                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0760n.06

                                           No. 08–1591

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                   FILED
                                                                                     Dec 15, 2010
CHARLES J. FARLEY ,                                                            LEONARD GREEN, Clerk
     Plaintiff-Appellee,

                                                     On Appeal from the United
               v.                                    States District Court for the
                                                     Eastern District of Michigan
COUNTRY COACH INCORPORATED ,
     Defendant-Appellant.

_________________________________________

Before: KENNEDY, COLE, and ROGERS, Circuit Judges.

       CORNELIA G. KENNEDY, Circuit Judge. In this diversity action, Defendant-Appellant

Country Coach, Inc. appeals a $191,784 jury verdict for Plaintiff-Appellee Charles Farley on a claim

for breach of the implied warranty of merchantability on Farley’s 2004 Country Coach Magna motor

home. In particular, Country Coach alleges that the district court erred by reversing its grant of

summary judgment on Farley’s implied-warranty claim, denying Country Coach’s motions for

judgment as a matter of law and for remittitur based on insufficient proof of damages, and denying

Country Coach’s motion for a new trial due to Farley’s attorney’s allegedly improper conduct during

trial. Because we find each of Country Coach’s claims to lack merit, we AFFIRM.

                     FACTUAL AND PROCEDURAL BACKGROUND

       In August 2003, Plaintiff Charles Farley and his wife Donna, both Michigan residents,

purchased a new 2004 Country Coach Magna motor home (the “RV”). Defendant Country Coach,

an Oregon corporation, manufactured and assembled the RV. Defendant Technology Research
Corporation (“TRC”) manufactured the RV’s transfer switch, a major component of the RV’s

electrical system. Farley purchased the RV from Buddy Gregg Motor Homes, Inc. (“Buddy Gregg”),

an authorized Country Coach dealership and repair facility in Knoxville, Tennessee. The purchase

price of the RV was $416,860, though Farley also paid $17,534.60 more in taxes and fees associated

with the purchase. The RV was covered by a one-year, limited warranty issued by Country Coach

upon purchase; TRC provided a similar warranty over the transfer switch.

       Farley owned the RV for two-and-one-half years, during which time the RV and its various

component parts frequently broke and malfunctioned. Some of the problems Farley and his family

experienced while trying to use the RV were: leaks of diesel and glycol fumes into the cabin; engine

leaks; electrical surges that caused leaks in the wheel seals and destroyed the water pump;

improperly functioning dash gauges; a defective dash air conditioning system; a defective transfer

switch that frequently caused the electrical systems to malfunction; improperly tightened steering

wheel bolts; a defective latch on the refrigerator door; and issues with the slide-out rooms. Farley

sought to have these defects repaired numerous times and at multiple facilities, including Buddy

Gregg and Country Coach’s factory in Oregon. He also unsuccessfully attempted to make Country

Coach take back the RV. In April of 2006, Farley traded the RV to Buddy Gregg for a $245,000

credit towards the purchase of a new Country Coach motor home.

       Farley filed the instant suit against Country Coach in the U.S. District Court for the Eastern

District of Michigan on April 25, 2005, alleging breach of express and implied warranties under the

Uniform Commercial Code (“UCC”) and violation of the Magnuson-Moss Warranty Act

(“MMWA”), 15 U.S.C. § 2301. On August 15, 2005, Country Coach filed a third-party complaint

against TRC, seeking indemnity and contribution for any damages caused by the defective transfer


                                                 2
switch; Farley filed an amended complaint naming TRC as an additional defendant on March 29,

2006. Though in his original complaint Farley stated his warranty claims under Tennessee law, the

parties later stipulated that Michigan law—specifically, Michigan’s codification of the UCC

(“MUCC”)—controlled.

