Natalie Kipp v. Douglas Sanford, M.D.

IN THE COURT OF APPEALS OF IOWA

No. 18-2232
Filed June 17, 2020

NATALIE KIPP,
Plaintiff-Appellant,

vs.

DOUGLAS STANFORD, M.D.,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Kellyann Lekar,

Judge.

Natalie Kipp appeals the district court order granting Douglas Stanford a

new trial. AFFIRMED.

Pressley Henningsen and Benjamin P. Long of RSH Legal, P.C., Cedar

Rapids, for appellant.

Jennifer E. Rinden, Robert D. Houghton, and Nancy J. Penner of

Shuttleworth & Ingersoll, Cedar Rapids, for appellee.

Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
2

AHLERS, Judge.

In this medical negligence case, Natalie Kipp appeals the district court order

granting her doctor, Douglas Stanford, a new trial. In August 2013, Kipp had

Stanford perform surgery in an effort to address a medical condition that caused

her severe abdominal cramping and pain. Kipp’s suit alleged Stanford pushed a

medical device too far during the procedure, causing significant injury to her. The

jury returned a verdict finding Stanford liable and awarded Kipp damages.

Stanford moved for a new trial, and the district court granted the motion, finding

certain statements Kipp’s attorney made during closing arguments constituted

misconduct warranting a new trial. Kipp appeals.

I. Background

The statements at issue were made by Kipp’s counsel during his closing

and rebuttal arguments. Near the start of the closing argument, counsel addressed

the jury’s work and accountability, noting:

And so what I’m gonna do today is I’m gonna talk with you a little bit
about what the evidence has been and what that evidence shows.
The one truth about what happened here. And after we talk together
about that evidence, we talk about that one truth, then you are gonna
be given a job to do. In fact, when you came here last week,
summons went out to the community, it seemed kind of random, and
you were brought in here out of the community and you were asked
to sit in this box and you weren’t exactly sure why. But as we’ve
worked here together and talked about this case, I’m not sure that it
is so random. I believe you eight people were meant to be here to
hear this case. And in exchange for your time, in exchange for your
attention, you are given an awesome power. You’re given the power
to hold accountable. You’re given the power to value a substantial
loss. You’re given the power to be a hero for someone who doesn’t
have the power herself. And what the judge told you is it’s your
Constitutional Right to use that power to render a verdict and to do
justice.
3

Soon after, counsel again reminded the jury of its place in the community when

addressing the district court’s admonition to not discuss the case:

Soon, you’re going to be released from that admonition. You’re
going to be able to go back and talk with each other about the
evidence, about the law that applies. And then when that’s done,
you’re going to be able to go back out into the community, and your
friends and your family may ask you, what was this all about? And
you will be allowed to talk about it.

Counsel referred to accountability and community again near the end of his closing

argument:

What they’re saying is medicine is hard, and our devices go in the
belly, and we can’t actually see the tip of the device anymore, so
don’t hold us accountable. Don’t make us do things the right way.
Don’t make us meet the standards of care because we can’t see the
tip of the tool.
When you apply your common sense, that can’t be the
standard here in this community. In our communities, doctors are
excepted [sic] to do things in a way that is safe, that puts the patient
safety first, that avoids known and preventable complications, and
that’s even when they do their first cut. Because if the defense
argument was right, then every person who has that initial cut is at
risk of a serious, life-changing injury.

Counsel also evoked a theme of responsibility while telling the jury a personal

anecdote:

We’ve talked about the evidence together. What are we doing
here? When I was 10 years old, I had a birthday party. I had four
friends come over to my house. We were playing ball in the front
yard, and we didn’t intend for it to happen, but the ball went through
Mr. and Mrs. Nugent, my neighbor, it went through their yard, their
window. We didn’t intend for that to happen, but it happened. And
being 10, we ran. We took off. We hid. And I would never forget my
dad grabbing me by the arm. I could feel his fingertips right up under
my armpit. He wasn’t hurting me, but he was firm, marched me next
door, made me knock on the door, tell them what I had done wrong,
and promise to make up for it. That’s what it means to take
responsibility. I learned that lesson from my dad that day.
Why are we here? Because there’s a betrayal in this case.
Dr. Stanford was negligent. But beyond that, Dr. Stanford, to this
day, refuses to take responsibility.
4

Defense counsel objected to this statement. After an off-the-record discussion,

the district court overruled the objection. Right after resuming his argument, Kipp’s

counsel stated:

