It's not just whistleblower law; First Amendment public employee-speech doctrine is in disarray

You might have heard some wrangling in the news about whistleblowers.  They're all the rage, lately, even here and there on this blog.

A big problem for whistleblowers in the public sector is that the U.S. Supreme Court has clearly held that there is no First Amendment protection for whistleblowing in the United States.  So public employees who blow the whistle on public misfeasance or malfeasance have to be prepared to pay for their good intentions with their livelihoods.

Notably, that was the Court's holding in 2006, when a lawyer, Richard Ceballos, suffered retaliation in the office of L.A. District Attorney Gil Garcetti for having disclosed to criminal-defense counsel that a sheriff misrepresented facts in a search warrant affidavit, despite having been admonished to remain silent.  Remember that when Gil Garcetti runs for President.  Even when there is statutory protection, as in the case of that federal whistleblower whom everyone's been talking about, it is extremely difficult to police prohibitions on retaliation, thus the whistleblower's present penchant for anonymity. 

In a recent opinion column in The Hill, Independent Institute Policy Fellow Ronald L. Trowbridge, Ph.D., bemoaned this sorry state of constitutional whistleblower law since Garcetti.

Right.

Well, welcome to the table, Dr. Trowbridge.  Some of us transparency-and-accountability types in the public sector have been living, working, and biting our tongues under Garcetti for more than a dozen years. 

I don't concede that Garcetti applies to me; a footnote in the opinion left the question open as a matter of constitutional law for academics, who sit in a weird place, constitutionally speaking.  I've dared to offer my own constructive criticism here and there.  But often, I stay silent.  And by often, I mean a lot.  For example, you want to know what goes on at a public school inside the ABA accreditation process?  Well wouldn't you, then.  How nice for you.  Talk to the hand.

What we need is not another op-ed bemoaning Garcetti.  We need a way forward.

In 2016, Jerud Butler was reprimanded and demoted in his job at the San Miguel County, Colorado, Road and Bridge Department after he testified truthfully at a child custody hearing involving his sister-in-law and her ex-husband, another employee at the San Miguel County Road and Bridge Department.  His testimony, in a personal capacity, incidentally touched on the hours of operation of the department.  The Tenth Circuit rejected Butler's bid for First Amendment protection, finding Butler an employee of the government, like an employee anywhere else, subject to the whimsy of the employer.

Butler was not a whistleblower.  But Garcetti was not a watershed moment.  Rather, Garcetti was a symptom of an employee-speech doctrine in First Amendment law that has been badly broken since it was invented in Pickering v. Board of Education in 1968.

On behalf of "First Amendment Scholars," including me, Professors Lisa Hoppenjans and Gregory P. Magarian and their student team at the Washington University First Amendment Clinic at St. Louis University Law School filed an amicus brief in support of U.S. Supreme Court cert. in Butler (No. 18-1012).  Butler has got to be a mistaken outcome, even if we think that whistleblowing should be a statutory matter rather than a constitutional right, even under Pickering.

Like Dr. Trowbridge, I hope the Supreme Court at some point will realize the work that needs to be done to make sensible public-employee speech doctrine, whether fixing what we've got or starting from scratch.

Meanwhile I'll take anything that chips away at Garcetti.

Scholar-amici on the Wash. U. brief in Butler included: RonNell Andersen Jones, Associate Dean of Research & Teitelbaum Chair of Law, University of Utah S.J. Quinney College of Law; Cynthia Boyer, Associate Professor, Institut Maurice Hauriou (Université Toulouse Capitole)/Institut National
Universitaire Champollion; Alan K. Chen, Professor of Law, University of Denver Sturm College
of Law; Eric B. Easton, Professor of Law Emeritus, University of Baltimore School of Law; Craig B. Futterman, Clinical Professor of Law, University of Chicago Law School; Heidi Kitrosser, Robins Kaplan Professor of Law, University of Minnesota Law School; Lyrissa Lidsky, Dean and Judge C.A. Leedy Professor of Law, University of Missouri School of Law; Gregory P. Magarian, Thomas and Karole Green Professor of Law, Washington University in St. Louis School of Law; Helen Norton, Rothgerber Chair in Constitutional Law, University of Colorado School of Law; Richard J. Peltz-Steele, Chancellor Professor, University of Massachusetts Law School; Tamara R. Piety, Professor of
Law, University of Tulsa College of Law.

Amici aligned with First Amendment Scholars in Butler included the National Whistleblower Center, the Center for Constitutional Jurisprudence, the Duke Law School First Amendment Clinic, and the Government Accountability Project.

