Plaintiff child Yaakov Bertram, through and with his father Elliot Bertram, has moved to set aside the jury verdict November 15, 2010, in favor of defendant New York Presbyterian Hospital in this medical malpractice action. C.P.L.R. § 4404(a). Plaintiffs contend that the verdict is contrary to law and to the weight of the evidence due to the conduct of defendant's attorney Theodore Rosenzweig Esq., principally in his cross-examination of plaintiffs' expert pediatric cardiologist Eric Fethke M.D. and in summation.

I.DISCLOSURE ISSUES

Preliminarily, plaintiffs maintain that Mr. Rosenzweig's aspersions on the incompleteness or inadequacy of the trial preparation by plaintiffs' attorney Eliot Wolf Esq. and by Dr. Fethke were especially unwarranted, given defendant's persistent disobedience of court orders to produce its records and eventual production only two weeks before the trial. Insofar as this late production hindered plaintiffs' trial preparation, their remedy was to move to compel the production and to impose penalties for the nonproduction, before filing the note of issue and certificate of readiness placing the action on the trial calendar. C.P.L.R. §§ 3124, 3126. Nevertheless, while defendant was free to expose incompleteness or inadequacies in plaintiffs' trial presentation, through their attorney, expert physician, other witnesses, and documentary or other evidence, aspersions on the professionalism of an adverse attorney or witness were unnecessary. E.g., Smolinski v. Smolinski, 78 AD3d 1642, 1643 (4th Dep't 2010); Pagano v. Murray, 309 AD2d 910, 911 (2d Dep't 2003); Dwyer v. Nicholson, 193 AD2d 70, 77 (2d Dep't [*2]1993).

II.THE TESTIMONY OF PLAINTIFFS' EXPERT PEDIATRIC CARDIOLOGIST

Dr. Fethke's testimony was essential to plaintiffs' claims. Aside from the testimony by defendant hospital's physicians that indirectly may have exposed their deviation from accepted standards of pediatric care, Dr. Fethke was the sole witness whom plaintiffs presented to delineate directly how the failure of defendant's physicians to remove an arterial line from plaintiff Yaakov Bertram's left leg did deviate from the applicable standards. Transcript of Proceedings at 628 (Nov. 9, 2010). He testified that from January 21 to 23, 2005, before the line was moved to plaintiff child's right wrist January 25, 2005, alternative arteries with palpable pulses were available for the line, yet the left leg, based on its lack of pulses, discoloration, and blistering, was exhibiting ischemia and was at risk of vascular injury from the line. Id. at 625-26, 628-30. On each of those January 21 to 23 dates, "every attempt should have been made to find other access and remove the arterial line from the left lower extremity." Id. at 629.

Dr. Fethke explained that, where defendant's medical records showed, through its staff's examination and through its instrumentation, pulses in the child's upper extremities on each January 21 to 23 date, id. at 633, 637-38, in fact

there was another option for the arterial line that was being used to monitor the patient; . . . there should have been an attempt to place another line in that area where the pulses were . . . present so that the other line could be removed in the left lower extremity.

The three questions to the jury on defendant's professional negligence asked whether those physicians in charge of plaintiff Yaakov Bertram's care January 21, 22, and 23, 2005, deviated from accepted standards of pediatric care by failing even to attempt to start an arterial line at an alternative site or to move the line there. Although the jury answered each of those three questions in the negative and therefore did not reach questions on causation of the plaintiff child's injury, Dr. Fethke also testified how the line deprived the child's left leg of adequate blood supply, creating the environment for an infection that took root in the bone, and ultimately requiring the amputation of his leg. Id. at 626-29.

III.CROSS-EXAMINATION OF PLAINTIFFS' EXPERT BY DEFENDANT'S ATTORNEY

Defendant's attorney cross-examined Dr. Fethke regarding his retention by plaintiffs through an intermediary.

QWell, it's your understanding that in this case, you were being asked as to whether there was justification to file or commence this lawsuit?

AThrough Mr. DiBlasio's communications, yes.

QSo you later found out that that couldn't be further from the truth that, in fact, this case was pending for years and they were trying to find an expert at the 11th hour.

