Owens Illinois vs. Harry Cook Mesothelioma Case: Was the jury influenced by mention of award cap?

Read the Maryland Appeals Court opinion in Owens Illinois vs. Cook, where the issues surrounding whether an attorney’s mention of an award cap merits a mistrial is further discussed. In this mesothelioma case, the parties argue regarding the amount of damages awarded to the surviving spouse, who did not marry the decedent until after his last known exposure to asbestos.

Immediately after the mention of the word “cap,” counsel for Owens-Illinois, Ms. Tostanoski, objected. Counsel then approached the bench and the following exchange occurred:

THE COURT: You can’t mention that.

MR. FLERLAGE [PLAINTIFFS’ COUNSEL]: I know.

MS. TOSTANOSKI: Your Honor, I move for mistrial. I am serious.

MR. FLERLAGE: I think that can be cured with an instruction, if you think it is necessary at all, because they don’t know what a cap is.

MS. TOSTANOSKI: Of course, they know what a cap is. Of course, they know. There are salary caps on sports teams, and there is no way they don’t know what a cap is, Judge. What they don’t know is that they have no idea why they are making this decision. Mr. Flerlage is telling them they are making a finding of fact for Your Honor to make a decision, and now he had told them about a cap. It is prejudicial. There is no way that can be corrected.

MS. TOSTANOSKI: The statute is clear that a jury can never be told about that.
THE COURT: Well, it wasn’t told about it.
MS. TOSTANOSKI: Of course, they were.
MR. FLERLAGE: I don’t think it does any good at this point to highlight whatever the jury does perceive from that.
THE COURT: Such an experienced lawyer. I am not going to rule on it. I am going to hold [sub curia] the motion for mistrial.

The next morning, after deliberations had begun, the jury sent the trial judge a note that read: “Is [sic] are there any caps as to the amounts given by law?” The court answered: “That is no concern. You do not even consider, deliberate, or talk about whether there is or is not a cap. Okay?”

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