Dublin City's Brexit Institute tracks all things Brexit

If you're like me, Brexit is a lot to keep up with.  How do you find out the latest developments, when all of your news channels are around-the-clock impeachment hearings?  It's quite the chore for the responsible global citizen.

Let the Brexit Institute alleviate your anxiety.  Since 2016, the good people at Dublin City University have been tracking all things Brexit.  You can follow the institute through its excellent blog, newsletter, or Twitter feed.  IAMCRers will remember DCU from our excellent 2013 conference.

Unrelated to the institute, but while on the subject of Brexit, a shout out to one of my favorite Twitter feeds, The Irish Border, which earned mention in The Guardian last year.

Earlier this week, my Comparative Law class was privileged to host via Zoom a guest from the Brexit Institute, post-doc Professor Giovanni Zaccaroni.  Extra thanks that he stayed up late to join us from GMT.  Prof. Zaccaroni walked us through an intense short course on EU treaty exit article 50, the U.K. Supreme Court decision voiding prorogation, and the proposed Irish border protocol.


Prof. Zaccaroni answered students' questions on those issues and more, explaining the cultural, political, and historical sensitivity around the Irish border question, as well as the relationship between Brexit and potential eastward growth of the European Union—spoiler alert: don't hold your breath, for many reasons, Brexit besides.

Litigation privilege doesn't protect whistleblower counsel, court holds in defamation suit against attorney

The Massachusetts Appeals Court Wednesday affirmed the absolute litigation privilege as a defense to defamation, but rejected its application to a lawyer purporting to represent a whistleblower.

The case arose from a development dispute.  The essence of the alleged defamation concerned a letter from attorney-defendant Edmands accusing defamation plaintiff Patriot of tax fraud and retaliation against the attorney's client for his whistleblowing to the IRS and SEC.  Patriot alleged that Edmands moreover widely republished the accusations on internet platforms, including a whistleblower blog.  The court accepted Patriot's contention that the accusations against it were false.

The litigation privilege is an absolute privilege, so cannot be vitiated by a speaker's common law malice (ill will) or actual malice (knowledge of falsity or reckless disregard of truth or falsity).  The litigation protects an attorney acting as an attorney, even before litigation is initiated, but does not protect attorneys "'in counselling and assisting their clients in business matters generally,'" the court quoted precedent.

Edmands failed to establish the basis for the privilege as an evidentiary matter.  No whistleblowing complaints were filed with federal regulators, and the purported client denied representation by Edmands to that end.

Even had whistleblowing occurred, the court was skeptical that the litigation privilege would attach, given that whistleblowing does not necessarily precipitate any administrative or judicial process.  That point is important for attorneys representing whistleblowers.  Attorneys who help client-whistleblowers amplify their accusations in mass media, in even the most up-and-up of circumstances, might expect to find themselves targeted by retaliatory corporate ire.  The attorney should therefore take extra care to interrogate the truth of the whistleblower's claims.

The court remanded to the Superior Court for further proceedings. The case is The Patriot Group, LLC v. Edmands, No. 17-P-1397 (Mass. App. Ct. Nov. 13, 2019).  Blake, Wendlandt,and McDonough, JJ., were on the unanimous panel, Justice McDonough writing.

Researcher recounts riveting history of Auschwitz infiltrator

Pilecki before 1939

Witold Pilecki was an officer of the Polish underground in 1940 when he allowed himself to be captured by the Nazis in a civilian roundup and sent to Auschwitz.  The underground sought to document German atrocities in the concentration camps with the aim of spurring the Allies to action.

Assuming a false identity using found papers, Pilecki passed himself off as "Tomasz Serafiński," the commanding officer of the Nowy Wiśnicz region unit of the underground Polish Home Army (Armia Krajowa, or AK).  He remained in Auschwitz for nearly there years and wrote reports for the underground that were smuggled to London and Washington.

At Easter in 1943, Pilecki and compatriots made a daring escape from Auschwitz.  Hunted by the Gestapo, they made their way through the Polish countryside and ultimately found refuge with the real Tomasz Serafiński, his wife, Ludmiła, their children, and their underground network.  Amid their run, the escapees had become suspected by the underground of being German spies.  As he grew close to his unexpected namesake, Serafiński found himself at odds with the AK, ultimately depending on Ludmiła to protect both men against underground suspicion and Nazi hunters.  Pilecki and Serafiński each had a grim fate yet in store.

