Carl R. Tobias; Tina Belinda Harley-Tobias v. Wal-Mart Stores Incorporated Associates Health and Welfare Trust

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2298
CARL R. TOBIAS; TINA BELINDA HARLEY-TOBIAS,
Plaintiffs - Appellants,
v.
WAL-MART STORES INCORPORATED ASSOCIATES HEALTH AND WELFARE
TRUST,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Charles B. Day, Magistrate Judge.
(8:08-cv-02358-CBD)
Submitted: December 22, 2011 Decided: January 10, 2012
Before WILKINSON, DAVIS, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Blumenthal, BLUMENTHAL & ASSOCIATES, LLC, Landover,
Maryland, for Appellants. Christopher R. Dunn, John W. Leonard,
DeCARO, DORAN, SICILIANO, GALLAGHER & DeBLASIS, LLP, Bowie,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Plaintiffs, Carl R. Tobias and Tina Belinda Harley-
Tobias, appeal the district court’s amended judgment in
Defendant’s favor on their state law negligence and loss of
consortium claims against it. Carl Tobias’s hand was severely
injured when one of Defendant’s employees closed a truck door on
Tobias’s hand after loading a television onto the truck. On
appeal, Plaintiffs assert only that the district court committed
reversible error when it overruled their objection to
Defendant’s counsel’s comment during closing argument that
“[c]ontributory negligence and assumption of risk is one
percent[,]” and that Tobias’s hand inside the truck while he was
waiting for the television to be secured and the door shut was
“more than one percent.” We affirm the district court’s
judgment.
“[T]he district court is afforded broad discretion in
controlling closing arguments and is only to be reversed when
there is a clear abuse of its discretion.” United States v.
Baptiste, 596 F.3d 214, 226 (4th Cir. 2010) (internal quotation
marks and citation omitted). When reviewing whether a district
court abused its discretion in handling inappropriate conduct
and comments by trial counsel, “the question is simply one of
judgment to be exercised in review with great deference for the
superior vantage point of the trial judge and with a close eye

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to the particular context of the trial under review rather than
to any general formulations of principle or to assessments of
comparable comments in other cases.” Arnold v. Eastern Air
Lines, Inc., 681 F.2d 186, 197 (4th Cir. 1982). “Of course if
the conduct challenged is not by applicable standards improper
in the first place, then there can be no abuse of judicial
discretion in failing to take any, or particular, action to
correct it.” Id. at 195.
Reviewing Defendant’s closing argument in its
entirety, we conclude that Plaintiffs have not established that
counsel’s comment during closing argument was an improper
statement of Maryland law. Even if the comment was improper,
however, we find that the magistrate judge’s decision to
overrule Plaintiffs’ objection did not constitute a prejudicial
abuse of discretion. See United States v. Caro, 597 F.3d 608,
631 (4th Cir. 2010) (“[W]e presume that a properly instructed
jury has acted in a manner consistent with the instruction.”),
pet. for cert. filed., Jan. 10, 2011 (No. 10-8356, 10A482).
Accordingly, we affirm the district court’s amended
judgment in Defendant’s favor. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED

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