Mr. Wolf's further objections to Mr. Rosenzweig's cross-examination concerned his methods. Mr. Rosenzweig interrupted the witness before he finished answering, id. at 663, 708; insisted on a "yes or no" answer where impossible, id. at 665; asked the witness to "read another person's mind," id. at 680; see id. at 702, or about a possibility rather than probability, id. at 740-41; omitted a timeframe, id. at 690; and failed to conform to the prior evidence in formulating a question. Id. at 661-62.

The most serious objectionable method was Mr. Rosenzweig's tendency to intersperse his questions with remarks separate from his questions. E.g., id. at 700, 722, 726-27, 739. The most egregious of these instances was the following:

QAnd do you think it would be of some benefit to be fair, assuming you want it to be fair—

MR. WOLF: Objection.

THE COURT: Sustained. The jury will disregard that comment.

. . . .

It's questions only.

MR. WOLF: Your honor, if Mr. Rosenzweig could be cautioned against making those kinds of character assassinations.

. . . .

THE COURT: He shouldn't need to be so cautioned.

QWell, I could have sworn that Mr. Wolf asked you questions that identified the doctors by name and you said yes, in response to the criticism. So, if you are indicating you have no criticism of the doctors, that's fine.

MR. WOLF: Objection, your Honor. I move that that be stricken, and the jury be given an instruction that this is not summation, that gratuitous remarks like that are inappropriate and they should not be put before the jury without a question.

. . . .

THE COURT: Mr. Rosenzweig, no more of those statements, all right?

MR. ROSENZWEIG: Okay.

THE COURT: I've instructed you at least a half dozen times, this afternoon alone, forgetting about on prior occasions, confine yourself to questions only and the jury will disregard anything that you say other than what question you pose . . . .

Plaintiffs' attorney posed no other objections to Mr. Rosenzweig's cross-examination. In particular, no other objections pertained to any questioning about Dr. Fethke's prior service at defendant hospital, his review of its records, or his experience, credentials, or credibility. Mr. Rosenzweig leveled no further "character assassinations" during his cross-examination of Dr. Fethke, reserving them for summation.

IV.COMMENTS BY DEFENDANT'S ATTORNEY IN HIS SUMMATION

While defendant's attorney was permitted to attack Dr. Fethke's credibility, see Chappotin v. City of New York, 90 AD3d 425, 426 (1st Dep't 2011); Hancock v. 330 Hull Realty Corp., 225 AD2d 365 (1st Dep't 1996); Bianco v. Flushing Hosp. Med. Ctr., 79 AD3d 777, 779 (2d Dep't 2010); Friedman v. Marcus, 32 AD3d 820 (2d Dep't 2006), the attorney was not permitted to do so by relying on facts outside the evidence presented at the trial, let alone facts outside the record that may not even have been true. Nevertheless, Mr. Rosenzweig speculated:

So, . . . a month or two before the trial, three plus years after the lawsuit has begun, Mr. Wolf reaches out to a disgruntled former physician at New York Presbyterian

. . . .

This is not a situation where a doctor is asked to look at a case before it's begun and say, do you think there is merit or no merit. This is a last ditch effort to find somebody who's willing to come to court, to help establish a case. And there is a dramatic difference.

You don't for a moment believe that Dr. Fethke was the first person who was contacted, do you? Or maybe the second or the fifth or the tenth?

Why, why did it take to September 2010 with a trial that began October 25th, 2010 to reach out to Dr. Fethke. Who, by the way, doesn't tell you the truth about his disassociation with New York Presbyterian Hospital.

Unfortunately plaintiffs' attorney was hamstrung in responding through his own summation to Mr. Rosenzweig's unwarranted accusation that Mr. Wolf was scavenging for an expert in "a last ditch effort" to sustain plaintiffs' action, after contacting ten unwilling physicians. Tr. at 1079 (Nov. 15, 2010). Plaintiffs' true reasons for contacting Dr. Fethke when plaintiffs contacted him, just like Mr. Rosenzweig's fabricated reasons and timeframe, were outside the record, prohibiting either attorney from mentioning them: a prohibition that plaintiffs' attorney faithfully observed and that Mr. Rosenzweig flagrantly violated. DiMichael v. [*5]South Buffalo Ry. Co., 80 NY2d at 198-99; Filippone v. All Is. Lease A Car, 201 AD2d at 434; Doody v. Gottshall, 67 AD3d at 1349; Vasquez v. Costco Co., Inc., 17 AD3d at 352. See Rodriguez v. New York City Hous. Auth., 209 AD2d at 261-62; Maraviglia v. Lokshina, 92 AD3d at 925.

