Davis, J., concurring, in part, and dissenting, in part: The majority opinion addressed
the Hospital's assignment of error involving the refusal of the trial court
to give a comparative negligence instruction. I fully concur with the majority's
resolution of that issue. However, the Hospital also assigned as error the
closing argument statements made by plaintiff's counsel. The majority opinion
has not addressed that assignment of error on its merits. It is from this
part of the opinion that I dissent. I believe the Hospital was entitled to
a new trial based upon improper remarks made by the plaintiff's counsel during
closing argument.
1. The issue was
preserved for appellate review. The majority opinion contends that
a proper objection to the above statement was not presented. However, the
record reflects differently. Immediately after plaintiff's counsel concluded
the first half of closing argument, defense counsel approached the bench and
motioned for a mistrial. For reasons not apparent in the record, the initial
discussion of this matter was off the record. However, once the jury retired
to deliberate, the issue was placed on the record as follows.
2. The racehorse
argument constituted reversible error. Our cases have indicated “that
this Court reviews rulings by a trial court concerning the appropriateness
of argument by counsel before the jury for an abuse of discretion.”
Lacy, 205 W. Va. at 639, 520 S.E.2d at 427. Moreover, “'[t]he discretion
of the trial court in ruling on the propriety of argument by counsel before
the jury will not be interfered with by the appellate court, unless it appears
that the rights of the complaining party have been prejudiced, or that manifest
injustice resulted therefrom.'” Syl. pt. 9, State v. Flint, 171
W. Va. 676, 301 S.E.2d 765 (1983) (quoting Syl. pt. 3, State v. Boggs, 103 W. Va. 641, 138
S.E. 321 (1927)). In this case, the Hospital
has argued that the trial judged abused its discretion in denying a new trial
because of the improper closing remarks by plaintiff's counsel. The issue
presented by the Hospital was addressed by the Court in Roberts v. Stevens
Clinic Hosp., Inc., 176 W. Va. 492, 345 S.E.2d 791 (1986). Roberts
was a wrongful death case in which a jury returned a verdict for the plaintiff
in the amount of $10,000,000. The defendant appealed. One of the issues raised
was that the plaintiff improperly suggested a verdict amount to the jury.
Specifically, “[c]ounsel argued that if a $10,000,000 racehorse had been
killed through the negligence of a veterinary hospital, the measure of damages
would be exactly $10,000,000.” Roberts, 176 W. Va. at 499, 345
S.E.2d at 799. We recognized in Roberts that suggesting a verdict amount
to the jury through a racehorse analogy was prejudicial and therefore reversible
error. Unfortunately, the defendant in Roberts did not object to the
statement during closing arguments. Consequently, the Court declined to reverse
the jury verdict and award a new trial. However, because the Court found the
error to be so egregious, relief was granted by reducing the jury's award
from $10,000,000 to $3,000,000. In this case, plaintiff's
counsel used an analogy to suggest a verdict amount to the jury that was expressly
disapproved in Roberts. Here, the majority opinion has taken great liberty to protect the verdict by refusing to squarely address the
issue on its merits. I cannot accept the majority's position of simply ignoring
the issue. The issue was properly preserved. Under Roberts, the Hospital
was entitled to a new trial. Moreover, in syllabus point 7 of Bennett v.
3 C Coal Co., 180 W. Va. 665, 379 S.E.2d 388 (1989), we held, in part,
that suggesting a verdict amount to a jury for noneconomic damages will “result
in reversible error where the verdict is obviously influenced by such statement.”
The million dollar racehorse argument, without question, influenced the jury
to return a verdict for the plaintiff in the amount of $880,186.00. Therefore, I concur, in
part, and dissent, in part to the majority opinion. I am authorized to state
that Justice Maynard joins me in this concurring and dissenting opinion.
During the first half of plaintiff's
closing argument, the following remarks were made to the jury by plaintiff's
counsel:
And
like I said, the value of loss of enjoyment of life is something that we don't
value. People don't have any way. You can't go to the store. But I know one
thing, if Brian Rowe was horse, I could come in here and say, well, that horse's
leg's worth---a Kentucky Derby winner, millions and millions of dollars. You
wouldn't have any problem. This young man is certainly worth as much as a horse.
The hospital contends that it properly objected, and that the statement was
reversible error.
Judge:
. . . Mr. Farrell, you made an objection at the conclusion of the opening
part of Mr. Levine's closing argument. Do you--I will state that that was
done after the comment. Of course, the comments are always made before you
can object, but it was made at the closing of his argument and not at the
time of the comments.
Do
you have any motions or things to say in that regard?
Defense
Counsel: Yes, your Honor. I would like to place on the record my objection
that at the conclusion of the first half of Mr. Levine's closing argument,
I approached the Court and informed the Court that I objected to Mr. Levine's
argument concerning urging the jury to award damages based upon his comparison
of what a Kentucky Derby winning horse and the horse's leg would be worth.
Judge:
Speak up a little.
Defense
Counsel: I'm trying not to talk so loud that the jury may hear.
Using
the analogy of a Kentucky Derby winning horse, that if it had a damaged leg
would be worth millions, and urging the jury to award to the plaintiff in this
case likewise. We believe that is reversible error and I want to preserve my
objection for it.
The manner in which defense
counsel objected in this case was consistent with Rule 23.04(b) of the West
Virginia Trial Court Rules, which states in part that “[c]ounsel shall
not be interrupted in argument by opposing counsel, except as may be necessary
to bring to the court's attention objection to any statement to the jury made
by opposing counsel and to obtain a ruling on such objection.” Rule 23.04(b)
relaxes the general requirement of contemporaneous objection for closing argument
purposes. See Lacy v. CSX Transp. Inc., 205 W. Va. 630, 639,
520 S.E.2d 418, 427 (1999) (“Rule 23.04 . . . disfavors objections by counsel
during closing arguments.”). Therefore, this issue was properly preserved
for appellate review and should have been addressed by the majority opinion.