Grasso v Koslowe
Annotate this CaseDecided on March 17, 2006
Supreme Court, Richmond County
Maria Grasso, as Executrix of Vita Ann Lieto, Deceased, Plaintiff,
against
Rama Koslowe, M.D., THOMAS COSTANTINO, M.D., MICHAEL CASTELLANO, M.D., GERALD DIMASO, M.D., DONNA SEMINARA, M.D., and STATEN ISLAND UNIVERSITY HOSPITAL, Defendants.
10364/00
Philip G. Minardo, J.
Upon the foregoing papers, the motion of defendant RAMA KOSLOWE, M.D. for an order pursuant to CPLR 4404 setting aside the verdict against her and ordering a new trial on the basis that she was denied a fair trial or, in the alternative, that the verdict against her was contrary to the weight of the credible evidence and/or excessive, is granted to the extent that the jury verdict in favor of plaintiff and against the moving defendant is set aside and a new trial is ordered as to both liability and damages. The balance of the motion is denied as academic.
Plaintiff commenced this action on behalf of decedent VITA ANN LIETO to recover damages for pain and suffering endured by the decedent prior to her death resulting from the alleged improper prescription of a diet drug known as Redux by defendant RAMA KOSLOWE, M.D. (hereinafter DR. KOSLOWE). Following a trial, the jury returned a verdict in plaintiff's favor and awarded $2 million in damages.
In the current application, DR. KOSLOWE contends that the grossly improper and [*2]inflammatory summation by plaintiff's counsel against DR. KOSLOWE and her expert witnesses, Dr. Frank Fromowitz and Dr. Monty Bodenheimer, operated to deprive her a fair trial. As applicable, it is alleged that counsel persisted with his inflammatory remarks despite repeated objections and the admonition of this Court, ultimately inflaming the jury and diverting its attention from the issues properly before it. In addition, it is claimed that the award of damages in the amount of $2 million is wildly excessive.
According to DR. KOSLOWE, the inflammatory and prejudicial remarks made by plaintiff's counsel during summation included, inter alia, the following: "Dr. Bodenheimer [movant's expert witness] is the God, [He] knows everything ... he is a pro ... They are [all] pros. That's what they get paid for, that's why they are called
by the defendants."
"Dr. Fromowitz [movant's other expert] is in their pocket."
"They know what they are getting when they call these doctors to the stand".
"[Their testimony is] going to support their position regardless of whether it makes any
sense at all".
"Defendant['s] doctors have to argue a position because they have to get to an end result ... so [they] just make [it] up ... so [they] just make up whatever you [sic] have to make up ... it's an insult to you ... and you have the opportunity in your verdict not to
condone it."
"Bodenheimer, you get your monies' worth out of that guy ... he had to make
up a story ... it's an insult ... to try to bamboozle you ... [these] two honchos".
In addition, plaintiff's counsel is alleged to have unfairly characterized DR. KOSLOWE's testimony about the deceased as if "she was an animal ... she had this coming".
DR. KOSLOWE also complains that plaintiff's counsel repeatedly informed the jury of his personal opinion of the case, and regularly referred to the medication Redux as "deadly" and having been taken off the market because it posed a great risk of pulmonary hypertension, although no such medical testimony had been presented at trial.
In opposition, plaintiff contends that movant's attorney waived any right to object to the comments made by her attorney by failing to object during summation. Plaintiff further contends that even if these objections had been preserved (1) the remarks themselves were not prejudicial, and (2) the jury's verdict was based on the medical evidence adduced at trial and the logical inconsistencies between the testimony tendered by the defense and decedent's medical records.
Plaintiff also contends that the experts called by DR. KOSLOWE were not credible and that their testimony was illogical. Therefore, impugning their credibility during summation was not only permissible, but was to be expected. Finally, plaintiff contends that any improper remarks made by counsel during summation were harmless, and that the Court's curative instructions removed any possibility of prejudice.
It is well settled that when the "misconduct of counsel in interrogation or summation so [*3]violates the rights of the other party to the litigation that extraneous matters beyond the proper scope of the trial may have substantially influenced or been determinative of the outcome, such breaches . . . will not be condoned" (see Kohlmann v. City of New York, 8 AD2d 598, 598). In fact, there is no shortage of caselaw holding that the same or similar remarks to those employed by counsel in this case warrants a new trial (see e.g. Weinberger v. City of New York, 97 AD2d 819; LaRusso v. Pollack, 88 AD2d 584; accord Minichiello v. Supper Club, 296 AD2d 350; Pagano v. Murray, 309 AD2d 910; Nuccio v. Chou, 183 AD2d 511, 514-515, app dismissed 81 NY2d 783; Steidel v. County of Nassau,182 AD2 809, 814) . In particular, counsel's continual categorization of DR. KOSLOWE's expert witnesses as paid pros who would make up whatever they had to in order to support the defense, is, in the opinion of this Court, inexusable (see Weinberger v. City of New York, 97 AD2d at 820). Moreover, since the improper conduct of plaintiff's attorney did not consist of an isolated remark, but rather a continual and deliberate effort to divert the jurors' attention from the issues to be determined (see Reynolds v. Burghezi, 227 AD2d 941, 942), the interest of justice requires that the verdict be set aside, notwithstanding the alleged lack of timely objections (see Berkowitz v. Marriott Corp., 163 AD2d 52, 53-54). In this regard, the Court concludes that counsel's persistence in making his objectionable remarks in the presence of the jury, despite repeated warnings by the Court, operated cumulatively to taint the verdict by preventing a fair consideration of the evidence (cf. Smith v. Au, 8 AD3d 1 [new trial denied where, inter alia, objectionable comments by plaintiff's attorney did not occur within the jury's hearing]).
In view of this determination, the balance of the motion has been rendered academic.
Accordingly, it is
ORDERED that the motion is granted to the extent that the verdict against defendant RAMA KOSLOWE, M.D. is set aside and a new trial is ordered on all of the issues; and it is further
ORDERED that the balance of the motion is denied as academic.
E N T E R,
J.S.C.
Dated: March 17, 2006:
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