¶1 concurring separately.
¶2 Being unable to agree completely with the majority’s disposition of appellants’ first assignment of error, I write separately.
¶3 Discussion of the assignment of error requires that portions of defense counsel’s closing argument be set out herein. In closing argument, counsel for defendant argued:
¶4 “Let me, at the risk of sounding kind of crass and maybe offending you, let me tell you how this personal injury claim thing works, what’s done. The plaintiff’s lawyer sends his client to a doctor, sends his client to a doctor who will accept subjective complaints and treatment, hopefully treat extensively. Because what is looked at when these things come to the court, when they are evaluated for settlement, what are the amount of the medical bills.
¶5*776 “On the other hand, the defendant in the case of this kind sends the plaintiff to a doctor who will not accept subjective complaints, who says, I want to see it someplace, I want to be able to feel it, see it, hear it, something else. That's basically the difference.
¶6 “I’m very suspicious of plaintiffs who go to a lawyer before they have really gone to a doctor.
¶7 U # …
¶8 “Imagine a conversation with Miss Dillon and Mr. Smith with their lawyer in December, early December or mid December. They come in and they say, well, they had seen their lawyer to talk about the case. The question is asked of them: How did you like that Dr. Theodotou I sent you to. Well, he’s okay, they said. This is hypothetical. I don’t know. Well, you are both still treating with him; aren’t you?
¶9 (( …
¶10 “Let’s go back. Let’s imagine this setting. Question was: You are still treating with Dr. Theodotou; aren’t you? No.
¶11 “Oh. Well, you just stopped recently; didn’t you?
¶12 “No.
¶13 “Oh. Well, when you were treating with him you went to him quite frequently; didn’t you?
¶14 “No.
¶15 “Oh. Well, when you were going to him he did put you in the hospital; didn’t he?
¶16 “No.
¶17 “Oh. Well, when you were going to him he did send you out for a lot of physical therapy; didn’t they?
¶18 “No, he didn’t.
¶19 “Oh. Well, he saw you enough to run up the bills; didn’t he?
¶20 “No, only a couple hundred dollars.
¶21 “Oh. Well, he treated you with more than just pain pills; didn’t he?
¶22 “No.
¶23 “Oh. Well, come over here to the window. See that office over there with the chiropractors? That’s where I’m going to send you.
¶24 “Now, I don’t know whether that conversation took place, but what I put in that hypothetical situation, those are facts. … ” (Emphasis added.)
¶25*777 In my view, the foregoing is improper closing argument. Counsel argued a conversation scenario not found in the record, although various facts included in the scenario were in evidence. Indeed, counsel admits that he does not know whether the conversation occurred. While I agree with the majority’s basic statements of law concerning the latitude afforded counsel in closing argument, in my opinion defense counsel’s argument herein exceeded those bounds.
¶26 Equally as disturbing is defense counsel’s reference to the legal process and the trial of personal injury claims as if they were a game: “this personal injury claim thing.” Apart from the demeaning language used in association with legal proceedings, counsel’s arguments suggests a less serious responsibility on the part of the jury in deciding smaller personal injury cases.
¶27 In the final analysis, I cannot but conclude that the trial court’s failure to sustain plaintiffs’ objection to defense counsel’s argument was error. However, given the overwhelming evidence in this case supporting the jury’s resolution of the issues involved, I am compelled to find the error not prejudicial. Accordingly, as does the majority, I would overrule the first assignment of error.