Bronner v. Reicks Farms, Inc., 17-0137

• Decision Date: 06 June 2018
• Docket Number: No. 17-0137,17-0137
• Parties: Kelsey BRONNER, Plaintiff-Appellant, v. REICKS FARMS, INC., Defendant-Appellee.
• Court: Iowa Court of Appeals

919 N.W.2d 766 (Table)

Kelsey BRONNER, Plaintiff-Appellant,

v.REICKS FARMS, INC., Defendant-Appellee.

No. 17-0137

Court of Appeals of Iowa.

Filed June 6, 2018

Matt J. Reilly, Nicholas C. Rowley, and Dominic F. Pechota, of Trial Lawyers for Justice, P.C., Cedar Rapids, for appellant.

Brian L. Yung of Klass Law Firm, L.L.P., Sioux City, for appellee.

Heard by Danilson, C.J., and Mullins and Bower, JJ.

DANILSON, Chief Judge.

Kelsey Bronner appeals from the district court’s order granting a new trial on her claims based on injuries sustained during a car accident for which Reicks Farms, Inc. (Reicks Farms) has stipulated liability. Bronner contends the district court improperly found Bronner’s counsel engaged in misconduct warranting a new trial under Iowa Rule of Civil Procedure 1.1004(2). Reicks Farms asserts this court does not have jurisdiction to consider the appeal because the notice of appeal was not timely filed. Reicks Farms also maintains the district court did not abuse its discretion in granting a new trial. Finding no abuse of discretion in the district court’s order granting a new trial, we affirm.

I. Background Facts & Proceedings.

On April 30, 2008, Bronner—then sixteen years old—was injured when her vehicle collided with a vehicle being driven by an employee of Reicks Farms. Bronner suffered fractures to bones in her face

and nose, damage to nerves in her forehead controlling her eyelid and eyebrow functions, abrasions and cuts on the left side of her face requiring stiches, swelling the size of a baseball on her right cheek, and the loss of the lobe portion of her right ear. Bronner underwent surgery to reconstruct her ear and to attempt to reconnect the nerves in her forehead. Bronner had a number of additional surgical procedures related to her injuries between the time of the accident and the time of trial commencing on August 10, 2016.

At trial, Bronner explained that in addition to the physical pain resulting from the accident itself and the subsequent procedures required to treat her injuries, the permanent damage to her face and ear has had a significant ongoing physical and mental impact on her life. Bronner stated the scarring on her face and ear tingle when touched, she is unable to move her right eyebrow, her eyelid twitches or blinks when she is fatigued, and she experiences severe swelling of the right side of her face about once per month. Bronner also stated her face has begun to droop, and will droop more and more over time. Bronner explained her changed appearance has caused her embarrassment, emotional distress, and to be less outgoing throughout her life.

At trial, Reicks Farms stipulated to full liability for the damages resulting from the car accident. Thus, the only issue remaining was the amount of damages to be awarded. The parties agreed Bronner had incurred medical expenses in the amount of $59,189.67. Bronner sought damages for past medical expenses, past pain and suffering and disfigurement, future pain and suffering and disfigurement, past loss of full mind and body, and future loss of full mind and body.

During closing argument, plaintiff’s counsel stated he had gotten to know Bronner and her family, and said, "Bronner and her parents are truth tellers, salt of the earth, good people, truth tellers" who had gathered the courage to seek compensation for the injuries Bronner sustained. He also stated what happened to Bronner had been ignored and not taken seriously. Plaintiff’s counsel speculated the nerve damage to Bronner’s face was causing her face to droop over time, and argued there was no real fix for Bronner’s injuries. He told the jury its verdict will reflect what preventing this type of injury is worth to their community and asked the jury to stand up for Bronner and award her appropriate damages.¹

In his closing argument, defense counsel asked the jury to evaluate how the accident and Bronner’s injuries have truly affected her life. Counsel asked the jury to consider the medical evidence regarding what Bronner reported to doctors and the medical issues Bronner is expected to experience in the future. He noted Bronner reported to doctors she was pleased with the result of her procedures, Bronner did not report she was depressed, and the medical records do not state Bronner would experience drooping of her face over time. He also noted photos taken from Bronner’s Facebook account reveal she has reached all the normal milestones in life and has been successful. He stated, "So, you know, has this really changed her value as a person? The answer to that is no. And, you know, has this altered her course in life? No."

