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Walter v. Wal-Mart Stores, Inc.

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 63
Docket: 	Kno-99-364
Argued:	January 5, 2000
Decided:	April 12, 2000

Concurring:WATHEN, C.J., and RUDMAN, and DANA, JJ.



	[¶1]  Wal-Mart Stores, Inc. appeals from a judgment entered in the
Superior Court (Knox County, Marsano, J.) following a jury trial awarding
damages to Antoinette Walter in the amount of $550,000 for her claim of
pharmacist malpractice.  Wal-Mart contends that the Superior Court erred
in (1) granting Walter's motion for judgment as a matter of law on liability;
(2) denying Wal-Mart's motion for judgment as a matter of law; and
(3) denying Wal-Mart's motion for mistrial following comments by Walter's
attorney during closing argument.  Wal-Mart also appeals on the ground that
the jury verdict was excessive and the result of bias and prejudice.  We
affirm the judgment.
	[¶2]  Walter, an eighty-year-old resident of Rockland, was diagnosed
with a type of cancer which attacks the lymphatic system.  Dr. Stephen
Ross, Walter's treating physician and a board-certified oncologist, termed
her condition treatable with the proper medication.  Dr. Ross prescribed
Chlorambucil, a chemotherapy drug, for Walter.  On the prescription slip, he
explicitly called for Chlorambucil, the generic name, because he feared that
the drug's brand name, Leukeran, could be confused with other drugs with
similar trade names.  
	[¶3]  Walter took the prescription for Chlorambucil to the pharmacy in
the Wal-Mart store in Rockland on May 7, 1997.  Henry Lovin, a Maine
licensed pharmacist and an employee of Wal-Mart, was on duty at the
pharmacy. Instead of giving Walter Chlorambucil, as called for in the
prescription, Lovin gave her a different drug with the brand name of
Melphalen.  The generic name for Melphalen is Alkeran.  Lovin did not
speak with Walter at the time he filled the prescription, but he provided her
with an information sheet which described the effects of Melphalen. 
Melphalen is also a chemotherapy drug, but it is a substantially more
powerful medication than Chlorambucil.  Melphalen is typically given in
smaller doses over shorter periods of time than is Chlorambucil, and doctors
monitor it more closely.  Melphalen has a very toxic effect on the body, and
it substantially suppresses bone marrow.  It has a longer life in the body than
Chlorambucil, which means that any side effects from it last longer.
	[¶4]  To the extent that Walter noticed that the information sheet and
bottle label read Melphalen, it did not make an impression on her.  She
assumed that the drug she had been given was the same as Dr. Ross had
prescribed, and she began taking the prescribed dosage.  Within seven to
ten days of starting the drug treatment, Walter began to suffer from nausea
and lack of appetite.  When she referred to the information sheet, Walter
saw that such side effects are common for chemotherapy drugs.  She
continued to take the Melphalen.  During the third week after starting the
medication Walter noticed bruises on her arms and legs, and during the
fourth week she developed a skin rash on her arms and legs.  Although the
information sheet warned that bruises and rashes should prompt a call to
the doctor, Walter waited a few days before attempting to contact Dr. Ross. 
	[¶5]  Dr. Ross testified at trial that his notes indicated that Walter
should have had blood tests two weeks after starting medication and that
she was to have scheduled an appointment with him within four weeks of
beginning the medication.  He also testified that because Chlorambucil is
slow-acting, he does not insist that his patients have blood tests done in
fourteen days but only that they have blood work periodically.  Walter
testified that she understood she was to have a follow-up appointment with
Dr. Ross in four weeks and blood tests sometime before that appointment.
	[¶6]  On the twenty-third day after starting the medication, Walter had
blood tests done.  She attempted to reach Dr. Ross by phone to tell him
about the side effects, but she was unsuccessful until June 3, 1997.  On that
day Dr. Ross told her that her blood levels were low and to stop taking the
medication immediately.  He scheduled an appointment for June 5.  Walter,
however, was rushed to the hospital later in the day on June 3 when she
suffered gastrointestinal bleeding.  Following her emergency admission,
Walter remained in the hospital five weeks and received numerous blood
transfusions.  She suffered several infections, and a catheter was placed in
her chest.  The bruising and skin rash continued.  For a period of time she
was unable to eat because of bleeding gums and an infection in her mouth. 
Because of her weakened immune system, Walter's visitors could not come
within ten feet of her.
	[¶7]  Prior to receiving the Melphalen, Walter lived independently and
was active.  Following her hospital discharge on July 7, 1997, she was
physically weak.  She initially had to make daily trips to the hospital and
later went less frequently.  She had to have additional transfusions after she
left the hospital.  Melphalen did have the effect of causing her cancer to go
into remission.  Walter's total medical bills for her treatment came to
	[¶8]  The two-day jury trial was held in February 1999.  Wal-Mart
moved for judgment as a matter of law at the close of Walter's case on the
grounds that she had failed to present expert testimony on the standard of
care by pharmacists, and the motion was denied.  At the close of the
evidence Walter moved for a judgment as a matter of law, and the court
granted Walter's motion concluding that she was entitled to judgment on
liability.  During Walter's closing argument, Wal-Mart moved for a mistrial
arguing that certain comments by Walter's counsel were improper, and the
motion was denied.  The jury awarded Walter $550,000 in damages. 
Wal-Mart's post-trial motion for judgment as a matter of law or a new trial
was denied. 
	[¶9]  The court granted Walter's motion for judgment on the issue of
liability.  "In reviewing a trial court's disposition of a motion for judgment as
a matter of law, we view the evidence together with all justifiable inferences
in the light most favorable to the party opposing the motion."  Lewis v.
Knowlton, 1997 ME 12, ¶ 6, 688 A.2d 912, 913.  If a reasonable view of the
evidence would sustain a verdict for the nonmoving party, the motion must
be denied.  See id.  
	[¶10]  The effect of the court's grant of Walter's motion was a
determination, as a matter of law, that Wal-Mart had a duty to Walter which
it breached; that breach caused Walter harm; and Walter was not
negligent-or if she was negligent, her negligence did not proximately cause
her harm.  The only issue left for the jury was the amount of damages caused
by Wal-Mart's negligence and whether those damages should be reduced
because of any action or inaction by Walter to take reasonable steps to
reduce the extent of her injuries.

