Supreme CourtIA PART 27Justice Green The motion by defendants Sophia Au, M.D., Noah Robbins, M.D. and Montefiore Medical Center for: (1) an order setting aside the verdict on the ground that it is against the weight of the credible evidence and on the ground that due to the climate of hostility during the trial, the issues were so obscured as to have rendered the trial unfair; (2) upon setting aside the verdict, an order dismissing the complaint on the grounds that plaintiff failed to state a prima facie case, after conducting a Frye hearing to evaluate whether the testimony of Dr. Shields accords with generally accepted medical principles; and (3) an order setting aside the damage awards for which there is no evidentiary support is granted to the extent that the verdict is set aside and a new trial is ordered on liability and damages.In this medical malpractice action, plaintiff alleged that he sustained a stroke on October 22, 1998, due to defendants’ malpractice in failing to diagnose subacute bacterial endocarditis (SBE) during the period from August 1998 through October 20, 1998. Specifically, plaintiff alleged that Dr. Robbins was negligent in failing to obtain plaintiff’s chart from 1996 (which indicated he had a history of rheumatic fever at age 2 with heart murmur) and in failing to order an echocardiogram. Plaintiff alleged that Dr. Au departed from accepted medical practice by not ordering an echocardiogram and a blood culture, in light of plaintiff’s prior history, his presenting complaints and the results of laboratory tests performed on August 19th and 24th. Plaintiff alleged that Dr. Burns was negligent in his treatment of plaintiff on October 20, 1998. However, the jury decided that Dr. Burns was not negligent.Plaintiff contends that he was suffering from endocarditis during August, September and October 1998 and that if defendants had been aware of and correlated his history with his presenting symptom of groin pain and his laboratory results, his condition would have been properly evaluated and diagnosed before he suffered a stroke.Defendants contend that there was no malpractice because at the time they examined the plaintiff, he did not have signs or symptoms of endocarditis and that an echocardiogram would not have shown any evidence of endocarditis.The trial commenced on February 10, 2003 and continued through February 25, 2003. Plaintiff called the named defendants as witnesses: Dr. Burns, (who is board certified in internal medicine and rheumatology), Dr. Robbins, (who is board certified in internal medicine with a subspecialty in infectious diseases) and Dr. Au, (who is board certified in internal medicine). Plaintiff called Dr. Larry Shields, a neurologist, as his expert witness. Dr. Shields testified, inter alia, that plaintiff had symptoms and was suffering from endocarditis in August, September and October 1998, that the groin pain was caused by emboli that had seeded from his heart and lodged in his femoral arteries and that had defendants performed an echocardiogram and blood cultures, which were indicated, the condition would have been diagnosed.Defendants called three expert witnesses: Dr. Kislak, who is board certified in internal medicine and is Chief of Infectious Diseases at St. Vincent’s Medical Center, Dr. Bodenheimer, who is board certified in internal medicine and cardiology, and Dr. Belmont, who is board certified in internal medicine with a subspecialty in rheumatology. These witnesses took issue with plaintiff’s expert’s opinions, based upon evidence that plaintiff had given a history of having lifted heavy boxes two days prior to seeking medical attention at Montefiore Emergency Room in August 1998, that plaintiff did not have symptoms of endocarditis, such as fatigue, weight loss, chills and fever, that plaintiff’s pain improved after therapy so that he returned to work in October and that an echocardiogram performed at St. Clare’s Hospital two days after his stroke did not show any vegetation, emboli or other evidence of endocarditis. It was also pointed out that endocarditis was not diagnosed by St. Clare’s (where plaintiff was taken on October 20, 1998 and remained until November 4, 1998) or at Mt. Sinai until twenty-four days after he had been admitted to that hospital.Pursuant to CPLR §4404, upon the motion of a party or on its own initiative, a court