Pilecki at Auschwitz

This riveting WWII story is the subject of a working research paper, replete with documentary images, authored by Elizabeth M. Zechenter, Ph.D., J.D.: Was it Really a Blind Fate? Interwoven Lives of Witold Pilecki and Tomasz Serafiński, and the Daring Efforts of Ludmiła Serafińska to Save Them Both.   The paper was featured in this month's (Oct. 2019, no. 20) Quo Vadis, the Philadelphia Chapter newsletter of The Kosciuszko Foundation.  The foundation is a New York-city based non-governmental organization dedicated to cultural and educational exchange between the United States and Poland.

Zechenter

By day an assistant general counsel for GlaxoSmithKline, LLP, Zechenter is an accomplished academic researcher (Academia.edu, ResearchGate), her UCLA Ph.D. in evolutionary archaeology, who has taught international law and human rights law at Georgetown University Law Center.  She also is president of the Jagiellonian Law Society (JLS), "a voluntary legal association comprised of a diverse group of professionals (lawyers, judges, law faculty, and law students) who are interested in, or have roots in Polish and Central/Eastern European (CEE) cultures."  She is related to the Serafińskis. 

I was privileged to learn about Elizabeth's work through membership in JLS ("open to any legal professional who shares [JLS] interests and goals") and my work in the Catholic University of America, Columbus School of Law, American Law and LL.M. program with Jagiellonian University (not associated with JLS) in Kraków, Poland, and Washington, D.C.

Anti-SLAPP is not all it's cracked up to be

John Oliver this week on Last Week revisited the defamation lawsuit he drew against HBO from Bob Murray and Murray Energy.  The piece brings viewers up to speed on the feud.

Murray just dropped the suit, which was on appeal of dismissal to the West Virginia Supreme Court.  That led Oliver to do this effective segment on the problem of strategic lawsuits against public participation (SLAPPs).  Oliver called on the 20 states without anti-SLAPP statutes to adopt them, lest nationwide speakers remain subject to lawsuit in lowest-common-denominator, plaintiff-friendly locales.

I'm a big John Oliver fan—next-level, best standup I've ever seen, not to mention having redefined social commentary through comedy—and a free speech and journalism advocate.  That said, I am on record in opposition to anti-SLAPP laws, and I remain so.  The laws are an ill fit to resolve the underlying problem of excessive transaction costs in litigation and work an unfairness against legitimate causes of action.  Our First Amendment law radically weights defamation tort law against plaintiffs like nowhere else in the world, admittedly prophylactically dismissing claims by genuinely injured plaintiffs.  Defendants don't need another weapon in their arsenal.

Oliver is right that there are plenty of cases in which litigation is abused in an effort to suppress free speech.  But anti-SLAPP laws sweep within their ambit nearly every defamation and privacy case.  Defamation plaintiffs who have been genuinely injured and have no SLAPP motivation whatsoever also must respond to anti-SLAPP motions and are likely to suffer dismissal and pain of attorneys' fees—not because their suits lack merits, but because they lack access to discovery to get their hands on real, existing evidence of malice, discovery that our civil litigation system routinely affords to tort plaintiffs in the interests of justice.

The essential concept of anti-SLAPP law is said to have originated in Colorado as a means to protect environmentalists from retaliatory litigation by developers.  If you want to see evidence of my doubts about the efficacy of anti-SLAPP legislation, look no farther than a decision by the Supreme Judicial Court of Massachusetts just today, in which, literally, a property developer is the anti-SLAPP claimant in an epic litigation that has generated enormous transaction costs over anti-SLAPP procedure without ever reaching the merits of the case.

Anti-SLAPP laws look good on paper.  But they indiscriminately undermine tort law.  The effect of denying compensation to genuinely injured plaintiffs will be the effect of a failed tort system: unfairness, increased abuse by bad actors, and, ultimately, injured persons taking the law into their own hands.  Media advocates wonder why Generation Z, et seq., are hostile toward free speech.  Be careful what you wish for.

For Veterans Day, let's push through Congress bipartisan Feres doctrine waiver for medmal claims

Veterans Day Painting.  (Details at end of story.)

The Federal Tort Claims Act (FTCA) authorizes tort actions against the U.S. federal government, waiving the government's sovereign immunity in its courts, subject to tight constraints.  The FTCA yields to the Feres doctrine, a rule of law named for the Supreme Court case that recognized it in the years following World War II.  The Feres doctrine disallows lawsuits by active-duty military for personal injury or death.  The Feres doctrine makes sense on the face of it, lest every injury in combat become a tort claim under the laws of the states. 

