A New York state appeals court has thrown out a $14 million medical malpractice verdict, holding that a Brooklyn Supreme Court judge's inappropriate conduct, including presenting the brain-damaged 4-year-old plaintiff with a box of candy in front of the jury, denied the defense a fair trial.
"[B]y virtue of the cumulative effect of the improper conduct of the trial court ... the jury could not have considered the issues at trial in a fair, calm and unprejudiced manner," the unanimous Appellate Division, 2nd Department, panel held in its unsigned decision, DeCrescenzo v. Gonzalez, 28828/01.
Plaintiff Patrick DeCrescenzo's family filed suit in 2001, claiming that Patrick suffered brain damage from trauma associated with his birth in January 2000.
The defendants, Dr. Orlando Gonzalez and Staten Island's St. Vincent's Catholic Medical Center, contended that an in utero stroke caused Patrick's injury.
The case went to trial before Justice Bernadette Bayne in December 2004. The jury awarded Patrick $600,000 on Jan. 19, 2005, one week after his fifth birthday.
Following a post-trial hearing, Bayne granted the plaintiffs' motion to correct a "ministerial" error in reporting the jury verdict, and upped the total award to $21.1 million. The jury, Bayne ruled, had intended for its $600,000 award to be on an annual basis. The two sides later agreed to reduce the award to $14 million.
On Wednesday, the 2nd Department threw out the verdict and ordered a new trial before a different judge, citing Bayne's repeated improper conduct, such as presenting Patrick with the candy in the middle of the trial in front of the jury, and giving each jury member a present when the trial broke for the holidays.
Bayne also "demonstrated a propensity to admonish the defense counsel at a substantially more frequent rate than she did the plaintiffs' counsel," and gave "the plaintiffs' counsel significantly more leeway in cross-examining witnesses and in making extraneous comments."
The panel also held that, by relying on affidavits of jurors sworn to more than a week after the verdict had been rendered, Bayne erred in granting the plaintiffs' motion to correct the verdict.
"During that time," the panel wrote, "the plaintiffs' counsel obviously communicated with each juror, exposing them to 'outside influences of the most prejudicial sort.'"
The panel remitted the case to Brooklyn Supreme Court to be heard by a different judge.
The decision is not the first public rebuke of Bayne.
In 1994, then-Mayor Rudolph Giuliani declined to reappoint her as a Criminal Court judge following a controversial tenure in which she ordered a Legal Aid attorney handcuffed to a bench for 20 minutes. Although the Commission on Judicial Conduct dismissed a complaint against the judge, the handcuffing incident resulted in a half-day work stoppage and boycott of her courtroom by Legal Aid's 180 Brooklyn attorneys.
In 1999, Bayne won a seat on the Brooklyn Civil Court, notwithstanding that she had been deemed "not approved" by both the Brooklyn Bar Association and the New York City Bar Association. In her 2003 Supreme Court campaign, she was rated "unqualified" by both associations, reportedly for "temperament issues" and submitting dated information with her application.
Bayne did not return a call Thursday seeking comment.
Carl M. Erman, Barbara Goldberg and Irene Ziegler of Amabile & Erman on Staten Island represented Gonzalez.
Reached by phone Thursday, Erman called the trial "outrageous."
"Here's a judge that has given each individual juror by name a present. She said, 'Mrs. Jones, Mrs. Smith, here's a token from the court,'" Erman said. "That's very improper because it aligns the jurors with the judge. Therefore, if [we are] objecting to the judge, it's putting us in more of an adversarial place."
Thomas A. Moore of Kramer, Dillof, Livingston & Moore represented the Decrescenzos at trial. Matthew Gaier of Kramer Dillof handled the appeal. Gaier said his firm intended to retry the case.
Luke Pittoni of Heidell, Pittoni, Murphy & Bach represented St. Vincent's at trial. Daniel S. Ratner and Daryl Paxson handled the appeal.
