concurring:
I concur with the majority but write separately to underscore what I believe is the crucial difference which distinguishes this case from DeJesus v. Flick.1
The record in DeJesus objectively demonstrated that the jury had disregarded the evidence in arriving at its verdict. Flick, the plaintiff, had proved future medical expenses of, at best, $21,000.00. Plaintiffs counsel miscalculated his proof and argued to the jury that he had proven between $30,000.00 and $35,000.00 in future medical expenses. The jury awarded Flick future medical expenses in the extraordinary sum of $100,000.00. So, despite Dejesus’s failure to object to plaintiff’s counsel’s egregious and improper closing arguments, this court determined that it could review as plain error the trial court’s decision to deny Dejesus’s motion for a new trial. The error was plain, not because the verdict was large, but because it was objectively unreliable.
*29In the case at hand, it cannot be said that the jury’s verdict was objectively unreliable, only that it was large. The jury’s verdict was well within the range of the evidence produced. The trial judge happened to disagree with the size of the verdict. His disagreement is a far cry from a “ ‘ “conviction that the jury was influenced by passion and prejudice in reaching its verdict.” ’ ”2 The Barrett standard for testing whether attorney misconduct warrants action requires the court to examine the misconduct to determine if its “flavor” sufficiently permeates an entire proceeding so as to warrant the conviction that the verdict was the product of passion and prejudice.3 Under the Barrett standard, the movant need not prove that the result would have been different absent the misconduct.4 However, Barrett did not address the application of the standard when no objection has been made to the perceived misconduct.
I believe that when no objection has been made, the party seeking a new trial must establish, as a predicate to relief, that the verdict is objectively unreliable. The Mirage is unable to establish that the verdict is outside the evidence. The verdict in this case is not objectively unreliable. In DeJesus, it was plain, clear and undeniable that the jury ignored the evidence of future medical expenses and awarded Flick four to five times more than she had proved. The DeJesus verdict demonstrated both “[mjisconduct of the jury or prevailing party” and that “[ejxcessive damages . . . have been given under the influence of passion or prejudice” as required in order to grant a new trial under NRCP 59(a).
The result reached in this case is correct. The district court did abuse its discretion in ordering a new trial on liability when Canterino rejected the court’s remittitur. I also agree, however, that reversal is warranted since all jurors did not participate in the damages verdict.
116 Nev. 812, 7 P.3d 459 (2000).
Barett v. Baird, 111 Nev. 1496, 1515, 908 P.2d 689, 702 (1995) (quoting 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))).
Id.
Id. at 1515, 908 P.2d at 702.