COA 371716 ESTATE OF TERRY M NOVAK V NICHOLAS R TOTH Opinion - Per Curiam - Unpublished 5/21/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
JESSICA AYERS, Personal Representative of the
ESTATE OF TERRY NOVAK,
Plaintiff-Appellee,
UNPUBLISHED
May 21, 2026
10:50 AM
v No. 371716
Wayne Circuit Court
NICHOLAS TOTH and FSS TECHNOLOGIES
LLC,
LC No. 22-001968-NI
Defendants-Appellants.
Before: RIORDAN, P.J., and O’BRIEN and YOUNG, JJ.
RIORDAN, P.J. (dissenting).
Defendants are entitled to a new trial because of plaintiff’s counsel’s numerous, intentional
fuelings of the jury’s passions with irrelevant, improper, and highly inflammatory statements.
At the outset, I note that defendants did not object to any of plaintiff’s counsel’s statements
during closing argument. But this is not a bar to this Court’s review of the issues and conduct
raised, nor is it a bar to defendants obtaining relief. As our Supreme Court has stated:
When reviewing an appeal asserting improper conduct of an attorney, the appellate
court should first determine whether or not the claimed error was in fact error and,
if so, whether it was harmless. If the claimed error was not harmless, the court must
then ask if the error was properly preserved by objection and request for instruction
or motion for mistrial. If the error is so preserved, then there is a right to appellate
review; if not, the court must still make one further inquiry. It must decide whether
a new trial should nevertheless be ordered because what occurred may have caused
the result or played too large a part and may have denied a party a fair trial. If the
court cannot say that the result was not affected, then a new trial may be granted.
Tainted verdicts need not be allowed to stand simply because a lawyer or judge or
both failed to protect the interests of the prejudiced party by timely action. [Reetz
v Kinsman Marine Transit Co, 416 Mich 97, 102-103; 330 NW2d 638 (1982)
(emphasis added and footnotes omitted).]

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First, plaintiff’s counsel’s references to defendant Nicholas Toth leaving the scene of the
accident before police arrived was a major theme of his closing argument. I do not question that
Toth leaving the scene of the accident was a relevant and a proper subject to address. However,
because Toth’s leaving the scene only was relevant to show that he perhaps realized he had done
something wrong, i.e., he had a guilty conscience, it was only pertinent for establishing liability.
See Johnson v Austin, 406 Mich 420, 441-442; 280 NW2d 9 (1979). It was not relevant for the
purpose of determining compensatory damages, which was the only issue left for the jury to decide
at the time plaintiff’s counsel extensively brought up the issue during his closing. After defendants
had earlier conceded liability, the fact that Toth eventually left the scene of the accident had no
relevance in determining the amount of compensatory damages Terry Novak suffered. Despite its
irrelevancy, plaintiff’s counsel put forth considerable effort, and went to great, impassioned and
improper lengths to hammer home a fact, no longer in controversy, that after first stopping
following the accident, Toth eventually left the scene. During his closing argument, plaintiff’s
counsel stated:
And when the driver hit and ran and took off, hiding from the police, not
my words, Officer Sandoval’s words, fleeing from the police, hit and run, police,
Officer Sandoval, Luis Sandoval, they knew what they did.
No “I’m sorry.” No “how is he?[”] No “Can we visit? Can we send him
flowers? Can we help? Can we do anything?” And you know what they did, they
all, not just Toth, hid from that day till you all sat in those chairs. They eluded
justice for that man right there is what they’ve been doing, and they got caught in
this room because you all said, yes, I’ll serve.
* * *
. . . [W]hat really happened here? Something bad, y’all. You’re not here to decide
a crime, you all heard evidence. It was a crime. And it wasn’t a small crime, it was
a felony crime, and he got off.
Normally, we don’t get to talk about that. That came into evidence. He was
charged. He, Toth, was charged for this crash. You all heard evidence. He then
pled guilty to a lesser charge for this crash. That’s negligence. Oh my God. It’s
actually worse than negligence, but let’s move on.
Fled. Hid.
* * *
. . . But [Toth] didn’t care. He was hiding, he was fleeing, he was out. And he
got -- almost got away with it until nine days ago today when you all came in. The
only shot at justice that Terry Novak will ever have.
With defendants’ liability already determined, the only conceivable purpose for blatantly
bringing Toth’s “fleeing” to the jurors’ attention over and over was to give them a further reason
to award a greater amount of damages. In other words, plaintiff’s counsel’s goal was to explicitly
tug and pull on juror emotion to give them a justification to award greater damages as a punishment

