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
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