Suen v. Greene

Dr. James Y. SUEN v. Kenneth GREENE

96-702                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered July 11, 1997


1.   New trial -- decision to grant new trial should not be
     disturbed absent manifest abuse of discretion -- burden on
     party moving for new trial. -- While a trial court's
     discretion is much broader where the question is whether a
     jury verdict is supported by a preponderance of the evidence,
     still, its discretion when granting a new trial under other
     provisions of Ark. R. Civ. P. 59 should not be disturbed
     absent manifest abuse of discretion, or "discretion
     improvidently exercised"; the party moving for a new trial
     under these provisions must show that his rights have been
     materially affected by demonstrating that a reasonable
     possibility of prejudice resulted from the misconduct.

2.   New trial -- grounds for -- misconduct of prevailing party
     includes misconduct of that party's attorney. -- The supreme
     court has held that the misconduct of the prevailing party
     includes the misconduct of the prevailing party's attorney;  
      a new trial may be granted because prejudice results from the
     cumulative effect of opposing counsel's conduct.  

3.   New trial -- plaintiff's and defendant's counsel vigorously
     and professionally advocated interests of their clients --
     grant of new trial was manifest abuse of discretion. -- Where
     it was clear that counsel for the plaintiff and the defendant
     vigorously and professionally advocated the interests of their
     clients and the trial court maintained a firm control over the
     proceeding, the supreme court was unable to find any
     reasonable possibility of prejudice against appellee's rights
     to a fair trial resulting from the actions of appellant's
     attorney; absent any showing that counsel's conduct prevented
     appellee from having a fair trial, the trial court's action in
     ordering a new trial for that reason was a manifest abuse of
     discretion.

4.   New trial -- failure to strike physician's testimony not error
     -- appellee not deprived of fair trial. -- The trial court did
     not commit error which deprived appellees of a fair trial by
     failing to strike the physician's testimony where appellee's
     attorney, through frequent objections, most of which were
     sustained by the court, insisted upon great precision in
     phrasing questions and answers; the supreme court failed to
     find any examples where the answers provided by the physician
     or the rulings of the trial court constituted irregularities
     in the proceedings that prevented appellee from having a fair
     trial; in many instances, the physician, whose primary
     language was not English, was seeking to answer fully and
     completely; the trial court imposed sufficient discipline upon
     his answers to ensure that the appellee was not prevented from
     having a fair trial because of the physician's tendency to
     ramble. 

5.   New trial -- verdict may not be set aside arbitrarily and
     without reasonable cause -- granting new trial on basis that
     witness was unresponsive was arbitrary and unreasonable. -- A
     verdict may not be set aside arbitrarily and without
     reasonable cause; granting a new trial on the basis that a
     witness was generally "nonresponsive" is arbitrary and
     unreasonable. 

6.   New trial -- trial court should not substitute its view of
     evidence for that of jury -- decision to order new trial was
     manifest abuse of discretion. -- The trial court should not
     substitute its view of the evidence for that of the jury; the
     grounds for granting a new trial (a) because of the conduct of
     appellee's counsel, and (b) because the trial court decided it
     committed error in not striking the testimony of the
     physician, did not reflect a material irregularity that
     prevented appellee from having a fair trial; therefore, the
     decision of the trial court in ordering a new trial on those
     grounds was a manifest abuse of discretion.  

7.   New trial -- doctor's comments on standard of care stricken
     from record -- ruling did not prejudice appellee. -- Where the
     expert witness testified concerning the appropriate standard
     of care for the surgery, which was supported by several other
     witnesses, yet upon objection, his statement that the standard
     of care used by appellant was the "standard of care for ENT
     surgeons in Little Rock, Arkansas, in 1986," was stricken from
     the record and the jury instructed to ignore it, no prejudice
     to appellee resulted from this ruling.