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for Toth’s actions. However, as plaintiff’s counsel was well aware, again, only compensatory
damages were at issue at the time he made his closing argument, and the law did not allow for the
imposition of the punitive sanctions as counsel was goading the jury to award. Rafferty v
Markovitz, 461 Mich 265, 270-271; 602 NW2d 367 (1999). “Because the purpose of
compensatory damages is to make an injured party whole for losses actually suffered, the amount
of recovery for such damages is thus limited by the amount of the loss.” Id. at 271. Again, Toth’s
behavior—even if it could be cast as morally, ethically, or legally wrong, had absolutely no bearing
on the amount of compensatory damages Novak suffered and should not have been the subject of
plaintiff’s counsel’s closing argument.1
Next, plaintiff’s counsel inappropriately attacked the appellants for exercising their
constitutional right to defend themselves in court. During closing argument, plaintiff’s counsel
stated that when he was a kid, he played sports and coaches consistently preached it was proper to
[t]ake responsibility. Some call it personal responsibility; take accountability for
what you do, do the right thing, and when you make a mistake, if it’s a mistake, or
for some folks, if it -- intentional, step up, accept responsibility, apologize, and
mean it, and then show that you’re sorry and be held accountable for everything.
That’s all that [Novak] has been trying to do under the law for two years.
* * *
They’re the ones that are going to sit here and try to convince you, the same
people that sat here in their opening statement, and I don’t call lawyers out, and
these are wonderful people, I respect them, but I hope they stand up and say, boy,
did we screw up. We should have admitted [responsibility or liability] from day
one, we’re sorry.
Because if I don’t hear that, another slap on [Novak’s] face.
Despite counsel’s request that defendants say “sorry” during its closing before the jury,
defendants did not broach the issue of an apology. In rebuttal to defendants’ closing and lack of
an apology “from day one,” apparently miffed and, again, to stir the emotions and inflame the
passions of the jury, plaintiff’s counsel argued:
Not a single apology. Not a single admission that he got up here and told
you to your faces he was going to prove that there was no negligence. He did not
stipulate the permanent, serious disfigurement or the -- or the serious impairment
of a body function until today.
So what you’re getting, you’re getting the hiding and the fleeing and the hit
and run all over again. And the only way it’s going to stop is when you all go to
1 Further, as M Crim JI 4.4 elucidates, evidence of flight does not necessarily prove guilt. “A
person may run or hide for innocent reasons, such as panic, mistake, or fear.” Id.

