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Otzenberger v. Park-Hwang5/10/2005
rty the recovery they would wish themselves if they were in the same position,' are improper 'golden rule' arguments. Adkins, 110 Wn.2d at 139 (quoting J. Stein, Closing Argument sec. 60, at 159 (1985)).
Under Adkins, which the parties agree is the leading Washington case on the subject, the prohibition applies to a broad range of argument: {W}hether made by plaintiff's counsel or defendant's counsel, an argument in a civil case is improper which appeals to the jurors to place themselves in the position of a litigant and to decide the case based upon what they would then want under the circumstances. Where an argument is designed to affect the outcome of the case, either upon the question of liability or damages, a plaintiff's potential recovery or a defendant's potential success in defending is involved.
110 Wn.2d at 140. Courts have found improper 'golden rule' arguments where plaintiff's counsel have asked the jurors to place themselves in plaintiff's position with respect to damages. Courts have similarly recognized that defense counsel can also make an improper 'golden rule' argument. Adkins, 110 Wn.2d at 139-40.
Here, defense counsel was not asking the jurors to put themselves in the shoes of the defendant being sued when deciding the amount of damages. Instead, the argument suggested that jurors would have wanted treatment if they or their spouse had a precancerous condition in order to rebut the testimony of Otzenberger's expert witnesses that the reasonable medical treatment would have been to wait and see. Although the argument is not a typical golden rule argument, on its surface it 'appeals to the jurors to place themselves in the position of a litigant' and to use this insight to some extent 'to decide the case based upon what they would then want under the circumstances.' Adkins, 110 Wn.2d at 140. We assume but do not hold that the court's motion in limine precluded this argument. We turn to whether the trial court properly granted new trial on this ground.
CR 59(a)(2): Prevailing Party Misconduct
Under CR 59(a)(2), misconduct of a prevailing party is a ground for a new trial if the misconduct materially affects the substantial rights of the moving party. Aluminum Co. of Am., 140 Wn.2d at 539. The moving party must establish that the conduct complained of constitutes misconduct (and not mere aggressive advocacy) and that the misconduct is prejudicial in the context of the entire record. In addition, the moving party must object to the misconduct at trial, and the misconduct must not have been cured by court instructions. Aluminum Co. of Am., 140 Wn.2d at 539-40 (citing 12 James Wm. Moore, Federal Practice sec. 59.13(2)(c)(I)(A), at 59-48 to 58-49 (3d ed.1999)).
Generally speaking, a party is not permitted to remain silent as to claimed errors and await a verdict and then assert error for the first time in a motion for new trial or on appeal. State v. Hoff, 31 Wn. App. 809, 812, 644 P.2d 763, review denied, 97 Wn.2d 1031 (1982). Thus, in reviewing the trial court's grant of a new trial where the moving party did not object, Washington courts have held that misconduct that the moving party did not object to is a proper ground for a new trial if it was so flagrant that the court could not have cured its prejudicial effect through an instruction to the jury to disregard it. Kilde v. Sorwak, 1 Wn. App. 742, 748, 463 P.2d 265 (citing McUne v. Fuqua, 42 Wn.2d 65, 78, 253 P.2d 632 (1953)), review denied, 77 Wn.2d 963 (1970). For example, in Warren v. Hart, 71 Wn.2d 512, 429 P.2d 873 (1967), the court held that defense counsel's arguments that police officers who investigated an automobile collision constituted a 'little baby court' (and
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