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McLaughlin v. Fisher Engineering10/27/2003
he trial court's discretion "to sustain an objection, to offer a curative instruction, or to grant a mistrial." Id. at 408. In LeBlanc v. American Honda Motor Co., 141 N.H. 579, 581-82 (1997), the plaintiff's trial counsel made remarks that were intended to appeal to the racial prejudices of the jury. After the remarks were made, the trial court did not give an immediate curative instruction. Id. at 582, 584. In granting a new trial, we held that: "To justify a mistrial, remarks or the conduct must be more than merely inadmissible; they must constitute an irreparable injustice that cannot be cured by jury instructions." Id. at 581 (quotation omitted).
Here, several witnesses, including the experts called by both parties, testified that the Subaru turned left and crossed directly in front of the pick-up truck. Therefore, the fact that Elliott made a sharp left turn in front of the pick-up truck was obvious to the jury. In contrast to LeBlanc, where the plaintiff's counsel made inflammatory remarks intended to encourage the jury to make a decision based on racial bias, id. at 581-82, in this case, Fisher's counsel recited facts that were introduced through witness testimony. Although we are troubled by counsel's repeated failure to comply with the pre-trial ruling, the remarks made by counsel did not rise to the level of irreparable injustice that could not be cured by jury instructions. Furthermore, the trial court gave three cautionary instructions to the jury. Because we presume that the jury followed the trial court's instructions, see Glodgett, 148 N.H. at 580, we do not believe that there was an irreparable injustice that was not cured by the trial court's cautionary instructions.
Affirmed.
BROCK, C.J., and BRODERICK, NADEAU and DALIANIS, JJ., concurred.
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