8.   New trial -- physician's entire testimony stricken from record
     -- motion for mistrial never renewed after testimony stricken
     -- trial court did not commit error in failing to order
     mistrial. -- Where the physician was abrasive while on the
     witness stand; appellee moved that the testimony be stricken
     or in the alterative for a mistrial; the testimony was
     stricken and the jury was instructed to disregard it; it was
     clear that the physician was unresponsive and resistant to
     answering hypothetical questions which were predicated upon
     assumptions that he could not accept as correct and the trial
     court struck his entire testimony, after which appellee never
     renewed his motion for a mistrial, the trial court utilized an
     extreme remedy in striking all of the witness's testimony, and
     appellee agreed that the matter was properly handled; the
     supreme court found no reasonable possibility that appellee
     was prejudiced or prevented from having a fair trial because
     of the stricken testimony; the trial court did not commit an
     error in failing to order a mistrial.

9.   New trial -- trial court acted to insure appellee fair trial -
     - jury verdict upheld -- grant of motion for new trial
     overruled. -- Where the trial court exercised great discipline
     and required strict compliance with rules of procedure; and
     where, when confronted with difficult decisions, the court
     reacted in such a way as to ensure that appellee received a
     fair trial, the supreme court found no reasonable possibility
     that appellee was deprived of a fair trial by reason of the
     conduct of appellant's attorney or by the actions of the trial
     court in failing to grant a mistrial and failing to strike one
     physician's testimony; the order of the trial court granting
     a new trial on those grounds was a manifest abuse of
     discretion; the supreme court overruled the grant of the
     motion for a new trial; the case was reversed and dismissed.


     Appeal from Crawford Circuit Court; Don Langston, Judge;
reversed and dismissed.
     Shaw, Ledbetter, Hornberger, Cogbill & Arnold, by: Charles R.
Ledbetter; and Friday, Eldredge & Clark, by: Philip Malcom and
Robert S. Shafer, for appellant.
     Robert S. Blatt; Morgan & Weisbrod, by: Les Weisbrod, Michael
S. Box, and William A. Newman; and The Keenan Law Firm, by: Don C.
Keenan, for appellee.
     
