JOSEPH D. CANTERINO, Appellant, v. THE MIRAGE CASINO-HOTEL, a Nevada Corporation, dba THE MIRAGE, Respondent
Canterino v. Mirage Casino-Hotel
Becker, J., concurs.
JOSEPH D. CANTERINO, Appellant, v. THE MIRAGE CASINO-HOTEL, a Nevada Corporation, dba THE MIRAGE, Respondent.
JOSEPH D. CANTERINO, Appellant, v. THE MIRAGE CASINO-HOTEL, a Nevada Corporation, dba THE MIRAGE, Respondent.
No. 30659
January 29, 2001
16 P.3d 415
Goodman Chesnoff & Reach, Las Vegas, for Appellant.
Morris Pickering, Las Vegas, for Respondent.
OPINION
By the Court,
Shearing, J.:
Joseph Canterino sued the Mirage Casino-Hotel for damages incurred after being beaten and robbed in the hotel hallway. After a nine-day trial, the jury awarded Joseph Canterino $5,760,291.35 in damages for past and future physical pain and mental anguish, physical impairment, lost earning capacity and medical expenses. The Mirage filed a motion for a new trial. The district court issued a conditional order of remittitur, finding the jury award of damages excessive, and reducing the damage award to $1,500,000.00. Canterino did not accept the remittitur, and the district court ordered a new trial. Canterino appeals, seeking reinstatement of the jury award. The Mirage argues that a new trial is warranted on the grounds of an improper jury instruction, as well as improper arguments by Canterino's counsel. We conclude the jury verdict on the issue of liability should be reinstated, but that a new trial must be had on the issue of damages.
DISTRICT COURT PROCEEDINGS
Canterino presented the following evidence. In April 1992, Canterino traveled from New York to Las Vegas with $100,000.00 to gamble. He reserved a room at the Mirage for the duration of his stay. On his second day at the Mirage, Canterino left his hotel room and was walking down the hallway when he was approached by a stranger. As Canterino glanced in the man's direction, another man hit Canterino in the head with a baseball bat. The two men repeatedly hit Canterino and stole his fanny pack where he kept his money. Canterino's attackers were never apprehended.
Canterino testified to his injuries, and presented extensive medical evidence of permanent physical, neurological and psychological injuries.
The Mirage presented evidence to show that it had no liability and, through cross-examination of Canterino's witnesses, attempted to challenge the cause, nature and severity of Canterino's injuries.
After jury instructions and closing arguments, the eight-person jury retired to deliberate. After deliberating for some time, the jury submitted a question to the district court. The jury asked: ' 'If 6 (Jurors) agree that the defendant was negligent . . . can the obstaining [sic] 2 (Jurors) — participate in determing [sic] damages? Please advise?" Initially, the district court told the bailiff to contact the attorneys as required under NRS 16.140. The bailiff told the judge that the Mirage's lead attorney was unavailable but she left the name of another attorney to contact. The judge decided not to contact the replacement attorney or Canterino's attorney and simply responded to the jury question, instructing that the'two jurors voting against liability could not participate in the damage award determination. The jury returned a verdict in favor of Canterino for $5,760,291.35 about half an hour later.
The district court subsequently issued a conditional order of remittitur reducing the damage award to $1,500,000.00 on the basis of the following findings:
1. That the verdict returned by the jury in the amount of $5,760,291.35 was excessive, was shocking to the conscience and tainted by plaintiffs appeals to the jury which resulted in bias, passion and prejudice.
2. That the verdict was shocking in relation to the evidence as to the severity and extent of plaintiff's injuries.
3. That the plaintiff does not present visible injury that can support such a verdict.
4. That the verdict awarded by the jury is unreasonable in light of the cumulative evidence presented at trial.
5. That unless a remittitur is ordered by the court a fair and just resolution of the case cannot be reached.
Canterino refused to accept the remittitur. The district court set aside the jury verdict and ordered a new trial. Canterino appeals from that order.
EXCESSIVENESS OF DAMAGES AWARD
The district court has the power under NRCP 59(a)(6) to order a new trial when excessive damages appear to have been given under the influence of passion or prejudice. This court reviews a trial court's order for a new trial that is conditional upon the plaintiff's refusal to accept an order of remittitur for abuse of discretion. See Harris v. Zee, 87 Nev. 309, 311, 486 P.2d 490, 491 (1971). On appeal, we accord deference to the trial judge's decision and reject a challenge to the judge's discretion if there is a material conflict of evidence regarding the extent of the damages. Id. However, if there is no conflict, the order to remit becomes suspect unless the amount awarded by the jury is so excessive as to suggest passion and prejudice. Id.
