but how much?" Id. Plaintiff contends this answering statement constituted an admission by defense counsel that, because of the accident, plaintiff at least suffered some "acute" injury.
If unequivocal, an admission of counsel during the course of trial is binding on the client. Glick v. White Motor Company, 458 F.2d 1287, 1291 (3d Cir. 1972), citing Rhoades, Inc. v. United Air Lines, Inc., 340 F.2d 481 (3d Cir. 1965), and Oscanyan v. Arms Co., 103 U.S. 261, 26 L. Ed. 539 (1880); Printing and Paper Trades v. Cuneo Eastern Press, 72 F.R.D. 588, 593 (E.D. Pa. 1976), aff'd, 549 F.2d 796 (3d Cir. 1977). Compare Taylor v. Allis-Chalmers Manufacturing Company, 320 F. Supp. 1381, 1384-85 (E.D. Pa. 1969), aff'd, 436 F.2d 416 (3d Cir. 1970) (statements made by defense counsel in pretrial memorandum not permitted into evidence as admissions); United States v. Freeman, 519 F.2d 67, 70 (9th Cir. 1975) (where counsel made statements under degree of compulsion and outside presence of his client, and where information sought was element of potential criminal charge, counsel's statements were not binding on client as judicial admissions). Furthermore, the scope of judicial admissions is restricted to matters of fact which otherwise would require evidentiary proof. It does not include statements by counsel of his or her conception of the legal theory of the case.
Glick, 458 F.2d at 1291.
The alleged admission by defense counsel in this matter does relate to a question of fact -- e.g., was plaintiff injured as a result of the accident? Moreover, by itself, the statement is not ambiguous. Defense counsel points to other remarks in his closing to argue that no definite position was taken whether or not plaintiff suffered injuries as a result of the accident. Specifically, counsel points to statements in which he reminded the jury that of all the people involved in the accident, only one person managed to suffer serious injuries. Counsel asked the jury to use their common sense as well as to remember witnesses' statements and plaintiff's actions which reflected negatively on her credibility. However, following these comments, defense counsel did not argue, as he had in his opening,
that plaintiff was not injured at all. Rather, in substance, he argued that the injuries resulting from the accident were minimal. Defense counsel's strategy with respect to acute injuries, perhaps more effective than anticipated, was not totally to deny their existence, but, in view of the nature of plaintiff's claims, to ask the jury to be reasonable in its assessment of them.
Taken by itself and in context with other statements, the court finds that defense counsel's acknowledgment during closing argument of the existence of some pain from the accident, was an unequivocal admission binding upon his client. The admission was reasonable in view of uncontroverted testimony that a rear-end collision did occur, the impact of which was sufficiently severe to cause a 90 pound machine being carried in the trunk of plaintiff's car to fall out onto the roadway.
Having found there was an admission of injury from the accident, the court must determine whether the jury instructions on proximate cause and the special interrogatories now constitute fundamental error requiring a new trial. In relevant part, the court's instructions were:
If you find that the plaintiff has any injury that has been shown by a preponderance of the evidence, arising from the accident of September 14, 1981, whether that was an original injury at that time or an aggravation of preexisting condition, you must award the plaintiff some money, in an amount that will fairly and adequately compensate the plaintiff for the injuries she sustained as a result of the defendant's negligence.