     Ray Thornton, Justice.
     This is a medical malpractice case.  Mr. Kenneth Greene,
appellee, was injured during surgery performed by Dr. James Y.
Suen, appellant, in November of 1986.  He filed this complaint in
July of 1990, and the matter was tried before a jury in Crawford
County in a fifteen-day trial, which lasted from September 23 to
October 13, 1995.  The jury returned a verdict absolving appellant
of medical malpractice.  On appellee's motion, the trial court
granted a new trial, and appellant appeals from that order.      
     The record in this case consists of thirty-four bound volumes
containing more than 7,400 pages together with a box of exhibits. 
We have reviewed the trial court's decision to grant a new trial
because of side-bar comments by appellant's counsel, its
determination that it had erred in not striking the testimony of
one expert witness, and that it had erred in refusing to declare a
mistrial after another witness for appellant gave unresponsive
answers in testimony.  We have concluded that these irregularities
do not meet the standard set forth in Ark. R. Civ. P. 59; that is,
they do not "materially affect the substantial rights of [the]
party."  Ark. R. Civ. P. 59(a); Diemer v. Dischler, 313 Ark. 154,
852 S.W.2d 793 (1993).  Put another way, the irregularities
complained of do not show a reasonable possibility of prejudice to
appellee's right to a fair trial.  Nazarenko v. C.T.I. Trucking
Co., 313 Ark. 570, 856 S.W.2d 869 (1993).  We hold that granting a
new trial on these grounds was a clear abuse of discretion and we
reverse and dismiss.
     In granting appellee's motion for new trial, the trial court
determined (1) that it had committed error in failing to strike
testimony of Dr. Ossami Al-Mefty, one of appellant's expert
witnesses;  (2) that it had committed error in failing to declare
a mistrial for unresponsive and prejudicial responses of Dr.
William Friedman, an expert medical witness of appellant's;  and
(3) that prejudice to appellee's right to a fair trial resulted
from appellee's many objections to "side-bar comments" by
appellant's trial counsel.  Rule 59(a) of the Arkansas Rules of
Civil Procedure provides: 
     A new trial may be granted to all or any of the parties and on
     all or part of the claim on the application of the party
     aggrieved, for any of the following grounds materially
     affecting the substantial rights of such party: 
     (1) any irregularity in the proceeding or any order of the
     court or abuse of discretion by which the party was prevented
     from having a fair trial;
     (2) misconduct of the jury or prevailing party[.]
Ark. R. Civ. P. 59(a)(1)-(2).
     We have held that, while a trial court's discretion is much
broader where the question is whether a jury verdict is supported
by a preponderance of the evidence, still, its discretion when
granting a new trial under other provisions of Rule 59 should not
be disturbed absent manifest abuse of discretion, or "discretion
improvidently exercised."  Ford Motor Co. v. Nuckolls, 320 Ark. 15,
894 S.W.2d 897 (1995).  The party moving for a new trial under
these provisions must show that his rights have been materially
affected by demonstrating that a reasonable possibility of
prejudice resulted from the misconduct.  Diemer v. Dischler, supra.
     With this rule in mind, we first examine the court's order
finding that the conduct of Mr. Malcom, attorney for appellant, in
making side-bar comments materially affected the substantial rights
of the appellee, and prevented the appellee from having a fair
trial.  The record has been abstracted to include every instance of
alleged unresponsiveness of witnesses to questions by appellee's
counsel, and every instance of side-bar comments in both the direct
and redirect examinations.  We have reviewed all these exchanges,
and we observe that the effort to present the qualifications of Dr.
Friedman as an expert fairly reflects the general nature of the
"unresponsive answers" and side-bar comments with which the record
is replete.  A few examples follow:
     Mr. Malcom [appellant's attorney]:  Doctor, if you could, I'd
     like you to visit with us a moment.  Have you continued
     through the years, both when you've been [in] academics and
