Opinion
06/03983.
Decided April 22, 2010.
CELLINO BARNES, P.C., CHARLES F. BURKWIT, ESQ., of Counsel, Attorneys for Plaintiffs, Rochester, NY.
BOUVIER PARTNERSHIP, LLP, NORMAN E.S. GREENE, ESQ., of Counsel, Attorneys for defendants, Buffalo, NY.
Background
Following trial this Court sua sponte set aside the jury verdict, and ordered a new damages trial based upon defendant attorney's misconduct. Those improprieties are specifically enumerated in exhibit A attached hereto (excerpt of Court's decision signed 5/9/088 C. Attorney conduct).
The court also ordered the defendant to pay any duplicative doctors costs, and attorney fees reasonably incurred in the second trial, removal of the defendant's attorney and law firm from litigating the second trial, and the voluntary self recusal of the judge to avoid the appearance of impropriety.
Upon appeal the Appellate Court sustained the lower court's decision setting aside the damages trial, and ordering a new damage trial based upon this court's findings of attorney misconduct, which deprived the plaintiff of a fair trial:
"During the course of the trial, defendants' attorney failed to abide by the court's rulings, made inflammatory remarks concerning plaintiff's counsel and expert witnesses, repeatedly expressed his personal opinions regarding the cause and severity of plaintiff's injuries and made arguments to the jury on summation that were not supported by the evidence . . . the misconduct of the defendants' attorney deprived plaintiff of a fair trial(citations omitted)." ( Doody v. Gottshall , 67 AD3d 1347 , 1348, 1349, (4th Dept., 2009)).
The alleged misconduct is contained in the trial record (TR), and was not denied on appeal. The Appellate Division set aside the lower court's sanctions of the payment of the Plaintiff's duplicative doctor and attorney costs for the second damages trial, as well as disqualification of defendant's attorney and his law firm based upon the requirement of "a reasonable opportunity to be heard before the court imposed . . ." the penalties.
The Appellate Division further noted that the more serious sanction of attorney disqualification, which deprives "a party" of the entitlement to be represented by counsel of his or her own choosing, requires the lower court to weigh the applicable significant interests involved in arriving at its decision, and to set forth that evaluation. In the case cited by the Appellate Division, S S Hotel Ventures Limited Partnership v. 777 S. H. Corp., 69 NY2nd 437, 443 (1987), the Court of Appeals noted that the right to select one's own attorney is important, but ". . . is not absolute and may be overridden where necessary". In that cited case the Court of Appeals noted that the lower court failed to make such evaluation, and proceeded to make its own evaluation and determination, which denied disqualification.
Hearing
Accordingly, this Court on or about November 14, 2009, scheduled a hearing for January 5, 2010, and requested prior submissions. Hereafter, the subject attorney is referred to as the defendant's attorney. The plaintiff requested disqualification and payment of duplicative attorney and doctors fees as sanctions for defendant's attorney's misconduct and to avoid future misconduct. (12/18/09 submission). The defendant's attorney submitted a response on his own behalf dated December 18, 2009. At the hearing Mr. Greene, who had been retained by State Farm Insurance, the insured defendant's carrier, to handle the appeal, argued on behalf of the insurance company's interests, the named defendants, and the defendant's trial attorney. He provided no prior written submissions. The defendant's attorney also appeared and spoke on his own behalf. He asserted that the court misquoted the record regarding his conduct and/or statements at trial. He also asserted that there was evidence in the record to support his conduct. The court requested he provide a post hearing detailed written submission of those claims identifying them in the record, including his closing argument. Mr. Greene argued that the defendant's attorney's conduct merely constituted "fair comment". (Hearing Transcript pg 4-7, argument No. 3 and #7). Mr. Greene argued that the Court did not have the authority to impose the sanction of disqualification, and/or that such sanction was not appropriate. However, the attorney for plaintiff requested and argued for imposing reimbursement of duplicative doctors and lawyer fees and the sanction of disqualification as well as its appropriateness in this situation. After a second written request by the Court for the evidentiary basis of defendant's claims, a response was received from Mr. Greene dated January 22, 2010 advising the court to search the Appellate Record itself for those alleged misquotes. This strategy and response was agreed after consultation with the defendant's attorney, and "representatives" of the defendants, to which procedure the named defendant insureds also abided.
Attorney's Responses
The defendant's attorney responded on the merits by advising that he believed the Court's findings of misconduct and the Appellate Division's affirming that determination to be without merit, and, rather, the result of the court's anger, lack of restraint, impartiality, misreading of his intent, taking" issues (out of) context, and the "objections were your (the court's) own."(Defense letter dated 12/18/09). At the hearing, as aforesaid, the attorney contended that the court failed to accurately quote his statements as contained in the record, or asserted there was evidence in the record to dispute the Court's rulings and directives, but failed to provide or identify the same in writing after two requests. (Defense letter dated 1/22/10).
Misconduct
Accordingly, even if the Court's findings of misconduct and the Appellate Division's affirmation thereof did not constitute Res Judicata, Collateral Estoppel, or the Law of the Case, the defendant's attorney despite acknowledgment of the contempt aspects of the proceeding (Hearing transcript pgs 7, 8, 9, 32), raised no factual or dispute of the conduct engaged in, as stated in Exhibit A, or any law that such conduct did not violate ethical, frivolous, or contempt standards.( Cashman v Rosenthal, 261 AD2d 287, (1st Dept,. 2001); Gordon v. Marrone, 202 AD2d 104, 110-111, (2nd Dept., 1994)).
Nor were any objections raised as to the adequacies of the notice, service, or the conduct of the hearing. ( In Re Nunns, 188 AD 424, 443 (2nd Dept., 1919); Matter of Rappaport, 58 NY2nd 725, (1982); Restivo v Cincu , 11 AD3d 621 , (2nd Dept, 2004)).
