Schoon v. Looby, 22336.

• Decision Date: 08 October 2003
• Docket Number: No. 22336.,22336.
• Citation: 2003 SD 123,670 N.W.2d 885
• Parties: Lucille SCHOON and John Schoon, husband and wife, Plaintiffs and Appellants, v. Thomas L. LOOBY, M.D., an individual, and Sioux Valley Clinic, formerly known as Sioux Valley Physician Alliance, formerly known as Obstetrics and Gynecology, Ltd., a South Dakota corporation, Defendants and Appellees.
• Court: South Dakota Supreme Court

670 N.W.2d 885

2003 SD 123

Lucille SCHOON and John Schoon, husband and wife, Plaintiffs and Appellants, v. Thomas L. LOOBY, M.D., an individual, and Sioux Valley Clinic, formerly known as Sioux Valley Physician Alliance, formerly known as Obstetrics and Gynecology, Ltd., a South Dakota corporation, Defendants and Appellees.

No. 22336.

Supreme Court of South Dakota.

Argued March 25, 2003.

Decided October 8, 2003.

John R. Hughes, Sioux Falls, SD, Attorneys for plaintiffs and appellants.

Edwin E. Evans, Melissa C. Hinton of Davenport, Evans, Hurwitz & Smith, Sioux Falls, SD, Attorneys for defendants and appellees.

MEIERHENRY, Justice.

[¶ 1.] Lucille Schoon and John Schoon, plaintiffs, appeal a defense verdict in favor of Dr. Thomas Looby, an obstetrician/gynecologist, and his employer, Sioux Valley Hospital. Schoon asserts that defense counsel made improper comments during final argument which were prejudicial and denied them a fair trial. Schoon appeals the trial court's denial of their motion for a new trial. We reverse and remand.

FACTS

[¶ 2.] Mrs. Schoon's claim against Dr. Looby and Sioux Valley Hospital is for medical malpractice and intentional infliction of emotional distress stemming from a surgical procedure performed on Mrs. Schoon. Mr. Schoon's claim is for loss of consortium. In 1996, Dr. Looby began treating Mrs. Schoon for a vaginal prolapse condition, which is a weakness or defect in the muscles of the female pelvic floor. To correct the condition, Looby performed a surgical procedure involving a Gore-Tex graft. Schoon claimed that the procedure, had it been successful, would only have corrected part of her condition and that Looby did not obtain her informed consent before the surgery.

[¶ 3.] Subsequent to the surgery, Schoon developed complications and infection which eventually resulted in Looby surgically removing the Gore-Tex graft. Schoon continued to have problems and, eventually, underwent additional surgery at the Mayo Clinic in Rochester, Minnesota after which she experienced no further symptoms.

[¶ 4.] Schoon alleged that Looby was negligent in managing her post-operative care. She also claimed that Looby made comments during her treatment which amounted to reckless or intentional infliction of emotional distress.

[¶ 5.] In final argument, defense counsel made several statements, which Schoon assigns as error. We will first address the propriety of defense counsel's remarks during final argument and second, whether those remarks compel a new trial.

I. Whether defense counsel's remarks during closing argument were improper.

[¶ 6.] Schoon claims defense counsel's statements misled and inflamed the jury and misstated the facts and the law.¹ The comments fall within four categories: (a) asserting personal opinion and knowledge of a witness, (b) misstatement of the facts, (c) misstatement of the law, and (d) inflammatory statements.

Asserting Personal Opinion and Knowledge of a Witness

[¶ 7.] Schoon claims that defense counsel's comments in final argument vouched for the doctor and injected personal knowledge of facts. It is well established in this state that a lawyer is not allowed to state personal knowledge of the facts in final argument. Binegar v. Day, 80 S.D. 141, 120 N.W.2d 521, 527 (1963). We have said: "It is not proper for counsel to state facts of his personal experience, or his own knowledge of the facts, unless he has testified thereto as a witness, or to make his argument an avenue for the presentation of unsworn testimony, or for him to insinuate that he has knowledge of facts." Id. (citation omitted). Here, defense counsel injected his knowledge of the doctor and his own personal experience with Looby as the physician who delivered his child. Counsel stated:

This claim troubles me, not because it has any merit but I don't know Dr. Looby personally. I know him professionally from having associated with him through this trial. I don't think he even knows this but he delivered my second child. I'm sure he doesn't remember it. But he is a quiet, professional person. And to have these accusations made against him troubles me.

Counsel's comments also served to vouch for the doctor's competence and his professionalism. By using the pronoun "I" followed by an observation about his own witness, an attorney enters questionable territory. It has long been established that an attorney cannot turn his final argument into testimony by comparing his own personal experience with the facts of the case or to vouch for a witness. Binegar, 120 N.W.2d at 527; State v. Goodroad, 455 N.W.2d 591, 594 (S.D.1990). Counsel here does both by his comment.