In this case, no conflicting evidence concerning the extent of Canterino's injuries or the amount of his monetary damages was offered by the Mirage. In fact, Dr. Ivan Bodis-Woliner testified for Canterino, even though he was one of the three physicians that the Mirage hired as an expert to conduct independent medical examinations on Canterino. Dr. Bodis-Wollner, professor of neurology at State University of New York, director of the Parkinson Center-Movement Disorders and a physician board-certified in neurology and psychiatry, testified that he conducted tests which objectively determined that Canterino's brain and various nerve pathways were permanently damaged. Dr. Bodis-Wollner also confirmed that there is a strong association between agoraphobia-panic disorder and the type of neurological damage from which Canterino suffered.
The other doctors who testified for Canterino confirmed the permanency of the neurological damage, and the causal relationship between the objective physical damage and the psychological manifestations that Canterino and his doctors described. The uncontradicted evidence showed that Canterino suffered hearing, balance and pyramidal track impairment as a result of the neurological damage. He presented extensive evidence that he suffered psychological injuries that kept him virtually housebound, unable to work or participate in any of the sports or activities that he had previously enjoyed. A treating psychologist found that Canterino exhibited the most severe case of co-morbid panic disorder, agoraphobia and post-traumatic stress disorder that she had ever seen.
Not only did the Mirage present no evidence contradicting Canterino's medical experts' testimony, but all its evidence related to whether the Mirage provides reasonable security to its guests. In opening statements, the Mirage did not mention that it disputed Canterino's injuries, stating:
But the interesting part of this case is it's a mystery; it's a mystery that — because the Mirage doesn't dispute Mr. Canterino was beaten. But where was he beaten; when was he beaten; by whom was he beaten and why?
The Mirage apparently only disputed liability.
In its conditional order of remittitur, the district court reduced the damages for past physical pain and mental anguish from the jury award of $500,000.00 to $50,000.00, for future physical pain and mental anguish from the jury award of $1,500,000.00 to $150,000.00, for past physical impairment from the jury award of $500,000.00 to $50,000.00, and for future physical impairment from the jury award of $1,500,000.00 to $150,000.00. The district court found the jury award "shocking in relation to the evidence as to the severity and extent of plaintiffs injuries." We cannot agree. The evidence showed that Canterino suffered a great amount of pain, anguish and impairment that would not diminish in the future. All the evidence supported the view that this forty-year-old man's life was essentially ruined, and the jury apparently believed that. The damages awarded by the jury were not excessive considering the uncontradicted evidence at trial.
This court has held that damages for pain and suffering are peculiarly within the province of the jury. In Stackiewicz v. Nissan Motor Corporation, 100 Nev. 443, 454, 686 P.2d 925, 932 (1984), this court stated that the trial court cannot revisit a jury's damage award unless it is ' 'flagrantly improper.' '
In actions for damages in which the law provides no legal rule of measurement it is the special province of the jury to determine the amount that ought to be allowed, so that a court is not justified in reversing the case or granting a new trial on the ground that the verdict is excessive, unless it is so flagrantly improper as to indicate passion, prejudice or corruption in the jury. . . . The elements of pain and suffering are wholly subjective. It can hardly be denied that, because of their very nature, a determination of their monetary compensation falls peculiarly within the province of the jury. . . . We may not invade the province of the fact-finder by arbitrarily substituting a monetary judgment in a specific sum felt to be more suitable.
Stackiewicz, 100 Nev. at 454-55, 686 P.2d at 932 (quotations and citations omitted). The mere fact that a verdict is large is not conclusive that it is the result of passion or prejudice. Id. (citing Beccard v. Nevada National Bank, 99 Nev. 63, 66 n.3, 657 P.2d 1154, 1156 n.3 (1983)).
In view of the uncontradicted evidence of Canterino's damages, it cannot be said that the jury's award was excessive. Furthermore, one of the district court's findings in support of reducing damages was that "the plaintiff does not present visible injury that can support such a verdict." There is no dispute that the injury was not outwardly visible since the principal injury was neurological and the brain damage resulted in a total change in personality and lifestyle. The finding that an injury is not outwardly visible is an inappropriate basis for ordering a remittitur.