Accordingly, the Court reaffirms those findings and violations found in Exhibit A, and those set forth hereafter, and identified in the trial record.
Law
Authority for sanctions for frivolous conduct is found in 22 NYCRR Part 130, 22 NYCRR 1000.16, 130-1.1 [c]; 22 NYCRR 100.3(d)(3); NYCLS Jud Sec. 2-(b)(3)(2010); CPLR 8303 a, b, and c. Authority for contempt and sanctions is also found in NY State Constitution, Art VI, Sec 30 and Judiciary Law Sec 211 [b]; Judiciary Law Sec. 750 and 753. ( A.G. Ship Maintenance Corp. v. Lezak, 69 NY2d 1, 6, (1986)).
22 NYCRR Part Sec. 130-1.2 and 1.3 governs frivolous conduct and its explicit sanctions allows reimbursement of costs to opposing party, and monetary sanctions payable to Lawyer's Fund for Client Protection not to exceed $10,000. Judiciary Law, Article 19, Sec. 750 et al. governs criminal contempt (public), which includes "wilful disobedience" or "resistance" to the Court's lawful mandate (Judiciary Law 750 A(3) and (4). Sec 753 et al. governs Civil Contempt, including "misbehavior in his office", or "wilful neglect or violation of duty therein"; or "for disobedience to a lawful mandate of the court, or of a judge thereof . . .", "or for any abuse of a mandate or proceeding of the court" (Judiciary Law sec 753 A 1, 2, 3). An oral directive in open court has as much binding and authority on those who heard it as a written order signed and distributed. ( In the Matter of Wiggins v. Ithaca Journal News, Inc., 57 Misc 2d 356, (Ithaca City Court, 1968); Brostoff v. Berkman, 79 NY2d 938 (1992)). During trial, the attorney indicated his understanding of the trial rulings and directives, and they were not appealed. Even if believed to be incorrect, as now asserted, the attorney's disagreement with the rulings and directives was no basis for disobeying them. ( Ketchum v. Edwards, 153 NY 534, 538, 539, (1897); Brostoff, supra at 938; Balter v. Regan, 63 NY2d 630, 631, (1984)). Nor is such belief a basis to assert it in the guise of "fair comment" in violation of the Code of Professional Ethics. An "orderly jurisprudence" forbids litigants to nullify or set aside orders ( Ketchum, supra at 538, 539). ". . . petitioner was not free to disregard it and decide for himself the manner in which to proceed. (Cite omitted)." ( Balter, supra at 631).
Intentional, wilful, persistent and pervasive conduct
In this case the defendant's attorney, who was selected by State Farm Insurance carrier, embarked on a strategy to mitigate the alleged damages sustained by plaintiff. The strategy was to convince a jury that the low impact collision between the defendant's vehicle and the plaintiff's body, which occurred in the crosswalk, was insufficient to cause the claimed injuries, and that the more serious injuries were, instead, caused by a pre-existing degenerative condition.
The plaintiff objected during the defendant's opening at which time the court directly and clearly advised the defendant's attorney of the necessity of the required proof to support his said contentions to the jury.
The rulings were that the assertion of insufficient impact required medical and kinetic proof, which took into consideration a medical evaluation of the especially unusual and extremely fragile condition of this particular plaintiff. The further assertion that the injuries were attributed to a pre-existing condition, in view of the plaintiff's doctors' attribution of medical causation solely to the accident, required proof of the medical causation thereof.
These rulings were made consistently at the beginning and repeatedly throughout the trial. Defendant's attorney indicated knowledge and agreement of the necessity of such medical proof, and did not disagree with those rulings. Instead, he responded that he intended to provide such medical proof through the plaintiff's doctors on his cross examination.(Trial Record (TR) pgs 110-111). Accordingly, he was allowed to assert and detail that defense to the jury in his opening based upon his intended proof. That scenario was again repeated later in defendant's opening out of the presence of the jury (TR pgs 120-124), and a third time at the outset in the presence of the jury (TR pgs 125-127).
However, that intended proof was not forthcoming after extensive and aggressive cross-examination of the three plaintiff's doctors. At the completion of the proof and out of the presence of the jury the court advised the attorneys of its rulings, and the defendant's failure thereof. (TR 675-690). The defendant had sought to prove the same by lay testimony over the objection of plaintiff. The court ruled that lay testimony could not be used to overcome the proof deficiency of impact and causation needed by an expert, and that a lay person was not qualified to so testify. Again, the attorney stated his understanding, but disagreement of the court's ruling on lay testimony. (TR pg 675-680). Then, when the jury returned he repeated that he wished to call his client to prove speed, which he previously stated was to prove impact. (TR pg 676). That effort to get "impact" through his client by way of an unnecessary and repetitive explanatory objection before the jury was consistent with the later argument in his closing to nullify the court's said rulings and directives. That nullification effort was also evident in his statement to the jury:
"Now, when we talk about having an environment where we can talk about issues of justice, it doesn't mean that environment is always going to please one or both of the parties in terms of their participation. You know, we as lawyers work in a system whereby we have to have a referee, . . .". (TR pg 685)
Findings
Despite clear directives and consistent rulings of the court throughout the trial, and the attorney's clear understanding of the rulings, and in blatant violation and disregard thereof, he persistently continued those unsupported assertions of insufficient impact as his main closing argument to the jury, and attributed the plaintiff's serious injuries to plaintiff's pre-existing condition without any medical proof of such causation.
The full extent of the type of misconduct used in supporting those positions is elaborated in Exhibit A attached — (excerpt of Court's decision signed 5/9/08 — C. — Attorney conduct).
