Monique
Hines, Plaintiff,
against
Angel A. Lopez and VARSITY BUS CO. INC.,
Defendants.
|
17456/2011
Robert J. McDonald, J.
The following papers numbered 1 to 17 were read on this motion by the plaintiff, for
an order pursuant to CPLR 4404(a) setting aside the jury verdict and granting the
plaintiff a new trial on damages, (1) on the ground of attorney misconduct; (2) on the
ground that the verdict was against the weight of the evidence; and (3) directing
judgment in favor of the plaintiff notwithstanding the verdict on the issue of "serious
injury" and the 90/180 rule:
Papers
Numbered
Plaintiff's Notice of Motion-Affirmation-Exhibits...1 - 6
Defendants' Affirmation in Opposition...............7 - 13
Plaintiff's Reply Affirmation......................14 - 17
_________________________________________________________________
This is an action for damages for personal injuries sustained by the plaintiff in a
motor vehicle accident on October 26, 2010, when plaintiff's vehicle collided with a
school bus operated by defendant, Angel A. Lopez, and owned by defendant, Varsity Bus
Co. Inc. Negligence and causation of the accident were admitted by the defendants
immediately prior to jury selection.
The trial on serious injury and damages proceeded before this Court from
January 23, 2014 to February 3, 2014. The jury returned a verdict finding that the
plaintiff did not sustain a serious injury as defined by New York's No-Fault Threshold
Law [Insurance Law § 5102(d)]. The Court granted the plaintiff additional time
following the trial to make a written post-trial motion.
Plaintiff now moves for an order pursuant to CPLR 4404(a) setting aside the
jury verdict and granting the plaintiff a new trial on damages (1) on the ground of
attorney misconduct; (2) on the grounds that the verdict was against the weight of the
evidence; and (3) directing judgment in favor of the plaintiff notwithstanding the verdict
on the issue of "serious injury" and the 90/180 rule.
At the trial, plaintiff claimed that as a result of the accident she suffered an
exacerbation of a pre-existing back condition (including a herniated disk at L5-S1, a
serious cervical sprain, and sprains of the leg and right shoulder). In support of her
claims the plaintiff testified and also called her treating orthopedist, Dr. Andrew Merola,
and her treating pain management specialist, Dr. John Vlattas. The plaintiff also called an
economist, Dr. Debra Dwyer to assist the jury in determining damages.
The defendants called neurologist, Dr. Daniel Feuer, orthopedist, Dr. Robert
Israel, radiologist, Dr. Audrey Eisenstadt, vocational expert, Mr. Joseph Pessalano and
economist, Josefina Tranfa-Abboud, Ph.D. It was the defendants' position that the
injuries for which plaintiff sought to recover were degenerative and pre-existing and
resulted from prior accidents in which the plaintiff injured her lower back. The
defendants elicited evidence regarding the prior accidents and the injuries sustained
therein and argued that the plaintiff did not sustain an exacerbation of the pre-existing
injuries in the subject accident.
At the conclusion of the trial, the jury found that the plaintiff did not sustain
a physical injury as defined in the [*2]Insurance Law in
any of the categories presented to them for determination. Plaintiff argues that the verdict
was against the weight of the evidence, that the plaintiff sustained her burden of proof
with regard to the 90/180 category and that there was no expert evidence to the contrary,
and moreover, that the prejudicial comments of the defendants' attorney in
cross-examining the plaintiff's witnesses and in his summation deprived the plaintiff of a
fair trial.
Defendants contend that the trial evidence was sufficient to sustain the jury's
verdict and that the motion for a new trial based upon attorney misconduct is
untimely.
With regard to the claim of attorney misconduct, plaintiff claims that during
the course of the trial defense counsel engaged in numerous instances of prejudicial
comments during his summation and during the cross-examination of plaintiff's treating
physician, Dr. Andrew Merola, making it impossible for the plaintiff to have received a
fair trial. Plaintiff cites an example of what he characterizes as a "seriously inflammatory
and prejudicial attack on Dr. Merola's character as well as the character of plaintiff's
attorney." The first question asked on cross-examination of Dr. Merola was:
"Q. You are aware that among civil defense lawyers, you are considered a
butcher that plaintiff's attorney sends people [to] for unnecessary operations?"
