Opinion
06/3983.
Decided May 9, 2008.
Cellino Barnes, P.C., Charles F. Burkwit, Esq., of Counsel, Attorneys for Plaintiff, Rochester, NY.
Hagelin Kent, LLC, Michael T. Hagelin, Esq., of Counsel, Attorneys for Defendant, Buffalo, NY.
Plaintiff moves to set aside the jury verdict pursuant to CPLR 4404(a) on past and future pain and suffering and future medical expenses as against the weight of the evidence, inadequate and in the interests of justice.
Defendant opposes, submitting the jury verdict was based on a fair interpretation of the evidence.
Decision:
Plaintiff's motion is granted in the interests of justice and on the merits as the damages award is wholly inadequate and against the weight of the evidence. Plaintiff is granted a new trial on damages only unless defendant stipulates to an additur to $165,000 for past and future pain and suffering and future medical expenses.
Facts:
The action arises out of a pedestrian motor vehicle collision at or near a cross walk. This Court granted summary judgment to plaintiff on liability.
Defendant's counsel admitted that "plaintiff did indeed sustain a non-displaced fracture to her tibial plateau" and an additional non-displaced femoral fracture, which resulted in a determination as a matter of law that plaintiff suffered a causally related serious injury meeting the threshold established pursuant to Insurance Law Section 5102(d).
The case was tried before the jury beginning on November 9, 2007 through November 16, 2007 with two verdict questions being presented to the jury to answer. The jury returned a verdict in the amount of $20,000 for past pain and suffering and $5,000 for future pain and suffering over 29 years and $0 for future medical expenses.
Law and Rationale: I. Award Not Reasonable Compensation
Pursuant to CPLR 4404(a), the Court may set aside the damages award on the ground that the verdict deviates "materially from what would be reasonable compensation". In making such determination, the Courts regularly compare the jury's damages award to the awards in other cases of similarly injured persons. ( Adams v. Georgian Motel, 291 AD2d 760, (3rd Dept., 2002)). Such comparative case analysis "is not optional but a legislative mandate" necessary to "promote greater fairness for similarly situated defendants". ( Donlon v. City of NY, 284 AD2d 13, 14,16, (1st Dept, 2001)).
Accepting the facts in a light most favorable to the non-moving defendant, including defendants' admissions that plaintiff suffered a tibial plateau knee fracture and a femoral fracture, the verdict of $20,000 for past pain and suffering, $5,000 for future pain and suffering over 29 years and $0 for future medical costs for the leg injury only, is clearly inadequate and deviates materially from what would be reasonable compensation. This Department in a 1998 decision held that a broken femur with no residual disability resulting from a pedestrian vehicle accident was inadequate unless increased to $80,000 for past pain and suffering and $10,000 for future pain and suffering. (See Faulise v. Trout, 254 AD2d 755, (4th Dept., 1998)).
Verdicts similar to the knee, neck, back and elbow injuries, necessitating a lumbar fusion, as here, are in the range of $90,000 to $3,000,000. ( Faulise, supra (knee injury only); Smith v. Monroe Muffler, 275 AD2d 1028, (4th Dept., 2000) (past pain and suffering for herniated disc increased to $400,000); Barrowman v. Niagara Mohawk, 252 AD2d 946, (4th Dept., 1999)($3,000,000 past and future pain and suffering verdict sustained for herniated discs and a ruptured disc resulting in two surgeries)). The value assigned by the jury is inadequate, deviating "materially from what would be reasonable compensation". Accordingly, the awards are set aside on the basis of inadequacy.
II. Contrary to the Weight of the Evidence — Neck, Back and Elbow Injuries:
A motion to set aside a jury verdict as against the weight of the evidence shall not be granted unless the preponderance of the evidence in favor of the moving party is so great that the verdict could not have been reached upon any fair interpretation of the evidence. ( Lolik v. Big V Supermarkets, 86 NY2d 744, (1995)).
