The Appellate Division, First Department, at 27 Madison Ave. (NYLJ/Rick Kopstein)
A defense lawyer in a Bronx trial engaged in a “pervasive pattern” of win-at-all-costs misconduct that included screaming and sneering, denigrating expert witnesses and twice moving for a mistrial in front of the jury, making a new trial necessary, a Manhattan appeals court has ruled.
In a unanimous opinion Tuesday, an Appellate Division, First Department, panel upbraided New York attorney Keith McHugh for his actions during a monthlong personal injury trial in 2013.
The opinion in Smith v. Rudolph, 302983/09, affirmed a 2015 order for a retrial issued by Bronx Supreme Court Justice Edgar Walker, who had granted plaintiff Tynia Smith’s post-trial motion complaining of McHugh’s behavior.
In the opening of the panel’s opinion, Justice Dianne Renwick wrote: “We all admire the work of an advocate who performs his or her duties with competence and diligence on behalf of a client. Competent and diligent representation, however, does not mean a lawyer should strive to ‘win’ a case at all costs, if that means harming adversaries and their clients unreasonably and unnecessarily in the process and undermining the authority and integrity of the court.”
McHugh took issue with the opinion and the characterizations of his behavior in court during a phone interview Tuesday with the Law Journal.
“I can only say that everything I said at trial was a comment on the evidence,” he said, adding, “I never did in any way mean to attack any person personally. I was just conducting cross-examination and only meant to protect the interests of my client and to present the facts of the case to the jury.”
He also noted, “I did believe it was [a] fair trial. I thought the jurors came to a reasonable decision, based on many readbacks of the evidence.”
Renwick, however, said McHugh’s “persistent speaking objections, interruptions, ‘screaming,’ refusals to heed the court’s admonishments, and use of a ‘sneering, denigrating’ tone toward opposing counsel, plaintiff’s witnesses, and the court, created a climate of hostility that so obscured the issues as to have made the trial unfair.”
Justices Paul Feinman and Judith Gische joined Renwick in the decision. Justice David Friedman concurred in a separate opinion.
The trial pitted Smith, who suffered extensive knee and back injuries after being struck by a bus while crossing a Bronx street in 2009, against McHugh, outside counsel for the defendants, including the New York City Transit Authority and a bus driver.
The jury found the defendants 70 percent liable for the accident and Smith 30 percent liable. It awarded Smith $100,000 for past pain and suffering, $75,000 for past lost earnings and $150,000 for past medical expenses. But the jury gave her nothing for future pain and suffering and future medical expenses even though Smith contended she will suffer from her injuries for years to come.
Smith’s appellate attorney, Brian Mardon, an associate at Spiegel & Barbato in the Bronx, said his client asked for a retrial because McHugh’s conduct was so outrageous, she wondered if the jury “heard” her side of the case.
“She wondered if she got a fair shot,” he said.
Speaking of McHugh’s actions, Mardon added that he has “never seen anything like this, anywhere from anybody.”
“There were two recurring themes,” Mardon said of McHugh’s assertions in court. “One was that Smith’s surgeon, who was an eminently qualified doctor, McHugh kept calling him not a surgeon.”
“Another one that was really a big deal—he essentially alleged that all of plaintiff’s doctors were in a money-making conspiracy, and they only wanted my client to succeed at trial so they could keep billing for medical treatment for the rest of her life,” Mardon added.
Renwick said McHugh’s conduct “deprived plaintiff of her substantial justice and likely affected the verdict.”
“On these facts, this was not a close question,” she wrote.
Lucille Barbato, a partner at Spiegel & Barbato, was the lead attorney in the underlying trial.
At the time of the trial, McHugh worked for Marulli, Lindenbaum & Tomaszewski. McHugh is no longer with that firm, saying Tuesday that he left there because of “lack of work.” He is now a lawyer at Jacobson & Schwartz on Long Island.
A spokesman for the Transit Authority declined to comment.