       On September 16, 2005, Country Coach filed a motion for partial summary judgment on

Farley’s implied-warranty claim, alleging that, under the MUCC, the lack of contractual privity

between Farley and Country Coach precluded the claim as a matter of law. The district court agreed

and dismissed the claim on November 29, 2005. On July 18, 2006, Farley filed a motion to reinstate

the implied-warranty claim based on this court’s intervening decision in Pack v. Damon Corp., 434

F.3d 810 (6th Cir. 2006). The district court granted this motion in a November 14, 2006 order,

relying on the Pack court’s “express[] holding . . . that ‘Michigan has abandoned the privity

requirement for implied warranty claims.’” Farley v. Country Coach, Inc., No. 05–71623, 2006 WL

32499464, at *8 (E.D. Mich. Nov. 14, 2006) (order denying summary judgment and reinstating

implied-warranty claims) (quoting Pack, 434 F.3d at 820). In the same order, the district court

denied motions for summary judgment from Country Coach and TRC.

       The case proceeded to a jury trial before Magistrate Judge Stephen Whalen from March 12,

2007 to March 21, 2007. At the close of Farley’s case, Country Coach moved for judgment as a

matter of law, alleging that Farley had failed to present sufficient evidence of damages to create a

jury question. The court had previously ruled that the correct measure of damages was “the

difference at the time and place of acceptance between the value of the goods accepted and the value

they would have had if they had been as warranted.” Mich. Comp. Laws § 440.2714(2). Country

Coach argued that—although the court “could potentially determine” that Farley’s evidence of the


                                                 3
purchase price “can be used as the price [of the RV] . . . if it would have been a[s] warranted”—there

was a “complete lack of . . . evidence submitted as to the actual value of the vehicle at the time that

Mr. Farley purchased it.” The district court denied the motion, noting that Farley had introduced

evidence of the purchase price and trade-in value of the RV and “the jury could reasonably conclude

that the amount of normal depreciation would not be as much as the difference between the purchase

price and the trade-in price, and that . . . difference would, therefore, be attributable to diminution

in value.” Country Coach renewed the motion for judgment as a matter of law at the close of all

evidence. The district court again denied the motion, reiterating that “there are sufficient facts in this

record to present a jury question . . . as to whether a percentage of the devaluation [between the

purchase price and trade-in price] . . . is attributable to ordinary depreciation and whether a

percentage of that is attributable to defects.” The district court presented the case to the jury, which

returned a verdict of no cause of action on Farley’s express-warranty claim against Country Coach

and all of Farley’s claims against TRC, but found Country Coach liable on Farley’s implied-warranty

claim.1 The jury awarded Farley $189,000 in compensatory damages and $2,784 in consequential

damages, for a total award of $191,784. The district court entered judgment in accordance with the

jury verdict on March 26, 2007.




        1
         The jury did not rule on Farley’s claims under the MMWA because, prior to trial, the district
court granted Country Coach’s motion in limine requesting “an Order stating that Plaintiff is only
entitled to relief under the Magnuson-Moss Warranty Act if Plaintiff is successful in proving a
breach of state warranty law claim and that Plaintiff’s damages under the Magnuson-Moss Warranty
Act include only those available under state law and reimbursement of reasonable attorney fees and
costs.” Shortly after the district court denied Country Coach’s motions for post-judgment relief, it
awarded Farley $78,460.63 in attorney fees and costs, along with pre-judgment and post-judgment
interest. Farley v. Country Coach, Inc., No. 05–71623, 2008 WL 905215, at *6–*7 (E.D. Mich.
Mar. 28, 2008) (order awarding attorney fees).

                                                    4
       After entry of judgment, Country Coach filed a motion for judgment as a matter of law or,

in the alternative, for a new trial on several grounds, including the previously-asserted claim that

Farley had presented insufficient proof of his damages as well as the contention that several improper

statements made by Farley’s counsel in closing argument caused jury confusion. Country Coach also

filed a motion for remittitur, again based on Farley’s allegedly-deficient damages evidence. The

district court denied all of Country Coach’s post-judgment motions. Farley v. Country Coach, Inc.,

550 F. Supp. 2d 689 (E.D. Mich. 2008) (order denying post-judgment motions). On the issue of

damages, the court determined that Farley had met his burden of proof, reasoning that “the jury could

reasonably infer that the value [of] the 2004 Country Coach Magna as warranted would have had

been at least $416,000.00, the contract price,” id. at 695, and “the evidence in this case was

sufficient for a reasonable jury to find, without resort to speculation, that the value of the non-

conforming motor home at the time of acceptance (2003) was the same as the value the Plaintiff

received when he traded it in (2006): $250,000.00,” id. at 696. The court dismissed Country Coach’s

claim for a new trial based on inappropriate conduct by Farley’s counsel after concluding that “the

[jury] instructions given in this case were adequate to cure any prejudice arising from counsel’s

comments.” Id. at 694. Country Coach filed a timely notice of appeal from the judgment.

