Opinion
No. 17456/2011.
09-12-2014
Monique HINES, Plaintiff, v. Angel A. LOPEZ and Varsity Bus Co. Inc., Defendants.
Opinion
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 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 A.D.2d 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 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 N.Y.2d 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 A.D.2d 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 A.D.2d 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 A.D.2d 910 [2d Dept.2003] ; People v. Skinner, 298 A.D.2d 625 [3d Dept.2002] ; Minichiello v. Supper Club, 296 A.D.2d 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 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.