may set aside a verdict and order a new trial where the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree after being kept together for as long as is deemed reasonably by the court. To set aside a jury verdict on the ground that it is against the weight of the credible evidence, the court must find that there is no valid line of reasoning and permissible inferences that possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial, such that the verdict was “utterly irrational” (Cohen v. Hallmark Cards, 45 NY2d 493).While the testimony of defendants’ experts exposed many gaps in the theory of plaintiff’s case, it is not necessary for the court to sift through the evidence in order to decide this motion because there is a more compelling reason for setting aside the verdict and that is because the cumulative effect of conduct by plaintiff’s counsel was so prejudicial as to render the trial unfair.From the first day of the trial, plaintiff’s counsel adopted a hostile and disrespectful attitude toward the court that continued throughout the trial, particularly during the questioning of defendant physicians and the experts for the defense. On more than one occasion, the court admonished counsel not to raise his voice, glare at the court or argue with the rulings of the court. The behavior and court’s efforts to control it are a matter of record. Some examples are found in the record of trial as follows:(a) At page 33 – addressing the court – MR. MOORE: You want to grant it, go ahead . . . This is a discretionary ruling that nine out of ten judges. THE COURT: If you want to continue to raise your voice. MR. MOORE: Do what you like. THE COURT: Thank you. I appreciate that. MR. MOORE: Fine. Let’s get on with the trial.(b) At page111: THE COURT: You asked him a question that calls for a further answer. You want to withdraw it, withdraw it. MR. MOORE: Listen to the question, Judge. It clearly refers to a point before I read from the deposition. THE COURT: We have been over this many times already. MR. MOORE: What’s that supposed to mean? THE COURT: It means we are going to move on, unless you have something else. MR. MOORE: The witness made a false statement and I am trying to show it, Judge. Can’t I do that? THE COURT: Answer the question as you can. Plaintiff’s counsel then withdrew the question. Counsel for defendants objected to the withdrawal of the question and plaintiff’s counsel responded: “We will have the question read back.” The court stated that the question was withdrawn and directed plaintiff’s counsel to ask his next question, to which MR. MOORE replied: I will be delighted to have the question read back and to show that your elasticity to the witness is not under the law of cross- examination or I will withdraw the question, whichever would please you.( c) At page 114-115, THE COURT: What is your testimony? MR. MOORE: No, is that your testimony.. THE COURT: What is your testimony? MR. MOORE: No. THE COURT: Answer my question and then he will answer yours. MR. MOORE: That’s not a cross. No lawyer would ever ask a “what” question in the courtroom. I object to the Court doing this. THE COURT: OVERRULED. Answer my question. THE WITNESS: The – - THE COURT: Go on. THE WITNESS: What was available to me in the record? MR. MOORE: That’s not the question, Judge. In other words, it is clear that it is not the question, but the Court is interjecting his own question at a pivotal time in the credibility of this witness. THE COURT: Have a seat.(d) At page 243, questioning Dr. Burns – MR. MOORE: Doctor, wouldn’t it be appropriate medically that the people caring for a patient be on the same page, medically?” Defense counsel objected. THE COURT: I don’t know what that means. MR. MOORE: You don’t, I think everybody else in the room does, Judge, but I will be delighted to rephrase it. THE COURT: Members of the jury, can you excuse us for a moment. Step out. (The jury exits the courtroom and the court addressed plaintiff’s counsel). THE COURT: Now the purpose of that last comment was? MR. MOORE: Judge, I can’t believe that you said to this jury that you don’t know what “on the same page” means. That is a colloquial expression that you have heard, I say, a thousand times. And I don’t think it is appropriate for you to say, when the witness is being questioned that you don’t understand a common colloquial