A.	Wal-Mart's Representations to the Jury

	[¶11]  Wal-Mart argues that the court erred in granting Walter's
motion for judgment as a matter of law because it should have submitted the
issues of negligence, proximate cause, and comparative negligence to the
jury.  Walter contends that Wal-Mart judicially admitted liability in its
opening statement to the jury.  The clear import of Wal-Mart's opening
statement was that liability was not an issue, and the only question that the
jury would have to decide was the amount of damages.{1}
	[¶12]  Statements made by counsel during an opening statement or
closing argument can result in a judicial admission.  See Kohne v. Yost, 818
P.2d 360, 362 (Mont. 1991).  In order to be considered a judicial admission
the statements must be deliberate, clear, and unambiguous.  See MacDonald
v. General Motors Corp., 110 F.3d 337, 340 (6th Cir. 1997).  When made in
an opening statement, the alleged judicial admission must be considered in
the context of the entire statement.  See Lowe v. Kang, 521 N.E.2d 1245,
1247 (Ill. App. Ct. 1988).  The statement must be unequivocal and pertain to
a factual matter.  See Larson v. A.T.S.I., 859 P.2d 273, 276 (Colo. App. 1993).  
	[¶13]  Wal-Mart's opening statement admitted the error made by its
pharmacist in filling the prescription but because negligence consists of
both law (whether a duty exists and what that duty is) and facts (whether the
duty was breached), there was no judicial admission of negligence. 
Furthermore, the statement taken in its entire context, does not contain an
unequivocal admission that the mistake in filling the prescription caused
Walter's harm.  While Wal-Mart appears to concede that there was no fault
on the part of Walter, the mention of the delay in obtaining the blood test
renders the concession ambiguous.  For these reasons, we cannot conclude
that there was a judicial admission that Wal-Mart was liable for Walter's