But the Feres doctrine's logic breaks down at the margins.  Increasingly in recent decades, healthcare has become big business and very expensive.  Military personnel have become dependent on the government for routine care.  And cases have been reported of medical malpractice at government hospitals: cases that unquestionably would yield medical malpractice claims in the comparable civilian context.  Insofar as the Feres doctrine is supported by a sort of "assumption of risk" by soldiers who go off to war, that theory feels ill fit to stateside medical mistakes in childbirth or prenatal care, or failure to diagnose terminal conditions. 

In spring 2019, the U.S. Supreme Court denied cert. in a challenge to this operation of the Feres doctrine (case at SCOTUSblog; details at and Stripes).  CBS Morning reported in August on the story of Sfc. Richard Stayskal, a Green Beret, now terminally ill, whose cancer was misdiagnosed, and on his emotional congressional testimony.

Bills (S.2451, H.R.2422) (not the first of their kind) that would authorize medmal tort claims for military personnel are stalled in House and Senate committees.  Fox46 Charlotte recently called out Sen. Lindsey Graham as an obstacle in the Senate for the bipartisan Sfc. Richard Stayskal Military Medical Accountability Act of 2019.  I hope Veterans Day might occasion placement of this fix on the short list of what Congress should be doing besides playing politics for the cameras this week.

(Image: Caroline Beattie, a senior at Manatee School for the Arts in Palmetto, Fla., painted a portrait of her Economics and Government teacher, for the school's Veterans Day program. Her teacher, Maj. Jennifer Pearson with the Air Force Reserve’s 920th Rescue Wing at Patrick Air Force Base, Fla., photographed the painting Nov. 6, 2019.  U.S. Air Force photo by Maj. Jennifer Pearson.)

Cameroon human rights record prompting Washington to end trade preference includes internet shutdowns

The announcement that the United States will end trade preferences for Cameroon in response to the country's human rights record marks some good news out of Washington and exemplifies the kind of "quid pro quo" that foreign policy is supposed to leverage.

In a freedom-of-expression angle to the story, documentary filmmakers screened Blacked Out: The Cameroon Internet Shutdown at RightsCon 2019 in Tunis over the summer.  The presentation fit perfectly into one of the key conference themes, "#KeepItOn."  I was privileged to be there and to meet one of the filmmakers, who talked about the extraordinary risk of documenting the minority anglophone community in Cameroon today.  More at Quartz Africa and at the Blacked Out YouTube channel.  The film can be viewed on YouTube in its 43-minute cut or its 65-minute uncut version, below.

Of interest to legal comparatists, there's an interesting underlying story in Cameroon's civil law tradition arising from a merger of French and British political possessions.  That's not the subject of the movie, but you can imagine the tension of legal tradition running in tandem with tensions of culture, language, and history, and all of that overlaid on and obscuring, in classic imperialist fashion, pre- and still-existing tribal cultures and customary legal traditions.

Radiolab ponders journalists who would undo what they wrought

Radiolab tackled the "right to be forgotten," U.S. style, back in August, and I missed it.  Hat tip at On the Media, which just revived the excellent segment.  Here is the summary and audio.

In an online world, that story about you lives forever. The tipsy photograph of you at the college football game? It’s up there. That news article about the political rally you were marching at? It’s up there. A DUI? That’s there, too. But what if ... it wasn’t.

In Cleveland, Ohio, a group of journalists are trying out an experiment that has the potential to turn things upside down: they are unpublishing content they’ve already published. Photographs, names, entire articles. Every month or so, they get together to decide what content stays, and what content goes. On today’s episode, reporter Molly Webster goes inside the room where the decisions are being made, listening case-by-case as editors decide who, or what, gets to be deleted. It’s a story about time and memory; mistakes and second chances; and society as we know it.

This episode was reported by Molly Webster, and produced by Molly Webster and Bethel Habte.

Grand jury secrecy is not sacrosanct

Actors reenact the Moore's Ford lynchings every year or two, lest the public
forget.  (July 26, 2014, photo by artstuffmatters, CC BY-NC-ND 2.0.)

Georgia Public Broadcasting reported recently (via NPR; see also WaPo (pay wall)) that the U.S. Court of Appeals for the Eleventh Circuit will soon decide whether to unseal the grand jury records pertaining to a 73-year-old lynching case.  Meanwhile, the Rhode Island Supreme Court ponders whether to open contemporary grand jury records in the "38 Studios" economic development scandal.  Both cases remind us that grand jury secrecy is not sacrosanct and must yield to paramount public interests.

