Christopher A. Duggan Revisits Landmark Case for Massachusetts Lawyers Weekly

A Superior Court judge ordered a rare mistrial in a civil case after defense counsel twice raised criminal matters concerning the corporate plaintiff’s owner during the questioning of witnesses.

Judge Adam Hornstone declared the mistrial in Tufts Construction Inc. v. City of Malden on Aug. 6. Tufts Construction is seeking damages in excess of $10 million on claims stemming from the city’s alleged failure to pay for work performed by the plaintiff.

Smith Duggan Cornell & Gollub founding partner Christopher A. Duggan was interviewed by Massachusetts Lawyers Weekly about the case. He secured a defense victory in what the publication called the “2021 landmark Supreme Judicial Court decision” in Fitzpatrick v. Wendy’s Old-Fashioned Hamburgers of New York. 

That decision held that trial judges must rule on motions for mistrial “when made,” and that the standard for granting a new trial governs should the judge wait to decide whether to retry a case until after the jury returns its verdict.

Christopher Duggan said that, in his experience, mistrials in civil cases are “extremely” rare. “One reason is that the standard that you have to meet is really high,” he said. “[You need to show] something happened that is so egregious as to impact the substantial rights of the parties and the likelihood of a just verdict.”

He added that the result was not surprising given that the issue of whether Tufts’ prior criminal convictions would come into evidence had been raised twice before trial.

“I suspect the court was pretty frustrated when the issue came up,” he stated. “Anytime such a sensitive issue is going to be raised on either direct or cross-examination, counsel needs to think long and hard about how to do that and whether it would be a good idea to request a sidebar and give the judge a head’s up.”

He concluded by noting that there are also practical considerations weighing on a court when deciding to grant a mistrial in a civil case. “It takes a lot to take get a case to trial,” he said. “It’s a big investment of time on the part of the lawyers, parties, court and jurors. All of that is wasted if you have a mistrial.”

Read his comments in the Massachusetts Lawyers Weekly article. It is available here.