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In his 1982 film, The Verdict, Paul Newman, portraying a trial lawyer, protests when the trial judge decides to question a witness himself. “Your Honor,” his character tells the judge, “with all due respect, if you’re going to try my case for me, I wish you wouldn’t lose it.” In a case of law imitating art, on Sept. 29 the 1st U.S. Circuit Court of Appeals upheld a $625,000 medical malpractice verdict against a Puerto Rico abortion clinic. It rejected a claim of judicial bias leveled because the trial judge had asked his own questions of a witness and criticized the clinic’s case at a sidebar. Gaydar v. Sociedad Instituto Gineco-Quirurgico y Planificacion Familiar, No. 02-2359. Plaintiff Olga Gaydar underwent a suction curettage procedure to terminate a pregnancy at a Rio Piedras, Puerto Rico, clinic operated by Sociedad Instituto Gineco-Quirurgico y Planificacion Familiar. Eleven days after the procedure, Gaydar returned to the clinic, advising the staff that she was still showing symptoms of pregnancy and that she had a positive result from a home pregnancy test. The staff told the couple such reactions were normal and sent Gaydar home without having seen a physician. Four days later, she sustained a ruptured ectopic pregnancy, resulting in the loss of her right fallopian tube. Gaydar and her husband sued the clinic, and a jury returned a $625,000 verdict. The clinic appealed, arguing that the trial judge was biased against it, and that he erred by treating one of the plaintiff’s fact witnesses, a gynecologist, as an expert witness, and then asking him a series of questions. In addition to asking those questions, the trial judge, Jose Antonio Fuste, held a sidebar during which he said to defense counsel: “I think you should have settled this case. Let me tell you, you have a big problem on your hands.” Later, during that same sidebar, Fuste said, “Don’t be surprised by the kind of verdict that you are going to get in this case.” Because the clinic failed to raise the bias argument at trial, the 1st Circuit limited its review to a plain error analysis. Noting that Rule 614(b) of the Federal Rules of Evidence gives a trial court the right to question a witness, that Fuste’s questions were neutral and that his sidebar comments were made outside the presence of the jury, the court held there was no plain error.

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