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DeJesus v. Flick8/24/2000
stified that she was afraid to become a mother because she might black out and injure her baby, and that she was afraid she would lose her driver's license and eventually be unable to drive because of her black outs. While damages were high in this matter, they nonetheless are supported by substantial evidence provided the jury believed the physicians who testified in Sherry's favor. Again, when considering that Sherry's injuries were essentially the product of road rage, a recent phenomenon that has many drivers fearing for their safety on the streets, the high verdict in this case should have surprised no one.
In reviewing whether an attorney's improper statements affect the verdict, this court considers whether Sherry's attorney's statements were so prejudicial and egregious that they infected the entire trial so that the judgment could only be the result of that misconduct. See Barrett v. Baird, 111 Nev. 1496, 908 P.2d 689 (1995). I conclude that the proceeding below was not so prejudicial and egregious as to warrant reversal, and the high verdict was in all probability the result of DeJesus' road rage conduct.
Preliminarily I note that several statements made in closing argument and characterized as improper do not seem improper to me. Sherry's attorney argued that in considering future damages, the men on the jury should consider the problems and emotional trauma Sherry would experience if she became pregnant. While perhaps inartfully phrased, any concern that Sherry's attorney was asking the male jurors to put themselves in Sherry's place could have been cured by an objection that would have simply resulted in Sherry's attorney rephrasing his argument. Further, Sherry's attorney's statement that the jury should tap into Sherry's feelings of fear likewise is not improper because it was a mere reference to the evidence presented, namely Sherry's testimony concerning her fear, and not a request for the jurors to place themselves in Sherry's place.
At another point in closing argument, Sherry's attorney commented that the jury had the right to reject Oliveri's medical testimony because his testimony was bought and paid for. I believe that this was a permissible argument in light of both Oliveri's large fee and the starkly contradicting medical testimony presented by the parties. First, during cross-examination of Dr. Oliveri, Sherry's attorney elicited the fact that he was charging a total of $5000.00 for his testimony. Second, Dr. Oliveri's statement that Sherry was able to stand with her eyes closed without losing her balance was directly contradicted by Sherry's father, who testified that Sherry fell backwards when performing this test in Dr. Oliveri's presence. Third, Dr. Oliveri testified that Sherry's symptoms were inconsistent with a brain injury , while Sherry's doctors testified to the contrary. It can be inferred from the aforementioned evidence in the record that Dr. Oliveri's testimony was misleading and paid for by excessive fees. I see nothing wrong with a party arguing that the medical testimony produced by the opposing party was the result of something other than objective assessment where that party has produced contradicting evidence.
I do agree with the majority, however, that the continuing argument by Sherry's attorney that this is how the system works, how civil defense attorneys secure the desired testimony, and that the verdict should punish all civil defense attorneys was improper in a negligence action where punitive damages are disallowed. However, Sherry's attorney did not object to these arguments. Moreover, the record reveals that both plaintiff's and defendant's attorneys permitted a lot of testimony and argument into evidence without obje
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