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Halverson v. Garrett3/13/2001
UNPUBLISHED
This is a medical malpractice action arising from defendant John Michael Garrett's alleged negligent performance of radial keratotomy ("RK") surgery on plaintiff Bruce Halverson, during which plaintiff's left cornea was perforated. Plaintiffs appeal as of right from a jury verdict of no cause of action in favor of defendant. We reverse.
Plaintiffs argue that they were denied a fair trial because of defense counsel's repeated emphasis and injection, through argument and cross-examination, of irrelevant information concerning details of plaintiff's psychotic behavior, information which plaintiffs contend was irrelevant and highly prejudicial because it was designed to inflame and prejudice the jurors, thereby distracting them from the merits of the malpractice claim. We agree.
Plaintiffs concede that no objection was made to these comments and evidence, and that their own attorney raised the issue of plaintiff's psychiatric condition during her opening statement and questioning, because plaintiff's psychiatric condition was relevant to the question of plaintiff's damages. Because this issue is unpreserved, plaintiffs must show plain error affecting his substantial rights. See Kern v Blethen-Coluni, 240 Mich App 333, 336; 612 NW2d 838 (2000), applying the "plain error" standard set forth in People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999); see also People v Grant, 445 Mich 535, 548-549, 552-553; 520 NW2d 123 (1994).
To establish prejudice, plaintiffs must establish that the error "could have been decisive to the outcome" or that it is the kind of error, "yet to be clearly defined, where prejudice is presumed or reversal is automatic." Grant, supra at 552-553; see also Carines, supra at 763.
It is well settled that " itnesses should not be subjected to personal attacks and unsubstantiated insinuations." Wischmeyer v Schanz, 449 Mich 469, 481; 536 NW2d 760 (1995), quoting Wayne Co Rd Comm v GLS LeasCo, 394 Mich 126, 134; 229 NW2d 797 (1975). Further, " hile a lawyer is expected to advocate his [or her] client's cause vigorously, 'parties are entitled to a fair trial on the merits of the case, uninfluenced by appeals to passion and prejudice.'" GLS LeasCo, supra at 131. Counsel may not seek to "divert the juror's attention from the merits of the case and to inflame the passions of the jury." Badalamenti v Beaumont Hosp, 237 Mich App 278, 292; 602 NW2d 854 (1999); see also GLS LeasCo, supra at 134.
When reviewing claims of attorney misconduct, "the appellate court should first determine whether the claimed error was in fact error and, if so, whether it was harmless." Rogers v Detroit, 457 Mich 125, 147; 579 NW2d 840 (1998), quoting Reetz v Kinsman Marine Transit Co, 416 Mich 97, 102-103; 330 NW2d 638 (1982), overruled on other grounds by Robinson v Detroit, 462 Mich 439, 444-445; 613 NW2d 307 (2000). "If the claimed error was not harmless" but is unpreserved, the appellate court "must decide whether a new trial must 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." Rogers, supra at 147, quoting Reetz, supra at 103. "If the court cannot say that the result was not affected, then a new trial may be granted." Rogers, supra at 147, quoting Reetz, supra at 103; see also Badalamenti, supra at 292. "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." Rogers, supra at 147, quoting Reetz, supra at 103.
In a medical malpractice case, the plaintiff bears the burden of proving all of the following: (1) the applicable stand
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