Wilson Elser Moskowitz Edelman & Dicker has been ordered to pay its adversary as much as $35,800 in legal fees and costs after a judge found a Wilson Elser attorney repeatedly asked inappropriate questions in court, leading to a mistrial in a nursing home negligence case.
Suffolk County Acting Supreme Court Justice Jeffrey Spinner (See Profile) said Elizabeth Sandonato, of counsel at Wilson Elser who represented the nursing home, repeatedly and inappropriately referenced the psychiatric history of a deceased woman whose estate was suing the facility.
“The conduct by Sandonato was sufficiently prejudicial and poisoned the jury,” Spinner said in Marx v. Rosalind, 06-117.
Wilson Elser represented the Rosalind and Joseph Gurwin Jewish Geriatric Center of Long Island. The estate of Ruth Wiener sued the nursing home for pain, suffering and negligence after Wiener died there in February 2005. The estate claimed she suffered from injuries such as bed sores.
During trial in August 2013, Marissa Wiener described her mother-in-law’s care and treatment, her activities and her pain.
Sandonato’s questions on cross examination prompted her adversary, Justin Varughese, an associate at Parker Waichman, to raise 27 objections to questions he called prejudicial. For example, Sandonato multiple times questioned the patient’s behavior, whether she refused care and medication. The judge sustained Varughese’s objections.
The following day, Wiener’s daughter, Arlene Marx, testified about the home’s alleged inadequate attention to her mother’s basic needs, such as failing to change her, putting a call bell out of her reach, and leaving her in a wheelchair slumped over and in pain.
Sandonato asked Marx in several ways whether it was true her mother was transferred to a psychiatric facility. At a couple of points, she referred to medical documents and asked Marx if they refreshed her memory about her mother’s transfer to a psychiatric facility or her transfer from the facility to the hospital. Varughese objected 14 times during the testimony.
At recess, Varughese reserved the right to move for a mistrial based upon Sandonato’s cross-examination of Marx and asked the court to give instructions to the jury to disregard the psychiatric history discussion.
Spinner then said in court that for a case of alleged nursing home negligence, with no claim for emotional distresses or physical abuse by the defendants, the case is limited to the bed sores allegation and physical injury to Wiener’s left heel.
He told Sandonato that “bringing up issues of psychiatric hospitalization—I think you’re flirting with undue prejudice to the jury. It’s inflammatory and I don’t see where it’s reasonably related to the injuries” for which the estate is seeking compensation.
After recess, Spinner granted a mistrial on the basis that there were four questions substantially the same, with objections sustained each time about Wiener’s psychiatric history.
The estate sought fees and sanctions.
Robert Spolzino, a Wilson Elser partner who defended the firm, told the court that because Varughese advised the jury during opening statements that they would hear about Ruth Wiener’s behavior and that at times she was resistant to treatment, was verbally aggressive and harsh with the staff, Sandonato had a legitimate interest to ask witnesses about these issues, including Wiener’s prior psychiatric admission to a hospital.
But in his decision, Spinner noted that jury instructions make clear that opening statements are not evidence. “Plaintiff’s counsel opening statement did not provide Sandonato with a legitimate interest in inquiring about those issues,” Spinner said.
Spinner said Sandonato was emphasizing “decedent’s possible psychiatric history prior to her admission to Gurwin, whereas, the issue before the court and jurors was whether or not the defendants were negligent in causing or permitting the decedent to develop and suffer” a severe bedsore.
Spinner also said the lay witness’ knowledge of Wiener’s history was not related to the allegation of the nursing home’s negligence.
“The record demonstrates that Sandonato was attempting to solicit testimony from Marx, a lay witness, from a hospital record which was not in evidence, was not subpoenaed to the court, and not received by the court,” Spinner said. “While the court sustained plaintiffs counsel’s objections to this line of questioning four times in succession, Sandonato intentionally and repeatedly continued this line of questioning, in a manner prejudicial to the plaintiff, poisoning the jury, resulting in a mistrial.”
“Defendants’ counsel, Elizabeth Sandonato, is determined to have engaged in frivolous conduct,” the judge said.
Spinner directed Sandonato or her firm, Wilson Elser, to reimburse Varughese for the costs incurred as a result of the frivolous conduct and mistrial.
Wiener’s estate is seeking $19,200 for attorney fees for the jury selection and trial, including a $300 per hour billing rate, as well as costs for trial transcripts and expert witnesses, totaling $35,834.
Spinner ordered a hearing on costs, scheduled in late February, and sent the case back to jury selection for another trial.
“A plaintiff should not be required to bear the expense of another party’s misconduct,” said Varughese, the estate’s attorney, in a statement to the Law Journal. ‘The court made the right decision in holding the defendant accountable for this frivolous conduct and making the plaintiff whole.”
Wilson Elser declined comment.