Egregious Opening Statement Deprived Plaintiff of a Fair Trial - Defense Verdict Vacated

On May 17, 2023, an appellate court covering appeals from Queens County Supreme Court reversed a trial judge who refused to declare a mistrial during opening statements. The plaintiff claimed that while riding his motorcycle on a road in Queens when a truck driving in the opposite direction hit the high voltage electrical and communication cables strung above the road, causing them to rip away from a house and fall on top of him, causing serious and permanent injuries. Plaintiff claimed that well settled Court of Appeals decisions, impose a heightened duty on a utility company like Con Edison to maintain the lines to prevent sagging or falling - "whether or not such condition was caused by the utility company." Defense counsel filed a third party action against Verizon claiming its cables were the lowest cables attached to the pole at issue here and the were the cause of the accident. Verizon was dismissed from the case pre-trial because Con Edison was found to have unduly delayed joining them to the law suit.

Fearing that defense counsel would try to defend Con Edison by blaming Verizon, plaintiff's counsel successfully made a pre-trial motion to preclude Con Edison from blaming Verizon based on the prevailing law that holds them responsible and because the Court had previously granted dismissal of Con Edison's claims against Verizon. Defense counsel ignored the Judge's ruling and argued to the jury that one of its employees would testify that "telephone wires have been improperly tied to the higher Con Edison wires and have pulled them down" to a reduced height such that a truck came in contact with them. The trial judge specifically warned defense counsel (twice) to refrain from making any further argument to the jury that Verizon was in any way responsible for plaintiff's injuries. Once again defense counsel continued to present his Verizon theory to the jury in his opening statements. Plaintiff's counsel objected more than once to multiple prohibited comments implicating Verizon made by defense counsel during opening statements. Defense counsel responded that he only "inadvertently" violated the Court's ruling. Plaintiff's motion for a mistrial was denied and the trial concluded days later with a defense verdict.

The Second Department held that defense counsel's references to Verizon were not inadvertent as claimed but: "intentional", in "blatant disregard", "deliberate" and "egregious", thus warranting a new trial. In summary, the defense attorney's "misconduct was not harmless under the circumstances of this case" and deprived the plaintiff of a fair trial. Coward v Consolidated Edison, Inc., 2023 WL 3486332

Ronald C. Burke, Esq

Trial Attorney with 30+ Years of Experience Attorney Ronald C. Burke, Esq. has more than 30 years of experience and has focused his career on representing clients in cases involving personal injury, medical malpractice and legal malpractice. He is a seasoned trial lawyer and has won many seven-figure settlements and verdicts for his clients over the years, including many case victories listed among the largest in the history of the New York State. He has been featured in the news and is a regular lecturer for the New York County Lawyers Association, as well as having lectured before the New York State Bar Association. Ron is also an attorney with Kelner & Kelner, a New York personal injury law firm. Awards and Accolades Mr. Burke's awards and accolades are many. Among them, he has been included in New York Super Lawyers® each year since 2010, and he has received the highest-possible AV® Rating from Martindale-Hubbell®. Verdict Search, a part of the New York Law Journal, frequently recognizes his notable successes after winning some of the highest settlements and verdicts in past years. He was also featured in their list of the "Top New York Verdicts " and "Top New York Settlements." He is a member of the New York State Bar Association and is licensed to practice law in the U.S. District Court for the Southern and Eastern Districts of New York, as well as before the United States Supreme Court. When Attorney Burke is not handling legal malpractice cases, he is highly involved in the local community. He was a member of the Village of Rockville Centre Volunteer Fire Department, has served on the local school board and as Chairman of the local Zoning Board. Learn more about Attorney Burke and how he can skillfully handle your malpractice case by contacting the Law Offices of Ronald C. Burke, Esq. right away to schedule your complimentary case evaluation. Our firm is here to help! Contact a New York Legal Malpractice Attorney Our firm provides each client's case with thorough preparation and aggressive representation, ensuring that you win the best possible results for your case whether it is settled or goes to trial. As a seasoned trial lawyer, Mr. Burke can provide the strong and relentless representation you need to establish negligence in a legal malpractice case and to recover any damages you may have suffered. Our firm can recover compensation for pre-trial and trial malpractice, violations of fee arrangements, loss of income, pain and suffering, and much more. Contact us today!


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