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Barrett v. Baird12/19/1995
evailing Party
We hold that the following conduct by respondents' lawyers constituted misconduct, which, when taken together, deprived Barrett of a fair trial. First, Dr. Bernstein's counsel asked Dr. Bernstein at trial for his opinion about the cause of death when he had specifically represented to Barrett's counsel at Dr. Bernstein's deposition that he would not ask that question at trial. Furthermore, during closing argument, Dr. Bernstein's counsel misstated Dr. Bernstein's testimony. Second, the Hospital's counsel, in a rhetorical flourish, improperly and prejudicially stated during closing argument that the compensation sought by Barrett included the "kind of numbers that necessitate the high health care cost in this country." See Davidoff v. Segert, 551 So. 2d 1274 (Fla. Dist. Ct. App. 1989) (holding that remarks made by defense counsel to the jury during closing argument in a personal injury action regarding the "insurance crisis" warrant the granting of a new trial). Third, during closing argument, Dr. Brown's counsel showed opposing counsel one photograph, to which counsel had no objection, and then surreptitiously showed a different photograph to the jury. 22 Fourth, Dr. Brown's counsel conducted a water balloon demonstration during opening argument and referred to it in closing argument when no foundation had been laid for the demonstration. 23
NRCP 59(a)(2) provides that a new trial may be granted due to misconduct of the prevailing party.
[111 Nev. 1496, Page 1515]
A new trial based upon the prevailing party's misconduct does not require proof that the result would have been different in the first trial without such misconduct. The United States Supreme Court has held that the litigant whose counsel has engaged in misconduct is not entitled to "the benefit of calculation, which can be little better than speculation, as to the extent of the wrong inflicted upon his opponent." Minneapolis, St. Paul & Sault Ste. Marie Ry. Co. v. Moquin, 283 U.S. 520, 521-22 (1931). Nevertheless, " o warrant reversal on grounds of attorney misconduct, the `flavor of misconduct must sufficiently permeate an entire proceeding to provide conviction that the jury was influenced by passion and prejudice in reaching its verdict.'" Kehr v. Smith Barney, Harris Upham & Co., Inc., 736 F.2d 1283, 1286 (9th Cir. 1984) (quoting Standard Oil of California v. Perkins, 347 F.2d 379, 388 (9th Cir. 1965)). We hold that the cumulative effect of the aforementioned incidents of misconduct permeated the entire proceeding such that the jury was improperly influenced in reaching its verdict. Time and time again respondents' lawyers pushed the limits of propriety. Accordingly, we reverse the district court's judgment and award of attorney fees.
Opinion Footnotes}
1 NRS 41A.049(2) states in pertinent part: "The screening panel shall consider all the documentary material, including the complaint, answer and response, health care records and records of a hospital or office and the testimony of any expert witnesses the panel considers necessary. . . ." NRS 41A.016(2) states: The written findings of the screening panel are admissible in any action concerning the complaint which is subsequently filed in district court. No other evidence concerning the screening panel or its deliberations is admissible and no member of the screening panel may be called to testify in any such action.
2 The right to a jury trial under the Nevada Constitution is coextensive with that guaranteed by the U.S. Constitution. Blanton v. North Las Vegas Mun. Ct., 103 Nev. 623, 628-29, 748 P.2d 494, 497 (l987), aff'd, Blanton v. City of North Las Vegas,
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