B.	Wal-Mart's Negligence

	[¶14]  Walter had the burden to prove that Wal-Mart, through its
pharmacist employee, owed a duty to Walter that it breached, thereby
causing her harm.  In Tremblay v. Kimball, 107 Me. 53, 77 A. 405 (1910),
we held that pharmacists owe their customers a duty of ordinary care, but
that "ordinary care" for a pharmacist means that "the highest practicable
degree of prudence, thoughtfulness, and vigilance and the most exact and
reliable safeguards" must be taken.  Id. at 58, 77 A. at 408.
	[¶15]  Lovin, the Wal-Mart pharmacist, readily admitted that he made
an error in filling Walter's prescription.  He testified that he thought that
the brand name for Chlorambucil was Alkeran, and he filled the prescription
with Alkeran, which is Melphalen.  Lovin said that he made a "serious error"
that did not "satisfy the proper standard of care for a pharmacist."  He
admitted that he would have discovered the error if he had followed the
standard four-step process utilized to check for errors.  He acknowledged
that to comply with the standard of pharmacy care he should have checked
the stock bottle against the prescription.  He further admitted that the
standard of practice required that he counsel Walter when she picked up
the prescription, at which time he would have showed her the drug and
discussed it with her.  He testified that he did not counsel her, but if he had
done so, he would have discovered the error.  He also said that Walter would
have no reason to suspect that she was given the wrong drug.  
	[¶16]  Pursuant to the standard of "the highest practicable degree of
prudence, thoughtfulness, and vigilance and the most exact and reliable
safeguards" as set forth in Tremblay v. Kimball, Lovin's testimony established
that the standard was breached.  Even if we were to determine that the
standard of practice for pharmacists is the skill and diligence exercised by
similar professionals,{2} Lovin's testimony established that standard and the
breach of it.  None of this evidence was disputed.  A jury, acting reasonably,
could not have found that Wal-Mart was not negligent.

C.	Causation

	[¶17]  In order to establish liability a plaintiff in any negligence action
must show that the defendant's negligence was the proximate cause of the
plaintiff's harm.  Wal-Mart argues that Walter's motion should have been
denied because she failed to prove that Wal-Mart's negligence in filling the
prescription was the cause of her injury.  Causation means "that there be
some reasonable connection between the act or omission of the defendant
and the damage which the plaintiff has suffered."  Wheeler v. White, 1998
ME 137, ¶ 7, 714 A.2d 125.  The defendant's conduct must be a
"substantial factor" in bringing about the plaintiff's harm in order for there
to be proximate cause.  Id.  Wal-Mart specifically requested a jury instruction
on proximate cause.
	[¶18]  There was uncontroverted medical evidence that Melphalen,
which Wal-Mart provided Walter erroneously, caused damage to her body. 
Although she had lymphoma, the disease did not limit her functioning. 
Witnesses described her as a very active person until her hospitalization
occurred.  Dr. Ross testified that the Melphalen made Walter seriously ill, to
the point that he was not sure she would survive, and that her lack of energy
after her release from the hospital was the result of the illness caused by the
wrong medication.  Wal-Mart's expert oncologist also testified that the side
effects of Melphalen caused the lengthy hospitalization, and the
hospitalization itself likely caused Walter's malaise and depression after her
	[¶19]  Wal-Mart argues that the jury should have been instructed on
proximate cause because its expert speculated that if a blood test had been
done fourteen days after starting the medication it might have shown
lowered blood levels and, depending on how low those levels were, Walter's
physician might have stopped the medication, and if the medication had
been stopped sooner, the harmful effect may have been less.  Wal-Mart's
expert did not testify that there would have been no damage if a blood test
had been done on the fourteenth day.  In fact, in his description of
Melphalen, he noted it has a long life in the body and that its side effects
last longer.{3}  No jury acting rationally could determine that Walter's failure
to have a blood test in fourteen days broke the chain of causation between
the pharmacist's negligence and Walter's injuries.  No reasonable factfinder
could have found that Wal-Mart's negligent act in misfilling the prescription
was not a substantial cause in bringing about Walter's suffering.  "[W]hen the
totality of the evidence adduced in any particular case is so overwhelming
that it leaves open to a fact-finder, acting rationally, only one conclusion on
the issue, the issue is then determined as a matter of law."  Laferriere v.
Paradis, 293 A.2d 526, 528 (Me. 1972).  The trial court did not err in
granting judgment as a matter of law to Walter on the issue of causation.{4}

