Friday, October 4, 2013

Excessive Judicial Involvement in Trials Results In Two Vacated Jury Verdicts

The Appellate Division, Second Department vacated two medical malpractice jury verdicts in decisions released October 2, 2013.

In Porcelli v. Northern Westchester Hospital Center, the Second Department vacated a defense verdict and granted the plaintiff a new trial against a doctor and, vicariously, against a hospital.  The Court held that the plaintiff was entitled to a new trial because of repeated conflicts between the judge and plaintiff’s attorney, often in front of the jury.  This conduct included telling the plaintiff's attorney to "tone down the histrionics" and mentioning that if the plaintiff's attorney deposed an expert before trial, he would be "like a leech on a horse."  The Second Department did note, however, that plaintiff's counsel "may have been overly aggressive, and at times even antagonized the trial justice."  The Second Department nevertheless ordered the new trial while upholding a directed verdict in the defendant hospital's favor on claims it was liable for negligence directly as opposed to just vicariously.

In Nunez v. New York City Health & Hospitals Corp., the Second Department set aside a plaintiff’s verdict and granted a new trial because of the excessive intervention of a Queens County judge.  Notably, this is not the first time the judge in Nunez has been reversed on this issue, and the Second Department mentioned some examples of the prejudicial conduct.  The conduct included conveying an impression of "incredulity" at defense expert opinions as well as otherwise excessively intruding into the examination of the witnesses.  The Second Department also pointed out errors in precluding a defense witness as cumulative and in giving a Noseworthy charge, which reduces a plaintiff's burden due to an inability to testify due to memory loss.

Also of note, there was a dissent in Nunez that argued to uphold the jury verdict, but reduce damages.  The infant plaintiff in Nunez suffers from cerebral palsy and related injuries.  The dissent would have reduced a past pain and suffering award from $1.5 million to $750,000.  The dissent would also have reduced the future pain and suffering award from $8.7 million to $1.5 million.  The dissent also took issue with the award for medical equipment and supplies, arguing for a reduction from $3,571.50 per year for 64 years at a growth rate of 3.5% to $1,217.03 per year for 64 years at a growth rate of 2.5%.  Finally, the dissent would also have reduced the growth rate for home health care and lost earnings from 3.5% to 3.0%.  Regarding the reduction of these growth rates, the dissent pointed to trial evidence and the plaintiff’s statement in his brief that he would not oppose such reductions. 

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