Lichy v Mount Sinai Med. Ctr.
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Lichy v Mount Sinai Med. Ctr. 2017 NY Slip Op 31552(U) May 2, 2017 Supreme Court, New York County Docket Number: 110038/09 Judge: Joan A. Madden Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW !YORK, IAS PART 11 --------------------,---------.:_----···-------------------X JACOB LICHY and :REOLA LICHY, i INDEX NO. 110038/09 Plaintiffs -against! THE MOUNT SIN~ MEDICAL CENTER, THE MOUNT SINAI HOSPITAL, LAPAROSCOPIC SURGICAL CENTER OF NEW YORK LLP, ANTHONY JAMES VINE, LESTER BRIAN KATZ, ERI¢ S. GOLDSTEIN, M.D., PLLC and ERIC SIMON GOLIDSTEIN, FILED I Defejdants: -------------------------~--------------------------------------------){ MAY 0B2011 COUNTY CLERK'S 0 NEW YORK l=FICE JOAN A. MADDE1J.: Plaintiffs mol e pursuant to CPLR 4404(a) to set aside the jury verdict on various grounds including that defense counsel's comments during summation warrants setting aside the verdict and granting a new tal in the interest ofjustice. Defendants oppose the motion, which is denied for the reasons belo1v. . . Background This medi malpractice action arises out of a surgical procedure performed by defendant Anthony ames Vine, M.D. in the summer of 2008 to remove a suspected mass in the antrum of plaintiff acob Lichy's stomach. Based on severe abdominal pain and various diagnostic tests, Mr Lichy was advised to have the suspected mass removed and agreed to have Dr. Vine perform je surgery. Plaintiffs allege that Mr. Lichy wanted to have the laparoscopic . surgery, that Dr. v· e unnecessarily converted a laparoscopic procedure into an open one and improperly remove· a larger portion of Lichy's stomach than was necessary~ 1 [* 2] Dr. Vine testified that at the outset of the laparoscopic procedure, Dr. Eric Goldstein perfonned an endoscopy that revealed no mass present. However, Dr. Vine testified he o~served an antral process that was cause for concern and therefore stomach samples were taken to be biopsied. AccordJ to Dr. Vine, based on certain pathology results that were available at the time of the operatio, and. visual observations, Dr. Vine converted the surgery into an open one because he was concerned plaintiff had cancer~ Dr. Vine recalled that plaintiff was "angry" when he was told immedi,Lly following the procedure that it was converted to an open one. In support o, plaintiffs' allegations that Dr. Vine improperly performed a more invasive procedure, plaintiff produced two experts, Dr. Meyer Solny, a gastroenterologist, and Dr. Richard Goldstein, , surgical expert. It is the cross examination of these experts and comments by defense counsel during summation which are at issue in this motion. · Specifically, plaintiffs assert that defense counsel committed misconduct in portraying plaintiffs' expert wi esses as "hired guns," whose testimony was unworthy of belief. Plaintiffs further argue that ifense counsel improperly acted as an unswom witness vouching fur the relevance of evidence and commenting on the credibility of witnesses and improperly interjecting juror's personal pre erences into the trial. With respec to defense counsel's denigration of plaintiffs' experts, plaintiffs point to the . fol16wing question asked by defense counsel of Dr. Solny: Q. Am I correct that insofar as doing business with lawyers, you have in the past, advertised ~ legal publications that your services as an expert are available? A. That is cprrect. . Q. And am correct that in addition to advertising, you subscribe to a myriad of internet services th announce "We have experts in malpractice litigation available for hire.'' A. I have a arketing company that does that on my behalf. I personally don't do that. Q. But you tained a marketing company? · 2 [* 3] A. Right. Q~ And as a r~,sult of their efforts on your behalf, you've been listed with at l~ six or seven differen;t kinds of expert-for-hire services? A. That sound:~ about right. (Tr. at 534). I As to Dr. Golilstein, during cross examination, he was asked if Q. Am I co1ct that you list yourself with expert for hire services (Tr at 73 7) An objection to the qhestion was sustained, and counsel asked the following: I . Q. Am I coJct that you list yourself with an organization for TASA, which is a service · that makes available experts for retention by lawyers." A. Yes, and live received as many plaintiff referrals - I mean defense referrals from TASA as I have received plaintiff referrals.(Id). · 1 Plaintiffs 1 e during the summation defense counsel ~rbated such improper questioning by highlighting to the jury plaintiffs' experts' testimony as to their testimony in other cases. Plaintiffs poi to defense counsel's description of Dr. Goldstein's testimony as admitting ''that he lists himse,with expert for hire services." (Id at 1552). With respect to Dr. Solny, plaintiffs point to defense counsel's statements that he "[t]estified in 18 states. I identified for them 7 or 8 websites! where they advertise doctors available for hire by lawyers:" (Id at 157273). 