The parties stipulated to causally related fractures, which met the threshold required under Insurance Law Section 5102(d) as a matter of law. Plaintiff presented expert evidence as to other causally related injuries, mainly neck, back and elbow injuries.
Rather than calling medical experts or submitting medical proof to dispute the plaintiff's medical experts, defense counsel primarily, instead, contended there was insufficient impact to cause the neck, back and elbow injuries, and attributed the objective symptoms of these injuries causally to a pre-existing condition without any forensic or medical basis.
A. Unsupported Impact Argument
The defendant's attorney throughout the trial including the opening and closing strongly contended and urged the jury to primarily find that the impact between the plaintiff pedestrian and the defendant's vehicle, while concededly "serious" and concededly sufficient enough to cause two broken bones in the plaintiff's leg, was, nevertheless, not medically or kinematically of sufficient force to cause ulnar neuropathy/neuropraxia in the left elbow, an ulnar tear and two herniated discs in the neck and back of an anorexic bone brittle person, who weighed less than 90 lbs.
The plaintiff's medical experts testified that plaintiff may be required to undergo cervical discectomy and cervical fusion surgery for C-3 — C-7 levels, and lumbar discectomy and fusion surgery at L4 — L5 and L5 — S-1 levels.
Defendant provided no direct proof through his own medical or kinematic experts that the impact was insufficient to cause the ulnar tear and herniated discs. Instead, he sought such proof solely through cross examination of defendant's treating physicians. Those efforts were unsuccessful, despite continued pressing. The plaintiff's medical experts steadfastly testified that the impact sufficient to cause the two broken leg bones, to which the attorney had conceded, was also sufficient to and did cause the other injuries she sustained. The defendant sought to counter the plaintiff's expert's opinion by additional lay testimony from the defendant that the impact was low. That testimony was denied as not probative, and misleading of the claimed assertion that the force, which caused the broken leg bones, was not medically or kinematically sufficient to cause an ulnar tear and herniated discs in the curved and lumber spines, especially in this physically debilitated anorexic person. Although the impact between vehicles may have a bearing on damages ( Homsey v. Castellano, 289 AD2d 201, (2nd Dept., 2001)), absent expert testimony, it cannot be said that, as here, the average lay juror has the ability or expertise to know what force will break a person's leg in two places, and yet not cause elbow, neck or spinal injuries in an anorexic debilitated person. Expert testimony is required where medical issues are not within the ordinary experience and knowledge of lay persons. ( Clemente v. Blumenberg, 183 Misc 2d 923, (Sup. Ct, Richmond County, 1999)):
Defendant's attorney asked exhaustive questions of the primary care physician regarding the reports and opinions of the neck and back orthopedic specialists seeking to elicit a differing factual or medical opinion. Yet, in every instance she consistently and unwaveringly deferred to the opinion of those experts (Dr. Newman — Video — uncorrected transcript pg 51, 61, 62, 64), who unequivocably related the neck, back and elbow injuries to the accident, and gave the basis for their opinion, including x-rays and MRI supported objective findings.
This situation is distinguishable from Marmol v. Lancer, 292 AD2d 246, (1st Dept., 2002); Doyle v. Seney, 221 AD2d 828, (3rd Dept., 1995) where the minimal impact between a bus and a vehicle was so slight and minor that it was within the jury's determination that it was not the proximate cause of the accident or any injuries. (page 829)).
"The averments of a lay plaintiff cannot serve as the essential showing of the merit . . . where, as here, the averments include matters not within the experience and knowledge of lay persons (citations omitted),"( Kordasiewicz v. BBC Products, Inc., 26 AD3d 853, 855, (4th Dept., 2006), or by the plaintiff's attorney ( Ramussen v. Niagara Mohawk Power Corp., 294 AD2d 862, (4th Dept., 2002)); see Fisher v. Jackstadt, 291 AD2d 689, (3rd Dept., 2002), where defendant provided an expert doctor who testified that while the low impact between two vehicles caused a shoulder injury, in his opinion it was unlikely to, and, in his opinion, did not cause the more extreme rotator cuff injury claimed. Here, defendant had no such medical, or kinematic basis to support his alleged "lack of force" contention, which he urged upon the jury.
