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DeJesus v. Flick8/24/2000
As amended September 25, 2000.
KENNETH DEJESUS,
APPELLANT,
V.
SHERRY FLICK,
RESPONDENT.
Beckley Singleton Jemison Cobeaga & List and Rex A. Jemison and Daniel F. Polsenberg, Las Vegas, for Appellant. Mainor & Harris and W. Randall Mainor, Las Vegas, for Respondent.
The opinion of the court was delivered by: Agosti, J.
Appeal from a judgment entered on a jury verdict and a district court order denying appellant's motion for a new trial. Eighth Judicial District Court, Clark County; Jack Lehman, Judge.
Reversed and remanded for a new trial.
ROSE, C.J., with whom SHEARING and LEAVITT, JJ., agreed, dissented.
BEFORE THE COURT EN BANC.
OPINION
This appeal is from a final judgment pursuant to a jury verdict and a subsequent order denying a new trial. The jury awarded respondent $1,470,000.00, substantially more than she requested, in a personal injury action arising out of an altercation on a Las Vegas freeway. The primary question presented on appeal is whether misconduct by the plaintiff's attorney so permeated the proceedings that it improperly influenced the jury, thereby warranting a new trial under NRCP 59(a). We conclude that it did; therefore, we reverse the district court's judgment and order and remand for a new trial on damages.
FACTS
In June 1992 respondent Sherry Flick was riding as a passenger in a vehicle driven by her sister, Julie Flick. As they proceeded southbound on Interstate 15 in Las Vegas, appellant Kenneth DeJesus tailgated the Flick vehicle, then moved into its lane and forced it off the roadway into a ravine in the freeway median. The off-road travel cracked the front axle of the Flick vehicle. DeJesus stopped, got out of his vehicle, pounded his fists on the windshield of the Flick vehicle and made threatening gestures. DeJesus was cited for misdemeanor assault, and later pleaded guilty to the offense.
Sherry Flick filed a personal injury action against DeJesus, claiming negligence. DeJesus rejected an offer to settle for $100,000.00; however, he stipulated to liability, so the only issue for trial was Flick's damages. Consequently, most trial testimony related to the nature and extent of Flick's injuries.
Flick's medical experts, Dr. Edward N. Fishman and Dr. John Sterling Ford, testified that Flick sustained permanent brain and nerve damage when, during the accident, her head struck the vehicle and she jammed her hands against the dashboard. The brain damage caused Flick to suffer from headaches, dizzy episodes, blackouts, memory loss and neck pain, while the nerve damage caused numbness and tingling in Flick's hands, and curling of her outer fingers in a claw-like manner. Dr. Ford testified he was not able to locate the head injury precisely, but it appeared that the balance organ in the inner ear had been damaged. He also testified there was little hope that Flick's dizziness and blackout spells would cease, as they had persisted for four years, and that Flick's carpal tunnel syndrome was not likely to improve, as it was getting worse. Flick's sister, Julie, testified that these problems limited Flick's ability to drive and to work.
In contrast, DeJesus's medical experts, Dr. David Oliveri and Dr. Gerald Dunn, testified that the accident did not cause Flick's symptoms and that Flick's medical records did not indicate that she had a brain disorder until one year after the accident. Another physician, Dr. Robert Voy, testified that he treated Flick before the accident for kidney infections,
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