Misconduct In Use Of Demonstrative Evidence On Summation Found Insufficient To Justify Mistrial

On July 13, 2022 an appellate court affirmed Nassau County Supreme Court Justice Jeffrey S. Brown who denied a motion for a mistrial requested by plaintiff's counsel after a defense verdict was rendered in a medical malpractice case. Two days after a kidney stone removal procedure (lithotripsy) the 44 year old plaintiff developed complications leading to the removal of that kidney (nephrectomy).A trial was held at which opposing experts debated whether the doctor's departed from accepted standards of care and caused the loss of a kidney. In closing statements, defense counsel argued he had obtained testimony favorable to the defense on cross-examination and "displayed to the jury a printed enlargement of what he claimed was an excerpt of the verbatim trial testimony of the plaintiff's expert witness."  During deliberations it was learned that defense counsel's printed enlargement had omitted the second part of the subject question to which the plaintiff's expert had responded in the affirmative. The Court immediately interrupted jury deliberations and brought the jury back into the Courtroom and advised them "that the demonstrative reproduction of the testimony was incorrect, provided the jury with a read-back of the correct testimony, and reminded the jury that summations do not constitute evidence."

Plaintiff's counsel sought a mistrial arguing that "defense counsel had perpetrated a fraud on the court by misrepresenting the testimony" of his expert during summation. The appellate court agreed with the lower court and held: "while defense counsel's misrepresentation of the subject trial testimony during his summation was, at a minimum, inexcusably careless, it did not constitute a fraud on the court." The appellate court explained there were three reasons to refuse a mistrial: 1) defense counsel's error had occurred during summation ("which does not constitute evidence"); 2) the error was only an "isolated incident of misconduct"; and, 3) the lower court had properly cured any prejudice to plaintiff by promptly suspending deliberations and explaining to the jury that an error had occurred and re-instructing them on the law concerning summations.  Bhim v Platz, 2022 N.Y. Slip Op. 04531

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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