Plaintiffs' attorney was free, however, to respond to Mr. Rosenzweig's accusation that Dr. Fethke lied about his reasons for departing from New York Presbyterian Hospital, by reminding the jury of his consistent and uncontradicted testimony under cross-examination and the hospital's failure to present any witness with a different explanation for Dr. Fethke's departure. Tr. at 681-83 (Nov. 9, 2010). Instead, plaintiffs made a tactical choice not to draw the jury's attention back to this attack on Dr. Fethke's credibility.

Mr. Rosenzweig's summation included further distortions of Dr. Fethke's testimony to fuel defendant's attack on the expert's credibility, but plaintiffs' attorney did not object to any of these further distortions. As long as Mr. Rosenzweig's comments focussed on the testimony or other evidence in the record, however distorted, Mr. Wolf's hands were not tied. Chappotin v. City of New York, 90 AD3d at 426; Hancock v. 330 Hull Realty Corp., 225 AD2d 365; Bianco v. Flushing Hosp. Med. Ctr., 79 AD3d at 779; Friedman v. Marcus, 32 AD3d 820. Plaintiffs' attorney was fully capable of correcting the distortions, if he made that tactical choice.

Mr. Rosenzweig also personalized his accusations that Dr. Fethke was unfamiliar with the pertinent medical records, posing a rhetorical question to the jury, and then giving the attorney's own opinion of the witness' veracity. Rodriguez v. City of New York, 67 AD3d 884, 885 (2d Dep't 2009).

Is that the kind of person you want to rely upon in determining anything that's critically important, whether it involves a health issue for you or someone close to you or a legal issue in the courtroom. I think not.

Directing his assault at plaintiff Elliot Bertram and his wife, plaintiff Yaakov Bertram's mother, Mr. Rosenzweig accused them of purposely "clouding the issues" when the parents insisted they were not advised of the risks to their son's leg or of any decision to sacrifice his leg to treat his underlying conditions. Tr. at 1095 (Nov. 15, 2010). Although plaintiffs claimed neither a lack of informed consent, nor a failure to advise the parents, as a departure from standards of care, plaintiffs sought to show that defendant's physicians never engaged in any decisionmaking process about removing the arterial line, but simply ignored the condition of plaintiff child's leg and the recommendations to remove the line. Mr. Rosenzweig's criticism of these laypersons' testimony, if irrelevant, would have been directed more accurately at objecting to examination on this subject and refraining from dwelling on it in his cross-examination and closing remarks. In sum, it was defendant's attorney, more than plaintiffs, who unnecessarily pursued this issue he claimed was irrelevant.

Mr. Rosenzweig's criticism of plaintiffs' expert economist, Alan Leiken Ph.D., rather than [*6]focussing on fallacies in his analysis, was nothing short of denigrating. Figueroa v. Maternity Infant Care Family Planning Project, 243 AD2d 424 (1st Dep't 1997); Rodriguez v. New York City Hous. Auth., 209 AD2d at 261; Maraviglia v. Lokshina, 92 AD3d at 925.

He's just a hired guy to throw up some numbers. He could [sic] care less whether the numbers are accurate or inaccurate that are given to him to form the basis for his quote "economic analysis." I think using the term economic analysis, which Mr. Professor, Dr. Leiken would like to use, is unduly charitable for what he did. . . .

You know, he's got a process. It's $2,300 to do that page and it's 36 or $3,800 to come to court and tell you about the page. It's not a bad gig, you know. If I could do that, I might trade places with Dr. Leiken.

At only one further point did plaintiffs' attorney object to Mr. Rosenzweig's closing argument. Referring to plaintiff Yaakov Bertram:

And we know that he has some level of developmental delays, the scope and breadth of which I don't think any of us really have [sic] a handle on . . . . His overall health status, his intellectual and cognitive capability in some fashion have to intercept with his physical disability and his physical capability . . . .