                                            ANALYSIS

       Country Coach appeals several of the district court’s rulings related to Farley’s implied-

warranty claim. First, Country Coach challenges the district court’s reinstatement of the implied-

warranty claim based on Pack. Second, Country Coach asserts that the district court erroneously

denied its motions for judgment as a matter of law and its motion for remittitur on the implied-

warranty claim, reasserting on appeal its argument that Farley presented inadequate proof of


                                                  5
damages. Third, Country Coach contends that the district court abused its discretion by denying the

motion for a new trial based on alleged misconduct by Farley’s attorney during trial, particularly in

closing argument. We conclude that none of these claims requires reversal.

I.      Reinstatement of the Implied-Warranty Claim

        Country Coach first alleges error in the district court’s reinstatement of Farley’s implied-

warranty claim, arguing that, notwithstanding this court’s contrary decision in Pack, Michigan law

requires contractual privity to state a claim for breach of implied warranty based on economic losses.

Because the district court’s reinstatement of Farley’s implied-warranty claim is essentially a decision

to deny Country Coach summary judgment on a purely legal question, we review it de novo. See

Paschal v. Flagstar Bank, 295 F.3d 565, 571–72 (6th Cir. 2002) (holding that review of the district

court’s denial of summary judgment on a pure legal question is proper even after the movant loses

a full trial on the merits).2

        The district court correctly reinstated Farley’s implied-warranty claim under Pack. As

Country Coach conceded at oral argument, we are bound by the Pack court’s holding “that Michigan


        2
          The fact that Farley styled his motion to reinstate as a motion for reconsideration under
Federal Rule of Civil Procedure 60(b) does not impact the de novo standard of review applicable to
the district court’s determination. Rule 60(b) and its corresponding abuse-of-discretion standard of
review apply only when a party seeks relief from a “final judgment, order, or proceeding.” Fed. R.
Civ. P. 60(b). In the instant case, the district court reinstated the implied-warranty claim before it
entered final judgment, making Farley’s motion “effectively a motion for reconsideration of
summary judgment [that] ‘[t]he district court was . . . free to reconsider or reverse . . . for any
reason.’” ACLU of Ky. v. McCreary Cnty., Ky., 607 F.3d 439, 450 (6th Cir. 2010) (second alteration
in original) (quoting Cameron v. Ohio, 344 F. App’x 115, 118 (6th Cir. 2009) (unpublished
decision)); see also Fed. R. Civ. P. 54(b) (“[A]ny order . . . that adjudicates fewer than all the claims
or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims
or parties and may be revised at any time before the entry of a judgment adjudicating all the claims
and all the parties’ rights and liabilities.”). Therefore, the district court enjoyed complete discretion
to entertain Farley’s motion, and our review is limited to the merits of the court’s decision to
reinstate.

                                                    6
has abandoned the privity requirement for implied-warranty claims” for economic losses, 434 F.3d

at 820, absent further development of Michigan law. As of yet, the Michigan Supreme Court has

not addressed this issue; though at the time Country Coach filed its principal brief, the court had

asked the parties in the pending case Davis v. Forest River, Inc. to address “whether Michigan law

provides a cause of action for breach of warranty and a remedy of rescission where the plaintiff and

the defendant are not in privity of contract,” 750 N.W.2d 592, 592 (Mich. 2008), the court has since

issued an opinion in the case declining to rule on this question, 774 N.W.2d 327 (Mich. 2009).

Furthermore, dicta in recent opinions of the Michigan Court of Appeals reaffirm the Pack court’s

conclusion that implied-warranty claims do not carry a privity requirement under Michigan law,

when the plaintiffs in those cases sought only economic damages. See Heritage Res., Inc. v.

Caterpillar Fin. Servs. Corp., 774 N.W.2d 332, 343 (Mich. Ct. App. 2009) (“[O]ur Supreme

Court . . . has previously held that for some remote purchasers it is unnecessary in actions for breach

of implied warranty to establish privity of contract with the manufacturer.” (citing Piercefield v.

Remington Arms Co., 133 N.W.2d 129, 134–35 (Mich. 1965))); see also Jetts v. Stewart Bldg. Co.,

No. 290635, 2010 WL 2384931, at *4 (Mich. Ct. App. June 15, 2010) (unpublished per curiam

decision) (“The fact that plaintiffs lacked any privity of contract with [defendants] is of no

consequence since the claims involved a breach of implied warranties.” (citing Heritage Res., 774

N.W.2d at 343)). Therefore, the district court did not err by reinstating Farley’s implied-warranty

claim.

II.      Evidence of Damages

         Country Coach next argues that Farley did not present sufficient evidence to support the

jury’s award of $189,000 in compensatory damages on the implied-warranty claim, and the district


                                                  7
court therefore should have granted Country Coach judgment as a matter of law or remitted the jury’s

verdict. We conclude that, contrary to Country Coach’s allegations, Farley presented adequate

evidence of his damages under the applicable measure of the difference between the value of the RV

as warranted and its actual value, see Mich. Comp. Laws § 440.2714(2), and the jury’s award was

within the scope of this evidence. As a result, it was not error for the district court to uphold the

jury’s verdict.

        A.        Motion for Judgment as a Matter of Law

        “[W]hen faced with a motion for judgment as a matter of law based on a challenge to the

sufficiency of the evidence, as here, we apply ‘the standard of review employed by the courts of the

state whose substantive law controls the action.’” Surles ex rel. Johnson v. Greyhound Lines, Inc.,

474 F.3d 288, 303 (6th Cir. 2007) (quoting Shanklin v. Norfolk S. Ry. Co., 369 F.3d 978, 993 (6th

Cir. 2004)). Under Michigan law, a motion for directed verdict or judgment notwithstanding the

verdict (“JNOV”) should be granted only if the evidence viewed in the light most favorable to the

nonmoving party fails to establish a claim as a matter of law. Sniecinski v. Blue Cross & Blue Shield

of Mich., 666 N.W.2d 186, 192 (Mich. 2003) (citing Wilkinson v. Lee, 617 N.W.2d 305, 306–07

(Mich. 2000)). “If the evidence is such that reasonable people could differ, the question is for the

jury and JNOV [or a directed verdict] is improper.” Pontiac Sch. Dist. v. Miller, Canfield, Paddock

& Stone, 563 N.W.2d 693, 698 (Mich. Ct. App. 1997) (citing McLemore v. Detroit Receiving Hosp.,

493 N.W.2d 441, 443 (Mich. Ct. App. 1992)). “In reviewing a trial court's ruling on a motion for

a directed verdict [or JNOV], this Court examines ‘the testimony and all legitimate inferences that

may be drawn in the light most favorable to the [nonmoving party].’” Kubczak v. Chemical Bank




                                                 8
& Trust Co., 575 N.W.2d 745, 749 (Mich. 1998) (alteration in original) (quoting Mulholland v. DEC

Int’l Corp., 443 N.W.2d 340, 349 (Mich. 1989)).

        In the instant case, the district court determined, and the parties agree, that the measure of

Farley’s damages on the implied-warranty claim was “the difference at the time and place of

acceptance between the value of the goods accepted and the value they would have had if they had

been as warranted.” Mich. Comp. Laws § 440.2714(2); “The party asserting a claim has the burden

of proving his damages with reasonable certainty.” S.C. Gray, Inc. v. Ford Motor Co., 286 N.W.2d

34, 39 (Mich. Ct. App. 1979). Country Coach argues that Farley failed to present enough evidence

to establish either the value of the RV as accepted or the value of the RV if it had been as warranted

at the time of acceptance. In particular, Country Coach maintains that Farley’s only evidence of the

actual value of the RV—the $245,000 trade-in price he received for the RV in April 2006, more than

two-and-a-half years after he purchased it—is insufficient as a matter of law to submit the question

to a jury.