D.	Comparative Negligence and Mitigation of Damages

	[¶20]  Wal-Mart argues that Walter's motion for judgment on liability
should have been denied because Wal-Mart raised the defense of
comparative negligence and it was entitled to have the jury decide whether
Walter was negligent.  Wal-Mart claims that Walter should have realized that
the drug name on the medicine container did not match the medication
that she had discussed with Dr. Ross.  Wal-Mart also argues that Walter was
negligent when she did not contact Dr. Ross immediately upon noticing the
rash and bruising.   
	[¶21]  Under Maine's comparative negligence statute, the damages
owing to a plaintiff may be reduced when the plaintiff's harm is partly the
result of the plaintiff's own fault, and fault is defined as the negligence that
would give rise to the defense of contributory negligence.  See 14 M.R.S.A.
§ 156 (1980).  If the plaintiff's fault is equal to or greater than that of the
defendant, the plaintiff cannot recover damages.  See id.
	1.	Walter's Failure to Discover Wal-Mart's Error

	[¶22]  Turning first to Wal-Mart's contention that Walter was
contributorily negligent in failing to discover that she had been given the
wrong medication, we conclude that a jury, acting rationally, on this
evidence could not find that she was negligent.  Lovin testified that Walter
"would have no way of knowing" that she had been given the wrong
medication, and there was no evidence that Walter should have been
expected to discover Wal-Mart's negligence.{5}  Thus, it was not error to
refuse to instruct the jury on comparative negligence concerning Walter's
failure to discover Wal-Mart's error.
	2.	Walter's Failure to Notify her Doctor Immediately of Side Effects
	[¶23]  Wal-Mart claims that Walter's delay in calling her doctor to
report the skin rash and bruising was negligence on her part that
contributed to her suffering.  Walter contends that any inaction on her part
goes to mitigation of damages and not comparative negligence.
	[¶24]  Traditionally, one of the distinctions between contributory
negligence and the doctrine of mitigation of damages, or avoidable
consequences, has been a temporal one.  Contributory negligence is
generally unreasonable behavior by a plaintiff before or concurrent with the
injury imposed by the defendant, whereas the avoidable consequences
doctrine is applied to plaintiff's action or inaction after the defendant's
negligent act.  See  W. Page Keeton et al., Prosser and Keeton on the Law of
Torts § 65, at 458 (5th ed. 1984).  For example, we have said that
contributory negligence is negligence by a plaintiff that unites with the
negligence of the defendant to make the damage the direct result of both
the defendant's negligence and the plaintiff's contributory negligence.  See
Wells v. Sears, 136 Me. 160, 164, 4 A.2d 680, 682 (1939).  We have also
stated that contributory negligence has to antedate or be concurrent with
the defendant's negligence.  See Crosby v. Plummer, 111 Me. 355, 357, 89
A. 145, 146 (1913).  When the plaintiff commits negligence after the
defendant's negligence or fails to take steps to avoid the consequences of
defendant's negligence, the amount of damages may be affected, but not the
plaintiff's right of recovery.  See Isenman v. Burnell, 125 Me. 576, 61, 130
A. 868, 870 (1925). 
	[¶25]  A classic application of the avoidable consequences doctrine is
made when the plaintiff fails to seek medical treatment after being injured
by the defendant.  See Michaud v. Steckino, 390 A.2d 524, 531 (Me. 1978);
Jack H. Simmons et al., Maine Tort Law § 19.01, at 667 (1999).  In medical
malpractice actions in Maine, however, we have held that if a plaintiff's
failure to follow the reasonable instructions of the defendant doctor directly
contributes to the plaintiff's damages, the plaintiff's contributory negligence
will bar recovery.  See Merrill v. Odiorne, 113 Me. 424, 425, 94 A. 753,
753-54 (1915); see also Harvey v. Mid-Coast Hosp., 36 F. Supp. 2d 32, 37 (D.
Me. 1999) (discussing Maine medical malpractice cases).  This seems to be
contrary to the majority rule.  See Durphy v. Kaiser Found. Health Plan of
Mid-Atlantic States, Inc., 698 A.2d 459, 467 (D.C. 1997) ("The majority of
courts appear to hold that contributory negligence for a patient's non-
compliance with medical treatment decisions will bar recovery completely
only if the patient's negligent acts are contemporaneous with the physician's
