On November 28, 2018, an intermediate appellate court covering Orange County, New York, held that a trial judge has the discretion to exclude a severely disabled 14 year old female burn victim from the courtroom during summations in a personal injury action against a nurse and health care facility. The appeals court agreed with the arguments of defense counsel, Andrew Garson of Garson & Jakub that the infant plaintiff was incapable of assisting her attorney and her presence "might have impaired the jury's capacity for objective consideration of the facts." The jury found in favor of the defendant's and plaintiff appealed.
The nurse was employed by a health care facility that provided services to disabled children. It was claimed that while taking a bath with the assistance of the nurse, the then 10 year girl suffered severe burns from scalding hot water. The nurse was criminally prosecuted for endangering the welfare of a physically disabled person and pleaded guilty for "an error" in testing the temperature of the water. Based on that guilty plea, negligence was established as a matter of law and the contested issue of what caused the burns was left for the jury to decide.
Long after the guilty plea, defense counsel discovered a hospital pathology report of the child's burned skin which revealed that the burns were caused by a type of severe skin reaction (toxic epidermal necrolysis) to a drug taken by the child. Despite her guilty plea, the nurse had always maintained that she had felt the water before bathing the child and it "was not hot". Though defense counsel were not permitted to introduce evidence in support of the drug reaction defense (due to late disclosure of the theory), they were allowed to cross-examine plaintiff's experts with the findings in the pathology report.
Trial counsel for the defense, Andrew Garson, had only been retained the week jury selection began replacing the law firm responsible for the discovery phase of litigation. Plaintiff's counsel argued that Mr. Garson had presented an unfair summation which improperly swayed the jury in favor of the theory that the burns were not caused by scalding hot water, but due solely to a severe drug reaction. The appellate court pointed out that plaintiff's counsel failed to timely object during summation and that Mr. Garson's remarks were not so inflammatory as to deprive plaintiff of a fair trial. Farias-Alvarez v Interim Healthcare of Greater New York, 2018 WL 6187302