Attorney's Improper Remarks Warrant Retrial, Panel Rules

Attorney's Improper Remarks Warrant Retrial, Panel Rules
The New York Law Journal by Joel Stashenko  -  March 5, 2012

An attorney's comments during a medical malpractice trial, including his accusation that the plaintiff's treating physician was the "go-to" doctor for people seeking disability benefits, merits a new trial, an appeals court has decided.  "A new trial is warranted in light of the inappropriate cross-examination of the plaintiffs' witnesses, as well as the inflammatory and improper summation comments of counsel for the defendants," the four-member Appellate Division, Second Department, panel decided unanimously in Maraviglia v. Lokshina, 2010-09029/2010-09031.  The Brooklyn-based panel held that defense counsel Shawn P. Kelly crossed the bounds of acceptable questioning and comment at several points during the 2010 malpractice trial initiated by Joan Maraviglia against Dr. Irina Lokshina, Stony Brook Anesthesiology and others.  The trial ended with a 5-1 jury verdict against Ms. Maraviglia, who claimed malpractice in treatment she received for chronic knee pain that ended in partial paralysis of one leg following a spinal procedure to relieve her pain, according to her briefs. The panel of Justices Reinaldo E. Rivera, Randall T. Eng, Sheri S. Roman and Sandra L. Sgroi also found in the March 2 ruling that Suffolk County Supreme Court Justice Thomas F. Whelan erred at trial by not setting aside the jury's judgment against Ms. Maraviglia under CPLR 4404(a).  Mr. Kelly, of Kelly, Rode & Kelly in Mineola, said in an interview that he stands by his conduct and intends to represent Dr. Lokshina and the other defendants during a retrial.  Among the panel's objections was Mr. Kelly's treatment of the plaintiff's expert anesthesiologist, Dr. Alexander Weingarten, in cross-examination.  The panel noted that Mr. Kelly was allowed to question Dr. Weingarten about problems the Health Department discovered in the anesthesiology department at the Long Island Jewish Medical Center, despite a "lack of any evidence to the contrary" that Dr. Weingarten was involved in any wrongdoing.  "Counsel also commented that the plaintiffs' expert was 'sensitive' about this topic, and stated repeatedly that the expert was 'out of control,'" the court ruled. "Further, in questioning [Dr. Weingarten] about a malpractice case that had been brought against him, counsel remarked that the expert had been 'afraid to take the witness stand in that case.'"  Mr. Kelly also referred in court to Dr. Weingarten performing medicine in a "parking lot." That reference was made twice, the panel said, even though the plaintiff's objection had been sustained the first time.  Justice Whelan also unfairly allowed Mr. Kelly to inject "inflammatory" comments about Dr. Andrea Coladner, Ms. Maraviglia's treating physician, into his summation, the panel said.

Comments made by Mr. Kelly implying that Dr. Coladner was involved in a scam because she testified in an "enormous" number of cases involving petitioners seeking Workers' Compensation benefits for on-the-job injuries were "inflammatory" and not supported by the evidence, the court said.  It found fault with Mr. Kelly being allowed in the jury's presence to vouch for the reliability of his own expert witnesses and to improperly add credence to the veracity of one of his witnesses by thanking "God there are people like [him] who are the stop gap."  Finally, the panel noted that the defense was allowed to call an expert witness on the economy to quiz him about "collateral" issues involved with setting economic damages that were not on legal point in Ms. Maraviglia's case.  Mr. Kelly quizzed the expert, Clemson University economics professor G. Richard Thompson, about the fact that the state judiciary has not had a pay raise since 1999, the panel noted.  According to the transcript of the case, Justice Whelan at one point said "I am a public servant" or "I am a public official" when asked by Mr. Kelly whether the witness knew the judge and others like him in New York state who had not had a pay raise in more than 11 years.  The panel ordered a new trial in Suffolk County Supreme Court.  Mr. Kelly, who also handled the appeal, said he was disappointed that the case would have to be retried. He noted that the jury was out only two hours after a five-week trial before returning with a verdict exonerating his clients.  Mr. Kelly said the lines of questioning he took against the plaintiff's witnesses were valid ones based on evidence and comments they had made on direct examination.  He said, for instance, that he asked Mr. Thompson about the long pay-raise delay for judges as a way of calling the plaintiff's expert's knowledge of the New York economy and court finances into question. In turn, that could have raised issues about the expert's knowledge of local economics when proposing damages, he said.  "I don't believe anything I said was improper at all, especially in the context of this case," Mr. