”Inexcusable” Comments to the Jury In the Opening Statement

In Kodack v. Long Island R.R. Co., 342 F.2d 244, 247 (2d Cir. 1965) the court found that this type of comment (about the exclusivity of the Federal Employers Liability Act remedy) was inexcusable, but held that under the circumstances it was not so prejudicial as to justify a reversal. Kodack, 342 F.2d at 247.

However, in the Kodack case, the comment was made in the plaintiff's opening statement, and the railroad immediately objected. Id.

The trial judge in that case admonished the attorney for making the statement and immediately instructed the jury to disregard. Id.

In Crown Life Ins. Co. v. Casteel, (Tex. Jan. 27, 2000) court held that it is fundamental to our system of justice that parties have the right to be judged by a jury properly instructed in the law. . . . When a jury bases a finding of liability on a single broad-form question that commingles invalid theories of liability with valid theories, the appellate court is often unable to determine the effect of this error. . . . to hold this error harmless would allow a defendant to be held liable without a judicial determination that a factfinder actually found that the defendant should be held liable on proper, legal grounds.