Although plaintiffs' attorney might have countered in his summation that maximum physical capability is all the more important to an intellectually or cognitively impaired person, again he was constrained, because the evidence did not support such an impairment. Nor did the record suggest that Yaakov Bertram's physical limitations from his amputated leg were in any measure attributable to his intellectual or cognitive status. At most, Dr. Feldman pointed out that children who experience an early trauma, although not necessarily the plaintiff child here, may be developmentally delayed, but they are not neurologically impaired, and they "catch up" to their peers. Tr. at 198 (Nov. 1, 2010). See Maraviglia v. Lokshina, 92 AD3d at 925.

Even in opposition to plaintiffs' current motion, Mr. Rosenzweig belabors the fact that Yaakov Bertram wore diapers to school at age five years. This lack of appreciation for the [*7]difficulty experienced by anyone, even an adult, in reaching the toilet timely when ambulation and balance are an enormous challenge is but a further display of insensitivity.

These offensive remarks by Mr. Rosenzweig, however, bore primarily on plaintiffs' damages, which the jury did not reach. Moreover, plaintiffs may have refrained from requesting a further instruction or penalty on the assumption that the jurors also would find the remarks offensive, to the jury and the trial process, as well as to plaintiffs, and an embarrassment to defendant's attorney.

V.THE CONSEQUENCES OF MR. ROSENZWEIG'S CONDUCT

Plaintiffs urge that Mr. Rosenzweig's pervasive misconduct compromised the fairness of the trial, continually and deliberately leading the jurors astray from the evidence on which they were to determine the issues in the trial, obscuring rather than helping them to focus on and determine those issues. Wilson v. City of New York, 65 AD3d at 908; Clarke v. New York City Tr. Auth., 174 AD2d at 278; Smolinski v. Smolinski, 78 AD3d at 1644. See Balsz v. A & T Bus Co., 252 AD2d at 459; Krumpeck v. Milfeld Trading Co., 272 AD2d 879, 881 (4th Dep't 2000). Mr. Rosenzweig's conduct was reprehensible, Berkowitz v. Marriott Corp., 163 AD2d at 53, particularly because it constituted more than a mischaracterization and attack on the credibility of the evidence presented to the jury, DiMichael v. South Buffalo Ry. Co., 80 NY2d at 198-99; Filippone v. All Is. Lease A Car, 201 AD2d at 434; Maraviglia v. Lokshina, 92 AD3d at 925; Dwyer v. Nicholson, 193 AD2d at 77, which plaintiffs' attorney might correct in his summation. See Hancock v. 330 Hull Realty Corp., 225 AD2d 365; Bianco v. Flushing Hosp. Med. Ctr., 79 AD3d at 779; Friedman v. Marcus, 32 AD3d 820. Mr. Rosenzweig leaped beyond the trial evidence, into unproved speculation and innuendo, which plaintiffs' attorney might correct only by engaging in equivalent diversionary tactics and committing equivalent misconduct. Moreover, Mr. Rosenzweig expressed his personal views, unsupported by the evidence, on the credibility of witnesses, Nuccio v. Chou, 183 AD2d at 514; O'Neil v. Klass, 36 AD3d at 678; Pagano v. Murray, 309 AD2d at 911; his observations of plaintiffs and their witnesses, Sanchez v. Manhattan & Bronx Surface Tr. Operating Auth., 170 AD2d at 405; Berkowitz v. Marriott Corp., 163 AD2d at 53-54; Maraviglia v. Lokshina, 92 AD3d at 925; Dwyer v. Nicholson, 193 AD2d at 77, and the cause and severity of plaintiffs' injury. DiMichael v. South Buffalo Ry. Co., 80 NY2d at 198-99; Rodriguez v. New York City Hous. Auth., 209 AD2d at 261-62; Clarke v. New York City Tr. Auth., 174 AD2d at 276; Doody v. Gottshall, 67 AD3d at 1349.

The impediment to setting aside the verdict, rather than simply reprimanding Mr. Rosenzweig soundly for his obviously intentional misconduct, is that, at the conclusion of the proceedings before jury deliberations, there were but two sets of comments to which plaintiffs had objected:

You don't for a moment believe that Dr. Fethke was the first person who was contacted, do you? Or maybe the second or the fifth or the tenth?

And we know that he has some level of developmental delays, the scope and breadth of which I don't think any of us really have [sic] a handle on . . . . His overall health status, his intellectual and cognitive capability in some fashion have to intercept with his physical disability and his physical capability . . . .

