Appellate Law

?Slick Lawyer? Remark Not Enough To Reverse Doctor?s Malpractice Verdict

By Steven R. Merican

Sonya Wilbourn sued her doctor, Mark Cavalenes, for medical malpractice. Wilbourn claimed Cavalenes inserted the wrong size compression plate when he performed surgery on Wilbourn?s fractured femur.

The jury gave a verdict in favor of Dr. Cavalenes, Wilbourn then asked for a new trial, but the trial court refused. So Wilbourn appealed. Among her arguments to the appellate court, Wilbourn claimed she was denied a fair trial because of a prejudicial remark by the defense lawyer during his closing argument.

During his closing argument to the jury, Cavalenes?s attorney called Wilbourn?s attorney a ?slick lawyer? who tried to twist Dr. Cavalenes?s words. Wilbourn argued that the remark amounted to ?plain error.? But the First District Illinois Appellate Court ruled that the comment did not change the outcome of the trial, and affirmed the verdict.

Here?s why the court rejected Wilbourn?s argument.

We cannot disturb the trial court's denial of plaintiff's motion for a new trial based upon defense counsel's isolated reference to plaintiff's attorney as a "slick lawyer trying to twist [Dr. Cavalenes'] words." This reference was made in response to plaintiff's counsel's assertion of his personal opinion as to the credibility of Dr. Cavalenes, and was a response to plaintiff's counsel's personal belief that Dr. Cavalenes was not credible. The trial court was able to observe the effect of the improper comments on the jury, and was in a position vastly superior to determine whether the improper comments denied plaintiff a fair trial. The trial court determined that the comments did not deny plaintiff a fair trial, and based upon the record before us, we cannot disturb that ruling.

The appellate opinion also is remarkable for its discussion of the ?plain error? doctrine. The court described application of the doctrine in civil cases as ?exceedingly rare.?

Read the whole opinion, Wilbourn v. Cavalenes, No. 1-08-3603 (2/19/10), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on June 07, 2010 (boomark / email).