This Court finds that the conduct was wilful, contumacious, persistent, pervasive, in bad faith, and violated the court's order that absent medical proof that the low impact was not sufficient to cause the injury, or that it was causally related to an pre-existing condition, and having been ruled thus deficient, the attorney should not have in spite of those rulings, continually argued those unsupported positions to the jury. That misconduct was not a single or few violations, but was extremely well orchestrated throughout the trial, both in opening and closing and in the body of the trial to overcome the court's directive and the law as ruled by the Court.
Such conduct and disregard strikes at the heart of the integrity of the judicial system, whose goal is to allow a jury to fairly determine the real facts based on evidence, ethically presented, and to render just compensation. Not only did the defendant's conduct prevent a fair evaluation of plaintiff's injuries by the jury, cause substantial additional expenses to the Plaintiff, and a waste of the court's resources, but the effort to impugn and discredit opposing counsel without any basis, and, then, to impugn and discredit the doctors to suggest the falsity of their findings and opinions without any basis, created an unfair bias against the attorneys, slandered the legal and medical professions, and played to the prejudices and sympathy of the jury. It was intended to and did divert the jurors attention from the relevant issue and the actual evidence. Many jurors already enter the jury pool with a bias against the legal system and lawyers, and such bias does not need to be increased for future jury pools, or fanned or unfairly utilized before this jury to satisfy a winning at all costs' approach.
Ethical Violations
Adding to the violation of the court's directive and rulings, he did so in a manner that violated several provisions of the Code of Professional Responsibility as follows:
He became an unsworn medical witness on behalf of his own client. He advised the jury that the doctors were medically incorrect in their findings and opinions because of his medical knowledge to the contrary. His medical expertise was allegedly obtained from friends with similar conditions, or from watching a football injury on TV. He also advised the jury without basis that the hospital record and hospital personnel's conduct supported his medical opinions.
He further enforced his strategy by indicating fabrication by the plaintiff's attorney and the treating and expert doctors. The suggestion that the attorneys intentionally procured improper doctors, and that those doctors were untruthful, or that their findings and opinions were false and medically improper had no basis in the record. He further attempted to raise sympathy for defendant's having to pay "out of pocket expenses," and, when asked, refused to explain the validity of his reference thereto. He knew that such fact was false since State Farm had agreed to hold the insureds harmless beyond the $100,000 policy coverage.
The court finds that such conduct violates the following Code of Professional Responsibility DR 7-102 ( 22 NYCRR sec. 1200.33):
A. A lawyer shall not
(1) Conduct a defense when it is obvious such action would maliciously injure another.
(2) knowingly advance a defense that is unwarranted under existing law
(5) knowingly make a false statement of law or fact
(8) knowingly engage in . . . conduct contrary to a disciplinary rule.
And DR 7-106
A. A lawyer shall not disregard . . . a ruling of a tribunal made in the course of a proceeding . . .
C. In appearing as a lawyer before a Tribunal, a lawyer shall not:
(1) State or allude to any matter that he. . has no reasonable basis to believe . . . that (it) will not be supported by admissible evidence.
(3) Assert personal knowledge of the facts in issue . . .
(4) Assert a personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant . . .
(7) Intentionally . . . violate any established . . . rule of evidence.
Definitions (1200.1) (f) Tribunal includes all courts . . .
The Canon 7 Ethical Considerations, which were violated by said conduct are as follows:
EC 7-1-The duty of a lawyer . . . to the legal system is to represent a client . . . within the bounds of the law, which includes Disciplinary Rules and enforceable professional regulations.
EC 7-4-Impermissible for lawyers to take positions which are not supported by the law or by a good faith argument for an extension, modification, or reversal of the law. A lawyer is not justified in asserting a position in litigation that is frivolous.
EC 7-22-Respect for judicial rulings is essential to the proper administration of justice.
EC 7-24-The expression by a lawyer of a personal opinion as to the justness of a cause, as to the credibility of a witness, as the culpability of a civil litigant, . . . is not a proper subject for argument to the trier of fact. It is improper as to factual matters because admissible evidence possessed by a lawyer should be presented only as sworn testimony.
EC 7-25-Rules of evidence and procedure are designed to lead to just decisions and are part of the framework of the law. . . . (T)he lawyer is not justified in consciously violating such rules and should be diligent in his or her efforts to guard against unintentional violations of them. A lawyer shall not make any prefatory statements before a tribunal in regards to the purported facts of the case on trial unless the lawyer believes that the statement will be supported by admissible evidence . . . And a lawyer should not by subterfuge put before a jury matters which it cannot properly consider.
EC 7-33-(A lawyer) . . . cannot dispense comments which will influence present or future juries from avoiding their obligation to base their verdict solely upon the evidence admitted in the trial.
EC 7-37-A lawyer should not make unfair or derogatory personal reference to opposing counsel.
Reasonable Attorney Standard Violated
The Court finds that the attorney violated the standards of a reasonable attorney. A reasonable attorney would have desisted from that unsupported strategy when the required evidence was not forthcoming, and the court had so directed. ( Principe v Assay Partners, 154 Misc 2d 702, (Sup Ct., New York County, 1992)). The Court finds that the attorney acted in bad faith, and had intended to do so from the outset to assert its said position even if not supported by the proof.
Frivolous Defense and Conduct — 22 NYCRR Sec. 130-1.1
The Court finds that the defense became frivolous in violation of 22 NYCRR Part 130 by the insistent continuation after its lack of legal or factual basis was apparent, should have been apparent, or when brought to the attention of counsel. ( 22 NYCRR Sec 130-1.1 (c)(3); Levy v Carol Management Corp., 260 AD2d 27, 34 (1st Dept. 1999)). The defendant's attorney's conduct was frivolous in violation of Sec. 130-1.1(c)(1) in that it was completely without merit in law or fact and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law, and/or Sec. 130-1.1(c)(3) in that it asserted material factual statements that are false. The willful and contumacious character of a party's conduct can be inferred from the party's repeated failure to respond to demands. ( McArthur v New York City Housing Authority, 48 AD3d 431, (2nd Dept., 2008)). The Court in arriving at its determination has considered Sec 130-1.1 (c)(1) and/or (3), and the time available for the defendant to ascertain the truth or falsity of its strategy by a prior IME, or medical consultation or other reliable means, as well as its failure to desist when its intended proof through cross examination of plaintiff's doctors was not successful, despite having been advised by the court. He was fully aware of the lack of proof and possible falsity of the alleged factual and medical statements made to the jury.