So you later found out that that couldn't be further from the truth that, in fact, this [*8]case was pending for years and they were trying to find an expert at the 11th hour.

Even in hindsight, plaintiffs' attorney made an unassailable tactical choice to remain satisfied with the court's instruction that the jury disregard the first set of comments about contacting Dr. Fethke as unfair and excessive and not to focus the jury further on this irrelevancy. Chappotin v. City of New York, 90 AD3d at 426; Balsz v. A & T Bus Co., 252 AD2d at 459; Filippone v. All Is. Lease A Car, 201 AD2d at 434; Wiepart v. Manchester, 298 AD2d at 948. See Wilson v. City of New York, 65 AD3d at 908; 1515 Summer St. Corp. v. Parikh, 13 AD3d 305, 308 (1st Dep't 2004); Hancock v. 330 Hull Realty Corp., 225 AD2d 365; Lind v. City of New York, 270 AD2d 315, 317 (2d Dep't 2000). Even in hindsight, plaintiffs' attorney unassailably calculated not to object and call attention to Mr. Rosenzweig's antics, dignify them, or seek to set them straight, in the hope that defendant's attorney would continue to offend the jury and embarrass himself and his client with his transparent tactics. Chappotin v. City of New York, 90 AD3d at 426; Penn v. Amchem Prods., 73 AD3d 493, 494 (1st Dep't 2010); Balsz v. A & T Bus Co., 252 AD2d at 458-59; Figueroa v. Maternity Infant Care Family Planning Project, 243 AD2d 424. See Wilson v. City of New York, 65 AD3d at 908; Lucian v. Schwartz, 55 AD3d 687, 689 (2d Dep't 2008); Alston v. Sunharbor Manor, LLC, 48 AD3d at 602; Murray v. Weisenfeld, 37 AD3d 432, 434 (2d Dep't 2007).

VI.THE SUMMATION BY PLAINTIFFS' ATTORNEY

Instead, plaintiffs chose to focus on the strength of their relevant evidence. Califano v. City of New York, 212 AD2d at 153. In fact, toward the outset of Mr. Wolf's summation, plaintiffs' attorney acknowledged that, in contrast to Mr. Rosenzweig's offensive tactics:

I am not going to take each witness and assassinate their character. . . . I don't think that's going to help you reach a decision as to who was honest and who wasn't honest. . . . Mr. Rosenzweig wants to put everybody down. The parents are lying. Eric Schaffer [the prosthetist] is lying. Professor Leiken has his gig. They are all liars. I'm not going to say that. I'm going to ask you questions for you to draw your own conclusions.

At the outset, and throughout, plaintiffs' attorney seized on the three vascular surgeons' recommendations to remove the arterial line from plaintiff Yaakov Bertram's left leg days before January 25, 2005, id. at 1114, 1120, 1123, 1133-34, when defendant's physicians did, finally, move the line to the child's right wrist without negative consequences. Mr. Wolf emphasized how defendant's physicians did not even discuss or deliberate about the recommendations when they were made, but simply and completely ignored the issue, id. at 1116-17, 1125, until the same recommendation was made and immediately followed January 25, 2005, id. at 1120, 1125-26, after "it was too late" to prevent irreparable injury to plaintiff child's leg. Id. at 1120.

Mr. Wolf convincingly seized on defendant's repeated emphasis of the near-death condition imperiling Yaakov Bertram, having suffered repeated cardiac arrests and repeatedly been misdiagnosed with fatal diseases, as the explanation for his physicians completely ignoring the condition of his leg and the recommendation that would have saved his leg. Id. at 1123-24. They expected plaintiff child to die imminently, so of what importance was his leg? Id. at 1123, 1126.

Mr. Wolf in turn emphasized how, consistent even with the opinion of defendant's expert, Yaakov Bertram's condition did not change significantly between January 20 and January 25, 2005, so as to allow the arterial line's removal January 25 rather than January 21-23, 2005. Id. at 1127-28. The alternative radial and brachial arteries were strong and readily palpable from [*9]January 20-23, 2005. Id. at 1128. On January 21 and 22, his "blood pressures . . . were very stable." Id. at 1143. See id. at 1155. On both days, "All blood pressures were within normal limits." Id. at 1156. As of January 22, "All his organ systems were improving," according to defendant's own physician. Id. On January 23, "the blood pressure was better. Yaakov was improving based on every index." Id. at 1144.

