Court says jurors could see lawyer's sarcasm for what it was

By Justin Anderson | Jun 8, 2009

McHugh

Ketchum

CHARLESTON -- The West Virginia Supreme Court says a Marshall County woman will not get a new trial in her medical malpractice lawsuit, even though the lawyer for the defendant doctor gave closing arguments laced with sarcasm.

An Ohio County jury found in favor of Dr. Derek Andreini and Orthopaedic Surgery Inc. in a lawsuit brought by Catherine I. and John Smith. Catherine Smith had sued over an injured shoulder she said Andreini failed to diagnose.

However, Ohio Circuit Judge Martin Gaughan, in a July 2005 order, declared a mistrial because of
the closing arguments of Andreini's lawyer, Richard W. Stuhr. The order came nearly 20 months after the verdict.

According to court records, Stuhr told the jury that Smith and her lawyer, Scott Blass, were trying to make the defense's expert out to be a "big, fat liar" and implied that Blass and his client weren't being entirely straightforward with them.

"I'm also, like Mr. Blass, an officer of this court," Stuhr said, according to court records. "I have a duty to his honor, to you, and to the system of justice that I represent along with Mr. Blass. I have a duty not to lie to you, not to deceive you, or mislead you.

"My job, I think, is to try to persuade you that my client rendered appropriate medical care to Mrs. Smith. That's all.

"And I don't get paid to get up here and try to hoodwink you. I don't get paid to get up here and try to deceive you, pull the wool over your eyes. Use any expression you like. And I don't want to do that."

Blass objected specifically to the "big, fat liar" comment. Stuhr told the jury that he hailed from Lake Charles, La. and that they call them like they see them down there.

Smith filed a motion for a mistrial, but asked that the judge wait to rule on it until after the jury rendered its verdict. Smith argued that Stuhr violated his own motion granted prior to trial that said the plaintiff's counsel could not personally attack Stuhr before the jury.

Gaughan, in his order, said Stuhr "went beyond the scope of proper argument by grossly mischaracterizing Plaintiff's closing argument and by injecting harsh and vituperative remarks.

"Specifically, he falsely accused plaintiffs as describing Dr. Andreini as a big fat liar, a cheat, a fraud, and a despicable human being. Furthermore, defense counsel personally attacked plaintiff's counsel and suggested that he was lying and being deceitful. This court feels the only proper remedy is to declare a mistrial."

Justice Thomas McHugh, writing for the majority, found that Stuhr's comments were not so improper as to warrant a mistrial.

McHugh said the closing argument was more a summation of the disputed evidence in the case and the occassional sarcasm and hyperbole would have been recognized for what it was by a reasonable juror.

"In reviewing the closing argument of Dr. Andreini's counsel ... we find that his occasional use of sarcasm and exaggeration during the course of an otherwise traditional recitation of the evidence was obvious and that no reasonable juror would have taken his remarks for their literal meaning," McHugh wrote.

Justices Menis Ketchum and Margaret Workman concurred in part and dissented in part.

In his separate opinion, Ketchum said Stuhr erred in not providing Gaughan or the justices with a transcription of Blass's closing argument, which Stuhr said prompted his comments. Ketchum said the trial court

"The defendant's counsel does not have clean hands and should not prevail because the trial court and this Court do not have an ostensibly important part of the closing arguments to review.

"At oral argument before this Court, the defendant's counsel shrugged off the lack of a transcript as harmless, saying 'hindsight is 20/20.' The defense's failure to promptly obtain the transcript of opposing counsel's argument was not a peccadillo."

Supreme Court case number: 34271

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