Contempt Violation-Judiciary Law Sec. 750 and 753
The Court further finds that the defendant's attorney violated a lawful and unequivocal court mandate, to wit, that he was not to proceed to claim to the jury that the impact of the accident was insufficient to cause the injuries after he was advised that the required medical proof was not forthcoming. The Court finds that the manner in which he asserted that defense was also in violation of the Code of Professional Responsibility and thus constituted an abuse of a mandate and/or a proceeding of this court. In so acting, the conduct was calculated to and actually intentionally, willfully, and in bad faith prejudiced and defeated the Plaintiff's right to a fair trial and just compensation. The Court finds that such conduct was a violation of Judiciary Law Sec 753[A] [1], and/or[2], and/or[3] in that it constituted misbehavior in his office, wilful neglect or violation of duty, disobedience to a lawful mandate of the court or a judge, and abuse of a mandate or proceeding of the court, and impaired, prejudiced, prevented and injured the plaintiff in her right to a fair trial and just compensation. The Court further finds that such conduct also violates Sec. 750 A(3) in that it constituted "a wilful disobedience to its (the Court's) lawful mandate" and Sec. 750 (A)(4) in that it constituted "resistance wilfully offered to its (the Court's) lawful mandate."
Imposition of Reimbursement Expenses and Sanctions Reimbursement of Doctors' expenses
22 NYRR sec. 130-1.1, 1.2, and 1.3 allows the award of costs in the form of reimbursements for actual expenses, which are reasonably incurred as a result of the misconduct, reasonable attorney fees and /or financial sanctions up to $10,000.
This Court agreed at the sanction hearing with the defendant's argument that the need for the liability trial was a result of the Appellate Division's reversal of this court's directed verdict, and not attributed to the misconduct. Since both parties seek an unbifurcated trial, at which the respective causes would be so inextricably intertwined that it would be difficult to ascertain or apportion what portion of the attorney's work was attributed to the misconduct, the reimbursement of duplicative attorney fees or any attorney fees is not appropriate. The court will not impose any duplicative attorney fee costs, or any attorney fees for the misconduct.
However, upon reflection, that would not be the case regarding the necessity of duplication of actual expenses reasonably incurred for doctors' fees in the second trial. That amount was $13,000 in the first damages trial, and may be more in the second trial since the doctors will need to review their extensive cross examinations. (Exhibit B attached to Attorney Burkwit's affidavit sworn to on Dec. 17, 2009). If the misconduct did not occur, the second trial on damages would not be necessary, and apportionment of liability, if any, could have been simply applied to that jury's prior damages determination. Accordingly, the court will impose the reimbursement costs of the said doctors' fees incurred in the second trial.
Non-Monetary Sanctions
In Tsabbar v Auld , 26 AD3d 233 , (1st Dept, 2006) based on frivolous conduct, the plaintiff was precluded under Section 130 from commencing future actions without the prior leave of the respective courts, even though such non-monetary sanction was not explicitly enumerated. Similar holdings in Faison v State of New York, 176 Misc 2d 808, (Court of Claims, 1998) and Lee v State of New York Court of Claims, 10/4/1990; Corbett, J., Claim No. 79553, Motion No. M-41426).
Nor are civil contempts limited to the statutory enumerations. ( Gabrelian v Gabrelian, 108 AD2d 445, (2nd Dept., 1985)). Sanctions for contempt where the Code of Professional Responsibility is violated in the course of judicial proceedings can include dismissal of answer and/or disqualification. ( 317 W. 87 Associates et al v Dannenberg, 159 AD2d 245,246, (1st Dept., 1990); Melcher v Apollo Medical Fund Management L.L.C. , 52 AD3d 244 , 245, (1st Dept, 2008)).
The sanctions below are tailored to the seriousness, type and broad pattern of the misconduct, and the goals of sanctions, viz. its retributive fairness, and to avoid its repetition by this and other attorneys and/or parties. The sanctions are specifically related to this situation and action.
Striking the answer on liability and affirmative defense of comparative negligence
Here, the misconduct was intentionally designed to prevent the Plaintiff from receiving just compensation for her injuries, and for the defendants to avoid payments commensurate with the injuries. One of the goals of sanctions is to impose punishment consistent with the misconduct. "Sanctions are retributive, in that they punish past conduct".( Levy v. Carol Managemenet Corp., 260 AD2d 27, 34, esp 35, (1st Dept., 1999)). Striking the answer as to liability as well as the affirmative defense of comparative negligence, and imposing full liability would be consistent on balance with defendant's unfair intended benefit through improper means and misconduct to unfairly avoid almost all damages. However, the defendant will still retain the right and ability to defend itself and restrict plaintiff to actual damages, of course, within the parameters of the rules of evidence, court rulings, and ethical standards.
The defendant has already been found negligent as a matter of law. Assuming the testimony at trial is sufficient to overcome a directed verdict on plaintiff's comparative negligence, and the jury finds a proximate cause of Plaintiff's negligence in failing to look to see the defendant stopped at the crosswalk with her head turned, this sanction will only effect the apportionment thereof of the plaintiff's damage. The defendant's claim of superseding cause in their prior appellate brief is unlikely. (see Adami v Wallace, 68 AD3d 1397, (3rd Dept., 2009) — no superceding cause as a matter of law).