        Farley’s evidence of damages was sufficient to create a jury question. To satisfy his burden

of production on the issue of damages, Farley first had to present evidence of the value of the RV

as warranted at the time and place of acceptance. The “primary standard” for the value of goods as

warranted “is the fair market value of the goods at the time of acceptance,” but “[w]hen the fair

market value cannot be easily determined, or the parties do not raise it as a measure of ‘value’, courts

have generally relied on the contract’s purchase price as strong evidence of the value of the

nonconforming goods as warranted.” Intervale Steel Corp. v. Borg & Beck Div., Borg-Warner

Corp., 578 F. Supp. 1081, 1090 (E.D. Mich. 1984) (applying Michigan law); see also Mayberry v.

Volkswagen of Am., Inc., 692 N.W.2d 226, 237 (Wis. 2005) (collecting cases). Here, Farley not only


                                                   9
attested to the $416,860 purchase price of the RV, but also demonstrated that “the suggested list

price of the Magna in question was $515,000.00.” Farley, 550 F. Supp. 2d at 695. This is more than

enough to sustain his burden of presenting evidence of the value of the RV as warranted.

       The second value on which Farley was obligated to present evidence was the actual value of

the RV with its defects at the time and place of acceptance. Country Coach argues that Farley’s only

piece of evidence on this point was the fact that he received a $245,000 trade-in value on the RV in

April 2006, which is insufficient to establish the actual value of the RV at the time of purchase more

than two-and-a-half years earlier. See Small v. Savannah Int’l Motors, Inc., 619 S.E.2d 738, 742

(Ga. Ct. App. 2005) (“[Plaintiff] presents no evidence of the value of the car as accepted, but only

the wholesale trade-in value of the BMW an indeterminate time after the transaction.”). However,

“[n]umerous courts and commentators have recognized that the price obtained for defective goods

on resale is probative as to the value of the goods actually received.” Mayberry, 692 N.W.2d at 239

(collecting cases); see also Schultz v. Gen. R.V. Ctr., 512 F.3d 754, 759 (6th Cir. 2008) (“[I]t seems

to us that the trade-in value would be as reasonable an estimate of what the R.V. is worth to

Plaintiffs as the retail value.”). Even if, as Country Coach argues, the trade-in price standing alone

does not reflect the retail or wholesale value of the RV, Farley also testified he had no reason to

doubt that the actual value of the RV at the time of trade in was $250,000, and he had also received

an estimate six months earlier from Buddy Gregg valuing the RV at $300,000. Farley, 550 F. Supp.

2d at 695–96. This testimony is sufficient to create a jury question on the value of the defective RV.

See Mayberry, 692 N.W.2d at 238 (“[A]n owner of property may testify as to its value and . . . such

testimony may properly support a jury verdict for damages, even though the opinion is not

corroborated or based on independent factual data.” (citing D’Huyvetter v. A.O. Smith Harvestore


                                                 10
Prods., 475 N.W.2d 587, 593 (Wis. Ct. App. 1991))); see also Razor v. Hyundai Motor Am., 854

N.E.2d 607, 627–28 (Ill. 2006).

        Country Coach contends that Farley has not met his burden because the RV’s value at the

time of trade in is not probative of its value at the time of acceptance, given that two-and-a-half years

had elapsed between the original transaction and the trade in. Cf. Town East Ford Sales, Inc. v.

Gray, 730 S.W.2d 796, 802 (Tex. App. 1987) (“Proof of market value at the time of trial is no

evidence of value at the time of acceptance.” (citing Overseas Motors Corp. v. First Century

Christian Church, 608 S.W.2d 288, 289–90 (Tex. Civ. App. 1980))). In support of this argument,

Country Coach offered at trial expert testimony that the RV’s condition and service history around

the time of trade in did not diminish its value, along with assertions by its expert that “in general,

RVs have large depreciation factors,” Farley, 550 F. Supp. 2d at 696. Therefore, according to

Country Coach, the difference between the purchase price and the trade-in price for the RV must

have been due to depreciation over time as opposed to any diminution in value based on the RV’s

defects.