     when you've been in private practice, with lecturing or
     teaching or conducting seminars?  I want to cover first the
     United States with regard to specific areas that would relate
     to his case.
     Mr. Morgan:  Your Honor, I object to the side-bar remarks
     throughout the question.  He can ask the question without
     the side-bar remarks.
     Mr. Malcom:  I'll rephrase the question.
                    *    *    *
     Mr. Malcom:  Can you tell the ladies and gentlemen of the
     jury, and I know [there are] references in your
     curriculum vitae, but please go ahead and tell us what
     kind of lecture you conduct.
     Mr. Morgan:  Your Honor, I object to the side-bar remark.
     The Court:  Yes, let's just ask the questions.
                    *    *    *
     Mr. Malcom:  Just give us [a] general overview.  You
     don't have to cover everything specifically.
     Dr. Friedman:  Well, I have tried to lecture at major
     meetings only, because other than that I don't have time
     to just go to any meeting.
     Mr. Morgan:  Objection, nonresponsive, Your Honor.
     The Court:  Yes, let's just tell us what you've done.
                    *    *    *
     Mr. Malcom:  I thought we'd save some time.  Please go to
     it [the curriculum vitae].
     Dr. Friedman:  And so we'll do that, I guess.
     Mr. Morgan:  Objection to side-bar remark.
     The Court:  Sustained.  You just need to go to your
     curriculum [vitae].  That's what it's here for.
     Dr. Friedman:  I'm going as fast as I can, Your Honor.
     Mr. Morgan:  Objection to the side-bar, Your Honor.
     The Court:  Yes.  Be responsive to questions.
     Mr. Morgan:  I would ask the Court to instruct the
     witness just to answer the questions and leave the side-
     bar remarks off.
     The Court:  Yes.  Just answer questions, Doctor.
     Dr. Friedman:  Okay.
     Mr. Morgan:  I object to the okay, Your Honor.
     The Court:  Yes.  That'll be sustained.
                    *    *    *
     Mr. Malcom:  Continue on, sir, if you could, and we'd
     like you to just briefly hit some high points?
     Mr. Morgan:  Objection to the side-bar, Your Honor.
     The Court:  Sustained.
                    *    *    *
     Mr. Malcom:  Let's go forward a few pages and let's go to
     the early 1980's.  Can you get on page 15 with me?
     Dr. Friedman:  Yeah.
     Mr. Malcom:  This is nine years later, 1981.
     Mr. Morgan:  Objection.  Side-bar remark.
     The Court:  Sustained.
These few examples from the abstracted testimony serve as
illustrations of strictly enforced rules of procedure, and we do
not find any irregularity that would materially affect the
substantial rights of appellee, by preventing the appellee from
having a fair trial.   
     The record shows that the trial court was firm and decisive in
maintaining tight control over the proceedings.  Near the end of
the fourteenth day of the trial, the following exchange occurred:
     The Witness: Your Honor, can I have the operative report in
     front of me, please?
     The Court: I think that's reasonable.
     Mr. Morgan: Let me show you what has been marked as exhibit...
     well, let me ask you this first and then I will...
     Mr. Malcom: We have the exhibits that I got yesterday, Your
     Honor, I can get them to give them to him.
     Mr. Morgan: Your Honor...
     The Court: Mr. Malcom...
     Mr. Malcom: Yes.
     The Court: Mr. Malcom, if you interrupt again or walk in front
     of people again I'm going to remove you from the courtroom. 
     You have interrupted his examination at least five times.  You
     know that's not the way it's done, don't you?
     Mr. Malcom: Your Honor, I've been in the court and a lawyer
     for 20 years and I know a lot of things, the way they're not
     done.
     Mr. Morgan: Your Honor, I object to that remark.
     The Court: Mr. Malcom, you are excluded from the courtroom 
     for the rest of this witness.  Mr. Ledbetter will have to take
     over.
Mr. Malcom left the courtroom, and after conference, Mr. Ledbetter
persuaded the trial court to allow him to return on the condition
that he only be permitted to make objections.
     As a ground for a new trial, the order of the trial court does
not find any misconduct of counsel, but suggests that his frequent
