Unpublished Disposition, 849 F.2d 1476 (9th Cir. 1988)

Omer Sharif, merchant seaman aboard defendant's ship SS WESTWARD VENTURE, sued under the Jones Act, 46 U.S.C. § 688, to recover damages for personal injuries suffered on board the ship. The jury, by special verdict, found that defendant's ship was seaworthy, but that defendant was negligent. It awarded Sharif $17,500.00 in damages. Sharif moved for a new trial on damages or, in the alternative, an amended judgment for additur. The district court denied the motion by minute order.

Sharif appeals the denial of his motion for new trial or additur, asserting that (1) defense counsel made improper and prejudicial statements in his closing argument, and that (2) the court's instruction regarding aggravation of a preexisting condition was an improper statement of the law and was not supported by sufficient evidence. We affirm the district court.

We review the denial of a motion for a new trial for an abuse of discretion. Swimmer v. IRS, 811 F.2d 1343, 1345 (9th Cir. 1987). To warrant reversal on grounds of attorney misconduct, the "flavor of misconduct must sufficiently permeate an entire proceeding to provide conviction that the jury was influenced by passion and prejudice in reaching its verdict." Kehr v. Smith Barney, Harris Upham & Co., Inc., 736 F.2d 1283, 1286 (9th Cir. 1984) (quoting Standard Oil Co. of California v. Perkins, 347 F.2d 379, 388 (9th Cir. 1965)).

We find that defense counsel's remarks during closing argument, although improper, were isolated and of limited duration. Such remarks are not grounds for reversal if they are not representative of the quality of the argument as a whole. See Moore v. Telfon Comm. Corp., 589 F.2d 959, 966 (9th Cir. 1978). We do not find these remarks to be either inflammatory or prejudicial. Furthermore, the district court instructed the jury not to treat the statements of counsel as evidence.

Sharif's other contention is that the district court erred in submitting an instruction with respect to aggravation of a preexisting injury. We decline to address this issue on the merits.

Sharif's brief concedes that he did not object to giving the jury instruction in question. A party may not challenge a jury instruction on appeal to which it did not object prior to jury deliberations. Brett v. Hotel, etc. Emp. & Bartenders Local 879, 828 F.2d 1409, 1414 (9th Cir. 1987); Lifshitz v. Walter Drake & Sons, Inc., 806 F.2d 1426, 1430 (9th Cir. 1986); Kopczynski v. The Jacqueline, 742 F.2d 555, 560 (9th Cir. 1984), cert. denied, 471 U.S. 1136 (1985) (personal injury action under the Jones Act); Fed. R. Civ. P. 51. This circuit does not apply the "plain error" rule in order to review jury instructions on a ground not raised at trial. Brett, 828 F.2d at 1414 n. 7; Bertrand v. Southern Pacific Co., 282 F.2d 569, 572 (9th Cir. 1960), cert. denied, 365 U.S. 816 (1961).

We have recognized only one exception to the strict requirement of Rule 51. We have held that a jury instruction objection may be preserved in spite of an explicit failure to object provided that the party's previous conduct had made its opposition clear to the court and it is obvious that further objection would have been a "pointless formality." Brown v. Avemco Inv. Corp., 603 F.2d 1367, 1373 (9th Cir. 1979); see also Brett, supra; Martinelli v. City of Beaumont, 820 F.2d 1491, 1493-94 (9th Cir. 1987).

Here, we can hardly say that Sharif's position was clear to the court. There is also no indication in this case that an objection would have been a pointless formality. We therefore hold that Sharif cannot assign error to the jury instruction at issue.

Appellees request that this court award double costs and attorneys' fees against Sharif for bringing a frivolous appeal. Fed. R. App. P. 38 and 28 U.S.C. § 1912. An appeal is frivolous "if the result is obvious, or the arguments of error are wholly without merit." DeWitt v. Western Pac. R.R. Co., 719 F.2d 1448, 1451 (9th Cir. 1983) (citing McConnell v. Critchlow, 661 F.2d 116, 118 (9th Cir. 1981)).

This appeal is not well taken. A modicum of research would have shown that the misconduct of defense counsel did not rise to that level requiring this court to reverse the district court's denial of a new trial motion. Likewise, Ninth Circuit precedent clearly indicates that we will not entertain appeal of a jury instruction issue absent proper objection in the court below. However, while Sharif's chances of success on this appeal were necessarily slim to the point of being anorexic, we choose not to exercise our discretion in favor of a party responsible for misconduct in the trial court and decline to award fees and costs.

AFFIRMED.

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