So now what do we do together about it? Remember, in
exchange for your time, for your attention, you’re given the power to
hold accountable. So we are here now to ask for your help to do
exactly that.
This is Instruction Number 13. This talks about the formula
for what we do to hold someone accountable for their actions. . . .
And so when we come to you and we talk to you about holding Dr.
Stanford accountable for his actions, what we’re talking about is
forcing Dr. Stanford to balance out the harms and the losses that he
caused. We don’t have a magic wand. We can’t ask you to go back
in time and make sure this doesn’t happen. The only way in our
system of justice to balance out those harms of—those harms and
losses is to put something on the other side of the scale that evens
things out, compensates for what’s happened. And in our system of
justice, the only thing we can ask you to put on the other side of that
scale is money. That’s the only justice there is. And so to hold Dr.
Stanford accountable for his actions, we need to talk about the
amount of money that holds him accountable and balances the
harms and losses that he caused.

Throughout the rest of his closing argument, Kipp’s counsel made additional

statements at issue on appeal:

So let’s talk about those harms and losses. Let’s talk about
the amount of money that balances those harms and losses so that
we can work together on what accountability means, holding Dr.
Stanford accountable for the harms and losses he’s caused.
....
We have to think about what’s the most valuable thing to us. What’s
the most important things in our lives? And when we value things in
our day-to-day life, how do we value things we trade? You give me
this item, I give you this in return. They have equivalent value. What
would we trade for Natalie’s experience? For her pain? For her
limitation of function?

Defense counsel objected to plaintiff’s counsel’s statement, and the district court

overruled the objection.
5

Defense counsel moved for a mistrial after Kipp’s closing argument

concluded. Defense counsel argued the repeated references to accountability and

statements calling the jurors “heroes” and referring to Stanford’s actions as a

“betrayal” had no other purpose than to “inflame [the jury] and to appeal to a sense

of prejudice, almost requesting a punishment against Dr. Stanford.” While the

district court noted it had “some concerns made in Plaintiff’s closing arguments,”

the court decided to give the jury a curative instruction over granting the motion for

mistrial:

Before we begin with the Defendant’s closing argument, I just
want to make a few brief comments to you.
First of all, I want to point out to you Instruction Number 1.
Maybe you all have your jury instructions still or you left them in the
jury room. I will read it to you. Part of Instruction Number 1 indicates
that you are to decide all fact questions, and that you are to do so
without basing your decisions on generalizations, gut feelings,
prejudices, sympathies, stereotype, or biases. To go along with that,
Instruction Number 18 instructs you to remember that you are not
partisans or advocates, but you are judges. You are judges of the
facts and your sole interest is to find the truth and do justice. To the
extent that during Plaintiff’s closing argument, you may have heard
a suggestion that your job here was to be a hero or to tell a story to
the community, I’d just remind you that your job here is to be the
decider of facts and to do so without bias or prejudice.
To the extent that in the prior closing argument, you may have
heard the word betrayal or the power to hold accountable, I would
just refer you to Instruction Number 8 in your jury instructions, which
is the jury instruction that tells you the three propositions which the
Plaintiff must prove in order to hold or find Dr. Stanford negligent in
this matter. Negligence is the decision that you’re making in this
particular case, and I would just refer you to that.
Finally, you may have heard an objection from counsel from
the Defendant stated during the course of the first closing argument
and the reference was to the Golden Rule. The Golden Rule
generally refers to a situation where jurors are asked to put
themselves in the place of a party or a victim. I would just remind
you, based upon the instructions that I just pointed out to you, that
your job is to decide this matter based upon Natalie Kipp’s damages
and not in references to placing yourself in that position.
6

Following defense counsel’s argument, plaintiff’s counsel again made several

statements on accountability during rebuttal:

If you believe the Defendant, in surgeries from here on, complication
is a free pass. If something was a risk and it happened during a
surgery, well, I get a free pass. I can’t be held accountable.
....
And so it is about accountability. It is about responsibility. You have
to be able to own your mistakes. And that’s why we’re here.
....
And I want to talk to you a little bit about that instruction that talks
about the Social Security because what they’re really talking about
is that she gets this 700, 750 bucks a month; therefore, don’t make
the guy that caused the problem pay for everything. Make the
taxpayers do it, and that’s not right. That’s a shifting of
accountability. And they didn’t—they did not provide you any
evidence, any witness, any testimony whatsoever.

Plaintiff’s counsel continued to refer to accountability while discussing the standard

of care, medical expert testimony, and the credibility of witnesses heard during

trial:

You know, folks, there really are two standards of care being
proposed to you. One protects the patient, and does in fact put
patient safety first. One protects the doctor when they don’t follow
rule number one, patient safety. What they do instead is they get a
doctor from the community, they circle up the wagons, and I think Dr.
Rozeboom said it best, well, I’m up here testifying because, gosh,
forbid someone ever tries to hold me accountable in this community.
....
Imagine if you standardized their standard of care. You standardize
it. You told this community that this is what should happen in a
surgery. That a known risk that everybody knows about, when you
do a surgery, when you go into a space and an area you have no
business being in that can kill somebody—Dr. Rozeboom spent a
long time talking about how fatal this injury can be. It’s okay. It’s
okay. That’s within the standard of care. Going too shallow’s within
the standard of care. Going too deep’s within the standard of care.
Being in the right spot’s within the standard of care. It’s a
meaningless standard.

The last remark at issue on appeal was made at the end of the rebuttal argument:
7

They want you to approve what happened here. That’s what
your verdict would be if you agree with them. It approves it. It’s a
stamp of approval. Reminds me of two birds. One is an ostrich with
its head in the sand which explains why we’re here. They will not
listen. Their head is in the sand. And the other bird is a story, a story
told to me by somebody else, but it always stuck with me and I think
it’s an important story, and it applies here. There was a wise man
and there was a smart student, but he was also a smart aleck. He
always wanted to be right. He never made mistakes. The wise man
would always be able to catch him in his lies, catch him in his stories,
his problems. So the kid thought, I’m gonna get this wise man this
time. I’m gonna capture a bird and I’m gonna put it in my hand, and
I’m gonna go up to the wise man and I’m gonna ask him, I’ve got a
bird in my hand, is it alive or is it dead? And no matter what he says,
I can trick him, because if he says it’s alive, I’m gonna crush it, and
I’m gonna show him that it’s dead. And if he says that it’s dead, I’m
gonna open my hands and it will fly away, and I will finally be right.
I’m gonna trick the wise man. So he captured the bird and he put it
in his hand, and he walked up to the wise man, and he said, I have
a bird in my hand, is it alive or is it dead? And the wise man said, I
don’t know. The bird is in your hand. And Natalie Kipp is now in your
hands.

Defense counsel renewed his motion for mistrial after the jury began

deliberating. The motion was denied, although the district court preserved

Stanford’s right to file a motion for new trial or other post-trial motions needed to

respond to the statements made in closing arguments. The jury found Stanford

had been negligent while operating on Kipp and awarded Kipp damages.

Stanford filed a motion for new trial. Following a hearing on the motion, the

district court granted Stanford a new trial. The court determined the two stories

told by plaintiff’s counsel during closing arguments improperly focused the jury on

emotions over facts and logic:

The story recounted by counsel for the Plaintiff concerning a
broken window and being taken by his father to notify the neighbor
because it was the right and responsible thing to do followed by the
use of the word betrayal improperly focused the jury on the emotion
of a young boy doing the right and moral thing in comparison to the
alleged betrayal of the Defendant rather than on the law and fact of
8

the issue of liability. Similarly, the story told at the conclusion of the
rebuttal closing argument, about a young boy who is a trickster who
is always getting caught by a wise man and who devises a plan to
trick the old man while holding the life of a bird in his hand inserts
improper emotion and inflames the passions of the jury. Again, this
story focuses the emotion of the jury on the concept of someone who
is trying to trick or manipulate another person to whom he should be
showing respect.

The district court also found plaintiff’s counsel’s repeated references to

accountability, Stanford’s “betrayal,” and statements about the community to be

similarly prejudicial:

The court recognizes that during portions of the original
closing argument made by Plaintiff’s counsel, the language used by
counsel was in line with the jury instructions and the concepts of
negligence, causation and compensatory damages. However, these
arguments were overshadowed by the other pervasive arguments by
Plaintiff’s counsel urging the jury to use their power to set a standard
for the community, to be a hero for the Plaintiff, render a verdict that
the community could feel protected by, to make the Defendant own
his mistakes and to look more harshly on the Defendant for not
admitting negligence, and to hold the Defendant accountable and
responsible for his “betrayal.”

The court concluded plaintiff’s counsel’s statements were misconduct under Iowa

Rule of Civil Procedure 1.1004 and ordered a new trial. Kipp appeals.

II. Standard of Review

“Our review of rulings on a motion for new trial depends on the grounds

asserted in the motion.” Fry v. Blauvelt, 818 N.W.2d 123, 128 (Iowa 2012) (quoting

Estate of Long ex rel. Smith v. Broadlawns Med. Ctr., 656 N.W.2d 71, 88 (Iowa

2002), abrogated on other grounds by Thompson v. Kaczinski, 774 N.W.2d 829,

836 (Iowa 2009)). “If the motion and ruling are based on a discretionary ground,

such as attorney misconduct, we review for an abuse of discretion.” Rosenberger

Enters., Inc. v. Ins. Serv. Corp. of Iowa, 541 N.W.2d 904, 906 (Iowa Ct. App. 1995).
9

“A district court abuses its discretion when it ‘exercises its discretion on grounds

or for reasons clearly untenable or to an extent clearly unreasonable.’” First Am.

Bank v. Fobian Farms, Inc., 906 N.W.2d 736, 744 (Iowa 2018) (quoting Rowedder

v. Anderson, 814 N.W.2d 585, 589 (Iowa 2012)).

III. Discussion

a. Error Preservation

The first issue we must address is error preservation. Kipp argues

Stanford’s two objections during closing arguments and two motions for mistrial

after plaintiff’s counsel’s closing argument and after rebuttal could not preserve his

motion for new trial because defense counsel did not object at all during the

rebuttal argument, and his motion for mistrial after the case was submitted to the

jury was untimely because it was submitted after the jury had begun deliberating.

“When an improper remark is made by counsel in the course of jury

argument, it is the duty of the party aggrieved to timely voice objection.” Andrews

v. Struble, 178 N.W.2d 391, 401 (Iowa 1970). “However, a party does not

necessarily waive an objection to a remark made in a closing argument if the party

fails to make a contemporaneous objection.” Kinseth v. Weil-McLain, 913 N.W.2d

55, 67 (Iowa 2018). A party is not required “to make numerous, contemporaneous

objections during closing arguments.” Id. at 67–68. Instead, when a party objects

with sufficient time for the district court to “weigh the prejudicial nature of the

statements and determine how best to proceed,” the court will consider the

objection timely and error preserved. Id. at 68. A motion for mistrial must come

before the case is submitted to the jury to be timely. Id. at 67.
10

Here, the record shows the district court considered the statements made

during closing and rebuttal arguments and the propriety of granting a mistrial after

closing arguments. Defense counsel made the second motion for mistrial right

after the case was submitted. The district court did not directly overrule the second

motion for mistrial made at the close of Kipp’s rebuttal closing argument. Instead,

the court heard the arguments of counsel, noted the jury had just been released to

deliberate, and intended to receive the verdict of the jury while preserving

Stanford’s right to file a motion for new trial on the grounds asserted in the motion

for mistrial and any other applicable grounds. Under these circumstances, error

was preserved. Our court has concluded similar post-submission motions for

mistrial are sufficient to preserve error. See Rosenberger Enters., 541 N.W.2d at

907 (concluding the plaintiff preserved error when the court requested counsel not

make a motion for mistrial until after the case was submitted and counsel noted on

record that he intended to move for mistrial).

b. Improper Arguments

“To warrant a new trial based on attorney misconduct, the complained of

misconduct ‘must have been prejudicial to the interest of the complaining party.’”

Kinseth, 913 N.W.2d at 67 (quoting Mays v. C. Mac Chambers Co., 490 N.W.2d

800, 803 (Iowa 1992)). “However, unless a different result would have been

probable in the absence of misconduct, a new trial is not warranted.” Loehr, 806

N.W.2d at 277.

“[T]he district court has a broad but not unlimited discretion in determining

whether the verdict effectuates substantial justice between the parties.” Iowa R.

App. P. 6.903(c); see also Mays, 490 N.W.2d at 803 (“[T]he trial court has before
11

it the whole scene, the action and incidents of the trial as they occur, and is in a

much better position to judge whether the defendant has been prejudiced by

misconduct of opposing counsel, if there is such.” (quoting Baysinger v. Haney,

155 N.W.2d 496, 499 (Iowa 1968)). And “[t]he court is slower to interfere with the

grant of a new trial than with its denial.” Iowa R. App. P. 6.903(d).

The district court granted Stanford’s motion for new trial based on the

statements quoted above, which the district court concluded prejudiced the jury

when considered in their entirety. We must first consider whether the statements

were misconduct.