[¶ 8.] Not only do the comments vouch for Looby but they also contravene a limiting order requested by the defense. Prior to trial, the defense filed a motion to prevent Schoon from mentioning other malpractice claims against Looby. Two years prior to this trial, defense counsel was the attorney of record in a jury trial also in the second judicial circuit involving a claim for medical malpractice against Looby. The trial court had granted the defense motion prohibiting Schoon "from discussing or implying either the presence or absence of other litigation or claims involving Dr. Looby." Disregarding his own requested order, defense counsel implied that Looby had not been involved in prior malpractice claims. He further misled the jury with his comment that he had only associated with Looby "through this trial." Using a motion to prevent opposing counsel from mentioning other lawsuits and then injecting into final argument statements that counsel's only knowledge of the doctor was through this lawsuit was prejudicial to the opposing side.

[¶ 9.] The trial court erred by overruling the objection.

Misstatement of the Facts

[¶ 10.] Counsel has wide latitude to comment on the facts; however, counsel must confine the comments to a "reasonable scope of the evidence and to issues presented by the evidence." Cooper v. Holscher, 60 S.D. 83, 243 N.W. 739, 740 (1932). In the present case, defense counsel stated in final argument that Sioux Valley Hospital is a nonprofit corporation owned by all of us. The statement was as follows:

Defense Counsel: ... And not only that, Sioux Valley, a non-profit corporation that's owned by all of us. Let's show their balance sheet and—

Plaintiff's Counsel: I object to that, Your Honor. Sioux Valley Hospital is not a publicly owned corporation. That is inappropriate, inaccurate and it is an outrageous statement. It's a private corporation.

Court: Well, it's argument. I'll allow Defense Counsel to make his argument.

Evidence that Sioux Valley Hospital is owned by "all of us" is a misstatement of fact. Evidence at trial was that Sioux Valley Hospital was a private nonprofit hospital owned by Sioux Valley Hospitals & Health Systems.

[¶ 11.] Not only was this a misstatement of fact but it also was an attempt to persuade by improper means. The false implication to the jury could only be interpreted as an attempt to convince the jurors that if Sioux Valley had to pay, the jurors as "owners" would in some way have to pay. Comments of this nature have been found prejudicial in similar cases. In Kloppenburg v. Kloppenburg, comments by plaintiff's counsel that the defendant was insured and that the real party in interest was the insurance company prompted a new trial. 66 S.D. 174, 280 N.W. 209, (1938). Prejudice was found in a condemnation case in which the state's lawyer misstated the measure of damages and told the jury that their verdict would set the price for "what the State of South Dakota is going to pay for land north of Spearfish clear to the Wyoming line." State Highway Commission v. Beets, 88 S.D. 536, 224 N.W.2d 567, 568 (S.D.1974). In a criminal case, the prosecutor's community conscience argument invited reversal because he argued that the jurors should convict the defendant of driving while intoxicated because they could be the next fatality of a drunk driver. State v. Blaine, 427 N.W.2d 113, 115 (S.D.1988).

[¶ 12.] Here, the jury was to decide if Looby committed malpractice and, if so, set the amount of plaintiff's damages. Who would have to pay for those damages-whether defendant, defendant's insurance company or members of the public needing medical services-was not proper comment to the jury. See SDCL 19-12-13, see also LDL Cattle Co. v. Guetter, 544 N.W.2d 523, 529 (S.D.1996). Plaintiff counsel's objection should have been sustained.

Misstatement of the Law

[¶ 13.] The court has the responsibility to instruct the jury on the law and, in this case, the court properly instructed the jury on the factors constituting intentional infliction of emotional distress. The jury instruction that the trial court gave, required first, that there be outrageous and extreme conduct and second that the actor intended or acted recklessly in causing the emotional distress. Contrary to the instruction, Defense counsel tells the jury that a claim for intentional infliction of emotional distress requires proof of vindictiveness and hate. There is no element of hate or vindictiveness in intentional infliction of emotional distress. Although there is an intent element there is no requirement that the intent must be vindictive or hateful in nature. Counsel clearly misstated the law and the trial court erred by not sustaining the objection.

Using Inflammatory Statements

[¶ 14.] A lawyer cannot make statements meant to inflame the jury. Statements meant to inflame the jury go beyond summarizing the evidence and are designed to appeal to emotion and prejudice. State v. Smith, 1999 SD 83, ¶¶ 48-50, 599 N.W.2d 344, 354-55. "This improper type of argument cuts to the heart of juror independence." Smith, 1999 SD 83, ¶ 48, 599 N.W.2d at 354. We disapproved of inflammatory statements in Anderson v. Johnson, 441 N.W.2d 675 (S.D.1989). In Anderson, defense counsel launched into an invective about lawsuits. In closing...