United States District Court, D. Colorado
ERIC A. HEINRICH, Plaintiff,
MASTER CRAFT ENGINEERING, INC., a Michigan corporation, Defendant.
A. BRIMMER United States District Judge
matter is before the Court on the Motion for New Trial
[Docket No. 323] filed by plaintiff Eric A. Heinrich.
Plaintiff's sole basis for the motion is that
defendant's closing argument was improper.
brought this products liability case against defendant Master
Craft Engineering, Inc. (“Master Craft”) and
former defendants Auto Center Manufacturing Co. (“Auto
Center”), Autocraft Manufacturing Co., Inc.
(“Autocraft”), and Jeg's Automotive, Inc.
(“Jeg's”). Mr. Heinrich was severely injured
while attending an amateur drag race in Mesa County,
Colorado. When one of the race cars was spinning its
tires in the so-called “burnout” area of the
racetrack, a balance weight attached to the vehicle's
flexplate flew off and struck plaintiff in the leg.
See Docket No. 128 at 2. Master Craft manufactured
the flexplate in question. Id. at 7. Participants in
the drag races were required to use a flexplate that complied
with Specification 29.1 of the SFI Foundation, Inc.
(“SFI Foundation”). Id. at 3. The SFI
Foundation is a testing body for the performance automobile
industry that establishes quality standards and conducts
tests on flexplates and other motor vehicle parts that are
used in racing. Id. at 2. Defendant marked the
flexplate in question “NON SFI” to indicate that
it was not SFI Foundation approved. Id. at 4-5.
Master Craft sold the flexplate to Autocraft, who in turn
sold it to Jeg's. Id. at 7.
Jeg's sent a comparable model of flexplate, but one that
did not have a balance weight, to the SFI Foundation and
received SFI certification, Jeg's affixed SFI
certification stickers over the words NON SFI on the Master
Craft flexplate. Docket No. 128 at 8. The effect of doing so
was to conceal the words NON SFI. The person who purchased
the flexplate that caused plaintiff's injury testified
that he most likely would not have purchased the flexplate if
he knew about the NON SFI stamp on it. Before trial,
plaintiff reached settlements with Auto Center, Autocraft,
and Jeg's. See Docket Nos. 200, 275.
amended complaint, plaintiff alleged claims against Master
Craft for strict products liability, Docket No. 64 at 18,
negligence, id. at 19, breach of the implied
warranty of merchantability, id. at 26, and breach
of the implied warranty of fitness for a particular purpose.
Id. at 27. After a seven-day trial in Grand
Junction, Colorado, the jury returned a verdict for Master
Craft on all claims. See Docket No. 311. On
September 8, 2016, plaintiff filed his motion for a new
trial. Docket No. 323.
STANDARD OF REVIEW
Rule of Civil Procedure 59(a) provides that “[t]he
Court may, on motion, grant a new trial on all or some of the
issues - and to any party . . . 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)(1)(A). A motion for a new trial may be granted on any
error, so long as “the district court concludes the
‘claimed error substantially and adversely'
affected the party's rights.” Henning v. Union
Pac. R.R. Co., 530 F.3d 1206, 1217 (10th Cir. 2008)
(quoting Sanjuan v. IBP, Inc., 160 F.3d 1291, 1297
(10th Cir. 1998)).
arguments “may be forceful, colorful, or dramatic,
without constituting reversible error, ”
Whittenburg v. Werner Enterprises Inc., 561 F.3d
1122, 1133 (10th Cir. 2009) (quoting Chicago & N.W.
Ry. Co. v. Kelly, 84 F.2d 569, 576 (8th Cir. 1936));
however, “[i]t is not the function of closing argument
to debase, degrade or impugn the veracity of a litigant or
opposing counsel.” Id. at 1130 (internal
quotation marks omitted). Instead, counsel's remarks
during closing arguments are “required to be confined
to the evidence admitted in the case and reasonable
inferences drawn therefrom.” Lambert v. Midwest
City Mem'l Hosp. Auth., 671 F.2d 372, 375 (10th Cir.
1982). Only when counsel “truly overemphasizes an
improper argument” during closing is there “the
requisite prejudice [to] order a new trial.” King
v. PA Consulting Grp., Inc., 485 F.3d 577, 591 (10th
did not make a contemporaneous objection during
defendant's closing argument and acknowledges that the
Court therefore applies a “plain error” standard
of review. Docket No. 323 at 1; see also Angelo v.
Armstrong World Indus., Inc., 11 F.3d 957, 962 (10th
Cir. 1993) (“[A] party may not wait and see whether the
verdict is favorable before deciding to object.”
(quoting Computer Sys. Eng'g, Inc. v. Qantel
Corp., 740 F.2d 59, 69 (1st Cir.1984))). “The
‘plain error' exception in civil cases has been
limited to errors which seriously affect ‘the fairness,
integrity or public reputation of judicial
proceedings.'” Glenn v. Cessna Aircraft
Co., 32 F.3d 1462, 1464 (10th Cir. 1994) (quoting
McEwen v. City of Norman, 926 F.2d 1539, 1545 (10th
Cir. 1991)). Such a substantial adverse impact can result
from the cumulative effect of multiple errors that would not
individually warrant a new trial. Whittenburg, 561
F.3d at 1131.
argues that defense counsel made multiple statements during
closing arguments that constitute plain error. Docket No. 323
at 2. Specif ically, plaintiff contends that defense counsel
(1) “made numerous statements about SFI Foundation,
Inc. (SFI), for which there is no evidence in the record,
” id. at 2-4; (2) “attempted to
wrongfully prejudice the jury against Mr. Heinrich and his
claims by making fictional statements about Jegs, for which
there is no evidence in the record, ” id. at
5-6; (3) made “wrongful comments about opposing counsel
and Mr. Heinrich, ” id. at 7-8; (4)
“misstated the legal doctrine of foreseeability,
” id. at 8-9; and (5) “wrongfully
implied that the jury could assess damages against Jegs and
Auto Craft.” Id. at 9. The Court will examine
these statements individually and then determine whether
those comments found to be improper constitute plain error in
the context of the argument as a whole and warrant a new
trial. See, e.g., Whittenburg, 561 F.3d at 1133
(“In so concluding, however, we underscore that our
decision is not based on any one of these factors singly, but
rather their combination after considering the argument as a
whole.”); Draper v. Airco, Inc., 580 F.2d 91,
97 (3d Cir. 1978) (“In reaching this decision, we do
not rely on any of the individual instances or types of
impropriety. Rather, we have assessed the argument as a
Statements Regarding SFI
argues that it was improper for defense counsel to apply the
“SFI” acronym as an adjective in describing
various things. Specifically, plaintiff argues,
“[t]here is no such thing, and there was no evidence
of, an ‘SFI certified race, ' an ‘SFI
certified vehicle, ' an ‘SFI approved and
sanctioned race, ' an ‘SFI race, ' an
‘SFI track, ' an ‘SFI environment, ' an
‘SFI certified race, ' or an ‘SFI certified
event.'” Docket No. 323 at 4. Plaintiff claims
these statements “would lead the jury to wrongly
believe that Master Craft is not liable because someone else,
such as Jegs, violated SFI rules, regulations or standards
pertaining to an SFI vehicle, an SFI certified race, an SFI
certified vehicle, an SFI approved and sanctioned race, an
SFI track and the like.” Id. Plaintiff also
argues that it was ...