Before embarking on a discussion of the specific statements, we will first

address the invitation made in Kipp’s brief to address each of the arguments

claimed to be improper to provide guidance on retrial or in future cases. While we

recognize the potential benefits of such an approach, we also recognize the

difficulty in addressing the propriety of each argument in isolation. Assessing the

propriety of arguments is inherently contextual and case-specific. A comment or

argument made one time may or may not be proper in one case, which would shed

little light on whether a similar comment or argument would be proper in a different

case or if repeated in either case. While we will endeavor to address all arguments

at issue, we necessarily consider them in the context of the closing arguments as

a whole and recognize the district court was in a much better position than we are

in assessing the impact on the jurors and the trial. This is why the district court is

given broad discretion in ruling on the motion for a new trial. See Mays, 490

N.W.2d at 803.
12

Turning to the arguments at issue, the first category of alleged improper

statements is Kipp’s counsel’s repeated references to accountability. The district

court found these references “conveyed a different meaning or theme than the

legal concept of negligence and suggested to the jury a punitive or moralistic

consideration of the potential liability of the Defendant.” Kipp counters that

“accountability” is synonymous with “liability,” and it was permissible for counsel to

adopt “accountability” as a term for the concept of negligence and liability. While

Kipp’s claim of the two terms being synonyms may be technically true, we find no

abuse of the district court’s discretion in finding the manner in which counsel

repeatedly referenced accountability suggested the term meant something other

than legal negligence. Plaintiff’s counsel began his closing argument by telling the

jurors they held an “awesome power” that included the power to hold Stanford

accountable for Kipp’s injuries. Counsel then explained that “awesome power”

also included the power “to be a hero.” While we express no opinion on whether

it is proper to suggest jurors are heroes by performing their civic duties in general,

we note the reference in this case suggested the jurors were only heroes if they

found in favor of Kipp. It was not an abuse of discretion for the district court to

conclude playing on the jurors’ notions of pride of being a hero only if they found

in favor of Kipp was improper.

The district court also concluded counsel’s characterization of the case as

a “betrayal” and statements suggesting Stanford needed to admit to a mistake

were improper personal opinions. We find no abuse of discretion in this

conclusion. It was not an abuse of discretion to conclude that referring to

Stanford’s actions as a “betrayal” improperly focused the jury’s attention on the
13

moral quality of Stanford’s alleged misconduct and suggested Stanford had been

dishonest or deceitful.1

Similarly, it was not an abuse of discretion for the district court to conclude

the first story improperly focused the jury’s attention on taking responsibility for

one’s actions and admitting mistakes, or the second story improperly equated

Stanford to a scheming child. We are not suggesting attorneys are not allowed to

tell stories as part of closing argument. But those stories cannot convey an

improper theme or argument, as counsel is not given immunity from improper

argument by embedding the argument in a story. The district court did not abuse

its discretion in finding it improper for counsel to utilize the theme of “betrayal” or

utilize these particular stories to characterize the opposing party as scheming or

dishonorable, as “[c]ounsel has no right to create evidence by his or her

arguments, nor may counsel interject personal beliefs into argument.”

Rosenberger Enters., 541 N.W.2d at 908. And “[s]uch melodramatic argument

does not help the jury decide their case but instead taints their perception to one

focused on emotion rather than law and fact.” Id.

Another category of statements at issue is counsel’s references to the

community and to the social consequences of the jury’s decision. Throughout

closing and rebuttal arguments, counsel tied aspects of the case back to the

community and the jury’s place in it, including framing the jury’s decision as

1 “Betrayal” is defined as “1: the act of betraying someone or something or the fact
of being betrayed : violation of a person’s trust or confidence, of a moral standard,
etc.; 2: revelation of something hidden or secret.” Betrayal, Merriam-Webster,
https://www.merriam-webster.com/dictionary/betrayal (last visited May 12, 2020).
Included as synonyms are the terms “backstabbing, disloyalty, double cross,
falseness, falsity, treachery.” Id.
14

something about which they will be asked by members of the community after the

case ends and telling the jury the defense’s position “can’t be the standard here in

this community.” We find no abuse of discretion in the district court’s conclusion

such statements improperly urged the jury to focus on the greater societal impact

and context of their decision and the reaction the community will have to the jury’s

decision, rather than focusing the jury’s attention on the facts before it. See Conn

v. Alfstad, No. 10-1171, 2011 WL 1566005, at *6 (Iowa Ct. App. Apr. 27, 2011)

(concluding counsel’s statement during closing arguments informing the jury that

“the world is watching them and everyone around the state is watching them” was

improper); State v. Johnson, 534 N.W.2d 118, 128 (Iowa Ct. App. 1995) (“The

prosecutor’s comments improperly urge the jurors to convict the defendant in order

to protect community values and prevent further criminal activity. They were an

improper emotional appeal designed to persuade the jury to decide the case on

issues other than the facts before it.”).

