Canterino v. the Mirage Casino-Hotel

Rose, J.,

with whom Young, J., joins, concurring in part and dissenting in part:

I concur in the majority opinion, but dissent from the conclusion that the improper and inflammatory remarks of counsel did not taint the jury verdict. The improper arguments were numerous and committed throughout the trial. These comments were so prejudicial that the district court granted the Mirage’s motion for *30a new trial and found, in its conditional order of remittitur, that Canterino’s attorney’s misconduct “resulted in bias, passion, and prejudice.” Following the recent dictates of DeJesus v. Flick, 116 Nev. 812, 7 P.3d 459 (2000), I believe that we are compelled to affirm in totality the order granting a new trial.

In order to preserve a contention for appellate review, an attorney is typically required to make specific objections to improper argument. See Beccard v. Nevada National Bank, 99 Nev. 63, 66, 657 P.2d 1154, 1156 (1983). Where attorney misconduct is of such an “inflammatory quality” and of such a “sheer quantity” that it amounts to plain error, however, review is appropriate without regard to the opposing party’s objection. See DeJesus, 116 Nev. at 816, 7 P.3d at 462. In so reviewing, reversal is warranted upon our finding that the prejudicial comments so permeated the trial that we are convinced that the jury’s verdict was influenced by passion and prejudice. See Barrett v. Baird, 111 Nev. 1496, 1515, 908 P.2d 689, 702 (1995).

In this case, the Mirage did object to some of Canterino’s attorney’s impermissible statements, including his comment in closing about the “tremendous, tremendous difficulty it is for somebody like [Canterino] to fight the most powerful, richest hotel-casino in the world, the Mirage.” It is misconduct for an attorney to deliberately attempt to appeal to the economic prejudices of the jury by commenting on the wealth of the defendant. See, e.g., Hoffman v. Brandt, 421 P.2d 425, 428 (Cal. 1966). Thus, the Mirage’s objection to the prejudicial comment was properly sustained by the district court.

Canterino’s attorney engaged in many other unobjected-to instances of misconduct that support the district court’s order for a new trial. As required by DeJesus, then, we should at a minimum, assess these instances to determine whether they are so numerous in quantity and inflammatory in quality to amount to plain error. See DeJesus, 116 Nev. at 816, 7 P.3d at 462.

First, we should examine the other objectionable statements Canterino’s attorney made about the wealth of the Mirage. These statements include commentary about the money the Mirage spent on expert witnesses and security; commentary on the inability of the wealth of the Mirage to restore Canterino’s health; and commentary about the inability of the Mirage’s millions to depict Canterino’s housebound status as phony. All of these statements were inflammatory and keenly calculated to prejudice the jury.

Next, we should look to other statements made during closing argument that may have been improper — including, references to the “McDonald’s coffee” case where a woman received $3 million in damages, comments on the credibility of Mirage’s counsel, and statements of personal opinion.

*31In this case, Canterino’s attorney argued: “I talked to you about that McDonald’s case. That woman got burned and she got $3 million. And I don’t know whether it was right or not. That jury decided that’s what they thought was right. You’re the jury here. You have to decide what’s right.” The comparison that Canterino’s attorney built in this argument is prejudicial and completely improper. There is no logical connection between this case and the McDonald’s case except that Canterino’s attorney was attempting to expand the jury’s concept of a reasonable award. We should not condone this type of argument. See Wright & Ford Millworks, Inc. v. Long, 412 So. 2d 892, 894 (Fla. Dist. Ct. App. 1982) (holding that an attorney’s comparison of jury awards in other cases to the present case was improper and prejudicial).

Additionally, Canterino’s attorney argued:

How bad do they want to win? The chief of security told us he lied because his lawyer told him to lie. That’s how bad they want to win. They will perjure themselves.
Miss Ellsworth [Mirage counsel] told you just a minute ago — she had repeated it during the case, the second or third time I’ve heard it in this case — the same lie over and over and over.