GPB reported more in August about the brutal murders of Dorothy Dorsey Malcom, her brother, George Dorsey, and his wife, Mae Murray Dorsey, at the hands of a mob of 20 to 30 assailants at Moore's Ford Bridge, outside Monroe, Georgia, in 1946.  As many people were there, the crime remains "unsolved," as GPB's Grant Blankenship explained:

The crime made national headlines. Over the course of a grand jury investigation, the FBI interviewed over 2,000 people—almost half of the county in 1946. A hundred people testified before the grand jury, but not a single indictment was handed down.

Now historians seek to unseal the grand jury records to find out more about what happened that day in 1946 and why the investigation was unyielding.  The Department of Justice and Federal Bureau of Investigation are resisting.

Incidentally but importantly, the definitive book on the Moore's Ford case is Fire in a Canebrake: The Last Mass Lynching in America, by Laura Wexler.  I went to secondary school with Wexler, so #BrushWithGreatness.

I welcome public reminders that grand jury secrecy is not sacrosanct.  Grand jury secrecy is a reasoned and historically derived common law inversion of the usual presumption of transparency in our judiciary.  As such, it's an odd nod, for our typically ruthless paradigm of all-or-nothing privacy, to the importance of protecting the reputations of persons who might be connected with investigations, but turn out not to be fairly implicated as witnesses or suspects.

However, an inverted presumption is still a presumption, which means it can be overcome, or rebutted.  Equally historically, common law has allowed challengers in the public interest to overcome grand jury secrecy, for example, after Watergate.  Transparency is a means to accountability, and when a gross miscarriage of justice has occurred, as seems indisputable in the Moore's Ford case, the public interest in learning what went wrong in the investigation, and possibly delivering some belated justice, may be ruled paramount.

R.I. Gov. Raimondo
(Kenneth C. Zirkel
CC BY-SA 3.0)

Meanwhile, Rhode Island Governor Gina Raimondo is feuding with the state Attorney General's Office over access to the records of grand jury proceedings in 2014 and 2015 over the "38 Studios" economic development scandal.

As The Providence Journal recalled, "The state’s $75-million loan guarantee to retired Red Sox pitcher Curt Schilling’s high-risk video game venture ended up costing taxpayers a bundle when the company went belly up."  Criminal investigation was, again, unyielding.  "The statewide grand jury sat for 18 months, ending in 2015 with no criminal indictments. State lawmakers, former state Economic Development Corporation board members and staff, and 38 Studios executives were among the 146 witnesses the grand jury interviewed."

The ProJo summarized the pro and con of unsealing.  On the Governor's side, the state's attorney told the Rhode Island Supreme Court, 38 Studios marks "'a seminal event in recent Rhode Island history. It has cost taxpayers tens of millions of dollars. It has brought threats to the State’s credit rating.  It spawned a massive civil litigation resulting in $61 million of settlements. It caused the Securities and Exchange Commission to file a complaint against a state agency.... It prompted a criminal probe that reportedly touched the entire membership of the 2010 General Assembly (save one former member serving a federal prison sentence).'"

Kingdoms of Amalur: Reckoning was the only game published by 38 Studios

(and partners, including EA) before the enterprise went bankrupt.

The AG's office responded: "'[N]o one was indicted, the grand jury only recently concluded, the participants are still alive, and ... the [10-year] statute of limitations has not expired.... Unlimited disclosure ... may also adversely affect future grand jury participants who will be unable to rely upon the long-established policy that maintains the secrecy of the grand jury proceedings.'"

Ongoing payments to bondholders will cost R.I. taxpayers, me included, "$446,819 this year and an anticipated $12,288,413 next year," the ProJo reported.  I'm with Raimondo.  The Superior Court was not.

The Rhode Island Supreme Court heard oral arguments yesterday, November 7, In re 38 Studios Grand Jury, No. SU-2017-0301-A, but puts precious little online.  The ACLU of Rhode Island filed as amicus on the side of the Governor.

Gruesome bone-in-burger case: verdict remanded for reconsideration of 'reptile,' 'golden rule' arguments

Willis Lam CC BY-SA 2.0

Reversing and remanding an order for new trial in a personal injury-product liability case over a $5 Wendy's hamburger, the Massachusetts Appeals Court today issued an opinion on jury argument fit to serve as a teaching tool in trial practice.

