Khokha v. Shahin

20080211 Inder V. Khokha, Plaintiff, Appellant
and Cross-Appellee
v.

Salem S. Shahin,
and Salem S. Shahin, M.D., P.C.,
a North Dakota Professional
Corporation, Defendants, Appellees
and Cross-Appellants

Appeal from: District Court, Northwest Judicial District, Williams County
Judge Gary H. Lee
Nature of Action: Torts (Negligence, Liab., Nuis.)
Counsel:
Appellant: Zuger Kirmis & Smith
Appellee: Pearce & Durick
Term: 03/2009   Argument: 03/18/2009  10:00am
ND cite: 2009 ND 110
NW cite: 767 N.W.2d 159

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1.Whether a jury verdict without support in the evidence should be set aside because the jury was misled and improperly influenced by irrelevant, inadmissible, and substantially prejudicial evidence that affected the outcome of the trial.
2.Whether evidence with no relationship to the aspect of the reputation that was defamed was properly admitted.
3.Whether evidence of a purported reputation that was not generally known in the community was properly admitted.
4.Whether qualified privilege extends to a private and secret meeting at a physician's home with a patient's family on a Sunday evening at the physician's invitation.
5.Whether the physician is liable for the repetition of his false statements by the patient's family.
6.Whether attorney fees are recoverable in a defamation action.


Appellee's Statement of the Issues:
1. Whether the Supreme Court may review a request for a new trial when the appellant did not move for a new trial or judgment as a matter of law with the trial court.
2. Whether the jury's verdict was supported by sufficient evidence and not influenced by prejudice.
3. Whether failure to request a limiting instruction waives objection to an allegedly prejudicial statement.
4. Whether the trial court properly admitted evidence related to an individual's damages in a defamation action.
5. Whether the court erred by excluding testimony pertaining to an individual's reputation in a defamation action.
6. Whether the doctrine of judicial immunity applies to statements made in anticipation of litigation.
7. Whether qualified privilege should protect doctors who describe a medical procedure that resulted in a bad outcome to the patient or patient's family.
8. Whether the trial court properly denied the Appellant's request for a jury instructions regarding reputation and attorney's fees.

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Docket entries:
108/26/2008 NOTICE OF APPEAL: 08/20/2008
208/26/2008 ORDER FOR TRANSCRIPT: 08/20/2008
309/08/2008 Acknowledgment of OTR and request for RETENTION OF RECORD ON APPEAL: 11/17/2008
409/10/2008 NOTICE OF CROSS APPEAL filed in trial court on 9-3-08
510/01/2008 MOT. EXT/TIME TRANSCRIPT (Laurel Marsh)
610/01/2008 ACTION BY TRIAL COURT. Granted: 11/17/2008
711/14/2008 TRANSCRIPTS (6 Vol.) DATED April 21, 22, 23, 24, 25, & 28, 2008
811/14/2008 DISK - TRA's 6 vol. 4021, 22, 23, 24, 25 & 28, 2008 (e-mailed)
911/17/2008 CERTIFICATE OF SERVICE OF COPIES OF TRANSCRIPTS.
1011/18/2008 RECORD ON APPEAL (5 volumes) and separates (Entry Nos. 38, 40, 64 (excluding Ex. 8), 102, 159, 193,
1111/18/2008 196 & 198). Not rec'd was Exhibit #8 of Entry No. 64 and Entry Nos. 173, 184, 186 & 187).
1211/28/2008 1st Supplemental Clerk's Certificate dated 11-19-08 (Entry Nos. 226 & 227)
1312/24/2008 APPELLANT BRIEF
1412/24/2008 APPELLANT APPENDIX
1512/30/2008 DISK-ATB (E-MAILED)
1601/16/2009 CLERK'S 2ND SUPPLEMENTAL CERTIFICATE OF RECORD DATED 1/14/09 (ENTRY NOS. 173 & 184).
1701/27/2009 MOT. EXT/TIME APPELLEE BRIEF (sua sponte)
1801/27/2009 ACTION BY CLERK - MAE (Sua Sponte). Granted: 01/27/2009
1901/27/2009 APPELLEE BRIEF
2001/27/2009 APPELLEE APPENDIX
2101/27/2009 DISK - AEB
2202/09/2009 REPLY BRIEF
2302/09/2009 DISK - RYB (compact disk)
2402/11/2009 ANNOUNCED DISQUALIFICATION: Kapsner, Carol Ronning
2502/25/2009 SITTING WITH THE COURT: Smith, Kirk
2603/16/2009 Letter from Tiffany Johnson regarding citation error in Appellee Brief
2703/18/2009 APPEARANCES: Tracy Vigness Kolb & Lance D. Schreiner; Patrick W. Durick & Tiffany L. Johnson
2803/18/2009 ARGUED: Kolb; Durick
2906/22/2009 DISPOSITION: AFFIRMED
3006/22/2009 UNANIMOUS OPINION: VandeWalle, Gerald W.
3106/22/2009 Costs on appeal taxed in favor of Appellees
3206/22/2009 Judgment e-mailed to Parties
3307/16/2009 MANDATE
3407/23/2009 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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