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DeJesus v. Flick8/24/2000
ming injuries. Although he stated to the jury that the case was not a crusade for him, he explained that it was close to a crusade because defense counsel was trying to get the jury to shortchange Flick's damage claim. Thus, Mainor asked the jury to send a "message" to defense firms in town:
"What I'd like the message to be to this law firm and to other law firms is, dang it, when someone is hurt, pay them, pay them what's reasonable and let's go on with life. But if you let them get away with this, if you let them get away with bringing some clown like Oliveri in here to try to convince the jury that -- that she's not hurt, they'll keep doing that. . . . that's the way the game is played, . . . that's what happens, that's what the power brokers of this world do to people like you."
Mainor also impermissibly asked the jurors to place themselves in Flick's position:
"I want you men to listen to these women because . . . there's things that a woman experiences that you don't . . . . ou're going to be able to tap in a little bit to their feelings, I think, as to fear. . . . [Flick's] afraid to be alone. She's afraid to take a bath because if she gets in the bathtub and she's sitting there enjoying a bath and has one of these things, she'd go in the water and she's dead. There's just hundreds of things like that. She's afraid . . . that if she gets married . . . to have a baby. I mean, think of . . . the human suffering that would occur if she gets pregnant and falls down and loses her baby or, worse yet, drops her baby and hurts her baby."
After summarizing the evidence regarding medical expenses and lost income, Mainor told the jury the hard part would be calculating fair and reasonable compensation for Flick's pain and suffering, and lost job opportunities. Mainor indicated he would not trade places with Flick for ten million dollars and asked the jury:
"How do you compensate -– well, how do you put a value on not using your fingers? I don't know. I mean, I don't know how you do that. . . . I wouldn't take ten million dollars if I had to do this. I like to play golf once in awhile. And if I couldn't play golf, I mean, I wouldn't die but I -– I just would not do that."
All of these arguments, and others not included here, were improper and inflammatory, and constituted egregious misconduct. Mainor's attack on Dr. Oliveri, as well as DeJesus, and his commentary on the virtues of Flick's cause, blatantly violated SCR 173, which provides that " lawyer shall not . . . state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant." See Yates v. State, 103 Nev. 200, 204, 734 P.2d 1252, 1255 (1987) (improper to characterize a doctor's testimony as "melarky," "outright fraud" or to accuse the doctor of "crawl up on the witness stand"); Sipsas v. State, 102 Nev. 119, 125, 716 P.2d 231, 234 (1986) (improper to call a medical expert a "hired gun from Hot Tub Country" and "a living example of Lincoln's law can fool all of the people enough of the time"); Owens v. State, 96 Nev. 880, 886, 620 P.2d 1236, 1239 (1980) (improper to argue that "I was brought up to believe that there is some good in all of us. For the life of me, on the evidence presented to me, I can't see the good in [this defendant]").
Further, Mainor impermissibly asked the jurors to place themselves in Flick's position when he asked them to "tap into feelings" about Flick's fears, in light of her physical condition, and to "send a message" to law firms that try to prevent injured persons from recovering ("that's what the power brokers of this world do to people like you"). We have previously held that such "gol
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