The district court also found that the plaintiffs improper appeals resulted in jury bias, passion and prejudice. It is true that Canterino's counsel made inappropriate and unprofessional appeals to the jury. During closing arguments, he discussed his personal experiences and opinions; he personally attacked opposing counsel; he mentioned a verdict in another case; he mentioned the wealth of the Mirage. However, to mandate reversal, the prej udicial comments must permeate the trial to the degree that this court is convinced that passion and prejudice influenced the jury's verdict. See Barrett v. Baird, 111 Nev. 1496, 1515, 908 P.2d 689, 702 (1995); cf. Dejesus v. Flick, 116 Nev. 812, 7 P.3d 459 (2000) (damage award after inflammatory argument exceeded proof). Canterino's counsel's comments, although clearly inappropriate, were not so pervasive as to taint the jury verdict when considered against the overwhelming evidence supporting the jury verdict. Furthermore, although Mirage counsel now alleges that the improper comments were egregious, Mirage trial counsel neither objected to most of the comments nor made a motion for a mistrial. The objections which were made were sustained. The election not to seek a mistrial is simply a matter of trial tactics.
Since the jury's award was amply supported by the evidence and counsel's conduct did not permeate the trial and taint the verdict, we conclude that the district court abused its discretion in ordering a new trial on the basis that Canterino refused to accept the remittitur. As discussed below, however, since not all jurors participated in the damages determination, the district court properly granted a new trial with respect to damages, albeit for the wrong reasons.
JUROR PARTICIPATION
During jury deliberations, the jurors sought clarification of whether the two jurors who disagreed on liability could participate in the determination of damages. Without notifying counsel, the district court judge responded that the dissenting jurors could not participate.
NRS 16.140 requires that any answer to a juror question "shall be in the presence of or after notice to the parties or counsel." However, if the judge answers the juror question correctly, failure to notify the parties or counsel is harmless error. See Cavanaugh v. State, 102 Nev. 478, 484, 729 P.2d 481, 485 (1986). We conclude that the error was not harmless since the answer was incorrect.
Whether jurors who do not agree that there is liability should participate in the deliberation of damages is an issue of first impression in Nevada. While the Nevada Constitution does not address the necessary number of párties to arrive at a valid verdict, NRS 16.030(4) provides that "[t]he jury must consist of eight persons, unless the parties consent to a lesser number." This language suggests that all jurors should participate in all phases of deliberations. Even if a juror believes that there is no liability, there is no reason why that juror cannot effectively evaluate the evidence of damages. As the Arizona Supreme Court stated in Perkins v. Komarnyckyj, 834 P.2d 1260, 1263 (Ariz. 1992):
The principle is simple. The constitutional right of trial by jury carries with it the right to have every issue tried by the jury that has been empaneled, not by two-thirds of that jury, or three-fourths, or any other fraction. . . . The jurors who have been empaneled are required to consider and decide each of the issues submitted to them by the court. The cases cited establish that jurors who find themselves in a minority on one issue may not withdraw or be excluded from consideration of the other issues in the case.
We will not uphold a jury verdict that does not represent the deliberations of all jurors. Not all of the jurors need agree. A verdict may be rendered by three-fourths of the jurors. Nev. Const, art. 1, § 3. However, all the jurors must participate in the deliberations.
Only the damages portion of the jury verdict is flawed by the district court's erroneous instruction. It is clear that the jury determined that the Mirage was negligent after listening to numerous witnesses, argument on both sides and proper instructions. Therefore, although we reverse the district court's new trial order as it relates to liability, we affirm the order as it relates to damages and remand this matter for a new trial on damages. See Hotel Riviera, Inc. v. Torres, 97 Nev. 399, 403, 632 P.2d 1155, 1158 (1981).
DISQUALIFICATION OF JUDGE
Canterino has alleged that the district court judge should be disqualified for bias. The disqualification of the trial judge is a matter to be determined in the district court pursuant to district court rules; therefore, we do not address this argument.
CONCLUSION
We reverse the district court's order granting a new trial as it pertains to liability and affirm the order as it pertains to damages. This matter is remanded to the district court for a new trial on the damages issue.
Becker, J., concurs.
The Honorable Myron Leavitt, Justice, voluntarily recused himself from participation in the decision of this appeal.