## Facts

- The City of Cleveland owned a dilapidated, largely obsolete waterfront dock built in 1908.
- The City leased a portion of the dock to Peter Kiewit Sons’ Co., an out-of-state construction company, for short-term loading and unloading tied to a large government contract.
- After Kiewit finished its work and vacated the site, a substantial portion of the dock collapsed; most of the collapse occurred outside the leased area.
- The City sued, alleging Kiewit’s activities caused or accelerated the collapse; Kiewit blamed age, deterioration, and inadequate maintenance.
- During trial, the City’s counsel repeatedly attempted to inject references to Kiewit’s wealth, corporate size, insurance, and out-of-state status.
- The trial court sustained objections, excluded such matters, reprimanded counsel, and instructed the jury to disregard those themes, but the references persisted.
- The jury awarded the City $350,000; the trial court found the award excessive and ordered a 50% remittitur.
- When the City refused remittitur, the trial court ordered a new trial limited to damages, leaving the liability finding intact.
- Kiewit sought interlocutory review, arguing the misconduct required a new trial on all issues.

## Issues

1. Whether repeated, deliberate references to a party’s wealth, insurance, and corporate status—despite sustained objections and court admonitions—created a reasonable probability of prejudice requiring a new trial.
2. Whether, given an excessive verdict and closely contested causation, limiting the new trial to damages was improper because the liability determination may also have been affected.

## Decision

- The Sixth Circuit reversed the order limiting the new trial to damages.
- The court remanded for a new trial on all issues, including liability and damages.
- The court concluded the misconduct was persistent and likely intended to influence the jury to decide the case based on ability to pay rather than fault.
- Curative instructions and reprimands were held insufficient to eliminate the probable prejudice under the circumstances.
- The excessive verdict, combined with the closeness of the liability question, supported the inference that prejudice may have infected both liability and damages.

## Legal Principles

- A verdict should be set aside when counsel injects extraneous and improper matters before the jury and there is a reasonable probability the verdict was influenced.
- Repeated references to a litigant’s wealth, insurance coverage, or “deep pockets” may require a new trial even when the trial court sustains objections and gives limiting instructions, if the improper theme pervades the trial.
- A damages-only retrial is permissible only when liability has been reliably determined and liability and damages are distinct and separable.
- Where prejudicial error plausibly affects the jury’s view of fault as well as the amount of recovery—especially in a close case and with an excessive award—a new trial should include both liability and damages.

## Conclusion

Because the City’s counsel persistently pursued prejudicial themes about Kiewit’s resources and insurance and the resulting excessive award suggested passion or prejudice in a closely contested causation dispute, the Sixth Circuit required a new trial on both liability and damages rather than a damages-only retrial.


City of Cleveland v. Peter Kiewit Sons' Co., 624 F.2d 749 (6th Cir. 1980)