        Nonetheless, the fact that the jury found Country Coach’s depreciation argument

unpersuasive does not mean that Farley failed to meet his burden with respect to the value of the

defective RV at the time of acceptance. The jury reasonably could conclude that the RV’s value

around the time of trade-in equated to its value at the time of acceptance without speculating as to

the measure of Farley’s damages. For example, the jury might have determined that any depreciation

in the RV’s value was offset by the increased value of the RV after Farley had its numerous defects

repaired. Alternatively, the jury might have concluded that the RV suffered negligible depreciation

either because, as the district court noted, Country Coach “fail[ed] to offer any concrete evidence on


                                                   11
that issue,” id., or because Farley testified that he was largely unable to use the RV due to its

numerous defects, compare Trial Tr. vol. 2, 186–87, Mar. 13, 2007 (confirming that Farley did not

take any major trips in the RV that did not result in, or were not motivated by, a need for repairs),

with Chapman v. Upstate RV & Marine, 610 S.E.2d 852, 857 (S.C. Ct. App. 2005) (concluding that

the fair market value of a defective boat at the time of acceptance was equal to its value at the time

of revocation based in part on evidence that the owners had used the boat infrequently between

acceptance and revocation). Regardless of how persuasive we find Country Coach’s depreciation

argument, these alternate theories are plausible and “[t]his Court [does not have] the authority to

substitute its judgment for that of the jury.” Matras v. Amoco Oil Co., 385 N.W.2d 586, 588 (Mich.

1986). Therefore, Farley presented enough evidence of the RV’s value as warranted and its actual

value at the time and place of acceptance to create a question of fact for the jury, and the district

court did not err by denying Country Coach’s motions for judgment as a matter of law on Farley’s

implied-warranty claim.

        B.      Motion for Remittitur

        When deciding a motion for remittitur in a case governed by state law, “‘[t]he role of the

district court is to determine whether the jury's verdict is within the confines set by state law, and to

determine, by reference to federal standards developed under [Federal Rule of Civil Procedure] 59,

whether a new trial or remittitur should be ordered.’” Gasperini v. Ctr. for Humanities, Inc., 518

U.S. 415, 435 & n.18 (1996) (quoting Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc.,

492 U.S. 257, 279 (1989)). In our review of a district court’s determination of such a motion, we

are “guided by the damage-control standard state law supplies,” but we will only reverse for an abuse

of discretion. Id. at 438–39. Under Michigan law, a trial court can remit a jury verdict to the


                                                   12
“highest . . . amount the evidence will support” only “[i]f the court finds that the only error in the

trial is the . . . excessiveness of the verdict.” Mich. Ct. R. 2.611(E)(1). When ruling on whether a

verdict is excessive, a court can consider “objective considerations relating to the actual conduct of

the trial or to the evidence adduced,” Palenkas v. Beaumont Hosp., 443 N.W.2d 354, 356 (Mich.

1989) (emphasis omitted), including the following:

         whether the verdict was the result of improper methods, prejudice, passion, partiality,
         sympathy, corruption, or mistake of law or fact; . . . whether the verdict was within
         the limits of what reasonable minds would deem just compensation for the injury
         sustained; . . . whether the amount actually awarded is comparable to awards in
         similar cases within the state and in other jurisdictions.

Id. “A verdict should not be set aside simply because the method of computation used by the jury

in assessing damages cannot be determined, unless it is not within the range of evidence presented

at trial.” Diamond v. Witherspoon, 696 N.W.2d 770, 782 (Mich. Ct. App. 2005) (citing Green v.

Evans, 401 N.W.2d 250, 255 (Mich. Ct. App. 1985)).

         The jury’s award of $189,000 in compensatory damages is within the range supported by the

evidence adduced at trial. Based on Farley’s testimony, the jury could conclude that the value of the

RV as warranted was somewhere between the $416,860 purchase price and the $515,000 list price,

and that the value of the defective RV was between its $245,000 trade-in value and the $300,000

value estimate given to Farley by Buddy Gregg. These figures support a compensatory damages

award between $116,860 and $265,000, with the actual award falling squarely in the middle of this

range.