Disqualification of Attorney and his firm from litigating the second trial-appropriateness
The sanction here is appropriate to the misconduct. In the S S Hotel case cited by the Appellate Division, the Court of Appeals signaled and noted thereby the distinction as well as the validity of the differing factors necessary for attorney disqualification when the Code of Professional Responsibility is invoked "in a disciplinary proceeding to punish a lawyer's own transgression.". ( S S Hotel Ventures v. 777 S.H. Corp., 69 NY2d 437, 443, (1987), 443-as opposed to disqualification under CPLR 3126-Discovery). And when such situation did later so present itself ( In Matter of Beiny et al, 129 AD2d 126, (1st Dept., 1987)), the nature and extent of the violation of the Code of Professional Responsibility played a relevant part in the appropriateness and the necessity of the lower court's disqualification sanction, both as retributive penalty consistent with the attorneys misconduct, and to prevent future misconduct:
. . . . In these respects the abuse with which we are presently concerned is far more serious than that which is ordinarily addressed or sought to be averted where disqualification is ordered. (Cite omitted).
It is, of course, regrettable that the action we find it necessary to take will deprive petitioner of his chosen counsel. This is, however, unavoidable given the gravity of the conduct involved and its highly prejudicial consequences for the Trustee. Confronted as we are with a course of activity exhibiting a complete and deliberate disregard for the process by which discovery is to be conducted and a total insensitivity to the strict ethical and legal limitations placed upon the disclosure and use of privileged material, to impose a sanction short of disqualification would be to treat the conduct at issue with a degree of lenity practically inviting its recurrence. Our principal concern under the circumstances must be to preserve the integrity of the process by which rights are vindicated. ( In Re Beiny, supra 129 AD2d 126, 143, 144).
The First Department upheld the appropriateness of lower court's exercise of its discretion to disqualify. The pattern and deliberate violations, and the lack of appreciation of the misconduct here is equally egregious, and the rationale related to the Code violations regarding the appropriateness and necessity of the disqualification to adequately respond to those violations of the Code of Professional Responsibility is equally applicable.
Again, when the attorney continuously refused to obey the Court's order of discovery (CPLR 3126), the Court of Appeals upheld the appropriateness of the lower court's sanction of disqualification stating: "If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore orders with impunity. ( Kihl v. Pfeffer, 94 NY2d 118, 123, (1999)).
Where the judicial process is misused and demonstrates a complete disrespect to the judicial process, and the monetary sanctions are inadequate to stop future frivolous conduct under Section 130.1, the court has authority to fashion additional more meaningful sanctions tailored to the specific situation. ( Faison, supra) — prohibiting filing of future actions until sanctions are paid.
The essential goal of sanctions is to deter similar future conduct ( Levy, supra at 340), and "to prevent the offending lawyer or firm from deriving any further benefit" from his misconduct. ( Beiny, supra at 136). The response of the defendant's attorney at the hearing and his communication to the court clearly shows absolutely no remorse, no recognition of his misconduct, or of his responsibility as an officer of the court not to engage in such improper conduct, or any sensitivity to the hardship and injustice placed upon the plaintiff, or to the effect of his slander on the legal and medical communities, or the unfair bias created thereby in future jury pools. Such lack of perception substantially increases the likelihood of repetitive future conduct. To allow him or his firm to continue would result in his profiting from his misconduct by being paid for an additional trial, and would send the wrong message to other attorneys and defendants.
No Loss of Choice of Counsel by Defendants
As to the assertion that such sanction deprives Mr. and Mrs. Gottschall of their choice of counsel, in whom, even with the misconduct, they were well pleased, the defendants had already contracted away their right to select their own attorney. They did not originally select the trial attorney, or his replacement for the Appeal, and will not be selecting the next attorney if disqualification occurs. Also, the agreement of State Farm to reimburse the defendants beyond their $100,000 policy has not been provided to show that as part thereof the insureds were given or retained any right to select their own attorney. The statement of Mr. Greene in his letter of 1/22/10 would indicate the contrary. He states that the strategy in not responding to the allegations at the hearing that the court misquoted the subject attorneys statements in the record, and, instead, to advise the court to search the trial record itself, was developed after consultation with "representatives" of the defendant (State Farm), and the subject attorney, to which the insureds agreed.
The Court notes that this carrier is the most litigious in this district almost always contesting liability in rear end, cross-over, and crosswalk accidents. It has a stable of attorneys locally and in Buffalo whose style and defenses, but not to the extent here, are strikingly similar, and are determined by the adjustor or the carrier's policy. Accordingly the picking of another attorney would impose no hardship or loss of full ability upon State Farm to defend itself. On the other hand, the lessons on attorneys not to engage in tactics in violation of their professional responsibilities would not be lost, and they would not profit thereby. On balance this sanction is felt by this court in its discretion to be appropriate to the situation and, hopefully, is strong enough to impress upon the attorney the full nature of his misconduct by not profiting therefrom.
Alternatives
It is my preference to make the aforesaid findings, doctor reimbursement and non-monetary sanctions solely under Section 130.1-1 of frivolous actions as more appropriate and situation specific. Such sanctions are similar in nature as those prohibiting future actions even though not enumerated in the statute, and are in the courts inherent authority to fashion meaningful sanctions tailored to the specific situation. (Also see Principe, supra esp. at 713).
However, if it is determined there is no authority in the court under Section 130, as a matter of law or discretion, other than the imposition of a monetary fine, then such non-monetary sanctions are hereby made under the contempt provisions. And if the sanction(s) imposed above are found by the Appellate Division to be inappropriate as a matter of law or discretion under the contempt provisions (except for that which is correctable upon resubmission), then this court in the exercise of its discretion, imposes the said $10,000 sanction upon the attorney and defendants in lieu of that or those non-monetary sanctions under Section 130.1-1 and will forego the contempt findings. The appropriateness of the said monetary sanction for the misconduct is set forth above and below.