B. Unsupported Pre-existing Condition Causation
The post accident x-ray or MRI showed pre-existing osteoporosis, which was not unusual for her age, and which had been undiagnosed, and unsymptomatic prior to the accident.
The defendant contended that the ulnar tear, and herniated discs causing plaintiff's back, neck and elbow problems were not the result of the accident trauma, as testified to by the medical experts, but, rather, were caused by the natural progression of a pre-existing degenerative condition. There was no medical evidence to support defendant's causation claims.
The plaintiff's primary care physician, despite efforts to have her express opinions contrary to the orthopedic specialists, affirmatively testified that, in her medical opinion, the osteoporosis had no bearing on plaintiff's injury (pg 131), and deferred any further detail of those accident caused injuries to the orthopedic elbow, neck and back specialists numerous times. (Pgs 56, 61, 62, 64 (also it is contained in her notes that as to any permanency she will defer to orthopedic expert), 109, 121, 130 defers to Dr. Lewis for left knee and elbow injuries, and to Drs. Huckel and Hess for spinal injuries, 132). There was no medical proof to support defendant attorney's medical contention that the pre-existing condition caused the fracture, or tear and herniations, which he urged upon the jury. Dr. Newman testified that in her opinion, the plaintiff's fracture was not due to osteoporosis or degenerative joint disease (pg 131), and deferred any spinal injuries opinion to orthopedic specialist. (pg 132).
While defendant's attorney refers to x-rays showing degenerative changes, he never asks an opinion question from plaintiff's doctors as to whether it was the cause of fractures or tears, or C 4-7 herniation, nor does he provide such essential opinion from his own doctor. (See pg. 115-117).
Accordingly, the jury's rejection of the medical experts regarding the neck, back and elbow injuries as urged by defendant's counsel was against the weight of the undisputed medical evidence.
. . . a jury's rejection of an expert's opinion cannot be made arbitrarily, but must be based on conflicting foundational facts or opinion found in the record . . . jury's determination not to accept expert testimony and opinion must be supported by other testimony or by the cross examination of the expert.' ( Prescott v. Lebanc, 247 AD2d 802, 803; see Baker v. Shepard, 276 AD2d 873, 875; Kalfus v. Margolis, 88 AD2d 528. ( Calderon v. Irani, 296 AD2d 778, 779 (3rd Dept., 2002)).
Also see Brown v. Dunlap, 4 NY3d 566, 577-578 (2005) where the Court of Appeals found that a radiologist's attributing "disc bulge" to a pre-existing degenerative condition rather than the trauma of the accident was "conclusory" and "itself insufficient to establish that plaintiff's pain might be chronic and unrelated to the accident".
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 feelis 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 wejust 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 adisc 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.
Second Damages Trial
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)).
The Court hereby imposes upon defendants' the costs incurred in the trial for the live medical experts consisting of transportation, and time charged, which will need to be duplicated in the second damages trial. A sworn affidavit of those costs shall be submitted by plaintiff for the Court's approval. In the event that the additur is accepted, so that a second damages trial is not required, the said duplication cost payment will not be required. Further, the Court precludes defendant's counsel and his firm from representing defendant in the second damages trial.
As to defendants obtaining medical experts in the second damages trial, the defendants may be precluded by the law of the case. ( See Noble v. Cole, 267 AD2d 702, (3rd Dept., 1999); Ingleston v. Francis, 217 AD2d 843; (3rd Dept., 1995)). However, this Court will not make that determination, if raised.
Although this Court understands its strong responsibility to hear cases assigned to it, and does not believe it will be biased to either side, it believes that this is a situation, where even the appearance of judicial partiality should be avoided. The court recuses itself from the second damages trial.
This shall constitute the decision and order of the Court. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provisions of that rule regarding entry, filing and notice of entry. 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 enter this Decision/Order without notice and to serve all attorneys of record with a copy of this decision with notice of entry.
SO ORDERED.