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the deliberation room, speak your mind, speak your votes. And when six out of
eight of you agree, that will put an end to it finally.
Plaintiff’s counsel’s “apology” commentary and plea not only was problematic, but it was
also improper. Again, counsel brought forth an inflammatory issue to the jury that was outside the
scope of compensatory damages. Counsel again was fishing for, and encouraging, an award of
punitive damages. At this point, as previously stated, liability had been established by stipulation,
and plaintiff’s counsel’s “apology” detour was totally unrelated to the only question before the
jury. That question being, what was the amount of damages Novak was entitled to receive to
compensate him for his injuries? The seeking of an apology based upon defendants’ liability and
actions after the accident up to, and including, defendants’ closing, had absolutely no bearing on
the answer to that question. Once again, the only conceivable purpose for plaintiff’s counsel’s
actions was to further stoke the jury’s emotions.
Also during rebuttal, plaintiff’s counsel’s stated that “the only way it’s going to stop is
when you all go to the deliberation room” and agree on damages. The “it” referenced by counsel
is found in the preceding sentence of his rebuttal, where he mentions the “hiding and fleeing and
the hit and run all over again.” Here, plaintiff’s counsel is making yet another appeal to the jury
to send a message to the world regarding perceived failures as they may relate to potential liability
at the time of the accident, an issue that was not before the jury. See Joba Constr Co, Inc v Burns
& Roe Inc, 121 Mich App 615, 637; 329 NW2d 760 (1982) (explaining that attorneys are not to
appeal to the jurors to look beyond the facts of the case and use their verdict to serve the broader
public good).2
Further, plaintiff’s counsel commented upon the subsequent remedial measures which FSS
Technologies, LLC, implemented after the accident. During his opening statement, he cited
defendants’ opening statement where various FSS policies were mentioned:
I think you’re gonna find really interesting about no tolerance of alcohol
and drugs. Never being on a cell phone while driving or any electronic thing.
Having to report the accident to your employer, even though we have to under the
law anyway. You’re gonna hear all sorts of things that went on inside this
corporation after [the] fact, all of which when you read it you’ll see are grounds for
2 Although not relied upon by defendants in their argument on appeal, plaintiff’s counsel in closing
argument, while requesting an award in favor of Novak, also said, “Giving money to [Novak], just
like sending someone to jail[,] is not going to bring it all back and doesn’t make it go away. It is
a symbol to [Novak], but it’s not just [Novak], it’s everyone, us as a society. Okay? But it’s to
[Novak], you matter, [Novak], because he doesn’t feel like he matters yet to FSS and Toth, and I
don’t blame him for feeling that way because I think their actions speak a lot louder than their
words.” This is a further example of plaintiff’s counsel injecting other, improper issues into his
summation at the close of trial. The mention of how a verdict is a symbol to “society” clearly
implicates an appeal to the jury’s sense of civic duty or to the broader public good. Further, the
assertion that Toth and FSS do not care about Novak had the only effect to potentially inflame the
jury’s passions about defendants’ attitudes, which, no doubt, plaintiff’s counsel hoped would lead
to a larger award principally based on a desire to punish defendants rather than compensate Novak.

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termination, but yet he’s still sitting right there. And you’re gonna see and hear in
this case that the real reason why he’s sitting right there is because of this trial.
It is not clear how any changes FSS made to its policies after this accident were proper
considerations for the jury. As a well-established principle of evidentiary and common law, a
party’s subsequent remedial measures are “not admissible to prove negligence or culpable conduct
in connection with the event.” MRE 407; Downie v Kent Prods, Inc, 420 Mich 197, 208; 362
NW2d 605 (1984).
Finally, plaintiff’s counsel used the highly misleading, but in this case seemingly effective,
tactic of “anchoring damages” to the entirely irrelevant incomes of highly paid professional
athletes. As described by Justice MARKMAN, an “anchoring effect”
“occurs when people consider a particular value for an unknown quantity before
estimating that quantity.” [Professor Daniel Kahneman] asserts that the anchoring
effect influences decisions even if the “particular value” considered has nothing to
do with the quantity to be estimated. In the context of a jury trial, the anchoring
effect suggests that the jury’s final award may sometimes be unduly affected by a
large initial presentation of damages. Accordingly, a jury may rely on a plaintiff’s
initial “anchoring value” to set the award’s range and then reach a final award by
“discounting.” [Hodge v State Farm Mut Auto Ins Co, 499 Mich 211, 244; 884
NW2d 238 (2016) (MARKMAN, J., concurring) (citations omitted).]
During closing, plaintiff’s counsel said, “When you talk about money, we got to talk about,
what do we have in the world that can give us some frame of reference in context to money and a
lot of money?” Counsel then recited the annual salaries from notable local sports figures, including
Detroit Lions quarterback Matthew Stafford, who earned salaries of $31 million and $41 million
in different years, and Detroit Tigers player Miguel Cabrera, who earned a salary of $32 million
in one year.3
Without question, assessing noneconomic damages is an imprecise task. Freed v Salas,
286 Mich App 300, 334; 780 NW2d 844 (2009). Nevertheless, the determination of those
noneconomic damages must be based on the evidence presented at trial. See Shaw v City of Ecorse,
283 Mich App 1, 17; 770 NW2d 31 (2009) (noting that a jury award must be supported by the
evidence). Here, plaintiff’s counsel encouraged the jury to base its award on noneconomic
damages, in part, on the annual salaries of highly skilled professional athletes. At the outset, the
referenced salaries were not in evidence, making the argument improper. See Grand Rapids v HR
Terryberry Co, 122 Mich App 750, 757; 333 NW2d 123 (1983).4 Further, there should be no
3 Plaintiff’s counsel made other anchoring references, including the $30 million annual salary of
Mary Barra as the CEO of General Motors, the $200 million price of a certain Picasso painting, as
well as references to “higher examples,” including billionaires Bill Gates and Jeff Bezos.
4 While denying defendants’ motion for a new trial, the trial court relied on the fact that attorneys
are allowed “to allude to reasonable inferences drawn from the evidence without the strict confines
of the rules of evidence.” While this is true, the trial court failed to acknowledge that the arguments

