UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IN RE: 3M COMBAT ARMS 

EARPLUG PRODUCTS

LIABILITY LITIGATION

Case No. 3:19md2885

This Document Relates to:

Blum, 7:20-cv-122

Judge M. Casey Rodgers

Magistrate Judge Gary R. Jones

ORDER

At the close of trial this afternoon, following closing arguments and after the 

jury had left the courtroom to begin deliberating, Defendants orally moved for a 

mistrial based on a comment made by Plaintiff’s counsel during his rebuttal closing

suggesting that the jury should consider in part how the Defendants tried their case 

in deciding punitive damages. 

The bar for a mistrial is high. In cases of attorney misconduct, courts 

consider “whether the improper assertions have made it ‘reasonably probable’ that 

the verdict was influenced by prejudicial statements.” Fineman v. Armstrong 

World Indus., Inc., 980 F.2d 171, 207 (3d Cir. 1992) (quoting Draper v. Airco, 

Inc., 580 F.2d 91, 97 (3d Cir. 1978)). The misconduct must be such that it would 

“impair gravely the calm and dispassionate consideration of the case by the jury.” 

Vineyard v. Cty. of Murray, Ga., 990 F.2d 1207, 1213 (11th Cir. 1993) (quoting

Allstate Ins. Co. v. James, 845 F.2d 315, 318 (11th Cir. 1988) (internal quotations 

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omitted)). In determining whether to set aside a jury verdict based on an attorney 

statement made during closing argument, the Eleventh Circuit “look[s] to the entire 

closing argument, the context of the remarks, the objection raised, and the curative 

instruction.” Gonzalez v. Batmasian, 734 F. App'x 677, 682 (11th Cir. 2018) 

(quoting Allstate Ins. Co., 845 F.2d at 318); Hilger v. Velazquez, 613 Fed. App’x 

775, 776 (11th Cir. 2015) (per curiam) (quoting Allstate Ins. Co., 845 F.2d at 318).

Plaintiff’s counsel’s single comment, albeit arguably improper, does not meet 

the high bar required for a mistrial. Additionally, and importantly, Defendants made 

no objection to the comment during the closing argument and instead waited to raise 

the issue until after the jury had been excused from the courtroom to deliberate. As 

a result, the Court never had the opportunity to provide a curative instruction to the 

jury. In the Eleventh Circuit, the “general rule is that a timely objection is necessary 

to bring to the district court’s attention errors in counsel’s arguments.” Oxford 

Furniture Companies, Inc. v. Drexel Heritage Furnishings Inc., 984 F.2d 1118, 1128 

(11th Cir. 1993) (citing Woods v. Burlington Northern R. R. Co., 768 F.2d 1287, 

1292 (11th Cir. 1985) (per curiam)). If no timely objection is made, a new trial is 

warranted only when “the interests of substantial justice are at stake,” which is rarely 

the case for improper attorney argument in a civil case. Id. (citing Woods, 768 F.2d 

at 1292; McWhorter v. Cty. Of Birmingham, 906 F.2d 674, 677 (11th Cir. 1990) (per 

curiam)). Such is the case here.

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Accordingly, Plaintiff’s counsel’s isolated comment, which was not timely

objected to, does not meet the high bar for a mistrial and Defendants’ motion is 

DENIED.

DONE AND ORDERED this 28th day of October 2021.

 

 M. Casey Rodgers M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

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