Bongiovi v. Sullivan
| Decision Date | 13 July 2006 |
| Docket Number | No. 43194.,43194. |
| Citation | 138 P.3d 433 |
| Court | Nevada Supreme Court |
| Parties | Joseph J. BONGIOVI, Jr., M.D., and Joseph J. Bongiovi, Jr., M.D., Chartered, Appellants, v. Walter SULLIVAN, M.D., Respondent. |
Beckley Singleton, Chtd., and Daniel F. Polsenberg, Las Vegas; Parker Nelson & Arin, Chtd., and Imanuel B. Arin, Las Vegas; JoNell Thomas, Las Vegas, for Appellants.
Campbell & Williams and Donald J. Campbell and J. Colby Williams, Las Vegas, for Respondent.
Before ROSE, C.J., DOUGLAS and BECKER, JJ.
Julie Jones sought cosmetic surgery and consulted with various plastic surgeons, including appellant Joseph Bongiovi, Jr., M.D., and respondent Walter Sullivan, M.D. On two separate occasions, while Jones was consulting with Bongiovi, Bongiovi told Jones that Sullivan had recently killed a woman while performing the same surgery Jones was scheduled for. Jones canceled her surgery with Sullivan and, sometime later, told Sullivan what Bongiovi had said.
Sullivan sued Bongiovi for defamation, arguing that Bongiovi's statements were slanderous per se. Following a trial, the jury found in favor of Sullivan and awarded him $250,000 in compensatory damages and $250,000 in punitive damages. Bongiovi appeals, arguing that a new trial is warranted because the district court (1) abused its discretion by refusing to continue the trial to accommodate Bongiovi's counsel's medical condition, (2) erred by concluding that Sullivan was not a limited-purpose public figure, and (3) improperly allowed inflammatory hearsay testimony. Bongiovi also argues, among other things, that the damages awards must be set aside because (1) the compensatory damages award was excessive, and the district court erroneously awarded prejudgment interest on future damages; and (2) the punitive damages award was improper because Sullivan failed to prove that Bongiovi's statements were made with the requisite malice, fraud, or oppression to support punitive damages, and the award was excessive and improperly based on attorney fees.
We conclude that a new trial is unwarranted and the compensatory and punitive damages awards were proper. Regarding the denial of the request for a trial continuance, Bongiovi was adequately represented by other counsel, the district court delayed the start of trial by one week to allow Bongiovi's substitute counsel to familiarize himself with the case, and Bongiovi has not demonstrated that he was prejudiced by the denial. Thus, the district court did not abuse its discretion by denying his request. Regarding whether Sullivan was a limited-purpose public figure, Sullivan did not voluntarily interject himself into a public controversy, and therefore, the district court properly concluded that he was not a limited-purpose public figure. As to the evidentiary objections, the district court did not improperly allow hearsay or inflammatory testimony. And finally, with regard to the damages awards, Bongiovi has not demonstrated that there was error in either the compensatory or punitive damages awards. Consequently, we affirm the district court's judgment.
Jones was an exotic dancer in Las Vegas, Nevada, who sought plastic surgery to enhance her appearance and improve her ability to earn money in her profession. Prior to having surgery, Jones consulted with various doctors, including Bongiovi and Sullivan. During Jones's consultation with Bongiovi, she told him that she had previously consulted with Sullivan at Sullivan's Estetica surgery center. Bongiovi then told Jones that Sullivan had a patient die the week before during the same surgery that Jones was having. Jones questioned Bongiovi about whether the death was the anesthesiologist's or Sullivan's fault. Bongiovi confirmed that it was Sullivan's negligence that led to the patient bleeding to death on his table.
Bongiovi also told Jones that Bongiovi was the chief of staff at a hospital and was a consultant for a board of examiners that was investigating Sullivan's misconduct in connection with the patient's death. No one other than Jones's infant child was present when these statements were made. Bongiovi's statements that Sullivan had a patient die, that Bongiovi was a consultant for a board of examiners, and that Sullivan was being investigated were false.