In making these comments, Canterino’s attorney strayed from permissible argument to a purposeful attack on opposing counsel portraying her as a liar and perjurer. The design of this closing argument was to inculcate the jury with a belief that the Mirage’s attorney was untrustworthy. In doing so, the argument sought to inflame the jury in order to obtain a verdict on the basis of personal prejudice instead of on the weight of evidence provided at trial. See Las Palmas Assocs. v. Las Palmas Ctr., 1 Cal. Rptr. 2d 301, 315 (Ct. App. 1991); Thomas v. Dalpos, 326 N.E.2d 42, 46 (Ill. App. Ct. 1975); Board of County Rd. Comm’rs of the County of Wayne v. GLS LeasCo, Inc., 229 N.W.2d 797, 800 n.3 (Mich. 1975); Tucker v. Kansas City S. Ry., 765 S.W.2d 308, 310 (Mo. Ct. App. 1989) (holding that it is improper, unethical, and prejudicial to make personal attacks on opposing counsel or witnesses).

Further, Canterino’s attorney told the jury:

You know, I’m going to tell you one last thing before I finish up with this. One thing happened in this case, one thing was said in this case that absolutely — I mean, I just couldn’t stand it.
Dr. Basili told us that Mr. Canterino one snowy day had to stand by the window and watch his mother go outside and shovel snow, and she slipped and she hurt herself. . . .
My father died when I was a small boy. I know what it is *32to be raised by your mother. I can imagine what Mr. Canterino felt not being able to go out and shovel snow and to watch his mother slip and fall and hurt herself. . . .
But Miss Ellsworth, she said to Dr. Basili, how old was she, 55? There was nothing from preventing her from going out there doing it, was there?
That’s cold, ladies and gentlemen. That’s the Mirage.

As with previous statements made by Canterino’s attorney, this statement was designed to personally attack the opposing attorney and to discredit her before the jury. The added hyperbole that the Mirage is “cold” was simply an attempt to prejudice the jury against the Mirage not on the basis of facts, but through inflamed emotion. Canterino’s attorney’s opinion was not relevant to the trial, nor was it to be considered by the jury. See Betts v. Manville Personal Injury Settlement Trust, 588 N.E.2d 1193, 1216 (Ill. App. Ct. 1992) (holding that it is prejudicial error for an attorney to discuss personal experience or personal opinion in closing argument).

Although the Mirage failed to object to the impermissible commentary regarding the Mirage’s wealth, the “McDonald’s coffee” case, the credibility of counsel, and Canterino’s attorney’s personal opinion, I believe that these instances of misconduct are so numerous and inflammatory that they amount to plain error. Further, Canterino’s attorney’s arguments are not only prejudicial, they exceed the boundaries of acceptable professional conduct.

Canterino’s primary injuries from the attack at the Mirage were neurological damage that caused tingling in his feet, relatively minor optic nerve damage and hearing loss, and psychological problems including post-traumatic stress disorder, panic disorder and agoraphobia that prevented him from traveling more than a few blocks from his house. His treating psychiatrist stated that his panic disorder had subsided, but he continued to be apathetic. Canterino and his experts claimed that these maladies made him totally disabled and unemployable. Based upon this evidence, the jury awarded the following damages:

Physical pain and mental anguish in the past ...............................................................................$ 500,000.00
Physical pain and mental anguish in the future.............................................................................1,500,000.00
Physical impairment in the past....................................500,000.00
Physical impairment in the future............................1,500,000.00
Loss of earnings in the past............................................250,000.00
*33Loss of earning capacity in the future...................1,211,250.00
Medical expenses in the past............................................55,139.55
Medical expenses in the future......................................243,901.80
Total.....................................................................................$5,760,291.35

The district court judge took strong exception to the verdict and the claim that Mr. Canterino was totally disabled.

Canterino ... is far from totally disabled. What Canterino can do is walk very well, possibly run (in court he displayed this ability when he literally sprinted from the witness stand back to his chair), has the use of both arms and legs, thinks for himself, communicates with others, can both read and write, has functionally good eyesight, and can care for himself.

In trial testimony, Canterino admitted that he flew alone from New York to Las Vegas for trial and walked each day from his hotel four blocks away to the courthouse.

Standing individually, the instances of misconduct may not warrant reversal; when assessed cumulatively under the precept of DeJesus, however, the misconduct so permeated the proceeding that I believe the jury verdict was based, at least in part, on passion and prejudice rather than on the evidence presented at trial.

Accordingly, I believe that the district court’s issuance of the conditional order of remittitur was not an abuse of discretion and that its order for a new trial should be affirmed.