negligent acts.").{6}  Under the comparative negligence statute, we approved,
without discussion, a jury instruction on comparative negligence when the
plaintiff failed to keep a follow-up appointment with the defendant doctor. 
See Hauser v. Bhatnager, 537 A.2d 599, 601 (Me. 1988).   
	[¶26]  Although it is tempting to fully examine the rationale for
applying comparative negligence as opposed to the doctrines of mitigation
or avoidable consequences, we need not do so in this case.  That is because,
for this case, the end result is the same.  Courts and commentators have
discussed the similarity between applying contributory or comparative
negligence and applying the doctrine of avoidable consequences. See
Ostrowski v. Azzara, 545 A.2d 148, 153-54 (N.J. 1988) (warning against
allowing the various aspects of tort doctrine to do double duty); Keeton,
supra at 459.  Both allow a jury to reduce the plaintiff's damages or return a
verdict for the defendant if the jury finds that the plaintiff was negligent or
failed to mitigate or avoid consequences.  
	[¶27]  One principle that ought to be plain is that a defendant is not
entitled to a double reduction of damages; that is, the same action or
inaction of the plaintiff that justifies a comparative negligence instruction
should not also authorize a reduction of damages under the doctrine of
mitigation or avoidable consequences.  The fact that Walter did not call her
doctor as soon as she discovered the bruising and skin rash ought not to
lower damages by apportioning fault under the comparative damages statute
and be used again by a factfinder to reduce damages because Walter failed to
avoid the consequences of Wal-Mart's negligence.  The jury should not be
instructed on both comparative negligence and mitigation of damages for
the same act of the plaintiff.  The major difference between the two
instructions is that the jury is told in the comparative negligence instruction
that if the plaintiff's fault is equal to or greater than the defendant's fault,
the plaintiff recovers nothing.{7}  It is possible that with a mitigation
instruction a jury could return a verdict for the defendant by finding that
failure to avoid the consequences was so substantial that the damages should
be reduced to nothing.  See Restatement (Second) of Torts, § 918, cmt. b
(1979) (noting that "a person who fails to avert the consequences of a tort,
which he could do with slight effort is entitled to no damages").  The jury,
however, should not be so instructed unless the facts warrant.  In this case
there were not sufficient facts from which a jury could find that Walter's
inaction was so substantial as to allow a verdict for the defendant.
	[¶28]  The jury was instructed on mitigation and told that every
person who is injured has a duty to exercise reasonable care to reduce the
extent of the injuries and to take reasonable and prudent steps to effect a
cure or reduce the severity of the injury.  Although the words "fault" or
"negligence" are not used in the mitigation instruction, the practical effect
is the same as though the words were used because of the reasonableness
standard that the jury is told to apply.  "The factors determining whether an
injured person has used care to avert the consequences of a tort are in
general the same as those that determine whether a person has been guilty
of negligent conduct. . . ."  Restatement (Second) of Torts, § 918, cmt. c
	[¶29]  With regard to the bruising and skin rash, the evidence is that
the bruising appeared only a few days before Walter attempted to reach Dr.
Ross.  There is no evidence that if the bruising and skin rash been reported
to Dr. Ross earlier, treatment could have been given immediately that would
have reversed the effects of the wrong medicine.  At best, the jury could
infer that Dr. Ross would have stopped the medication a few days earlier and
perhaps the effects of the wrong medication may have been lessened.  A
jury, acting rationally, could not have concluded that the negligence of
Walter was equal to or greater than Wal-Mart's negligence.  Because the jury
was fully instructed on mitigation of damages and because the only rational
effect of a comparative negligence instruction would have duplicated a
mitigation instruction, there was no harm or prejudice to Wal-Mart by the
court's refusal to give a comparative negligence instruction and directing a
verdict for Walter on liability.