         Country Coach advances a host of arguments as to why the $189,000 award was the result

of speculation or confusion on the part of the jury, based mainly on Farley’s counsel’s closing

argument requesting this amount as the difference between the approximately $434,000 that Farley


                                                   13
actually paid for the RV, taking into account taxes and fees, and the $245,000 trade-in credit he

received for it. Regardless of whether Country Coach is correct that the jury should not have

factored taxes and licensing fees into the RV’s value as warranted, or should have set the actual

value of the RV at $300,000 based on mitigation principles, Country Coach can produce no

admissible evidence that the jurors relied on the calculation proposed by Farley’s attorney to reach

its verdict. See Fed. R. Evid. 606(b) (stating that “[u]pon an inquiry into the validity of a verdict . . .

a juror may not testify as to any matter or statement occurring during the course of the jury’s

deliberations or the effect of anything upon that or any other juror’s mind or emotions as influencing

the juror to assent to or dissent from the verdict . . . or concerning the juror's mental processes in

connection therewith,” unless an enumerated exception applies). The jury was properly instructed

that the measure of damages for a breach of an implied-warranty claim “is the difference at the time

and place of acceptance between the value of the goods accepted and the value they would have had

if they had been as warranted,” that “[t]he plaintiff has the burden of proving his damages with

reasonable certainty [and] you must not speculate as to the amount of plaintiff’s damages,” and that

“[a]rguments, statements, and remarks of attorneys are not evidence and you should disregard

anything said by an attorney which is not supported by the evidence or by your general knowledge

and experience.” The damage award returned by the jury was within the range supported by Farley’s

evidence and was not clearly the result of “improper methods, prejudice, passion, partiality,

sympathy, corruption, or mistake of law or fact.” Palenkas, 443 N.W.2d at 356. Therefore, the

verdict was not excessive and the district court did not abuse its discretion by denying Country

Coach’s motion for remittitur.

III.    Attorney Misconduct


                                                    14
       Country Coach’s final claim involves the district court’s denial of its motion for a new trial

based on allegedly improper and prejudicial statements made by Farley’s counsel during trial and

at closing argument. Because the district court did not abuse its discretion in concluding that any

prejudice resulting from these remarks was cured by its “clear[] instruct[ions to] the jurors that they

were to decide the case based on the testimony and evidence presented in court, and that the

arguments and statements of counsel were not evidence they could consider,” Farley, 550 F. Supp.

2d at 694, the court did not err by denying the motion for a new trial.

       The district court’s consideration of a motion for a new trial is governed by Federal Rule of

Civil Procedure 59, which this court has interpreted “to require a new trial only ‘when a jury has

reached a “seriously erroneous result” as evidenced by[] (1) the verdict being against the weight of

the evidence; (2) the damages being excessive; or (3) the trial being unfair to the moving party in

some fashion, i.e., the proceedings being influenced by prejudice or bias.’” Mike’s Train House, Inc.

v. Lionel, L.L.C., 472 F.3d 398, 405 (6th Cir. 2006) (alteration in original) (quoting Holmes v. City

of Massillon, 78 F.3d 1041, 1045–46 (6th Cir. 1996)). We review a district court’s decision to deny

a motion for a new trial for abuse of discretion, and “will reverse such a decision only if we have ‘a

definite and firm conviction that the trial court committed a clear error of judgment.’” Barnes v.

Owens-Corning Fiberglas Corp., 201 F.3d 815, 820 (6th Cir. 2000) (quoting Logan v. Dayton

Hudson Corp., 865 F.2d 789, 790 (6th Cir. 1989)). “[T]his Court has declared that ‘the power to set

aside [a] verdict for misconduct of counsel should be sparingly exercised on appeal.’” City of

Cleveland v. Peter Kiewit Sons’ Co., 624 F.2d 749, 756 (6th Cir. 1980) (quoting Twachtman v.

Connelly, 106 F.2d 501, 509 (6th Cir. 1939)). Nevertheless, “‘counsel should not introduce

extraneous matters before a jury or, by questions or remarks, endeavor to bring before it unrelated


                                                  15
subjects, and, where there is a reasonable probability that the verdict of a jury has been influenced

by such conduct, it should be set aside.’” Id. (quoting Twachtman, 106 F.2d at 508–09).