"side-bar" comments violated appellees right to a fair trial.  We
observe that most of Mr. Malcom's "side-bar" comments to which
appellee objected were casual remarks designed to expedite the
proceedings or were referrals to previous testimony.  
     This court has held that the misconduct of the prevailing
party includes the misconduct of the prevailing party's attorney. 
Hacker v. Hall, 296 Ark. 571, 759 S.W.2d 32 (1988).  This case can
be compared to Alexander v. Chapman, 289 Ark. 238, 711 S.W.2d 765
(1986), where we held that a new trial should have been granted
because prejudice resulted from the cumulative effect of opposing
counsel's conduct.  In that case, counsel did not cease his
unreasonable courtroom conduct, even though he was repeatedly
admonished and the trial court repeatedly sustained objections to
his leading questions.
     The conduct in this case does not rise to the level of
Alexander v. Chapman.  It is clear from a review of the abstract
that in this case counsel for the plaintiff and the defendant were
vigorously and professionally advocating the interests of their
clients.  The trial court maintained a firm control over the
proceeding and we are unable to find any reasonable possibility of
prejudice against appellee's rights to a fair trial resulting from
the actions of appellant's attorney.  Absent any showing that
counsel's conduct prevented appellee from having a fair trial, the
trial court's action in ordering a new trial for that reason was a
manifest abuse of discretion.
     We next consider whether the trial court abused its discretion
in setting aside the jury verdict and ordering a new trial on the
ground that its own errors in the conduct of the trial prevented
appellee from having a fair trial.  We first address the issue
whether the trial court committed error which deprived appellees of
a fair trial by failing to strike Dr. Ossama Al-Mefty's testimony. 
As in the examples referred to during the qualification of Dr.
Friedman as an expert, it appeared that appellee's attorney,
through frequent objections, most of which were sustained by the
court, insisted upon great precision in phrasing questions and
answers.  While this high standard of precision resulted in
numerous objections, we have not found any examples where the
answers provided by Dr. Al-Mefty, or the rulings of the trial court
constituted irregularities in the proceedings which prevented
appellee from having a fair trial.  However, appellee asserts that
the cumulative effect of all of appellee's objections may have had
that result.  We cannot agree with that argument.  It is apparent
that in many instances Dr. Al-Mefty, whose primary language is not
English, was seeking to answer fully and completely.  The trial
court imposed sufficient discipline upon his answers to ensure that
the appellee was not prevented from having a fair trial because of
Dr. Al-Mefty's tendency to ramble.  While Dr. Al-Mefty exhibited
some reluctance to give answers during cross examination, the trial
court guided and prodded with the result being that the appellee
ultimately obtained an answer to each question.
     We have stated that "[a] verdict may not be set aside
arbitrarily and without reasonable cause." Martin v. Blackmon, 277
Ark. 190, 195, 640 S.W.2d 435,437 (1982); see also Big Rock Stone
& Material Co. v. Hoffman, 233 Ark. 342, 344 S.W.2d 585 (1961). 
Granting a new trial on the basis that a witness was generally
"nonresponsive" is arbitrary and unreasonable.  It invites abuse
and threatens the right of trial by jury.  In practical effect it
permits the trial court to substitute its view of the evidence for
that of the jury.  See Razorback Cab of Fort Smith v. Martin, 313
Ark. 445, 856 S.W.2d 2 (1993).
     It is well established that the trial court should not
substitute its view of the evidence for that of the jury.  There is
no disagreement that the grounds for granting a new trial (a)
because of the conduct of appellee's counsel, and (b) because the
trial court decided it committed error in not striking the
testimony of Dr. Al-Mefty did not reflect a material irregularity
which prevented appellee from having a fair trial.  Therefore, the
decision of the trial court in ordering a new trial on those
