from the Iowa District Court for Howard County, Margaret L.
Bronner appeals from the district court's order granting
a new trial. AFFIRMED.
J. Reilly, Nicholas C. Rowley, and Dominic F. Pechota, of
Trial Lawyers for Justice, P.C., Cedar Rapids, for appellant.
L. Yung of Klass Law Firm, L.L.P., Sioux City, for appellee.
by Danilson, C.J., and Mullins and Bower, JJ.
DANILSON, Chief Judge.
Bronner appeals from the district court's order granting
a new trial on her claims based on injuries sustained during
a car accident for which Reicks Farms, Inc. (Reicks Farms)
has stipulated liability. Bronner contends the district court
improperly found Bronner's counsel engaged in misconduct
warranting a new trial under Iowa Rule of Civil Procedure
1.1004(2). Reicks Farms asserts this court does not have
jurisdiction to consider the appeal because the notice of
appeal was not timely filed. Reicks Farms also maintains the
district court did not abuse its discretion in granting a new
trial. Finding no abuse of discretion in the district
court's order granting a new trial, we affirm.
Background Facts & Proceedings.
April 30, 2008, Bronner-then sixteen years old-was injured
when her vehicle collided with a vehicle being driven by an
employee of Reicks Farms. Bronner suffered fractures to bones
in her face and nose, damage to nerves in her forehead
controlling her eyelid and eyebrow functions, abrasions and
cuts on the left side of her face requiring stiches, swelling
the size of a baseball on her right cheek, and the loss of
the lobe portion of her right ear. Bronner underwent surgery
to reconstruct her ear and to attempt to reconnect the nerves
in her forehead. Bronner had a number of additional surgical
procedures related to her injuries between the time of the
accident and the time of trial commencing on August 10, 2016.
trial, Bronner explained that in addition to the physical
pain resulting from the accident itself and the subsequent
procedures required to treat her injuries, the permanent
damage to her face and ear has had a significant ongoing
physical and mental impact on her life. Bronner stated the
scarring on her face and ear tingle when touched, she is
unable to move her right eyebrow, her eyelid twitches or
blinks when she is fatigued, and she experiences severe
swelling of the right side of her face about once per month.
Bronner also stated her face has begun to droop, and will
droop more and more over time. Bronner explained her changed
appearance has caused her embarrassment, emotional distress,
and to be less outgoing throughout her life.
trial, Reicks Farms stipulated to full liability for the
damages resulting from the car accident. Thus, the only issue
remaining was the amount of damages to be awarded. The
parties agreed Bronner had incurred medical expenses in the
amount of $59, 189.67. Bronner sought damages for past
medical expenses, past pain and suffering and disfigurement,
future pain and suffering and disfigurement, past loss of
full mind and body, and future loss of full mind and body.
closing argument, plaintiff's counsel stated he had
gotten to know Bronner and her family, and said,
"Bronner and her parents are truth tellers, salt of the
earth, good people, truth tellers" who had gathered the
courage to seek compensation for the injuries Bronner
sustained. He also stated what happened to Bronner had been
ignored and not taken seriously. Plaintiff's counsel
speculated the nerve damage to Bronner's face was causing
her face to droop over time, and argued there was no real fix
for Bronner's injuries. He told the jury its verdict will
reflect what preventing this type of injury is worth to their
community and asked the jury to stand up for Bronner and
award her appropriate damages.
closing argument, defense counsel asked the jury to evaluate
how the accident and Bronner's injuries have truly
affected her life. Counsel asked the jury to consider the
medical evidence regarding what Bronner reported to doctors
and the medical issues Bronner is expected to experience in
the future. He noted Bronner reported to doctors she was
pleased with the result of her procedures, Bronner did not
report she was depressed, and the medical records do not
state Bronner would experience drooping of her face over
time. He also noted photos taken from Bronner's Facebook
account reveal she has reached all the normal milestones in
life and has been successful. He stated, "So, you know,
has this really changed her value as a person? The answer to
that is no. And, you know, has this altered her course in
in his rebuttal closing argument, plaintiff's counsel
made a number of statements the district court ultimately
found to be improper, including vouching for the veracity of
Bronner and her witnesses, informing the jury they had been
misled by defense counsel, and asking the jury to stand up
for Bronner. In its ruling on the motion for new trial, the
district court focused on the following rebuttal statements
made by plaintiff's counsel:
"[I]t never fails to surprise me when I see a defense
lawyer get up in front of a jury and just say a number of
things that are untrue. . . . And I'm disappointed at
what I just heard come out of the mouth of [defense
counsel]." Defense counsel objected to these statements,
and the objections were sustained. However, plaintiff's
counsel then immediately stated, "What should be
disappointing to you is how you've been misled."
Defense counsel again objected, and the objection was
(2)Plaintiff's counsel later stated:
[T]o say that [the] photos [from Bronner's Facebook
account] show that this didn't alter her or change her is
just untrue and it's unfair and it's an unfair thing
to say. It's just not true. It seems like-like [defense
counsel]'s coming-he's come all the way over here
from Sioux City, Iowa, to call the Bronner family liars.
objection was made to this statement.
(3)The district court also considered
plaintiff's counsel's statement,
Everything we have said here is true, is absolutely [one
hundred] percent true. There is no getting around it other
than just hoping that maybe-maybe in this county, maybe we
can get off cheap. Those numbers are an insult. They really,
really are. They are an insult. They are shameful numbers to
award a young girl for a life of disfigurement in a case like
this. Shameful. Not something to be proud of.
They say, oh we want-we want Kelsey Bronner-we want her
compensated. The truth is, brutal honesty, if they could give
her zero and get away with it they would.
counsel objected to these statements and the objection was
And immediately following the objection to the statement
above, plaintiff's counsel immediately stated, "If
they could . . . give her a goose egg, do you think they
would?" Another objection was made and sustained. Then
plaintiff's counsel asked the jury to "[p]lease go
back there and stand up for her. Somebody has gotta."
jury delivered its verdict on August 12, 2016, awarding
Bronner $59, 189.67 for past medical expenses, $90, 909.23
for past physical and mental pain and suffering and
disfigurement, $90, 909.23 for past loss of full mind and
body, $659, 090.80 for future physical and mental pain and
suffering and disfigurement, and $659, 090.80 for future loss
of full mind and body. The parties stipulated to entry of
final judgment in the amount of $1, 559, 189.00.
August 23, 2016, Reicks Farms filed a motion for new trial
asserting a new trial was appropriate because:
During the course of trial, [Bronner]'s attorney made
numerous improper statements and arguments to the jury which
included personal opinions of counsel, personal vouching of
their client, [and] improper references to [Reicks Farms] and
to defense counsel. The statements and arguments constituted
an improper effort to appeal to the passion and prejudice of
the hearing on the motion for new trial, the district court
entered its ruling on November 23, 2016. The court held:
The court finds plaintiff's counsel made improper
statements in his rebuttal to [Reicks Farms]'s closing
argument. Those improper remarks included, but were not
limited to, vouching for the veracity of [Bronner] and her
witnesses. Furthermore, by stating, "Everything
we have said here is true ...