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DeJesus v. Flick8/24/2000
ressively intervene in instances of serious misconduct by counsel where no objection is tendered, it would seem to me that appellate litigation in this area would be greatly reduced.
ROSE, C.J., with whom SHEARING and LEAVITT, JJ., agree, dissenting:
This is a case about the road rage conduct of Kenneth DeJesus that caused a substantial permanent brain injury to Sherry Flick. The majority concludes that the jury's award be reversed because Sherry's attorney made improper statements, despite the fact these statements were not objected to. I disagree. I believe that some of the statements that were not objected to were not improper. I further believe that those statements that were improper did not so pervade the trial with prejudice as to require the reversal of this case. I would therefore affirm the judgment entered below, except for the award for future medical expenses, which I would reduce to an amount supported by the evidence.
Sherry sustained serious injuries while riding as a passenger in a vehicle driven by her sister on the freeway. Because DeJesus believed that Sherry's sister had cut him off in traffic, DeJesus began tailgating the Flick vehicle. DeJesus then pulled ahead and cut the Flick vehicle off, forcing it into the dirt and bushes in the median. The force of the impact with the median broke the axle of the Flick vehicle, disabling the car. Upon leaving his vehicle, DeJesus leaned over the front hood of the Flick car, pounded his fists on the front windshield, and demanded that Sherry and her sister exit their car. Sherry and her sister were paralyzed with fear, and Sherry testified that DeJesus made a throat-slashing gesture signaling "that he was going to cut my throat or kill me or Julie or the people who were there."
DeJesus then left the scene of the accident, but later returned. Upon his return to the scene, DeJesus was cited for misdemeanor assault for cutting off the Flick vehicle, and pleaded guilty to this charge. Thereafter, Flick filed a negligence action against DeJesus.
Prior to trial, DeJesus' attorneys admitted liability, and then attempted to suppress the inflammatory facts concerning DeJesus' conduct. The District Court denied this attempt to conceal DeJesus' inflammatory acts, and even the majority agrees that these facts were admissible and relevant to Sherry's physical and emotional injuries caused by DeJesus.
Because of the inflammatory nature of DeJesus' conduct, I believe that it is more likely that the jury was inflamed by his road rage, rather than Sherry's attorney's statements. Indeed, DeJesus' conduct was so egregious that going into this trial, anyone could have predicted that the jury would give top dollar for any injuries it believed Sherry sustained.
We will affirm a jury verdict that is alleged to be excessive provided it is supported by substantial evidence. See Yamaha Motor Co. v. Arnoult, 114 Nev. 233, 955 P.2d 661 (1998). There was substantial, although contradicting, evidence presented to support the jury's award of damages. Although DeJesus' experts opined that Sherry did not have any serious injuries, Sherry's neurologist and medical expert testified that she had sustained a moderate brain injury from the accident and would have periodic spells of dizziness and blackouts for the rest of her life. Sherry's neurologist further testified that Sherry had permanently damaged the nerves in her hands, resulting in numbness and the clawing of her fingers.
Shortly after the accident, Sherry testified that she would fall when she blacked out, resulting one time in black eyes and another time in burns from hot asphalt on her hands, knees, and legs. Sherry further te
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