Professional Negligence Law Reporter

Capanna v. Orth, 2018 WL 6804354 (Nev. Dec. 27, 2018).

The Nevada Supreme Court held that judgment on a jury’s medical negligence verdict was proper notwithstanding plaintiff counsel’s comments during closing, which referred to the jury’s role and argued for the jury to consider whether they could cope with the plaintiff’s circumstances.

Here, Beau Orth sued Albert Capanna, alleging he negligently operated on the incorrect spinal level, damaging his spine and necessitating additional surgery. A jury awarded the plaintiff damages. On appeal, the defense argued that, among other things, the verdict should be overturned based on plaintiff attorney misconduct during trial. Specifically, the defense argued that the attorney made improper Golden Rule comments during closing and discussed the role of the jury in the deliberation process.

Affirming, the state high court found that statements by counsel encouraging a jury to “send a message” are not prohibited where the attorney does not ask the jury to ignore the evidence. Here, the court said, counsel did not ask the jury to disregard the evidence in the case; instead, counsel asked the jury to base its decision on the evidence. The court nevertheless found that counsel’s Golden Rule comments, asking, for instance, who of the jury would volunteer to give up their future for money, was improper. Asking a juror to consider what it would be like to be in a plaintiff’s position is the type of argument prohibited as a Golden Rule argument, the court said. Nevertheless, the court concluded that the jury’s award was based on medical evidence and testimony regarding the plaintiff’s condition and does not indicate the jury was swayed by emotion or sympathy. Thus, the court declined to reverse the judgment based on attorney misconduct.

Plaintiff counsel: AAJ member Dennis Prince, AAJ member Kevin Strong, and Danielle Tarmu, all of Las Vegas.