Hunt v. Freeman, Docket No. 173512

• Decision Date: 04 June 1996
• Docket Number: Docket No. 173512
• Citation: 550 N.W.2d 817,217 Mich.App. 92
• Parties: Audrey HUNT, Plaintiff-Appellant/Cross-Appellee, v. Gordon FREEMAN, Defendant-Appellee/Cross-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 817

550 N.W.2d 817

217 Mich.App. 92

Audrey HUNT, Plaintiff-Appellant/Cross-Appellee, v. Gordon FREEMAN, Defendant-Appellee/Cross-Appellant.

Docket No. 173512.

Court of Appeals of Michigan.

Submitted April 16, 1996, at Detroit.

Decided June 4, 1996, at 9:15 a.m.

Released for Publication July 29, 1996.

Lakin, Worsham & Victor, P.C. by Larry A. Smith, Southfield, for plaintiff.

Kohl, Secrest, Wardle, Lynch, Clark & Hampton by Michael L. Updike, Farmington Hills, for defendant.

Before TAYLOR, P.J. and FITZGERALD and HOUK, ^* JJ.

TAYLOR, Presiding Judge.

Following a jury trial, plaintiff was awarded $35,992.85 for injuries sustained in a car accident. Defendant was subsequently awarded $8,000 in attorney fees as offer-of-judgment sanctions. Plaintiff appeals as of right the trial court's denial of her motion for a new trial or additur and the appropriateness of the award of offer-of-judgment sanctions. Defendant cross appeals the amount of attorney fees awarded as offer-of-judgment sanctions. We reverse and remand for a new trial.

Plaintiff testified that she was traveling north on Inkster Road in Dearborn Heights and that the traffic light was green just before she entered the intersection with Ann Arbor Trail. She stated that defendant was stopped in the left-turn lane of southbound Inkster Road and, as she was entering the intersection, he pulled directly into her path in an attempt to make a left turn. A passenger in plaintiff's vehicle testified that defendant turned in front of plaintiff without warning and that the light was green. The vehicles collided, and plaintiff was taken to the hospital with an injured right foot.

Defendant died after commencement of this lawsuit, but not before his deposition was taken. At trial, this deposition was read to the jury. He stated that he was indeed traveling south on Inkster Road and that the light was green when he was one hundred to two hundred feet from the intersection. As he approached, he pulled into the left-turn lane, signaled, stopped, and waited for traffic to clear. The light was yellow just before he started his turn, and he turned believing he had the right of way. As he proceeded through the intersection, there was a collision as the left front of his vehicle made contact with the front portion of plaintiff's vehicle. The jury found that defendant's negligence had been a proximate cause of the accident and that plaintiff had suffered a serious impairment of body function, but that plaintiff had been fifty percent comparatively negligent.

Plaintiff argues that defense counsel engaged in several improper arguments. We reverse on the basis of two improper arguments made by defense counsel.

When reviewing asserted improper comments by an attorney, we first determine whether the attorney's action was error and, if it was, whether the error requires reversal. Wilson v. General Motors Corp., 183 Mich.App. 21, 26, 454 N.W.2d 405 (1990). An attorney's comments usually will not be cause for reversal unless they indicate a deliberate course of conduct aimed at preventing a fair and impartial trial. Id. Reversal is required only where the prejudicial statements of an attorney reflect a studied purpose to inflame or prejudice a jury or deflect the jury's attention from the issues involved. Hammack v. Lutheran Social Services, 211 Mich.App. 1, 9, 535 N.W.2d 215 (1995).

Plaintiff testified that her foot was stiff as a result of the accident. During closing argument, defense counsel argued that this may have been a result of plaintiff's using a wrap for her foot in accordance with her podiatrist's advice, which had been contrary to the advice of two orthopedic surgeons. Although plaintiff's counsel did not object to this argument, we find that it was error requiring reversal. Defense counsel's argument invited the jury to reduce plaintiff's damages because her injury may have been exacerbated by following the advice of her podiatrist as opposed to the advice of the two orthopedic surgeons. This was improper argument that may have denied plaintiff a fair trial. A patient may follow a licensed medical care provider's advice without risking a reduced award of damages for following such advice. McAuliff v. Gabriel, 34 Mich.App. 344, 348-349, 191 N.W.2d 128 (1971). This improper argument may well have influenced the jury's determination that plaintiff had been fifty percent comparatively negligent and may have caused the jury to award only $1,000 a year for future pain and suffering. Plaintiff is not required to establish affirmative prejudice as a consequence of this improper argument. Reetz v. Kinsman Marine Transit Co., 416 Mich. 97, 103, n. 8, 107, n. 20, 330 N.W.2d 638 (1982).

Plaintiff further contends that defense counsel should not have been allowed to argue that she could have avoided "drinking and then driving" after plaintiff had acknowledged drinking part of a wine cooler before driving. Defense counsel told the jury that it was for it to decide whether it believed plaintiff's drinking part of a wine cooler affected her ability to perceive and react. The court overruled plaintiff's objection to this argument. There was no testimony showing that consuming part of a wine cooler could affect a person's ability to perceive and react. Therefore, this argument was not supported by evidence. Without appropriate foundation testimony, such argument was improper and injected a false issue into the case. ¹

Plaintiff also argues that the court committed error requiring reversal in allowing defense counsel, during her opening statement, to refer to two of her four medical witnesses as "litigation doctors" who were "paid a large amount of money," used "extremely colorful language" in the form of "memorized speeches," and give "pat answer[s]."

Defense counsel gave her opening statement after having deposed Dr. Sidney Goldman and Dr. Steven Newman, and it was known that these two doctors were going to be testifying at trial by video deposition. Dr. Newman had testified that he gave an average of three depositions a week. He said he had been paid $630 to prepare for and give a two-hour deposition, and that he charged $200 an hour after the first two hours. Dr. Goldman had stated that he doubted he had given ten depositions that month, and that he charged about $700 for the hour his deposition would take because he had to clear his office to let the video camera operator set up and tear down. What constitutes a fair and proper opening statement is left to the discretion of the trial court. Wilson, supra at 27, 454 N.W.2d 405. We find that the trial court did not abuse its discretion in allowing defense counsel to argue as she did. There was no impropriety in defense counsel's pointing out that Drs. Goldman and Newman spend a significant portion of their time evaluating injured persons for attorneys and in giving testimony in lawsuits for which they are well compensated. There was record support for these characterizations. People v. Chatfield, 170 Mich.App. 831, 834, 428 N.W.2d 788 (1988). While there is nothing improper about doctors choosing to spend a large amount of time reviewing cases and testifying on behalf of injured persons, this does not mean that a reasonable person, made aware of how often such doctors give depositions, and the noteworthy fees such services command, might not, without pejorative intent, describe such practitioners as "litigation doctors" who "were paid a large amount of money." Cf. Heins v. Detroit Osteopathic Hosp., 150 Mich.App. 641, 644-645, 389 N.W.2d 141 (1986), where this Court stated that it was not inappropriate to refer to a...