Counsel objected to the question and the court sustained the objection.
Plaintiff claims that by virtue of this question counsel was giving unsworn testimony of
an inflammatory and prejudicial nature as well as impugning the integrity of the witness
and of plaintiff's counsel by suggesting that he sends clients to Dr. Merola to have
surgery. Counsel contends that as a result of that question the verdict is tainted and
should be set aside. The court adjourned for the day following the conclusion of Dr.
Merola's testimony. The following court day, prior to the commencement of another
witness's testimony, plaintiff's counsel moved for a mistrial based upon defense counsel's
question. The court denied the application for a mistrial on the grounds that it was
untimely.
Plaintiff contends, however, that although a motion for a mistrial must be
made promptly, CPLR 4402 provides that a motion for a new trial may be made based
upon the interest of justice at any time during the trial (citing Reed v Fraser, 52 AD3d
1323 [4th Dept. 2008]; Schein v Chest Service Corp., 38 AD3d929, 1st
Dept. 1972]).
In addition, plaintiff asserts that defendant's counsel in questioning Dr.
Merola, made additional inflammatory and prejudicial remarks in asking the following
questions:
"Q. Almost all of the patients in your practice are in litigation of one kind or
another?
A. No
Q. The vast majority of your patients are in litigation?
A. No
Q. When you examine people, you almost always find they need surgery,
correct?
A. I'm a surgeon, and I'm referred surgical consultation, and in fact, many of
my patients that I don't feel need surgery are sent back to their primary treating.
Q. Of all the people you treated or who have cases in litigation, every single
one of your surgeries is unsuccessful to one degree or another?
A. Incorrect.
Q. Everyone you have operated on claims they continue to have pain, but it
is the same or even worse that before the surgery, correct?.
A. Incorrect."
Counsel claims that as counsel repeatedly denigrated the ethics and veracity
of Dr. Merola, it deprived the plaintiff of a fair trial (citing Brooks v Judlau Contr., Inc.,
39 AD3d 447 [2d Dept. 2007] rev'd on other grounds, 11 NY3d 204 [2008]).
Counsel also states that defendants' counsel gave unsworn testimony,
testified to matters not in evidence and unsupported by the record, and introduced
hearsay statements in the following exchange in which defendants' counsel was referring
to a doctor plaintiff saw in Virginia:
"Q. Dr Kellersaw told the plaintiff she never should have had the fusion
done and Dr. Kellersaw would never have recommended it for someone plaintiff's age.
Plaintiff told you that correct?
A. Not that I recall. I'd like to see the document."
Plaintiff's counsel also refers to comments made by counsel in his
summation. Plaintiff asserts that throughout the summation counsel gave unsworn
testimony in the form of disparaging plaintiff's witnesses and bolstering defense
witnesses, referring to the current lawsuit as a "scam" and the plaintiff as a "liar."
Counsel also states that the plaintiff vouched for his witnesses Thus, plaintiff contends
that as the defendants' counsel testified as part of his summation, the verdict has been
tainted and must be set aside (citing Pagano v Murray, 309 AD2d 910 [2d Dept.
2003]; O'Neil v Klass, 36
AD3d 677 [2d Dept. 2007]).
In his summation, defendant's counsel also stated that the trial was "an
opportunity that the plaintiff is trying to take advantage of to get money she doesn't
deserve." He also stated, "let me say this clearly and very directly. This is a scam. I will
say it again, this is a scam....the plaintiff is seeking money she is not entitled to. She was
not injured at all in the accident. She is lying to you about having suffered any injuries in
the accident. It is that simple." Counsel referred to the plaintiff as a liar several times
during the summation, on one occasion stating, "she wouldn't know the truth if it jumped
up and bit her on the elbow, okay?" Counsel also vouched for his own witnesses calling
Dr. Israel, "one of the finest witnesses I have seen. He knows medicine inside and
out."
In addition, the plaintiff moves to set aside the verdict as against the weight
of the evidence asserting that the defendants' experts' testimony was self-contradictory
and internally inconsistent. Counsel also seeks a judgment in favor of the plaintiff
notwithstanding the verdict with respect to the 90/180 category. Plaintiff asserts that the
plaintiff's witnesses testified to restrictions in her daily activities for the first four months
following the accident but that the defendants' experts did not address that issue in their
testimony.