grounds was a manifest abuse of discretion.  
     We now turn to the trial court's determination that it erred
in refusing to order a mistrial because Dr. William Friedman's
unresponsive answers and side-bar comments should have resulted in
a mistrial, and that the trial court's failure to order a mistrial
was a substantial irregularity that prevented appellee from having
a fair trial.
     In addressing the issue of whether the comments by Dr.
Friedman prevented appellee from having a fair trial, we note that
much of the dispute centered upon the standard of care, and
testimony by a witness for the plaintiff that a "tin-foil" test
should have been used.  Not only Dr. Friedman, but Dr. Graves
Hernsberger, Dr. Edgardo Angtuaco, and Dr. Paul Wills, as well as
Dr. Suen and Dr. Al-Mefty testified that Dr. Suen performed the
surgery according to the appropriate standard of care.  After
qualifying as an expert witness, Dr. Friedman testified that if he
had been handling the operation he would have followed similar
procedures to those employed by the appellant.  He stated that the
standard of care used by appellant was the "standard of care for
ENT surgeons in Little Rock, Arkansas in 1986."  This testimony was
eventually stricken and the jury instructed to ignore it.  No
prejudice to appellee resulted from this ruling.
     Dr. Friedman was abrasive while on the witness stand; at one
point he testified with reference to the "tin-foil" test "that a
lie had been perpetrated on this court" by an expert witness for
appellee.  Appellee moved that the testimony be stricken or in the
alterative for a mistrial.  The testimony was stricken and the jury
was instructed to disregard it.  Several expert witnesses for 
appellant agreed that a "tin-foil" test was  not referenced in the
literature.  It is clear that Dr. Friedman was unresponsive and
resistant to answering hypothetical questions which were predicated
upon assumptions that he could not accept as correct and the trial
court struck his testimony.  After Dr. Friedman's entire testimony
had been stricken, appellee never renewed his motion for a
mistrial, at that point or thereafter, and when appellant moved for
a mistrial, appellee responded: "I believe that the court was
justified in the position that it took."  The trial court utilized
an extreme remedy in striking all of Dr. Friedman's testimony, and
appellee agreed that the matter was properly handled.  We find no
reasonable possibility that appellee was prejudiced, or prevented
from having a fair trial because of Dr. Friedman's testimony, all
of which had been stricken.  The trial court did not commit an
error in failing to order a mistrial.
     "A mistrial is a proceeding that has miscarried and the
consequence is not a trial."  Midwest Line Co. v. Independence
County Chancery Court, 261 Ark. 695, 702, 551 S.W.2d 537, 540
(1977).  "A new trial is defined by statute as a reexamination in
the same court of an issue of fact after a verdict by a jury or a
decision by the court." Id. at 701-02, 551 S.W.2d  at 540.  It seems
clear that the decision by the trial court during the trial that
Dr. Friedman's unresponsive answers and side-bar comments did not
call for a mistrial was correct.
     The trial court exercised great discipline and required strict
compliance with rules of procedure.  When confronted with difficult
decisions, such as striking appellant's main expert witness,
removing appellant's counsel from the courtroom, and sustaining
objections to, and striking portions of the testimony of other
witnesses for the appellant, the court reacted in such a way as to
ensure that appellee received a fair trial.  
     Because we find in this case no reasonable possibility that
appellee was deprived of a fair trial by reason of the conduct of
appellant's attorney, or by the actions of the trial court in
failing to grant a mistrial, and failing to strike Dr. Al-Mefty's
testimony, we conclude that the order of the trial court granting
a new trial on those grounds was a manifest abuse of discretion,
and reverse and dismiss this appeal.  Since we uphold the jury
verdict and overrule the grant of the motion for a new trial, the
venue issue raised in the alternative is moot.  
     Reversed and dismissed.
     Newbern, Glaze, and Imber, J.J., dissent.