phrase. I ask you to take judicial notice of the meaning of the phrase “on the same page.” THE COURT: Here is where we are at. I have no problem with you disagreeing with me. I have no problem with you representing your client as you are, aggressively. I do have a problem with your attitude, with your demeanor in the courtroom, with the glaring, with the argumentative manner in which you address- ” MR. MOORE: What are you taking about? THE COURT: Just be quiet while I am talking. You are going to stop this manner now. You ask your questions you will abide by my rulings. You don’t argue with me. You don’t glare at me or do any of those things. And if you continue with it. I will take more appropriate action. I am warning you now, I did it out of the presence of the jury so as not to embarrass you, but I am telling you now, I will not tolerate it. If I say something, that’s the end of it. You want to make a record at the appropriate time, you will make a record, but don’t show disrespect, not to me, I could care less, but the way you act here shows disrespect to the institution of this Court and I will not tolerate it. Aggressively represent your client. Use all the skills that you have. Tie the witnesses in a knot if you will, but do not, do not again address me like that or behave like that in any courtroom that I preside in. MR. MOORE: So then, Judge, sustain the objection. Do not say that you do not know the meaning of “ on the same page.” THE COURT: Do not tell me what to do. You raise your objection, you make a motion, that’s the end of it. I don’t want to hear this anymore. You belittle me and you belittle the institution and I will not tolerate it, not from you, not from anybody. I have never done that and I never will. I am not starting now. MR MOORE: Do you say on this records that you don’t know the meaning of the phrase of “on the same page?” THE COURT: Don’t ask me a question. You have no right to ask me a question. MR MOORE: Thank you, Judge. It speaks for itself. I will be guided by your rulings.(e) At page1184: MR. MOORE: No, no, did he know, Judge. I am objecting to you interrupting my cross-examination and asking a much narrower question than I’m asking. May I conduct on behalf of this gentleman my cross-examination? I sat there and didn’t say a word.(f) At page 1188, (during the cross-examination of Dr. Belmont) – THE COURT: Relevant to his opinion? MR. MOORE: Relevant to when SBE existed in this patient. I’m taking exception, Judge, to your interruption. THE COURT: I’m going to take exception to your comment and your raising your voice, so please don’t do it. MR. MOORE: Would you please let me conduct my exam? You don’t know what I’m doing or where I’m going. Don’t interrupt, it’s losing continuity.(g) At page 1308, (during the cross-examination of Dr. Bodenheimer)- THE COURT: That’s irrelevant. MR. MOORE: What? THE COURT: That’s irrelevant. MR. MOORE: Judge, I except to that ruling. May we go on the record, please? THE COURT: We’re on the record. This witness answered it’s his opinion. He can’t answer that question yes or no regardless of what another witness answered to the question. MR. MOORE: I take exception to your statement. THE COURT: You can take exception to whatever you want. Ask the next question and don’t raise your voice to me again. MR. MOORE: Please don’t raise it to me. THE COURT: Please don’t raise your voice to me again. End. Final.(h) At page 1339 – questioning Dr. Bodenheimer: MR. MOORE: Did you ever hear of a hypothetical question? A. Yes, but you didn’t phrase it as hypothetical. MR. MOORE: I said “if.” Oh, Doctor, let me ask you this. THE COURT: Ask a question. You’re just staring at him. MR. MOORE: I’m thinking of a question ; is there a problem, Judge? THE COURT: Yes. Go ahead. MR. MOORE: Judge, would you explain that your problem is with me and not my case? Because I’m afraid – THE COURT: Ask your next question.(I) At page1351: THE COURT: So we have no repetition in an questions or answers that are asked, I’ll go along – MR. MOORE: are there rules – THE COURT: you’re doing it again. MR. MOORE: Judge, you’re being cute now. THE COURT: Please, ask a question, we’ll get an answer . . . . MR. BRENNAN: Objection, misstating his testimony. MR. MOORE: Oh, that’s outrageous. That’s not right, Judge . . . (j) At page 1355: MR. MOORE: Move to strike the rest. THE COURT: I haven’t heard the rest so I don’t know if it should be stricken. Go on. MR. MOORE: Did you hear the question, Judge? It calls for a yes or no. THE COURT: Answer the question. A. The way – MR. MOORE: I except to your ruling.