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Canterino v. Mirage Casino-Hotel3/19/2002
his agreement with the rule suggested by the dissenters in the original DeJesus decision. Notwithstanding my views stated in this case in attempting to follow the DeJesus precedent, my preference would be to abandon the DeJesus standard and adopt the rule three justices urged in the DeJesus dissent and that is supported in this concurrence.
SHEARING, J., dissenting:
I do not agree that the district court's erroneous instructions on the issue of damages requires a retrial on all issues. The jury verdict was very clear that six out of eight jurors found that the Mirage was liable to Canterino. The jury made a permanent determination and reduced its determination to writing when it filed its verdict form. Assuming that the jury followed the district court's erroneous instruction on who was to determine damages, the error only related to the determination of damages.
I believe that the majority opinion elevates form over substance. When a competent jury determines an issue that has been thoroughly (and expensively) litigated, it is a waste of time, money, and talent to require a new jury to redetermine the issue. One of the principal criticisms of our civil justice system is that litigation has become too expensive for the vast majority of our citizens to be able to afford. The result reached by the majority unnecessarily exacerbates that problem.
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