MURCHISON v. REGIONAL SURGICAL SPECIALISTS (2019)

When an attorney travels outside the record or injects his personal opinion into a closing argument, the trial court abuses its discretion in failing to take corrective action—either by ordering a curative jury instruction or, where necessary, a new trial. However, when an attorney draws what she believes to be reasonable inferences from facts in evidence during closing argument, it is not an improper closing argument warranting corrective action. Here, the challenged closing argument was drawn from reasonable inferences and not improper.

BACKGROUND

Plaintiffs Cameron and Joan Murchsion (“Cameron” and “Joan,” respectively) sued Dr. Christopher Edwards (“Edwards”) and Regional Surgical Specialists (“RSS”) for medical malpractice, alleging Edwards and RSS were negligent at various times during Cameron's surgery and in the days that followed. Edwards performed a laparoscopic left inguinal hernia repair on Cameron on 7 August 2013. Cameron's discharge instructions advised him to return to the hospital for pain not relieved by pain medicine. In the days after his surgery, Cameron suffered pain not relieved by his medication and placed calls to Defendants seeking their input. Cameron eventually returned to the hospital on 11 August 2013 and was diagnosed with a bowel perforation that required a second surgery.

Plaintiffs sued Edwards and RSS for medical malpractice, alleging the Defendants were responsible for Cameron's perforated bowel and provided negligent treatment in the days after his surgery ¹ . The Defendants denied Plaintiffs’ allegations and also contended Plaintiffs were contributorily negligent. The case was heard over seven days in Buncombe County Superior Court and concluded with a unanimous jury verdict in favor of the Defendants.

Plaintiffs’ arguments on appeal center around the allegation that Defendants’ counsel made improper statements during his closing argument and that those statements entitle Plaintiff to a new trial. At closing, Defendants’ counsel made comments regarding individuals who did not testify at trial, what they might have said had they testified, and what the jury should make of their absence. Specifically, Defendants’ counsel reminded the jury that Joan testified Cameron had family members who lived nearby who “came by to check on [him]” at some point between his surgery on 7 August 2013 and return to the hospital on 11 August 2013, and went on to say:

Why did you not hear testimony from any of those three family members? You really have to ask yourself that question. It's just as important what's not here, like the Pathologist is not here, as it is what is here. What's not here is just as important. And so, you know, as I thought about it, as it occurred to me, I thought, well, it seems like there's two things that family members could say if they were there on Thursday and Friday. One, you know, he had a little bit of pain but he didn't look that sick. Maybe they'd say that. I don't know what they'd say. I've never met them. We've never taken their testimony. I don't know what they would say. So maybe they would have said, he had a little pain, but he didn't look that sick. ․ Or maybe they would say he was really sick, and we kept telling them please call the doctor, please go to the emergency room, and they wouldn't do it. ․ Or maybe they would have said, you know, we came by and he was in pain, but he was sitting in the recliner and we talked.

Although he did not object during the closing arguments, Plaintiffs’ counsel made a formal objection and moved for a curative instruction before the jury was charged. The trial court found Defendants’ closing argument was not “grossly improper or improper,” overruled Plaintiffs’ objection, and denied the motion for curative instruction. After the jury returned its verdict, Plaintiffs made a motion for new trial, which was denied. Now, Plaintiffs argue the trial court erred in denying their objection to Defendants’ closing argument, request for a curative instruction, and motion for new trial.

ANALYSIS

A. Closing Argument and Curative Instruction

Plaintiffs’ first argument on appeal is that the trial court erred in overruling Plaintiffs’ objection to Defendants’ closing argument regarding absent witnesses and their potential testimony and in denying Plaintiffs’ request for a curative instruction.

“The standard of review for improper closing arguments that provoke timely objection from opposing counsel is whether the trial court abused its discretion by failing to sustain the objection.” State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002). “An abuse of discretion occurs ‘where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.’ ” Medlin v. FYCO, Inc., 139 N.C. App. 534, 540, 534 S.E.2d 622, 627 (2000) (quoting Long v. Harris, 137 N.C. App. 461, 465, 528 S.E.2d 633, 635 (2000)). Additionally, our Supreme Court has stated “[t]he general rule is that counsel may argue all the evidence to the jury, with such inferences as may be drawn therefrom; but he may not ‘travel outside of the record’ and inject into his argument facts of his own knowledge or other facts not included in the evidence.” Crutcher v. Noel, 284 N.C. 568, 572, 201 S.E. 2d 855, 857 (1974). “When counsel makes an improper argument, it is the duty of the trial judge, upon objection or ex mero motu, to correct the transgression by clear instructions.” Id. Where the trial court errs in failing to correct the transgression, “the question arises as to whether the statement is prejudicial to [the opposing party].” Cuthrell v. Greene, 229 N.C. 475, 481, 50 S.E.2d 525, 529 (1948).