(k) At page 1356: MR. MOORE: No, Judge, please, I don’t need – THE COURT: I think that was the question asked. MR. MOORE: Judge, are you trying to help out here? THE COURT: Mr. Moore, I thought we had two weeks ago we went through this. We’re going through it again. MR. MOORE: You want to say something else. THE COURT: I’ll say whatever I like. MR. MOORE: Please, and tell them the history that you and I have and that it has nothing to do about Kevin Smith. THE COURT: Nothing to do with anything, except your behavior in this trial. So I think you can calm down, make your presentation and ask the questions appropriately, without arguing, without raising your voice, it’s not necessary. Go and ask your next question.(l) At page 1378- THE COURT: Objection sustained. Okay. MR. MOORE: Is he aware. THE COURT: It’s irrelevant. MR. MOORE: Boy, I tell you. I take such exception to that, but I’ll ask the next question. THE COURT: What part of the word didn’t you hear? MR. MOORE: Judge, I’m incredulous.(m) At page 1395 – MR. MOORE: You know what, Judge, that is so wrong as to be – sorry.Counsel’s hostile attitude and conduct was not reserved for the court. During the course of his questioning defense witnesses, plaintiff’s counsel frequently added unnecessary, mocking comments to his questions and the witness’ responses. Some examples of this conduct are:(a) At pages 84 and 85 to Dr. Burns – MR. MOORE: You can’t answer that question that I asked with all your background and knowledge in medicine, you can’t answer that question yes or no; is that your testimony? . . . By the way, Doctor, we neglected to say . . . you graduated from Harvard University, right? . . . . You are a man of – and by the way it wasn’t on a football scholarship you were there, right? . . . :(b) At page 86 – MR. MOORE: Is it your sworn testimony to this jury, look at them – sorry.(c) At page 88 – MR. MOORE: Doctor, no, please. Did you understand the question that I asked you? . . . You can’t answer yes or no whether the arthritis in his hips was an acute event? You with your background can’t answer that one yes or no; is that correct?(d) At page 89 – MR. MOORE: I’m not asking for a yes or no. I gave you two choices, chronic or acute, which one, Doctor? A. The answer is that there are two questions wrapped in one there, and the answers are different. I can’t answer a single answer the way the question is phrased. MR. MOORE: Is that the way you were treating him back on October 19, 1998? . . . Equivocation kills patients, correct?(e) At page 100 – MR. MOORE: Doctor, there was a phrase that was extant in our country before many in the room were born that said, what did the president know and when did he know it, referable to the infamous Watergate. Doctor, that’s just my entry into some questions about what did you know and when did you know it, and I’m going to suggest, Doctor, that your statement to this jury under oath and your statement in your deposition under oath that you did not have the labs available to you when you examined this man of October 19th of 1998, is false, I’m not wrong, am I?(f) At page 157 – MR. MOORE: No, no doctor. With all due respect, I asked you a question that a fourth grader could answer if he’s telling the truth.(g) At page 159 – When Dr. Burns expressed his surprise at having been sued, plaintiff’s counsel stated, If you knew the first thing about medicine you won’t be surprised you had been sued in this case, isn’t that true?(h) At page 239 – to Dr. Robbins – MR. MOORE: Let me ask you this. Was that English and medicine that I just asked?(i) At page 243: Wouldn’t it be nice, Doctor, if patients such as Mr. Smith got a continuity of care in a medical group, wouldn’t that be nice?(j) At page 301 – MR. MOORE: Well, what is it then, Doctor if it does not occur in a short time or it does not occur in along period of time, what is it in terms of timing? A. The question that Mr. Moore asked me. MR. MOORE: Withdrawn. This is not an exercise in nonsense. Forgive me . . . Doctor, please – Exasperating, Doctor?(k) At page 380 – MR. MOORE to Dr. Robbins: The game is up, Doctor, I hate to tell you.THE COURT: Come on, come on.