Plaintiff's counsel made improper "golden rule" and "reptile" arguments in closing, the Appeals Court concluded.  But the trial court did not fully and fairly assess whether prejudice resulted before rejecting the jury verdict and ordering a new trial.

In 2011, the 34-year-old plaintiff suffered a gruesome dental injury while eating a $5.64 small plain hamburger from the Wendy's fast-food restaurant in Medford, Massachusetts.  Skip this block quote (footnotes omitted) if you don't feel strong in the stomach today.  But if you're into this sort of thing, there's more in the opinion.

On the third or fourth bite, she heard a loud crack and crunching, and felt a pain shoot up into her upper left gum. She spit out the half-eaten food and discovered that her mouth was bleeding and one of her upper left molars (tooth 14) was split in two. The injury was caused by a piece of bone in the hamburger.

The bone had split tooth 14 well below the gum line, and the dental nerve was sheared, bleeding, and exposed. The bone also caused minor damage to the opposing lower molar (tooth 19), which was easily repaired with a filling. But repairing tooth 14 was not a simple matter and required at least twenty-three trips to various dentists over the next two years.

In its 38-page opinion, the court gave a blow-by-blow of the entire trial, just two half-days, from opening to closing arguments with ample quotations.  That rendition in itself is a great teaching tool.

The salient problems arose for the plaintiff in the closing argument.  Long quotes are given in the opinion, but the trial judge summed it up.

[S]he concluded that plaintiff's counsel's closing argument (1) improperly created an "us versus them" dichotomy designed to distinguish "'us,' the average people" from "'them,' the big corporations"; (2) "improperly suggested that the jury decide the case as 'the voice of the community' to 'send a message' beyond the courtroom," and sought "to arouse in the jury a sense of duty to safeguard the community" from generalized safety concerns; (3) improperly invoked the "golden rule" by asking the jurors to place themselves in the plaintiff's shoes; (4) improperly interjected counsel's own personal opinions and beliefs; and (5) resorted to rhetorical principles "described in the book [D. Ball & D. Keenan,] Reptile: The 2009 Manual of the Plaintiff's Revolution" (book).

Oddly enough, I just this week read in the ABA Journal about how that Ball & Keenan book is vexing the defense bar.

The court recited the Massachusetts Guide of Evidence, section 1113(b)(3), listing prohibited closing arguments (and tracking multistate norms), and located plaintiff counsel's arguments within paragraphs (C) and (D):

(A) to misstate the evidence, to refer to facts not in evidence (including excluded matters), to use evidence for a purpose other than the limited purpose for which it was admitted, or to suggest inferences not fairly based on the evidence;

(B) to state a personal opinion about the credibility of a witness, the evidence, or the ultimate issue of guilt or liability;

(C) to appeal to the jurors' emotions, passions, prejudices, or sympathies;

(D) to ask the jurors to put themselves in the position of any person involved in the case;

(E) to misstate principles of law, to make any statement that shifts the burden of proof, or to ask the finder of fact to infer guilt based on the defendant's exercise of a constitutional right; and

(F) to ask the jury to disregard the court's instructions.

Nevertheless, the appeals court faulted the trial judge: "The judge acknowledged that she had given curative instructions but deemed them inadequate without explanation."  When the jury returned a verdict for $150,005.64, the lowest amount suggested by plaintiff's counsel, plus the cost of the hamburger, it came without evidence of prejudice.  The Appeals Court admonished "that a judge is not to 'act merely as a "13th juror" [to] set [the] verdict[s] aside simply because he would have reached a different result had he been the trier of facts'" (quoting precedent).

At minimum, the trial judge applied the wrong procedural standard, holding over the defense motion for mistrial from before the verdict to after, rather than requiring (or raising sua sponte) and analyzing a motion for new trial after the verdict.  Thus the Appeals Court vacated the new-trial order and remanded for proper consideration.

The case is Fitzpatrick v. Wendy's Old Fashioned Hamburgers of New York, Inc., No. 18-P-1125 (Mass. App. Ct. Nov. 7, 2019).  Wolohojian, Blake, & Shin, JJ., were on the unanimous panel, the Hon. Gabrielle R. Wolohojian writing.  The trial judge was the Hon. Heidi E. Brieger, who teaches adjunct at her alma mater, Boston University Law School.  Matthew J. Fogelman appeared for the plaintiff.  In the 1990s, he was editor-in-chief of the student newspaper Argus at Wesleyan University.  Christopher A. Duggan and Pauline A. Jauquet represented defendants Wendy's and beef producer JBS Souderton, Inc.