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Obie v. Grace Hospital12/8/2000
UNPUBLISHED
Plaintiff appeals as of right from a judgment entered in favor of defendant, Grace Hospital, following a jury trial. We affirm.
Plaintiff first argues that numerous instances of misconduct on behalf of defense counsel denied her a fair trial. The rule governing attorney misconduct was set forth in Reetz v Kinsman Marine Transit, 416 Mich 97, 102-103; 330 NW2d 638 (1982), which states:
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. [Accord, Badalamenti v Beaumont Hosp, 237 Mich App 278, 290; 602 NW2d 854 (1999)].
An attorney's comments during trial warrant reversal where they indicate a deliberate course of conduct aimed at preventing a fair and impartial trial or where counsel's remarks were such as to deflect the jury's attention from the issues involved and had a controlling influence on the verdict. Ellsworth v Hotel Corp, 236 Mich App 185, 191-192; 600 NW2d 129 (1999).
Plaintiff contends that defense counsel improperly commented during opening statement that plaintiff consulted a law firm about suing because of Hardy Lee Gatlin's death on either the same day or the day after he died. Plaintiff, however, inaccurately represents the record. The record shows that defense counsel stated that plaintiff consulted an attorney about a lawsuit concerning a fall off a bar stool and not about Gatlin's death. Plaintiff contends that defense counsel's remarks were calculated to portray her as insensitive, litigious, and perhaps as an alcoholic. While defense counsel's comments constituted an improper attempt to portray plaintiff as a litigious person, the error was harmless. Reetz, supra at 103; Badalamenti, supra at 290; Watkins v Manchester, 220 Mich App 337, 340; 559 NW2d 81 (1996). It is highly unlikely that defense counsel's remarks about plaintiff's unrelated lawsuit had any affect on the verdict given that the jury returned a verdict finding that defendant's agents and staff did not breach the standard of care in their treatment of Gatlin. Furthermore, the trial court repeatedly instructed the jury that the attorneys' comments were not evidence. Therefore, notwithstanding defense counsel's improper comments, the error was harmless, and reversal is not required.
Plaintiff next argues that defense counsel improperly questioned her regarding the paternity of Darius, plaintiff's and Gatlin's son. Defense counsel asked plaintiff during cross-examination whether Gatlin had ever declared Darius as a dependent on his income tax returns and whether Gatlin was listed as Darius' father on Darius' birth certificate. Defense counsel also insinuated during closing arguments that Gatlin may never have had a relationship with Darius before Gatlin's death. Defense counsel's comments were not error. In the context of a wrongful death action, the only means of measuring an appropriate
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