The final category of statements includes plaintiff’s counsel’s statements

asking the jury “We have to think about what’s the most valuable thing to us. . . .

What would we trade for Natalie’s experience?” and the statement about social

security benefits,2 both of which the district court weighed when assessing the

2 An issue was also raised about Kipp’s counsel’s reference to a jury instruction
regarding social security benefits. The district court’s ruling on the motion for new
trial did not explain how the court arrived at the conclusion this argument was
improper and cited no authority in support of that conclusion but did note the
argument could not be characterized as an attack on the instruction given by the
court, as suggested by the defense. Stanford’s brief suggests no impropriety in
this argument other than the claim that it suggested the jury could disregard the
court’s instruction. Since the district court cited no authority for its conclusion the
argument was improper and disagreed with the defense claim the argument was
15

cumulative effect of counsel’s improper statements. The district court concluded

the first statement was a “golden rule” argument. Such an argument “asks the

jurors to put themselves in the place of a party or victim. Courts frown upon this

type of appeal to the emotions or personal interests of the jurors.” Snipes v. Am.

Family Mut. Ins. Co., No. 19-0292, 2020 WL 1307865, at *2 (Iowa Ct. App. Mar.

18, 2020). We find no abuse of discretion in the district court’s assessment.

Counsel primed the jury to place themselves in Kipp’s position by asking them a

number of hypothetical questions about how they value their own experiences and

about what “the most valuable thing to us” is.

Having concluded several of plaintiff’s counsel’s statements during closing

and rebuttal arguments were improper, we must next determine whether the

statements were prejudicial. See Yeager v. Durflinger, 280 N.W.2d 1, 8 (Iowa

1979) (“Before a new trial will be granted, it must appear that prejudice resulted or

that a different result could have probable but for any misconduct.”). To do so, we

consider several factors, including “the severity and pervasiveness of the

misconduct, the significance of the misconduct to the central issues in the case,

the strength of the State’s evidence, the use of cautionary instructions or other

curative measures, and the extent to which the defense invited the improper

conduct.” State v. Ayabarreno, No. 13-0582, 2014 WL 465761, at *4 (Iowa Ct.

App. Feb. 4, 2014) (citing State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003)); see

also Bronner v. Reicks Farms, Inc., No. 17-0137, 2018 WL 2731618, at *7 (Iowa

Ct. App. June 6, 2018) (applying the factors to civil cases). And we consider the

an improper attack on the court’s instruction, we do not address this issue on
appeal.
16

cumulative effect of counsel’s improper statements. See Kinseth, 913 N.W.2d at

73.

On our review of the closing arguments in their entirety, the district court did

not abuse its discretion in concluding it is likely a different result would have

occurred but for plaintiff’s counsel’s improper arguments. Many of the complained-

of statements—counsel’s references to “accountability,” counsel’s references to

Stanford’s refusal to take responsibility and “betrayal,” and counsel’s emphasis on

community and the social consequences of the verdict to the individual jurors—

were not “isolated missteps.” Id. at 73. Instead, they were “part of a theme for

closing arguments that is premised on improper jury considerations.” Id. Plaintiff’s

counsel made the improper statements throughout closing and rebuttal arguments,

and likely influenced the jury’s liability determination, which the district court

characterized as “the central and primarily disputed issue” in the case. While the

district court gave a curative instruction following plaintiff’s counsel’s closing

argument, counsel refocused the jury’s attention on the accountability,

responsibility, and community themes in rebuttal. Defense counsel had no

opportunity to respond to counsel’s rebuttal statements, and those statements

were fresh in the jury’s mind when it began deliberations.

IV. Conclusion

Under these circumstances and in view of the significant deference given

to the district court, we cannot say the district court abused its discretion in

determining plaintiff’s counsel’s statements were improper, and we cannot say the
17

district court’s prejudice determination rested on clearly untenable or unreasonable

grounds.

AFFIRMED.