1 In addition p aintiffs argue that defe~se counsel acted as an unswom witness in stating his personal opinion tha plaintiffs contention is "not true," that a report by a Dr. Marl~ky, "a good friend of Dr. Vine's' who "sends him a lot of business," was written "to help Dr. Vine." In the same vein, plaintiffs point to defense counsel's statement that a tape recorded conversation with Dr. Vine was "not vruable." _Plaintiffs also argue that defense counsel became a de facto tri~ of 1 Plaintiffs' Junsel objected to fue use of the tenns "for hire" and the objections were sustained (Id at 1s;i'; 1573). · 3 [* 4] fact by stating that "Dr. Lichy and Mrs. Lichy don't give consistent, or truthful testimony on a regular basis ... Untn:~ths? Sure." (Id at 1563). Finally, plaintiffs argue that defense counsel improperly asked jurors to put themselves in the shoes of Dr. Lich~ and to bolster the testimony of defendants'. expert by asking the jurors "[a]sk yourself if yo, needed a doctor, which of the two would you [choose] to be your doctor, and offer you opinions about how to proceed, that man, or the guy who doesn't operate and said to you no big deal, +y could have waited, what was the rush?" (Id at 1554). In oppositio, defendants argue that the comments made by the defense were "isolated remarks, that were ier fair comment on the evidence and testimony adduced at trial, or pennissible rhetorical speech." Discussion . I "In ruling on motion for a new trial based on attorney misconduct, the trial court must determine, in its discretion, whether counsel's conduct created undue prejudice or passion which . I played upon the symrthy of the jury." Valenzuela v. City of New York , 59 AD3d 40, 44 (I" Dept 2008). The Rules of Professional Responsibility also limits attorney's advocacy during summation, and proilibits a lawyer from "asserting personal knowledge of the facts in issue, . except when testifyiig as a witness, and [from] asserting a personal opinion as to the credibility ofa witness.2 Id. (in~emal citation omitted). It has been held that "[t]hi~ conduct amounts to a subtle fonn of testi~ony, as to which the opposing party cannot cross-examine." Id, citing People ---<i--'2 . See generally NY Rules of Professional Conduct 3.3(f)(2) to (3), 3.4(d)(l) to (3). Valenzuela supra cites the Cannons of Ethics under the Lawyer's Code of Professional ·Responsibility DR 1i 106 [c] [3], [4] [22 NYCRR 1200.37 (c) (3), (4)]. The Lawyer's Code of Professional Respo sibility has been renamed and renumbered since Valenzuela was decided, the text of the applicabl rules remain substantially the same. 4 [* 5] v Papemo, 54 NY2d ;294, 301 (1981). The cases relied on by plaintiffs fall into two categories. The first includes Valenzuela supra and erkowitziv. Marriot Co . 163 AD2d 52, 53 (1 51 Dept 1990), in which the verdict was set aside based n comments by attorneys which were of an extreme, prejudicial and pervasiv~ nature. In Valenzuela~ plaintiff'~ counsel interjected his view of the baseball field whe~e I the accident o l , including .whether the part of the field depicted in the photographs was third base or the pitcier's mound and whether a vehicle could have entered the field. In addition, he vouched for his or credibility by stating he had been to the field and by stating in the jury's presence that the del attorney's summation as to the vehicle was a fabrication. In fmding that the verdict should be overturned based on such conduct, the Appellate Division wrote that its "examination of the record... indicates that plaintiff's counsel so tainted the course of the trial that he effectively destroyed any chance for a fair outcome." 59 AD3d at 44. In Berkowil supra , the Appellate Division found that reversal of a verdict in plaintiff's favor was ~by "the reprehensible conduct of plaintiff's counsel in cross examination and during his summatir in the course of which he engaged in unfair and highly prejudicial attacks upon medical compFtence of defendant's expert witnesses and attorney." 163 AD2d at 53. Among the impropJr remarks were repeated remarks that the defense experts were "'hired guns,' who were brought lto the brought to the litigation to 'fluff up the case' and 'fill up some time'" and that there was Jo reason that physicians from Suffolk County were retained other than defendants could n t "locate a physician to support their case from here to Suffolk County...After that boy, it's Europ ." Id at 53-54. Moreover, plaintiff's counsel inferred an undisclosed 5 [* 6] relationship betweenjdefendant's expert and defendants' present or prior counsel. The court also found "equally egregious" plaintiff's counsel's statement that ''the defense attorney was merely carrying out 'instructions from his principals, and possibly he doesn't