(l) At page 1188 – to Dr. Belmont – MR. MOORE: You think it might be relevant what a Board Certified internist and a Board Certified infectious disease expert told the defense ever before you got involved in this case? You think that might be relevant? THE COURT: Relevant to what? MR. MOORE: relevant to the issue. THE COURT: Relevant to his opinion? MR. MOORE: Relevant to when SBE existed in this patient. I’m taking exception, Judge, to our interruption.In his summation, plaintiff’s counsel stated that there was an “orchestrated, deliberate, concerted effort” by defendants “to deprive plaintiff of justice” and that defense counsel “did his best but he had to defend the indefensible.” While a wide latitude is allowed to counsel in his summation, (Caraballo v. City of New York, 86 AD2d 580), this statement is remarkably similar to the statement of counsel in Berkowitz v. Marriott Corp (163 AD2d 52), where the Appellate Division, First Department set aside a verdict and ordered a new trial due to a lawyer’s “reprehensible conduct” in cross-examination and particularly during summation where he stated that the defense attorney was merely “carrying out instructions from his principals, and possibly he doesn’t even believe himself some of the things that he said, but he has to do what he has to do.”The most prejudicial conduct in this case, however, occurred throughout the trial. Plaintiff’s counsel’s conduct not only violated DR 7-106 (6), which provides that a lawyer shall not engage in undignified or discourteous conduct which is degrading to a tribunal, but was prejudicial to defendants because the jury’s attention was diverted repeatedly from the evidence and focused on the gratuitous comments and argument of counsel in response to the court’s rulings.Although defense counsel did not make a motion for a mistrial, he objected to plaintiff’s conduct throughout the trial. Thus, this case is distinguishable from Duran v.Ardee Associates (290 AD2d 366), where the court denied the plaintiff’s motion to set aside the damages portion of the verdict on the ground that certain remarks made by defense counsel at trial were improper, because the plaintiff had failed to move for curative instructions or a mistrial and his appellate arguments respecting these remarks were not preserved for review. In any event, a verdict will not be permitted to remain undisturbed where, notwithstanding the absence of a motion for a mistrial, there has been an error so fundamental as to cause a gross injustice (Heller v. Louis Provenzano, Inc., 257 AD2d 378). In Heller, the Appellate Division, First Department, ordered a new trial on the issue of liability and damages based upon the behavior of plaintiff’s counsel, who attempted to curry favor with certain members of the jury, asked irrelevant questions and made insulting comments because the court was “not persuaded that the cumulative effect of this conduct did not influence the jury’s verdict in plaintiff’s favor and therefore order a new trial.”As to plaintiff’s contention that defendants waived their objection by not timely moving for a mistrial, in this case, unlike Virgo v. Bonavilla (49 NY2d 982), defendants repeatedly objected to plaintiff’s counsel’s conduct. Schein v. Chest Service Co., Inc.(38 AD2d 929), which is also cited by plaintiff is distinguishable as well because that case involved the improper conduct of a witness, not counsel.This Court attempted to bring this trial to conclusion, without declaring a mistrial or holding counsel in contempt of Court. Upon reflection and review of the record, it is apparent that plaintiff’s counsel’s conduct was reprehensible and created a hostile climate that obscured the issues, rendered the trial unfair and was degrading to the institution of the Court. Accordingly, the motion by defendants Sophia Au, M.D., Noah Robbins, M.D. and Montefiore Medical Center to set aside the verdict is granted and a new trial is ordered on liability and damages in the interest of justice.The question of whether a Frye hearing should be held is referred to the judge who will retry this case.Movant shall serve a copy of this order with Notice of Entry on the Clerk of the Court who shall restore this case to the STP calendar and notify counsel of the date to appear.This constitutes the decision and order of the court.
