Ali by Ali v. Dakota Clinic, Ltd.

• Decision Date: 18 August 1998
• Docket Number: No. 970340,970340
• Citation: 582 N.W.2d 653
• Parties: Shareef ALI, a minor, by his father and natural guardian, Sayel ALI, Plaintiff and Appellant, v. DAKOTA CLINIC, LTD., a North Dakota corporation, Defendant and Dakota Hospital, Defendant and Appellee Civil
• Court: North Dakota Supreme Court

Page 653

582 N.W.2d 653

1998 ND 145

Shareef ALI, a minor, by his father and natural guardian Sayel ALI, Plaintiff and Appellant, v. DAKOTA CLINIC, LTD., a North Dakota corporation, Defendant and Dakota Hospital, Defendant and Appellee

Civil No. 970340.

Supreme Court of North Dakota.

Aug. 18, 1998.

Miller, Norman & Associates, Moorhead, MN for plaintiff and appellant; argued by Keith L. Miller.

Serkland, Lundberg, Erickson, Marcil & McLean, Ltd., Fargo, for defendant and appellee Dakota Hospital; argued by Jack G. Marcil.

MESCHKE, Justice.

¶1 Shareef Ali, by his father, Sayel Ali, appealed an order denying his motion for a new trial on his medical negligence claim after a jury verdict for Dakota Hospital. We affirm.

¶2 Shareef was born at Dakota Hospital on Wednesday, June 6, 1990, and discharged with his mother on Friday, June 8. During his first weekend at home, Shareef's parents, Sayel and Feryal Ali, noticed he was turning yellow. On Monday, Feryal called the hospital nursery and was instructed to bring Shareef back to the hospital. Later that day, Feryal and Sayel returned to the hospital with Shareef. Shareef was diagnosed with hyperbilirubinism (jaundice), placed in the neonatal intensive care unit, and received multiple full-volume blood transfusions. From the jaundice, Shareef suffered a serious brain injury and remains permanently disabled.

¶3 Shareef sued Dakota Clinic, Ltd. and Dakota Hospital, alleging negligence in his care and in the instruction of his parents. During the jury trial, from a settlement stipulation, the trial court dismissed the claim against Dakota Clinic. The jury returned a special verdict finding Dakota Hospital was not negligent, and the trial court entered a judgment dismissing Shareef's claim against it with prejudice.

¶4 Shareef moved for a new trial, alleging the jury's "unjust verdict [was] irretrievably tainted by [defense counsel's] prejudicial remarks." After a hearing, the trial court entered an order denying the motion. Shareef appealed.

¶5 We review a trial court's denial of a motion for a new trial under an abuse-of-discretion standard. Blessum v. Shelver, 1997 ND 152, p 20, 567 N.W.2d 844. "[A] trial court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably." Id. at p 21. We conclude the trial court did not abuse its discretion.

¶6 Shareef argues he is entitled to a new trial because statements made during Dakota Hospital's closing argument to the jury were improper, prejudicial, and denied him a fair trial. Dakota Hospital responds "[a]ny alleged prejudice was remedied by the trial court's instructions to the jury." We review the alleged improper statements in context.

¶7 In his closing argument, Shareef's counsel attempted to justify to the jury a damage award of seven million dollars:

Now, when it comes to noneconomic damages for pain, suffering, disability, the Court will tell you I think in so many words there's really no yardstick as to how to do it. And you'll have to rely upon your own common experience and judgment to figure out what would be appropriate for Shareef in this case. And I think that's a difficult task. You know, the way we compensate people in this society is kind of strange.

I read in the paper the other day that a football player, Steve Young, will get $15 million a year to play football. That's his compensation for the privilege of playing football. We know that a guy named Mike Tyson got about $40 million for a fight not too long ago. That makes no sense to me whatsoever. We know that CEOs of large corporations get millions of dollars for the privilege of running those corporations, and they even get millions of dollars in severance packages, like the guy at Apple just did, and he does a lousy job.

¶8 In his closing argument to the jury, Dakota Hospital's counsel argued:

Now, one of the--one of the things in terms of talking about this education and what went on, I noted that Linda Carver took care of Mrs. Ali for nine months before the birth. Linda Carver did not testify on behalf of the Alis. We can assume that she would have testified that Mrs. Ali did understand the pregnancy instructions and those things....

....

So it's difficult, because we're dealing with a child, it's difficult to say, no, that the hospital wasn't negligent, and the clinic wasn't negligent. But that's our system. This is not a system that you can just bring a claim and come in and walk out a millionaire. And this is not Las Vegas. This is not the house of instant millions. And that's right. It shouldn't be. You must prove your case. And I suggest to you that there was no negligence here. There was no negligence here. And I ask you to--to reach that verdict. And that would be a fair verdict. That would be a very fair, understandable verdict for all people concerned. And it would be a just verdict.

At the conclusion of Dakota Hospital's closing argument, the trial court recessed the jury. Shareef's counsel then objected to these two aspects of the closing argument for Dakota Hospital, alleging they were prejudicial.

¶9 The trial court sustained Shareef's objection to the statement about Linda Carver not being called as a witness and granted his request for a curative instruction on that. The court, however, overruled Shareef's objection to the statements on damages, particularly the references to Las Vegas and millionaires. ¹

¶10 When the jury reconvened, the trial court gave it the curative instruction requested by Shareef:

Ladies and gentlemen, at this time I'm going to instruct you that as the jury on this particular case, you are to draw no inference whatsoever from the fact that Nurse-Midwife Linda Carver failed to testify.

Shareef's counsel then gave his rebuttal, and then the court gave the jury final instructions. These instructions included "Statements by Counsel and Judge" and "Statements of Counsel," both informing the jury that a counsel's statements are not evidence.

¶11 After nine hours of deliberations, the jury sent a note to the judge saying they were deadlocked. Dakota Hospital moved for a mistrial, and Shareef opposed the motion. The trial judge denied the motion and read Pattern Jury Instruction 1750 on "Deadlocked Jury" to the jury before excusing them for the evening. The next day, the jury resumed deliberations and shortly returned the special verdict for Dakota Hospital.

¶12 "In general, counsel must make a timely objection to an improper argument and must ask the trial court to give a curative instruction to the jury. Failure to object waives the improper argument." Blessum, 1997 ND 152, p 30, 567 N.W.2d 844 (citation omitted). In Thomas v. Stickland, 500 N.W.2d 598, 601 (N.D.1993), we explained the appealing party must show more than just a timely objection to an improper argument:

Even if counsel successfully preserves improper jury argument for appellate review, an improper argument does not necessitate a reversal of the verdict "unless it is likely that the misconduct affected the verdict and thus deprived the party against whom the argument was made of a fair trial." Hoffer v. Burd, 49 N.W.2d at 294. This court held in In re Estate of Paulson, 219 N.W.2d 132, 133, Syllabus p 7 (N.D.1974):

Improper argument of counsel of prevailing party is not ground for reversal of jury verdict unless there is a clear showing such misconduct deprived adverse party of a fair trial[,] and where there is more than sufficient evidence to...