Appropriateness of $10,000 sanction
Cases where sanctions of $10,000 were upheld as appropriate under Section 130:
Dwaileebe v Six Flags Darien Lake , 11 Misc 3d 958 , (Sup. Ct., Cattaraugus County, 2006); aff'd 21 AD3d 1282 — $10,000 for falsely slandering another attorney citing five additional cases therein for the same or higher assessments for frivolous conduct, which the Second Department affirmed, and a Third Department case for bringing a meritless action, which the lower court characterized as, although onerous, still less serious than slandering another attorney's reputation. (See Valdez v. Cibulski, 171 M2d 49, (Sup. Ct., Queens County, 1997), aff'd 248 AD2d 707, (2nd Dept., 1998); App.den. 92 NY2d 808, which affirmed lower court's discretion of $10,000 sanction — defendant's attorney insisted on proceeding with trial where there was no defense in fact or law and sought to mislead the jury. That impropriety was a great deal less than here.
Also, the request for recusal of this proceeding was denied for the reasons stated in the Letter Order dated December 22, 2009.
The Court did not find the other procedural objections, which were raised at the hearing (pg 3-6 of the Hearing Transcript) and not dealt with herein, to be with merit, ie court's jurisdiction — arguments #1 and #2.
This shall constitute the decision and order of the Court. The signing and filing of this decision and order shall not constitute notice of entry under CPLR 2220. Counsel is not relieved from the provisions of that rule regarding notice of entry for purposes of appeal. However, the filing of the underlying motion papers upon which this motion was made is hereby dispensed with pursuant to CPLR 2220. Attorney for the plaintiff is directed to serve all attorneys of record with a copy of this decision with notice of entry.
SO ORDERED.
Dated this 22nd day of April, 2010 at Rochester, New York.
Exhibit A
C: Interests of Justice — Attorney Conduct
Aside from the weight of the evidence, the defendants' attorney engaged in a litany of inappropriate conduct during the trial and closing arguments, which prejudiced the plaintiff, and deprived her of a fair trial and a fair determination of her actual damages based upon the proof.
Those tactics included urging the jury to disregard the undisputed medical testimony, asserting that medical testimony was not needed to support his medical position, since there was insufficient impact to cause those injuries, and which objective symptoms of herniation he urged them to attribute instead to her pre-existing condition, neither of which opinion was given by any doctor.
It is improper for an attorney to propose positions for which he knew there was no proof to support it. (Davis v. Maute, 77 A2d 36, 37, (Sup. Ct., Delaware, 2001); O'Neil v. Klass, 36 AD3rd 677, (2nd Dept., 2007); Pagano v. Murray, 309 AD2d 910, (2nd Dept., 2003)).
Impact Argument
The Court clearly advised the defendant's attorney in his opening statement of the need for medical expert proof regarding his main claim to the jury that the impact did not provide sufficient force to cause all the injuries asserted. Based on defendant's representation that he intended to provide the necessary medical proof through cross examination of plaintiff's experts, (opening, pg 4), the Court allowed such cross examination of plaintiff's experts. That proof was not forthcoming. Instead, despite the insufficiency of the proof and the admonishment by the Court, defendant continued to relate the injuries to the impact to infer it was medically sufficient to only cause a banged knee and elbow and not the alleged elbow, neck and back injuries to the jury in his closing.
Opening
Opening — "There is a little bump and plaintiff fell down and hurt her knee" (pg 4)
"So in terms of impact . . . hopefully . . . you are looking at this case . . (as) a little bumpity bump in a crosswalk . . ." (pg 4).
Defendant accepts responsibility for "bump" but not alleged neck and spine injuries. (pg 6, 10).
"Can you imagine that [ie, claims of neck and spine injuries] . . . when we bumped her at idle speed." (pg 10).
Closing
"You get knocked down" . . . you get your elbow banged up a little bit, you've got a sore shoulder, some muscle tenderness in your neck and back" (pg 20).
"A "banged elbow" and "sore shoulder" is consistent with getting flopped down to the ground" (pg 20).
". . . hit . . . by the bumper. . . . ." (pg 32).
". . . pretty doggone amazing . . . bulging discs from going down in a crosswalk" (pg 15).
Osteoporosis Argument
The defendant's attorney advised the jury in his opening that the plaintiff had pre-injury symptoms of osteoporosis which had been diagnosed and treated prior to the accident, and without any doctor's opinion claimed it was the cause of her neck and back problems rather than the accident's trauma.
The assertion of his claimed pre-diagnosis and pre-injury treatment for osteoarthritis was based on a note in Doctor Newman's records in which plaintiff told her she had a prior chronic arthritic condition. Doctor Newman testified on cross examination that she took this to mean that plaintiff had a prior medical diagnosis and treatment from another physician. However, the extensive examination and cross examination of Dr. Newman by videotape, which was known by defendant's attorney prior to his opening, made abundantly clear that the plaintiff's characterization was merely the plaintiff's lay statement to her doctor (pg 44, 78); that plaintiff had no prior symptoms from the osteoporosis, no prior diagnosis, and that Dr. Newman made such diagnosis only at the cross examination "in retrospect".
However, most relevant is that Dr. Newman testified as a medical expert that in her opinion the dormant osteoporosis condition shown on the subsequent x-rays had no bearing on plaintiff's injuries. (Pg 127, 128, 131). Yet, counsel persisted in his unsupported position in his closing that it caused the plaintiff's herniations, and neck and back problems. (pg 21, 22). (Brown v. Dunlop, supra at 577-578).
In addition, counsel urged other inappropriate positions upon the jury.