       Country Coach alleges that several inappropriate actions by Farley’s counsel led to jury

confusion and therefore required a new trial. In particular, Country Coach objects to several

statements made by Farley’s attorney during closing argument. First, it argues that Farley’s counsel

improperly commented on Country Coach’s failure to introduce into evidence “records of the

number of days an RV is normally out of service,” claiming that it mischaracterizes the testimony

of Jack Fagan, a former Country Coach employee, as to whether such records exist. Second, Country

Coach objects to references to repair records not in evidence for the RV after it was traded in to

Buddy Gregg, asserting that Farley’s attorney inappropriately asked the jury to draw an adverse

inference from Country Coach’s failure to introduce these records into evidence and speculated as

to what Buddy Gregg employees would have testified regarding these records. Finally,3 Country

Coach challenges Farley’s counsel’s request for lost-time damages despite a prior ruling from the

court that such damages were not compensable, as well as counsel’s decision to propose a calculation

of damages for the first time in his rebuttal. In addition to these complaints about closing arguments,

Country Coach also objects to statements made by Farley’s attorney during his cross examination

of James Riccio, a TRC employee, regarding the content of an email not admitted into evidence.4


       3
         In its brief, Country Coach also asserts that at closing “Plaintiff’s counsel made a number
of statements,” unsupported in the record, “regarding warranty claims and warranty claims allegedly
being paid by Country Coach.” However, it provides no citation for these alleged statements, and
our review of Farley’s closing argument did not identify them.
       4
         Country Coach also claims that Farley’s counsel referred to an email not in evidence during
closing arguments, specifically while he was explaining Farley’s argument that Country Coach
improperly failed to install a cover over the RV’s transfer switch. Again, Country Coach offers no
citation for these comments, and Farley’s attorney’s argument on this point appears to rely on

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       Under the extremely deferential standard we employ when reviewing a refusal to set aside

a jury verdict for attorney misconduct, we conclude that the district court did not err by denying

Country Coach’s motion for a new trial on this ground. Most of the comments challenged by

Country Coach are simply Farley’s take on evidence that leaves room for interpretation. Compare

Trial Tr. vol. 7, 94–95, Mar. 20, 2007 (“Why didn’t [Country Coach] bring in records that show you

the average coach has as many problems as Farley’s had. . . . They’ve got the records. They’re

admissible.”), with Trial Tr. vol. 6, 49–50, Mar. 19, 2007 (questioning of Fagan by Farley’s counsel,

which included the following exchange: “Q. Well, were there any records or other way of

determining the average number of complaints an owner of a new County Coach would express or

voice within the first twelve months of their ownership? A. There were reports generated in an effort

to identify the number of, and the types, of complaints and average cost and so on and so forth.”).

Trial counsel may propose these types of favorable inferences drawn from the evidence, or even a

party’s failure to introduce certain types of evidence, without improperly influencing the jury.

       Country Coach’s allegations that Farley’s counsel referred to material not in evidence are

more concerning, but Country Coach has failed to demonstrate “a reasonable probability that the

verdict of a jury has been influenced by such conduct.” Peter Kiewit Sons’ Co., 624 F.2d at 756

(quoting Twachtman, 106 F.2d at 508–09). Both in response to several of Country Coach’s

objections to Farley’s closing argument and when submitting the case to the jury, the district court

instructed the jury that “[a]rguments, statements and remarks of attorneys are not evidence and you

should disregard anything said by an attorney which is not supported by the evidence or by your


Riccio’s testimony rather than any document not in evidence. In fact, the record indicates that the
only document to which Farley’s attorney referred in connection with Riccio’s testimony appears to
be the email properly admitted as Plaintiff’s Exhibit 79.

                                                 17
general knowledge and experience.” Country Coach has not shown that this curative instruction was

insufficient to overcome any prejudice resulting from Farley’s attorney’s allegedly improper

statements. Similarly, Country Coach has not demonstrated that any prejudice from Farley’s

counsel’s vague request for lost-time damages, or his proposed damages calculation, was not

adequately cured by the court’s instructions on damages, which relayed the appropriate measure of

damages and noted that “[t]he law in these types of cases does not allow you to award loss of use,

interrupted or lost vacation time, inability to use the motor home, days out of service, inconvenience,

aggravation, or emotional damages.” Given the dubious nature of Country Coach’s claim that these

few isolated statements were improper, and the likelihood that any prejudice was cured by the court’s

jury instructions, it was not an abuse of discretion to deny Country Coach’s motion for a new trial

due to unfairness resulting from Farley’s counsel’s allegedly inappropriate conduct.

                                          CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s judgment.




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