	3.	Walter's Delay in Having her Blood Tested

	[¶30]  Although Wal-Mart has not argued that Walter's delay in
obtaining the blood test was negligence, the same reasoning applies to the
blood test as to the failure to report immediately the bruising and skin rash. 
Wal-Mart's expert testified that Walter could not be blamed for waiting
twenty-three days for the blood test because she did not know the
significance of a blood test.  He testified that only if a patient is given a
specific appointment for the blood test, which Walter was not, and then
failed to keep that appointment could she be faulted.  Dr. Ross did not tell
Walter the importance of the blood test.  Walter should not and could not be
expected to know the medical significance of the blood test.  Thus, not only
was there no evidence from which the jury could find that Walter was
negligent in this regard, no jury, acting rationally, could conclude that a
delay in obtaining the blood test was negligence equal to or greater than
Wal-Mart's negligence.  That being so, the only possibility left to a jury was a
reduction in damages, and the mitigation instruction fully gave the jury the
ability to reduce damages.  
	[¶31]  Wal-Mart moved for judgment as a matter of law on the ground
that Walter failed to present any expert evidence on the pharmacist's
standard of care.  It points out that Lovin was not designated as an expert. 
In this case the testimony of an expert was not necessary.  We have said that
where professional negligence and its harmful results "are sufficiently
obvious as to lie within common knowledge" no expert testimony is
necessary.  Jim Mitchell and Jed Davis, P.A. v. Jackson, 627 A.2d 1014,
1017 (Me. 1993) (quoting Cyr v. Giesen, 150 Me. 248, 252, 108 A.2d 316,
318 (1954)).  The negligence of the pharmacist and the harmful results
were sufficiently obvious to be within the common knowledge of a lay
person.  It does not take an expert to know that filling a prescription with
the wrong drug and failing to take the steps in place in that pharmacy to
check for the wrong drug is negligence. 
	[¶32]  Wal-Mart moved for a mistrial because of three comments made
by Walter's counsel during closing argument.  First, Walter's attorney stated
that the pharmacist attempted to accept responsibility but his employer,
Wal-Mart, refused to accept responsibility for Walter's injury.  Wal-Mart
objected, and the objection was sustained.  The court admonished counsel
that the only issue was damages and told the jury that they were not to be
swayed by any bias or predisposition towards one party or the other. 
Second, Walter's counsel said that Walter was sent home "not with the
smilely face as we hear about at Wal-Mart . . . but with a bottle of poison . . . a
bottle of medication that was not meant for her."  Wal-Mart objected and
moved for a mistrial.  The motion was denied, and the judge told the jurors
that the issue was damages.  Third, while referring to the amount of
damages the jury could award, during rebuttal, Walter's counsel told the jury 
it should consider how much money professional basketball players are paid. 
Wal-Mart objected and the objection was sustained.  Wal-Mart argues that
the effect of the three comments was to prejudice the jury against Wal-Mart
so that it would punish Wal-Mart by the amount of damages.
	[¶33]  We review a refusal to grant a motion for a mistrial for abuse of
discretion.  See Sheltra v. Rochefort, 667 A.2d 868, 871 (Me. 1995).  The
judge sustained the objections to the comments, told the jurors to ignore
the comments, and gave curative instructions.  The trial judge did not abuse
his discretion in refusing to grant a mistrial because of Walter's comments
during closing argument.    
	[¶34]  After the verdict Wal-Mart moved for a new trial arguing that
the verdict must be vacated because the damages amounted to an award of
punitive damages.  Wal-Mart further contends that the damages were
excessive and the size of the verdict demonstrates that the judge and jury
were biased against Wal-Mart.    
	[¶35]  "When a court refuses to grant a new trial on the ground of an
excessive damage award, the ruling will not be reversed except for clear and
manifest abuse of discretion."  Gilmore v. Central Maine Power Co., 665 A.2d
666, 670 (Me. 1995).  Evidence must be construed in the light most
favorable to the jury verdict, and a damage award will not be overturned
unless it "is without rational explanation."  Cope v. Sevigny, 289 A.2d 682,
684 (Me. 1972); see Michaud, 390 A.2d at 536.
	[¶36]  Walter's total medical bills and expenses equalled $71,042.63. 
The jury awarded Walter $550,000 in damages.  Presumably, the additional