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question that the amount a star athlete makes in a year has absolutely no bearing on how much
money is needed to properly compensate Novak for the pain and suffering he endured or would
endure in the future. See, e.g., Gregory v Chohan, 670 SW3d 546, 557-558 (Tex, 2023) (rejection
of the “unsubstantiated anchoring” of damages “by reference to objects or values with no rational
connection to the facts of the case”).5 Accordingly, such anchoring is not a proper argument for
the jury and, again, was brought up solely for the purposes of fanning the flames of the jury’s
passions.
Based on all of these instances of highly improper conduct, a court is left with the task of
deciding “whether a new trial should nevertheless be ordered because what occurred may have
caused the result or played too large a part and may have denied a party a fair trial.” Reetz, 416
Mich at 103. Given the sheer quantity and forcefulness of plaintiff’s counsel’s inappropriate
arguments, I must conclude that the arguments played a role in the jury’s damages determination.
Notably, plaintiff’s counsel’s conduct did not consist merely of a solitary, or even relatively rare,
improper reference. Rather, he improperly argued to the jury regarding (1) Toth’s post-accident
conduct, when liability was no longer at issue; (2) defendants’ refusal to admit liability through an
apology prior to litigation, during litigation, and in its closing; and (3) anchoring of damages to
wholly unrelated sports celebrities and Fortune 100 business executives. None of these were
relevant or pertinent to the jury’s evaluation of compensatory damages that may be due to Novak.
I agree with the concurrence that each argument, by itself, standing alone in isolation, may not
have been sufficient to taint the jury. But here, taken in combination, as the concurrence does not
consider, I am left with no doubt that plaintiff’s counsel reached his implicit goal, through his
multiplicity of explicit, specific efforts, to taint the jury’s deliberations relating to compensatory
damages.
Although the trial court instructed the jury that it was to make its decision solely on the
basis of evidence, that comments and argument from counsel were not evidence,6 and that the
amount awarded is not to punish defendants, because the amount of plaintiff’s counsel’s improper
references “were so numerous,” I find that “it is doubtful that any instruction would have been
effective.” Reetz, 416 Mich at 106. 7
proffered were wholly irrelevant to the limited task before the jury (compensatory damages), and
the arguments’ only utility would have been to inflame the jury’s passions.
5 While the anchoring in Gregory did not involve the salaries of highly paid professional athletes,
it did include the irrelevant references to a $71 million F-18 fighter jet and a $186 million painting.
Gregory, 670 SW3d at 557-558. Caselaw from sister states is not binding but may be relied on
for its persuasive value. Haydaw v Farm Bureau Ins Co, 332 Mich App 719, 726 n 5; 957 NW2d
858 (2020).
6 Significantly, the instruction that counsels’ statements are not evidence was only provided in the
preliminary instructions and not the final instructions to the jury before it retired to deliberate.
7 On appeal, defendants also argued that plaintiff’s counsel made Toth’s purported drinking a
major theme of trial. The trial court record belies this contention. While the possibility of Toth
having been impaired at the time of the accident was mentioned in testimony during the trial,

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Consequently, this matter should be remanded to the trial court for a new trial, and I
respectfully dissent.
/s/ Michael J. Riordan
plaintiff’s counsel did not conclusively state that Toth was in fact intoxicated. Thus, Toth’s alleged
drunkenness was not a “major theme” of trial.

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