                 Tom Glaze, Justice, dissenting.
     This case is one where the trial court granted a new trial,
and this court's standard is simple -- in granting the new trial,
did the judge manifestly and clearly abuse his discretion by acting
improvidently or thoughtlessly without due consideration?  The
majority court says yes, but if the majority was right, based upon
the record before us now, a judge could never order a new trial.
     In pertinent part, Rule 59(a) provides that a new trial may be
granted (1) for any irregularity in the proceeding which caused the
party from having a fair trial, or (2) for jury or party
misconduct.  Here, as the majority court concedes, the defendant's
medical expert witnesses, Doctors Sam Al-Mefty and William
Friedman, were reluctant to answer questions on cross-examination,
and indeed, Friedman openly and defiantly refused to respond to
questioning.  Both of these doctors had willingly and convincingly
given testimony on direct examination that not only was designed to
establish the defendant's, Dr. James Y. Suen's, competence (lack of
negligence) in his performance of plaintiff Kenneth Greene's
surgery, but also was designed to impeach and discredit Greene's
expert witnesses, Doctors Martin Lazar and Roger Rose.  As the
majority opinion relates, "Dr. Friedman was unresponsive and
resistant to answering hypothetical questions which were predicated
upon assumptions he could not accept as correct."
     Most important, Dr. Friedman, in challenging Greene's case and
medical experts, accused Dr. Rose of "inventing a ten-foil test for
this case," and when referring further to the test, told the jury,
"I feel a terrible lie has been perpetrated in this court."  After
this last Friedman remark, the trial judge recessed and met with
counsel in conference to study and consider his options in
minimizing the remark's prejudicial impact on the jury.  At defense
counsel's urging, the judge rejected Greene's motion for mistrial,
and instead framed a cautionary instruction by which he informed
the jury that Dr. Friedman was wrong in making his remark that a
lie had been perpetrated, and the jury should not consider it.  The
judge's instruction was to no avail because Friedman, on further
questioning by plaintiff's counsel, refused to answer plaintiff's
hypothetical questions that tended to place blame on Dr. Suen for
plaintiff's injury.  He said, "I can't make those assumptions
because it's too hard, given what I know."
     While the trial judge instructed the jury that Dr. Friedman's
testimony "will be stricken from the record" and directed the jury
not to consider it, this court has repeatedly reversed cases
because the "metaphorical or proverbial bell" had been rung and
prejudice ensued from the improper remarks.  See Balentine v.
Sparkman, 327 Ark. 180, 937 S.W.2d 647 (1997); Synergy Gas Corp. v.
Lindsey, 311 Ark. 265, 843 S.W.2d 825 (1992).  Here, if any "lie"
or fraud occurred in this case, that was within the province of the
jury, not for Friedman, to decide.
     In addition to the pernicious remarks made by Dr. Friedman,
the trial judge had to decide, when faced with Greene's new trial
motion, if Greene had been prevented from having a fair trial
because of Al-Mefty's and Friedman's misconduct by refusing to
answer questions on cross-examination.  In reviewing the trial
judge's ruling that Greene had been denied a fair trial and was
entitled to a new trial, it becomes this court's duty to determine
if the judge acted improvidently or thoughtlessly without due
consideration.  This court further is guided by the controlling
principle that a showing of a judge's abuse of discretion in this
respect is more difficult when a new trial has been granted because
the party opposing the motion will have another opportunity to
prevail.  Young v. Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996). 
And finally, this court gives deference to the trial judge in these
new-trial matters because the judge has heard all the testimony and
was in a position far superior to ours to know whether the proof
was so nearly balanced that the misconduct of a witness and juror
might have tipped the scales one way or another.  Moody Equip. &
Sup. v. Union Nat'l Bk., Adm'r, 273 Ark. 319, 619 S.W.2d 637
(1981).  As Justice George Rose Smith stated in Moody, "It is
fundamental that the latitude of the trial judge's discretion
increases proportionately as the situation presents to him a
question that cannot equally be presented to us by the printed
record."
     Here, Dr. Friedman's credentials are impeccable, and the
importance of his testimony cannot be overstated.  Again, he not
only served to bolster Dr. Suen's theory of the case that Suen did
not commit malpractice, Friedman also attacked the medical
testimony and opinions given by Greene's doctors.  When he refused
to answer questions on cross-examination, plaintiff's counsel was
denied any opportunity to test Friedman's opinions and other
damaging remarks.  
     Even defense counsel recognized the import of Friedman's
appearance and testimony before the jury when they, too, moved for
mistrial after the trial judge struck Friedman's testimony.  In
this connection, defense counsel argued that, without Dr.
Friedman's testimony, defendant was deprived of a fair trial. 
Although defense counsel was likely correct in this regard, the
trial judge in granting plaintiff a mistrial recognized the
corresponding effect and prejudice to plaintiff when plaintiff was
denied the opportunity to test Friedman's direct testimony.  In
these circumstances, the trial judge was clearly in the best
position to hear the defendant's expert witnesses and to observe
the impact of their continuing misconduct before the jury.  The
trial judge made a fair decision and should be affirmed.  
     In short, the majority is in an impossible position to weigh
and determine the impact Friedman's remarks had on the jury; nor is
this court positioned to balance the testimonies of all the expert
witnesses and how the trial's outcome could have been affected by
Friedman's testimony after it was stricken.  To ask the jury to
forget and not consider such prejudicial testimony was a worthless
admonition.  To his credit, the trial judge reached that conclusion
when confronted with the issue on Greene's new-trial motion.
     In conclusion, I note that the majority mentions that Greene
did not renew his motion for mistrial after Friedman's testimony
was stricken.  However, I want to make it clear that the majority
does not conclude Greene waived his objections, nor does it cite
cases in support of such an idea.  Greene, twice, moved for
mistrial, and twice, his motions were denied.  He was not required
again to move for mistrial.  The majority reference in this respect
is irrelevant.
     For the foregoing reasons, I would affirm.
     Newbern and Imber, JJ., join this dissent.