First, Plaintiffs argue the trial court improperly denied the objection to Defendants’ closing argument as untimely, which would have been a mistake of law. However, the trial transcript indicates the trial court properly considered the content of the closing argument and not just the timing of the Plaintiffs’ objection. In ruling on Plaintiffs’ objection to Defendants’ closing argument, the trial judge asked the court reporter to show him the portion of the closing argument in question. After reviewing Defendants’ closing and hearing both sides’ arguments regarding the content thereof, the trial court concluded, “I didn't notice anything that would be considered grossly improper or improper.” Based on the record before us, we are satisfied that the trial court adequately considered Plaintiffs’ objection on the merits and did not overrule it based on a misapprehension of law.

Second, Plaintiffs’ argue the content of Defendants’ closing argument was grossly improper and warranted corrective action by the trial court. Our case law illuminates what type of statements, when made during closing argument, merit correction by the trial court. Here, Defendants’ counsel did not make improper statements during his closing argument.

In Crutcher, counsel made a statement at closing “to the effect that twelve doctors, listed as his witnesses, would have testified to the same thing that his client had testified to[.]” Id. at 573, 201 S.E.2d at 858. By doing so, the attorney “effectively buttressed his client's testimony on this crucial issue without granting plaintiff the guaranteed rights of confrontation and cross-examination.” Id. In another case, we held a closing argument that the plaintiff's case was “nonsense” was improper as a statement of the counselor's “personal opinion as to the justness of a cause ․” Smith v. Hamrick, 159 N.C. App. 696, 699-700, 583 S.E.2d 676, 679 (2003) (denying new trial because the improper closing argument was not prejudicial). During the same closing, the attorney also stated, “plaintiff's case was ‘not about pain; it's about profit. And it's not about injury, it's about money.’ ” Id. at 698, 583 S.E.2d at 678. We held that statement was proper because it served “as an attempt to draw what [the counselor] deemed were reasonable inferences from the law and facts offered into evidence.” Id. at 700, 583 S.E.2d at 679.

At all times in this litigation, the burden of proof remained with the Plaintiffs, and Defendants’ challenged closing argument drew inferences from the fact that there were witnesses to Cameron's medical condition who were not called to testify. Defendants’ counsel started by reminding the jury of a fact in evidence, Joan's testimony that family members visited Cameron during the time period in question, and went on to offer potential reasons why those family members were not called to testify. While this is certainly a close case, it is not clear from the record that Defendants’ closing argument traveled outside of the record in an improper manner that would necessitate corrective action. These statements were not made for the purpose of buttressing the Defendants’ own evidence, but seemingly to flesh out inferences defense counsel believed reasonably followed Joan's testimony. Further, we cannot say that counsel's statements amount to an improper offer of the attorney's personal opinion of the justness of Plaintiffs’ case.

We are satisfied that the trial court based its decision on the propriety of the closing argument rather than the timing of the Plaintiffs’ objection. The trial court was not required to take corrective action because, based on the cold record, Defendants’ closing argument was not improper. The trial court's decisions to overrule the Plaintiffs’ objection and forego a curative jury instruction were not manifestly unsupported by reason or arbitrary. We hold the trial court did not abuse its discretion either in denying Plaintiffs’ objection to the closing argument or in choosing not to provide a curative instruction.

B. Motion for New Trial

“[A]n appellate court's review of a trial judge's discretionary ruling either granting or denying a motion to set aside a verdict and order a new trial is strictly limited to the determination of whether the record affirmatively demonstrates a manifest abuse of discretion by the judge.” Worthington v. Bynum, 305 N.C. 478, 482, 290 S.E.2d 599, 602 (1982). “[A]n appellate court should not disturb a discretionary Rule 59 order unless it is reasonably convinced by the cold record that the trial judge's ruling probably amounted to a substantial miscarriage of justice.” Id. at 487, 290 S.E.2d at 605. The record here does not indicate the trial judge's ruling amounted to a substantial miscarriage of justice or manifest abuse of discretion.

The Plaintiffs’ only proffered reason for seeking a new trial is Defendants’ closing argument. The trial court found that the Defendants’ closing argument was not improper and—for the reasons described above—we have held that determination was not an abuse of discretion. Aside from Defendants’ closing argument, Plaintiffs offer no argument to support their motion for new trial.

CONCLUSION

The trial court did not abuse its discretion in overruling Plaintiffs’ objection to Defendants’ closing argument because the challenged statements did not improperly travel outside of the record or inject counsel's personal opinion. The trial court did not err in denying Plaintiffs’ Motion for New Trial.

AFFIRMED.

Report per Rule 30(e).

FOOTNOTES

1.   Joan Murchison sued Defendants for loss of consortium based on the “loss of services, society, companionship and affections of her husband[.]”

MURPHY, Judge.

Judges STROUD and ZACHARY concur.