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Massenberg v. Henry Ford Health System9/25/2003
finally claims that it was denied a fair trial because of prejudicial comments made by plaintiff 's attorney during closing arguments. Defendant failed to preserve this issue by timely objecting to the challenged remarks at trial. Regardless, we find no basis for reversal under a review for plain error affecting substantial rights, which review is permitted pursuant to the Michigan Rules of Evidence. MRE 103(d). Defendant also raised this issue in its motion for a new trial, which the trial court denied. We review the trial court's decision denying defendant's motion for a new trial for an abuse of discretion. McPeak v McPeak (On Remand), 233 Mich App 483, 490; 593 NW2d 180 (1999).
In Hunt v Freeman, 217 Mich App 92, 95; 550 NW2d 817 (1996), this Court explained:
When reviewing asserted improper comments by an attorney, we first determine whether the attorney's action was error and, if it was, whether the error requires reversal. Wilson v General Motors Corp, 183 Mich App 21, 26; 454 NW2d 405 (1990). An attorney's comments usually will not be cause for reversal unless they indicate a deliberate course of conduct aimed at preventing a fair and impartial trial. Id . Reversal is required only where the prejudicial statements of an attorney reflect a studied purpose to inflame or prejudice a jury or deflect the jury's attention from the issues involved. Hammack v Lutheran Social Services, 211 Mich App 1, 9; 535 NW2d 215 (1995).
Counsel's comments about the missing record were based upon reasonable inferences drawn from the evidence and, as such, did not constitute plain error. See Kubisz v Cadillac Gage Textron, Inc , 236 Mich App 629, 639; 601 NW2d 160 (1999). Because the critical records concerning the decedent's treatment on July 15, 1996, were missing from her medical file, counsel had a factual basis for arguing that they may have been intentionally removed. See Powell v St John Hosp, 241 Mich App 64, 80 n 9; 614 NW2d 666 (2000). Further, any prejudice could have been cured by a cautionary instruction, had defendant objected. Thorin v Bloomfield Hills Bd of Ed, 203 Mich App 692, 704; 513 NW2d 230 (1994).
Counsel's comments about the credibility of Drs. Patton and Savera also do not warrant reversal. Generally, an argument that a witness is lying is improper only if the accusations are unsubstantiated. See Powell, supra at 80; Badalamenti v William Beaumont Hosp-Troy, 237 Mich App 278, 290-291; 602 NW2d 854 (1999). Here, counsel simply urged the jury to evaluate the credibility of defendant's witnesses based upon all of the circumstances surrounding their testimony. Defendant has failed to show that the remarks amounted to plain error.
Finally, counsel's suggestion that the treating doctors purposely delayed treatment to generate income, even if improper, was not so prejudicial as to divert the jury's focus from the facts and issues in the case. Any prejudice caused by the remarks could have been cured by a cautionary instruction upon timely request.
Accordingly, a new trial is not warranted on the basis of the alleged misconduct by plaintiff 's attorney.
Affirmed.
William B. Murphy
Jessica R. Cooper
Charles L. Levin
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