Out of Pocket
In a couple of questions, defendant's counsel used the phrase "out of pocket" in a confusing context. To clarify his meaning to the jury and to the Court, the Court asked him to explain what he meant. Counsel refused and moved on. His inference may have implied to the jury that the award will be taken out of his clients' pocket. This type of implication is universally condemned by New York Courts. (Vassura v. Taylor, 117 AD2d 798, (2nd Dept., 1986)). It is especially egregious here since counsel and the Court knew that the carrier State Farm had agreed to assume payment of any verdict beyond the defendant's $100,000 policy. Perhaps this exposure explains the "scorched earth" tactics used in this trial.
Attorney — Doctor Conspiracy
The defendant's counsel throughout the trial consistently disparaged the plaintiff's attorney and the medical experts by improperly contending that the neck and back injuries were concocted together by them. These personal attacks and disparagement were improper without any real basis in the record (defendant closing pg 13, 14, 19). (O'Connor v. Inc Village of Port Jefferson, 104 AD2d 861 (2nd Dept., 1984); Reynolds v. Burghezi, 227 AD2d 941, (4th Dept., 1996) new trial even where objections were not made to opposing counsel's summation, which was pervaded by a pattern of egregious, inflammatory conduct; Pagano v. Murray, supra, 309 AD2d 910, (2nd Dept., 2003); Escobar v. Seatrain Lines Inc., 175 AD2d 741, (1st Dept., 1992)).
Personal Opinions, Unfounded Medical Assertions, and Acting as an Unsworn Witness
Judicial restraints have long prohibited reliance on passion or prejudice, (Cherry Creek Nat Bank v. Fidelity, 207 AD 787, (4th Dept., 1924), or deliberate diversion of the jury from consideration of undisputed medical evidence. (Reynolds v. Burghezi, supra, 227 AD2d 941, (4th Dept., 1996)).
It is fundamental that the jury must decide the issues on the evidence, and therefore fundamental that counsel, in summing up, must stay within "the four corners of the evidence (Williams, supra at p 103) and avoid irrelevant comments which have no bearing on any legitimate issue in the case (People v. Carborano, 301 NY 39, 42; People v. Tassiello, 300 NY 425). Thus the . . . attorney may not refer to matters not in evidence (People v. Fielding, 158 NY 542, supra; Peole v, Esposito, 224 NY 370; People v. Dixon, 231 NY 111; People v. Jackson, 7 NY2d 142) or call upon the jury to draw conclusions which are not fairly inferrable from the evidence (People v. Van Aken, 217 NY 532; People v. Creasy, 236 NY 205; People v. Jenman, 296 NY 269; People v. Griffin, 29 NY2d 91). Above all he should not seek to lead the jury away from the issues by drawing irrelevant and inflammatory conclusions which have a decided tendency to prejudice the jury against the defendant (see, e.g., People v. Posner, 273 NY 184, 190; People v. Levan, 295 NY 26, 36; People v. Carbonaro, supra; Berger v. United States, 295 U.S. 78). (People v. Ashwal, 39 NY2d 105, 109-110, (1976)).
Defendant's counsel was well aware of his restrictions not to give his personal opinions and to stay within the "fair comment" boundaries of the actual trial evidence, when he paid lip service to them in his closing:
"I have my personal views" . . . but they don't matter". (pg 4)
"What I try to do . . . is to simply review what I think you've heard that I feel is relevant to an adequate determination in this case". (pg 4)
"Let's distinguish between facts that are proven and just statements of lawyers. So again, it is not what the lawyer says, its what comes from the witness box that's really, really critical and important here." (pg 6).
Instead, he then proceeds to continually give his passionate personal opinions (as underlined), advising that a medical expert was not necessary to sustain his position, and asserts unproven medical principles as an unsworn witness:
The unsworn witness rule poses more subtle problems in our efforts to preserve the right to a fair trial. This rule has no definitive contours, but generally stands for the proposition that the prosecutor may not inject his own credibility into the trial. Thus, we have reversed convictions where the prosecutor, to the prejudice of the defendant, has expressed his personal belief on matters which may influence the jury (People v. Tassiello, 300 NY 425), has argued his own credibility on summation (People v. Lovello, 1 NY2d 436, 439; People v. Carter, 40 NY2d 933), has vouched for the credibility of the People's witnesses (People v. Puglisi, 44 NY2d 748, or has, by cross-examination, suggested the existence of facts not in evidence (People v. Duncan, 13 NY2d 37). The primary rationale for so limiting the prosecutor's conduct is rooted in a concern that the criminal process be fair. Such conduct on the part of the prosecutor amounts to a subtle form of testimony against the defendant, as to which the defendant may have no effective means of cross-examination. Hence, the rule is founded upon the possible danger that the jury, impressed by the prestige of the office of the District Attorney, will accord great weight to the beliefs and opinions of the prosecutor (People v. Paperno, 54 NY2d 294, (1981)).
Counsel continued in his attempt to improperly influence the jury as follows:
"In my estimation in this case, it (defendant's experts) wasn't necessary. . . . It's simple mechanics . . . of the human body." (pg 9).
"We don't think it should simply come down to choosing the opinions of your treating physicians that you feel support you in your claim . . ." (pg 6).
"That's why I really think the way you ought to judge this case . . . isn't by experts . . ." (pg 17).
". . She (plaintiff) did not have a spinal injury . . . Now, I will tell you why . . ."
"I think I am an authentic person, I think I do speak from the heart, and we just don't buy it. Period."
"Now, why would Mike say that?" (pg 14, 15).
"So I think by the time we get done, it was helpful to you not to further complicate it with additional physicians." (pg 9). Referring to Dr. Ess' testimony that the bulges shown in the films were caused by the accident, "That's pretty amazing. That's pretty doggone amazing. I have never heard any claim like that in my life before. . . ." (pg. 15).
He then advises the jury as an unsworn, unqualified medical expert that her discs could not have herniated without an acute presentation of pain, spasm, inflammation, contusion, edema, bleeding or swelling at the time of the accident. There was no medical opinion provided at trial to dispute the medical experts that the herniations were caused by the accident, let alone offering the basis for such contrary diagnosis.