Nor did plaintiffs' attorney shy away from pointing out how Mr. Rosenzweig's transgressions had no place in the jury's consideration of the evidence. Referring to his derogation of the unrebutted testimony by plaintiffs' orthopedist, prosthetist, and economist, none of whom defendant challenged with its own comparable experts:

He can't tell you otherwise (pointing), absolutely not.

. . . He's not a sworn witness.

. . . .

. . . He does not have the license to say that. If he wanted to challenge Eric Schaffer, the way to do it is bring in a witness . . . .

Mr. Rosenzweig could have presented an orthopedist, a prosthetist, . . . and he choose not to, and that's because there is no testimony that he would be able to elicit from any witness which would be credible enough for him to somehow contradict what either Dr. Feldman or what Mr. Schaffer said.

And I'll even go one step further. I think there are other economists out there who would testify. . . . And if he thought that Alan Leiken's numbers should be taken issue with, he could have brought in somebody to do that.

Why do they keep trying to throw innuendo out there? . . .

His treating orthopedist says he's got no neurological problems. Why do they open on it and say we're going to prove he has neurological injuries when he has none. He's not neurologically normal. There is no proof of that anywhere. And if there could be proof of that, I submit it would have been brought to court.

Unfortunately for plaintiffs, these important points about the experts' uncontroverted testimony regarding the causation and effects of Yaakov Bertram's injury were lost on the jurors, because they never reached these issues. Nevertheless, Mr. Wolf's important and persuasive arguments on these points demonstrate plaintiffs' calculated choice to build, confidently and convincingly, on the strengths of their evidence.

VII.CONCLUSION

Counsel may not be permitted to speculate upon whether a verdict will be favorable, before asserting a claim for a mistrial. Such a motion must be made in advance of the verdict.

Plaintiffs' claims were strong; their attorney's summation was persuasive; but neither was impervious. For the court to set aside the jury verdict in defendant's favor as against the weight of the evidence, the evidence in plaintiffs' favor must have been so overwhelming that, even when all credibility assessments and inferences are drawn against plaintiffs, reasonable, fair minded jurors could not have reached a verdict against plaintiffs. Lolik v. Big V Supermarkets, 86 NY2d 744, 746 (1995); Cohen v. Hallmark Cards, 45 NY2d 493, 499 (1978); Yamamoto v. Carled Cab Corp., 66 AD3d 603, 604 (1st Dep't 2009); Woodie v. Azteca Intl. Corp., 60 AD3d 535 (1st Dep't 2009). See Salter v. St. Preux, 63 AD3d 902, 903 (2d Dep't 2009).

Defendant, however, presented a reasonable view of the evidence that, because plaintiff Yaakov Bertram's blood vessels were constricted throughout his extremities, no alternative sites for arterial access were available January 21-23, 2005. Defendant's expert therefore concluded that it was not feasible to move the arterial line in plaintiff child's left leg until January 25, 2005, and to have done so earlier would have jeopardized vascular supply to another extremity.

The verdict finding that the failure of defendant's physicians to remove the arterial line from the child's left leg did not deviate from accepted standards of pediatric care may be reconciled with this reasonable view of the evidence. E.g., Bennett v. Wolf, 40 AD3d 274, 275 (1st Dep't 2007); Smith v. Au, 8 AD3d 1, 2 (1st Dep't 2004); Friedman v. Marcus, 32 AD3d 820. Therefore defendant is "entitled to the presumption that the jury adopted that view." Zhagui v. Gilbo, 63 AD3d 919, 920 (2d Dep't 2009). See Cholewinski v. Wisnicki, 21 AD3d 791 (1st Dep't 2005); Rivera v. 4064 Realty Co., 17 AD3d 201, 202-203 (1st Dep't 2005); Price v. Studley, 28 AD3d 1196, 1197 (4th Dep't 2006). Given a verdict thus based on a fair interpretation of the evidence, the court may not set aside the verdict as against the weight of the evidence. C.P.L.R. § 4404(a).

The court thus denies plaintiffs' motion to set aside the jury verdict. Id. This decision constitutes the court's order.

DATED: May 6, 2013

_____________________________

LUCY BILLINGS, J.S.C.