their substance and frequency of their repetition make that conclusion self-evident." However, the court acknowledged that defense counsel substantially retracted them and that the trial court provided a curative instruction. The Appellate Division concluded that the retraction and curative instruction served to cure any prejudice that was caused by defense counsel's initial comments. In addition, the Appellate Division rejected the plaintiff's contention that defense counsel also exceeded the proper scope of opening arguments in other ways.