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Schoon v Looby10/8/2003
Argued on March 25, 2003
. Lucille Schoon and John Schoon, plaintiffs, appeal a defense verdict in favor of Dr. Thomas Looby, an obstetrician/gynecologist, and his employer , Sioux Valley Hospital. Schoon asserts that defense counsel made improper comments during final argument which were prejudicial and denied them a fair trial. Schoon appeals the trial court's denial of their motion for a new trial. We reverse and remand.
Facts
. Mrs. Schoon's claim against Dr. Looby and Sioux Valley Hospital is for medical malpractice and intentional infliction of emotional distress stemming from a surgical procedure performed on Mrs. Schoon. Mr. Schoon's claim is for loss of consortium. In 1996, Dr. Looby began treating Mrs. Schoon for a vaginal prolapse condition, which is a weakness or defect in the muscles of the female pelvic floor. To correct the condition, Looby performed a surgical procedure involving a Gore-Tex graft. Schoon claimed that the procedure, had it been successful, would only have corrected part of her condition and that Looby did not obtain her informed consent before the surgery.
. Subsequent to the surgery, Schoon developed complications and infection which eventually resulted in Looby surgically removing the Gore-Tex graft. Schoon continued to have problems and, eventually, underwent additional surgery at the Mayo Clinic in Rochester, Minnesota after which she experienced no further symptoms.
. Schoon alleged that Looby was negligent in managing her post-operative care. She also claimed that Looby made comments during her treatment which amounted to reckless or intentional infliction of emotional distress.
. In final argument, defense counsel made several statements, which Schoon assigns as error. We will first address the propriety of defense counsel's remarks during final argument and second, whether those remarks compel a new trial.
I. Whether defense counsel's remarks during closing argument were improper.
. Schoon claims defense counsel's statements misled and inflamed the jury and misstated the facts and the law. The comments fall within four categories: (a) asserting personal opinion and knowledge of a witness, (b) misstatement of the facts, (c) misstatement of the law, and (d) inflammatory statements.
Asserting Personal Opinion and Knowledge of a Witness
. Schoon claims that defense counsel's comments in final argument vouched for the doctor and injected personal knowledge of facts. It is well established in this state that a lawyer is not allowed to state personal knowledge of the facts in final argument. Binegar v. Day, 120 NW2d 521, 527 (SD 1963). We have said: "It is not proper for counsel to state facts of his personal experience, or his own knowledge of the facts, unless he has testified thereto as a witness, or to make his argument an avenue for the presentation of unsworn testimony, or for him to insinuate that he has knowledge of facts." Id. (citation omitted). Here, defense counsel injected his knowledge of the doctor and his own personal experience with Looby as the physician who delivered his child. Counsel stated:
This claim troubles me, not because it has any merit but I don't know Dr. Looby personally. I know him professionally from having associated with him through this trial. I don't think he even knows this but he delivered my second child. I'm sure he doesn't remember it. But he is a quiet, professional person. And to have these accusations made against him troubles me.
Counsel's comments also served to vouch for the doctor's competence and his professionalism. By using the pronoun "I" followed by an observ
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