This is an action for medical malpractice. This case arises from the alleged negligent care rendered to plaintiff Antoinette Helfman during a hysterectomy performed on January 13, 2003 at Catskill Regional Medical Center by Moise Mamouzette, M.D. The plaintiff contends that Dr, Mamouzette performed a needless surgery on plaintiff's right ovary and that he, in error, removed the plaintiff's healthy left ovary and uterus.

Jury trial has commenced and the only claim/issue remaining for trial is whether Dr. Mamouzette was negligent in performing the hysterectomy and removing the plaintiff's left ovary on January 13, 2003.

Defendant Dr. Mamouzette brings a motion in limine seeking an order to preclude plaintiff from inquiring into alleged collateral matters at trial. [*2]

Despite limited issues for trial, at Dr. Mamouzette's deposition plaintiff's counsel inquired into collateral issues. Specifically, in an accusatory fashion counsel inquired into alleged prior medical malpractice acts, including pouring "hot water into open wounds" and "popping" stitches out with a needle. Further, counsel also inquires into the terms of the termination of the professional relationship between Dr. Mamouzette and the

Catskill Regional Medical Center since the Doctor's multi-year contract with the hospital was terminated within three (3) months and on the very day of the within surgery.^[FN1]

Defendant requests that plaintiff's counsel be precluded from inquiring into any collateral matters at trial since there is no probative value and are unrelated to the issues at trial.

It is well settled that the trial court has broad discretion as to the method and duration of cross-examination. Eagle Pet Service v Pacific Employers Ins. Co., 175 AD2d 471 (3rd Dept., 1991). Moreover, a trial court may restrict and limit inquiry into collateral matters, which are not directly relevant to the issues at trial. Eagle Pet Service v Pacific Employers Ins. Co., supra; Feldsberg v Nitsche, 49 NY2d 636 (1980); Neissel v Rensselar Polytechnic, 54 AD3d 446 (3rd Dept., 2008); Goff v Paul, M.D., 8 AD3d 971 (4th Dept., 2004). Further, even in those instances where a trial court permits the cross-examiner limited inquiry into collateral matters, the use of extrinsic evidence to refute the examinee's testimony or support the collateral issues is prohibited. Badr v Hogan, 75 NY2d 629 (1990). To that end, absent an abuse of discretion, a trial court's determination regarding the scope and manner of cross-examination is beyond appellate review. Salm v Moses, D.D.S., 13 NY3d 816(2009).

In Goff, supra, the Appellate Division, Fourth Department case, which cites both Eagle Pet Service v Pacific Employers Ins. Co., supra (a Third Department case) and Feldsberg v Nitsche, supra ( a Court of Appeals case), upheld the trial court's decision to limit plaintiff's cross-examination of the defendant/Doctor regarding collateral issues. Specifically, the plaintiff's attorney sought to cross-examine the defendant/Doctor with respect to the suspension of his privileges at a hospital, a peer review study that was critical of his work and his prior alcohol dependency and the trial court properly limited the cross-examination and did not allow the inquiry into the collateral matters as they were not related to the care at issue.

In Badr, supra the trial court permitted the cross-examining defense attorney to utilize extrinsic evidence ( a signed confession of judgment indicating that the plaintiff received money) to show that the plaintiff was being dishonest when she denied receiving the money. The Appellate Division, Second Department upheld the trial court's decision to allow extrinsic evidence but the Court of Appeals reversed, holding: [*3]

"Whether of not plaintiff's receipt of funds from the

Social Services Department was a proper subject for

cross-examination, the matter was unquestionably

collateral. It is neither relevant to some issue in

the case other than credibility nor was proof of it

independently admissible to impeach a witness... If

proven, it would show only that plaintiff had acted

deceitfully on a prior unrelated occasion. The matter

was, therefore, collateral, under the settled rule,

could not be pursued by the cross-examiner with extrinsic

evidence to refute plaintiff's denial."

In the instant matter, during Dr. Mamouzette's deposition, plaintiff s counsel inquired into various irrelevant, unrelated and collateral matters. Specifically, plaintiff's counsel inquired into Dr. Mamouzette's employment/professional relationship with Catskill Regional Medical Center and alleged unrelated acts including pouring "hot water into open wounds" and "popping" stitches out with a needle.

Clearly, this line of questioning had nothing to do with the care at issue. The are no pending allegations in the instant matter related to poring hot water into patient's wounds or popping the patient's sutures with a needle. Likewise, there are no pending issues stemming from the professional relationship between Dr. Mamouzette and Catskill Regional Medical Center.

Thus, as in Goff, supra, plaintiff will not be permitted to cross-examine the defendant regarding any unrelated, and potentially prejudicial, collateral matters.

Moreover, (See, Badr, supra), allowing inquiry into these unrelated collateral issues at trial would distract the jury from considering the material issues of the standard of care and treatment of plaintiff in this case. Also, if plaintiff were permitted to utilize extrinsic evidence to support collateral claims, it would unduly prejudice the defendant and create a series of mini trials on the truth of each claim. Plaintiff's counsel is precluded from cross-examining defendant with these collateral matters or presenting any extrinsic evidence as to same.

This shall constitute the Decision of this Court.

DATED: January 18, 2011

Monticello, NY

_______________________________

Hon. Frank J. LaBuda [*4]

Acting Supreme Court Judge