Following that visit, Jones had a consultation at Nevada Plastic Surgery, but she did not know the name of the plastic surgeon whom she would be seeing. The plastic surgeon turned out to be Sullivan. Jones had always liked Sullivan, and his office then scheduled her for surgery. Jones did not reveal Bongiovi's statements to Sullivan at that time. Jones also had another appointment with Bongiovi, which she kept. Jones's boyfriend went with Jones to her appointment with Bongiovi. Jones questioned Bongiovi about what he previously told her about Sullivan, and Bongiovi confirmed to her that the statements were true. Jones was scared by what Bongiovi told her, so she decided to have Bongiovi, and not Sullivan, perform her surgery. Both Jones and her then-boyfriend also testified that Bongiovi agreed to reduce his price, although he still charged more than Sullivan. They testified that the price reduction also influenced Jones's decision to cancel the surgery with Sullivan.
When Jones canceled her surgery with Sullivan, she told his office manager, Jamie Wallin, that she was canceling because Sullivan was under investigation for a patient's death.1 Wallin then informed Sullivan that Jones said that Sullivan had killed someone and was under investigation. Wallin testified that when Sullivan learned of the statements he was outraged, yelled, screamed, and demanded Jones's telephone number.
Sullivan then called Jones, and Jones told Sullivan that she was told that he had murdered a patient. Jones refused to reveal the name of the doctor who had made those statements to her. Jones testified that Sullivan was upset, and he asked Jones to tell whoever made the statements to stop. After speaking with Sullivan, Jones then called Bongiovi's office, again seeking confirmation of the statements, and Bongiovi's office assistant confirmed that the statements were true.
Conversation with attorney Kim Mandelbaum
After speaking with Jones, Sullivan telephoned attorney Kim Mandelbaum, who had previously represented him and who had given him advice over the years. Sullivan wanted advice from Mandelbaum about how he could get the name of the doctor who made the statements. Mandelbaum testified that Sullivan was very upset. Mandelbaum told Sullivan that he should request Jones's medical records from Bongiovi because, in her experience, Bongiovi had usually had a consultation with the majority of plastic surgery patients. Mandelbaum also testified that she had no personal knowledge that Bongiovi ever made a derogatory statement against Sullivan.
Sullivan then faxed a request for Jones's medical records to Bongiovi's office to verify whether Bongiovi had seen Jones. Sullivan did not receive any records. However, he later received a telephone message from Bongiovi's office that Jones had been in for a consultation but had not had any work done and there were no records.
Jones ultimately had surgery with Bongiovi. Following the procedure, Jones had multiple complaints regarding the surgery and was unhappy with the result. Jones went to Sullivan for an evaluation of whether Bongiovi had "botched" her surgery. During that evaluation, Jones told Sullivan that Bongiovi was the doctor who had made the derogatory statements to her. Sullivan then instituted the defamation case against Bongiovi.
Bongiovi's request for continuance
The night before trial was set to begin, Imanuel Arin, Bongiovi's counsel, was hospitalized for heart problems. Theodore Parker, Arin's law partner, appeared before the district court on the day trial was scheduled to begin and requested a continuance of trial until Arin could recover. None of the other attorneys in Arin's law firm was available to take Arin's place at trial.
After reviewing the file, the district court found that it would take Parker only two days to get up to speed on the case. The district court stated that Paul Acker, an associate at Arin's law firm who had signed the majority of the pleadings and taken many of the depositions in the case, was competent and could effectively assist Parker in presenting the case and bringing him up to speed. The district court partially granted Parker's request and continued the trial for seven days, three less than what Parker indicated he would be amenable to. It was the fourth time the trial had been continued, twice at Parker's request.
Parker was unable to prepare for the trial in time, and on the Friday before trial, the district court received an ex parte faxed letter from Parker requesting another continuance. The district court informed Parker that it would not consider a motion for continuance sent by facsimile. On the morning that trial was set to begin, Parker moved to withdraw as Bongiovi's counsel, stating that he was unable to prepare for trial. The district court concluded that it could not consider the motion because an application to withdraw may not be granted if it would delay trial.2 The district court denied Parker's request and ordered that trial would begin the following day. Although Parker conducted the majority of the trial, Arin delivered the opening statement, cross-examined Jones, and engaged in colloquy with the district court.
Challenges to trial testimony
Also prior to trial, Bongiovi filed a motion in limine to exclude hearsay testimony, requesting that the testimony of various doctors and Mandelbaum be precluded at trial. Bongiovi argued that the witnesses' testimony was irrelevant and they had no personal knowledge of his statements to Jones about Sullivan. Therefore, he...
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