Then, in his rebuttal closing argument, plaintiff’s counsel made a number of statements the district court ultimately found to be improper, including vouching for the veracity of Bronner and her witnesses, informing the jury they had been misled by defense counsel, and asking the jury to stand up for Bronner. In its ruling on the motion for new trial, the district court focused on the following rebuttal statements made by plaintiff’s counsel:

(1) "[I]t never fails to surprise me when I see a defense lawyer get up in front of a jury and just say a number of things that are untrue. ... And I’m disappointed at what I just heard come out of the mouth of [defense counsel]." Defense counsel objected to these statements, and the objections were sustained. However, plaintiff’s counsel then immediately stated, "What should be disappointing to you is how you’ve been misled." Defense counsel again objected, and the objection was sustained.

(2) Plaintiff’s counsel later stated:

[T]o say that [the] photos [from Bronner’s Facebook account] show that this didn’t alter her or change her is just untrue and it’s unfair and it’s an unfair thing to say. It’s just not true. It seems like—like [defense counsel]’s coming—he’s come all the way over here from Sioux City, Iowa, to call the Bronner family liars.

No objection was made to this statement.

(3) The district court also considered plaintiff’s counsel’s statement,

Everything we have said here is true, is absolutely [one hundred] percent true. There is no getting around it other than just hoping that maybe—maybe in this county, maybe we can get off cheap. Those numbers are an insult. They really, really are. They are an insult. They are shameful numbers to award a young girl for a life of disfigurement in a case like this. Shameful. Not something to be proud of.

They say, oh we want—we want Kelsey Bronner—we want her compensated. The truth is, brutal honesty, if they could give her zero and get away with it they would.

Defense counsel objected to these statements and the objection was sustained.

(4) And immediately following the objection to the statement above, plaintiff’s counsel immediately stated, "If they could ... give her a goose egg, do you think they would?" Another objection was made and sustained. Then plaintiff’s counsel asked the jury to "[p]lease go back there and stand up for her. Somebody has gotta."

The jury delivered its verdict on August 12, 2016, awarding Bronner $59,189.67 for past medical expenses, $90,909.23 for past physical and mental pain and suffering and disfigurement, $90,909.23 for past loss of full mind and body, $659,090.80 for future physical and mental pain and suffering and disfigurement, and $659,090.80 for future loss of full mind and body. The parties stipulated to entry of final judgment in the amount of $1,559,189.00.

On August 23, 2016, Reicks Farms filed a motion for new trial asserting a new trial was appropriate because:

During the course of trial, [Bronner]’s attorney made numerous improper statements and arguments to the jury which included personal opinions of counsel, personal vouching of their client, [and] improper references to [Reicks Farms] and to defense counsel. The statements and arguments constituted an improper effort to appeal to the passion and prejudice of the jury.

Following the hearing on the motion for new trial, the district court entered its ruling on November 23, 2016. The court held:

The court finds plaintiff’s counsel made improper statements in his rebuttal to [Reicks Farms]’s closing argument. Those improper remarks included, but were not limited to, vouching for the veracity of [Bronner] and her witnesses. Furthermore, by stating, "Everything we have said here is true ...," counsel asserted personal knowledge of facts in issue.

[Bronner] sought an award of future damages for pain and suffering, as well as disfigurement. In [Bronner]’s closing argument, counsel argued [Bronner]’s face would droop more and more over time as [Bronner] aged, and facial swelling would continue into the future. When defense counsel argued there was no medical evidence in the record that [Bronner]’s face would droop and swelling would exist in the future, [Bronner]’s counsel replied that everything [Bronner] presented in trial was absolutely [one hundred percent] true, that the jury had been misled by defense counsel, and the jury needed to stand up for [Bronner]. The jury subsequently returned verdicts that included an award of $659,090.80 for future pain, suffering, and disfigurement. The jury returned an identical figure for future loss of full mind and body. The court finds plaintiff [counsel]’s vouching for the truthfulness of [Bronner] and [Bronner]’s witnesses, informing the jury they had been misled by defense counsel, and charging the jury to stand up for [Bronner] were calculated to, and with reasonable probability did, influence the jury’s verdict. The court finds the rebuttal argument of plaintiff’s counsel prejudiced [Reicks Farms] and it is probable a different result would have been reached, but for that misconduct.

The court concludes [Reicks Farms] is entitled to a new trial, as misconduct of the prevailing party’s counsel materially affected [Reicks Farms]’s rights at trial, as contemplated by [Iowa Rule of Civil Procedure] 1.1004(2).

On December 6. 2016, Bronner filed a rule...