In opposition, the defendants' counsel argues that even assuming that
defendants' alleged misconduct was sufficiently prejudicial to warrant a new trial,
plaintiff waived any right thereto by failing to timely request a mistrial. Counsel claims
that having failed to move for a mistrial or request any curative instructions, plaintiff
waived the right to a mistrial. Defendants also state that the verdict was not against the
weight of the evidence as the evidence presented facts for determination by the jury and
the verdict was amply supported by the evidence and could have been rendered upon a
fair interpretation of the evidence. Lastly. with respect to the plaintiff's motion for a
directed verdict on the issue of 90/180, counsel asserts that there was evidence to support
the jury's finding that the [*3]impairment to the plaintiff
already existed before the date of the accident and therefore her impairments after the
accident were related to the pre-existing condition. Thus, defendant argue there was
evidence to support the jury's finding that her claim of serious injury under any of the
categories was not a result of the subject accident.
Upon review and consideration of the plaintiff's motion defendants'
affirmation in opposition, and plaintiff's reply thereto, this court finds as follows :
"Pursuant to CPLR 4404(a), the court has the discretion to set aside the
verdict and order a new trial in the interest of justice. The use of such discretionary
power is warranted when the aggrieved party is deprived of substantial justice or a
counsel's misconduct unduly affected the verdict" (see (see Selzer v New York City Tr.
Auth., 100 AD3d 157 [1st Dept. 2012 citing Micallef v Miehle Co., Div. of
Miehle-Goss Dexter, 39 NY2d 376 [1976]). While counsel is afforded wide latitude
in summation to characterize and comment on the evidence (see Chappotin v City of New York,
90 AD3d 425 [1st Dept. 2012]), there are certain boundaries to the counsel's latitude
(see Caraballo v City of New York, 86 AD2d 580 [1st Dept 1982]).
This Court finds that in this case the summation and cross-examination of
Dr. Merola as specified above, was not merely directed at the credibility of the plaintiff's
testimony, it contained counsel's own view of the facts, and contained character attacks
on the plaintiff, plaintiff's counsel and the plaintiff's witnesses (see McArdle v Hurley, 51 AD3d
741 [2d Dept. 2008]; Steidel v County of Nassau, 182 AD2d 809 [2d Dept
1992]). Defendants' counsel's comments which included vouching for his own witnesses,
were not isolated, were inflammatory, and were unduly prejudicial. These prejudicial
comments so tainted the proceedings as to have deprived the plaintiff of a fair trial (see
Ortiz v Jaramillo, 84 A3d 766 {2d Dept. 2011]; Rodriguez v City of New York,
67 AD3d 884 [2d Dept. 2009]; McArdle v Hurley, 51 AD3d 741 [2d Dept. 2008]; Brooks v Judlau Contr., Inc.,
39 AD3d 447 [2d Dept. 2007], rev'd on other grounds 11 NY3d 204 [2008]; Grasso v Koslowe, 38 AD3d
599 [2d Dept. 2007]; O'Neil v Klass, 36 AD3d 677 [2d Dept. 2007]; Pagano
v Murray, 309 AD2d 910 [2d Dept. 2003]; People v Skinner, 298 AD2d 625
[3d Dept. 2002]; Minichiello v Supper Club, 296 AD2d 350 [1st Dept.
2002]).
As this court finds that the trial was tainted by the unfair comments of
defendants' counsel and that a new trial is required, those branches of plaintiff's motion
to set aside the verdict as against the weight of the evidence, and for judgment [*4]notwithstanding the verdict on the issue of the 90/180 day
category are denied as academic.
Accordingly, for all of the above stated reasons, it is hereby,
ORDERED, that the jury verdict rendered on February 3, 2014 is set aside in
the interest of justice, pursuant to CPLR 4404(a), and a new trial is ordered to commence
before this Court on November 17, 2014.
Dated: September 12, 2014
Long Island City, NY
___________________
ROBERT J. MCDONALD
J.S.C.