"Bulging disc herniations would hurt like the dickens with debilitating pain and spasms . . . can't happen that way. It just flies in the face of common sense." (Pg 20).
"What is it you don't see on the film, that would support an acute presentation of a disc herniation? No inflamation, no contusion, no bleeding?" (Pg 22).
He compares her injury to a football player who was engaging in a multiple tackle on national TV and sustained a spinal injury. There was no medical proof at trial that the causation mechanics or resulting force of such an injury had any valid comparison:
". . . use your own experience in life . . . Remember Mr. Everett (a national football player who sustained a spinal cord injury on TV)." (Pg 22).
He then asserts that the local hospital which initially treated the plaintiff would be guilty of "malpractice 101" if they did not find the presentations he asserted should be there. There was no proof that such conduct if it occurred, would constitute the violation of medical standard requirement to constitute malpractice. Even a qualified doctor cannot render an opinion upon facts not supported by the evidence.
The Court of Appeals has made it abundantly clear 'that opinion evidence must be based on facts in the record or personally known to the (expert) witness. . . . . He cannot reach his conclusions by assuming material facts not supported by evidence' Cassano v. Hagstrom, 5 NY2d 643, 646 . . . reargument denied 6 NY2d 882 — other citation omitted. (Richardson, 11th Ed., Sec. 7-307, pg 469).
"We think Strong is a great hospital and we think you already know that." (Pg 6).
". . . if (plaintiff) had an inflamed neck like Mr. Everett or somebody else who has an acute spinal injury . . . they (Strong) would (not) have just turned her back out on the street." (Pg 23).
"That would be a boo boo. Holy cow, you could lose your license over something like that". (pg 23).
"Do you really think they are that ill equipped to make a diagnosis about whether or not there's been a serious spinal injury?" (Pg 23).
"I mean, that's medical case 101 for emergency people, okay". (pg 23).
He claims there could not be any back injury from the accident because there was "no acute presentation" even though no doctor rendered any such opinion:
No spinal injury because:
1. No typical presentation (pg 23)
2. No "stinger" evidence, a lower level spinal injury. "We know people who have had that" (pg 23).
"No, no, no. . . . no presentation here consistent with an acute injury to any disc, whether . . . by film . . . by symptoms . . . (and) 'reasonably related' time fashion." (Pg 23, 24).
"Still no typical presentation (now two years later)." (Pg 24)
"No" "sciatic". (pg 24).
"No" "radiculopalty". (pg 24).
He again asserts an alleged malpractice against plaintiff's expert for which there was no proof in the record. He asserts that a nerve conductor test, which was not performed, would have been dispositive of whether surgery was necessary. And failure to so perform before recommended surgery was malpractice.
"You do a nerve conduction study and seek whether or not the nerve is interrupted at any level electronically . . . It would be malpractice for a physician to give a surgery without documenting that there was, in fact, radicular symptomatology? I mean how nonsensical this is." (Pg 24, 25).
He contends that the doctors' recommendation of fusion constitutes criminal malpractice and he would send the doctor to jail if the doctor performed such surgery.
"If the fusion surgery is performed, as far as I am concerned, (the doctor) ought to go to jail and I mean it. Holy cow. (Pg 25).
". . . I know it is bologna." (Pg 25).
He engages in passion and asks the jury to engage in a determination which is not within their responsibility, and then base their monetary award on that decision which the jury has made for the plaintiff.
"Ask yourself this. . . . If somebody told you that (a need to have fusion surgery) to some one you loved, would you let them do it?. . . ." (pg 25).
". . . it (making an award for surgery) would be the worst thing you could ever do to another human being. You wouldn't let that happen to your pet."
". . . you can send her a signal that she's really okay and she doesn't have to be afraid of going paralyzed. She is not going to go paralyzed a little bit at a time. That's bunk. . . . I've got friends who are quads. Didn't happen to them that way. It is acute. It is a severing of the spinal cord. It is immediate. It is not getting bulges." (Pg 29, 30).
Trial Question Tactics
On numerous occasions when the Court asked counsel to clarify a possible misleading question, caused by compounded questions or assumption of facts not in the record, to avoid witness and jury confusion, the attorney continually disregarded the Court's request and proceeded with the same type of questions. In one instance, the doctor frustratingly testified that it was impossible to answer the defendant's questions due to his method of questioning.
The accumulation of the many improper tactics aforesaid substantially prejudiced the plaintiff's rights to a fair trial and fair determination of her actual damages resulting from the accident, (Kennedy v. Children's Hospital of Buffalo, 288 AD2d 918, (4th Dept., 2001); Cotter v. Mercedes Benz Motors, 108 AD2d 173, (1st Dept., 1985); People v. Jackson, 143 AD2d 363, (2nd Dept., 1988)), necessitating the need for a second damages trial in the interests of justice.
In view of the aforesaid conduct, the Court has inherent authority, responsibility and a duty to redress the resulting harm, and to prevent its recurrence.
(The Court has) inherent authority to protect the integrity of the processes of adjudication. . . . T(t)he manner in which . . . counsel continued the prosecution of the claims through trial was in disregard of (his) obligations as officer(s) of the Court. The fairness of the adversary system of adjudication depends upon the assumption that trial lawyers will temper zealous advocacy of their client's cause with an objective assessment of its merit and be candid in presenting it to the Court and to opposing counsel. When that assumption has been contradicted by a trial record of conduct reflecting a winning is all that is important approach to the trial process, the Court has a duty to redress this resulting harm to the opposing party. (Medtronic Navigation Ins. V. BrainLab Inc., 2008 U.S. Dist Lexis 13483, (U.S. Dist. Ct for Dist. Of Colorado, 2008); see also People v. Paperno, 54 NY2d 294, (1981)).