$479,000 of Walter's recovery is in compensation for her pain and suffering.   
The jury heard several witnesses, including Walter herself, testify about the
painful treatment she received in the hospital, the long recovery process,
and the continuing difficulties she faces.  In light of this evidence, which
must be considered favorably to Walter, the jury's award of damages is
rational.  "Although the verdict may seem large, it reflects the considered
opinion of the jury within the range of evidence of sufficient probative
character . . . ."  Michaud, 390 A.2d at 537 (quoting Fotter v. Butler, 145 Me.
266, 273, 75 A.2d 160, 164 (1950)).
	[¶37]  Punitive damages were never an issue in this case.  They were
not requested by Walter.  They were not mentioned during the arguments of
counsel, and no instructions were given from which the jury could have
awarded any damages other than compensatory damages.  The court did not
abuse its discretion in refusing to grant a new trial because of the amount of
	[¶38]  Wal-Mart, argues that certain conduct of the trial judge
contributed to an excessive verdict, and for that reason, the verdict cannot
stand.  The complained of conduct of the trial judge consists of two
incidents:  (1) during the trial, but at a time when the jury was not present,
the judge exited the courtroom after ruling on certain jury instructions and
left counsel with the court reporter so that counsel could make further
arguments on an instruction for the record; and (2) after the verdict was
returned, the judge made an unseemly comment to the jurors.  Because the
first conduct complained of by Wal-Mart took place outside of the presence
of the jury, it could not have contributed to the amount of the verdict.  While
we do not condone this conduct by the judge,{8} it did not demonstrate bias
toward one party or the other.  Both parties were put in the same position of
making their arguments for the record outside of the presence of the judge.
	[¶39]  The second action by the judge occurred after the verdict was
returned.  The judge, in thanking the jury members for their service, said
that the jury had sent "a message about the duty and care of a pharmacist." 
The judge went on to say that it was a step "we took together."  While it is
appropriate for a judge to thank jurors for their service, the judge must take
pains to remain neutral.  Judges "shall perform judicial duties without bias
or prejudice" and "shall not commend or criticize jurors for their verdict"
except in an opinion or court order.  Maine Code of Jud. Conduct Canons
3(B)(5) and (10) (1999).  Telling the jury that it had sent a message and
suggesting that both the judge and the jury had worked together in doing so
allows for a perception that the judge lacked neutrality.  This particular
comment had no effect on the verdict because it was made after the verdict
was returned.  Although it is possible that such a comment could have the
effect of illuminating other judicial comments or verifying bias on the part of
a judge, such was not the case here.  We do not find any other comment or
ruling by the judge in this proceeding to convey judicial bias or prejudice. 
This statement by the judge did not "demonstrate a deep-seated favoritism
or antagonism that would make fair judgment impossible."  In re William S.,
2000 ME 34, ¶ 9, 745 A.2d 991, 995.  We conclude that the judge's
statement to the jury, while improper, is not enough in and of itself to
support Wal-Mart's contention that the judge was, in fact, prejudiced or
biased against Wal-Mart in this case.  
	The entry is:
Judgment affirmed.

WATHEN, C.J., with whom RUDMAN and DANA, JJ., join, concurring. [¶40] I concur in the result, but I reach that result on different grounds. It is problematic whether a judgment as a matter of law in favor of a plaintiff in a negligence action can ever be upheld in the absence of a testimonial confession by the defendant or an admission by counsel. See Lewis v. Knowlton, 1997 ME 12, 688 A.2d 912. In my judgment, defense counsel in this case admitted liability in his opening statement when he told the jury that Wal-Mart had never denied liability and that the only issue concerned the amount of fair and just compensation. Having made that statement, he then sought to try the issue of liability behind the jurors' backs. To countenance such a strategy would be to ignore the requirement of the Maine Bar Rules that trial counsel employ "such means only as are consistent with truth, and shall not seek to mislead the . . . jury . . . by any artifice or false statement of fact or law." M. Bar R. 3.7(e)(1)(i). I would affirm the judgment on the basis that defense counsel admitted liability.
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