even believe himself som~ f of the things that he aid, but he has to do what he has to do.'" Id at 54. . In reversing ie trial court, the Appellate Division found that "[t]he impact of the summation by plainr' counsel; whose purpose was undoubtedly to discredit defendants' expert witnesses and attorneys, could only have been devastatingly prejudicial to defendants and amounted to a viol,on of their right to a fair trial." Id. In addition, the court took the usual step of appending part of plaintiff's counsel's summation containing these and other improper remarks. In the instan case, defense counsel's questioning of plaintiffs' experts and remarks in summation, while n t to be condoned, cannot be said to be as pervasive or "devastatingly' prejudicial" as the 4nduct in Berkowitz supra. Nor does defense counsel's comments with respect to Dr. Mar1t' s report or the tape recorded conversation rise to the same level of impropriety as col's statements in Valenzuela supra. Thus, neither case providtis a basis ~or setting aside the vlcl . The second category includes cases where the verdicts were set aside based on errors in I . law or the weight o, evidence in conjunction with improper arguments and remarks of atto~eys. See Rodriguez v. N§w York City Housing Authority, 209 AD2d 2~0 (1st Dept 1994); Nuccio v. Chou, 183 AD2d 511 (1st Dept 1992), Iv dismissed 81 NY2d 783 (1993); Clarke v. New York CityTransit Author. 174 AD2d 268, 277(l"Dept1992). . In Rodrigu::upra, the Appellate Division reversed and remanded for a new trial based, 6 [* 7] in part, on inflamma1,ory and prejudicial remarks, but also on errors in permitting plaintiff "to attempt to prove neg}igence by expert testimony regarding the meaning and applicability of a statue imposing a standard of care." 209 AD2d 260-261. While the court found that plaintiff's counsel's remarks dllms summation improperly intimated that because defendant medical expert was compensated for his appearances that the witness was not credible, and interjected her own disagreement with e defense witness thereby making herself an unswom witness, it found that "the cumulative effe t of her summation together with the error in the engineer's testimony warrants reversal anr a new trial." Id. at 261. . . Similarly, in!Nuccio supra. the verdict was set aside based on the errors in certain instructions by the lurt , and as against the weight of evidence with resp~t to the allocation of fault, and the denial lof defendant's request for a missing witness charge. The Appellate Division found that added to le unfairness of the proceedings was plaintiffs' counsel's remarks which made him an unswor witness and during which be attempted to vOuch ror the credibility of bis clients; implied thet. fense counsel made up defense raised by defendants; injected racial overtones into the was compensated. e, and called plaintiffs' expert a "hired gun" unworthy of belief because he 83 AD2d at 515. And, in Clale fillJm!. the court set aside the verdict based on the court's giving a . Noseworthy charge in its instructions, pennitting into evidence certain internal rules of the defendant Transit Juthority without limiting instructions, and based upon plaintiff's counsel improper conduct "rinding acting as an unsworn witness, vouching for the credibility of his own witnesses, accysing defense witnesses of lying and accusing a defense medical expert of lying for pay." 1741, 2d at 276. . 7 [* 8] While in these cases, the Appellate Division cites comments by attorneys intimating that expert witnesses wert~ "hired guns," or attorneys vouching for witnesses as part of the basis for reversal, in none of these cases are comments of this nature are the sole basis for setting aside the verdict Plaintiffs dol not argue any legal errors or other basis for setting aside thC verdict, other than improper comments by defense counsel about plaintiffs' expert being "a hired gun," and defense counsel's volching for witnesses. Thus, these cases are factually distinguishable and not controlling. With respeet to plaintiffs' argument that defense counsel improperly asked the jury in summation which distinguishable d~ctor they would chose, while such statement is clearly improper, it is froj the facts in Liosi v. Vaccaro, 35 AD2d 790 (I" Dept 1970), cited by plaintiffs, where the iourt instructed the jury to ask what he [or she] would take for discomfort, , pain and suffering. l'or does Wilson v. City of New York, 65 AD3d 906, 909 (I" Dept 2009) mandate a different esul~, where the court found that plaintiffs' counsel's suggestion that ''the jury put itself in pl · tiffs' shoes" was not so egregious as to warrant setting aside the verdict. Conclusion In view of the above, it is · ORDERED rat plaintiffs' motion to set aside the verdict· DATED: May~2017 · ·'f ILE D MAY 08 2017 COUNTY CLERK'S OFFICE NEW YORK 8
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