Award wiped out in road rage suit

Friday, Aug. 25, 2000 | 10:03 a.m.

CARSON CITY -- In a split decision, the Nevada Supreme Court has erased a $1.4 million judgment in favor of an injured Las Vegas woman because of the "egregious misconduct" of her lawyer at the trial.

The 4-3 decision Thursday ordered a new trial to determine damages due Sherry Flick, who suffered serious injuries in a road rage incident in June 1992 on Interstate 15. The car was forced off the road by Kenneth DeJesus, who became angry when the car Flick was in cut in front of him.

The majority decision, written by Justice Deborah Agosti, said the "inflammatory" statements by Flick's lawyer, W. Randall Mainor, led the jury to award more than the victim had sought.

"In light of the inflammatory quality and sheer quantity of misconduct in this case, review is warranted to prevent plain error," Agosti wrote.

But Chief Justice Bob Rose, who wrote the dissenting opinion, said the large award given Flick was due to the "road rage conduct" of DeJesus, not Mainor's comments.

Flick's sister, Julie Flick, was driving when DeJesus, angry about being cut off, started to tailgate the Flick vehicle. DeJesus then pulled ahead and cut the Flick vehicle off, forcing it into the median. DeJesus got out of his car, leaned on the hood of the Flick car, pounded his fists on the windshield and demanded that Sherry Flick and her sister get out of the car.

The two women were afraid and Sherry Flick testified that DeJesus made a throat slashing gesture. DeJesus left but later returned and was arrested on a misdemeanor assault charge to which he pleaded guilty.

Sherry Flich sued, claiming she suffered permanent injuries including brain and nerve damage. And DeJesus admitted liability. The only issue at trial was the amount of money to be awarded.

Mainor presented an "emotional and provocative closing argument to the jury," said Agosti in the majority opinion. He injected his personal life and opinions. He cried, he talked about his grandchildren, his career with the FBI and his 20 years experience as a trial lawyer.

He improperly suggested that jurors put themselves in the place of Sherry Flick. And he said that Dr. David Oliveri, the defense's expert witness, lied in minimizing the extent of Sherry Flick's injuries because he was being paid $5,000.

The jury awarded nearly twice the amount that Sherry Flick had requested, Agosti said.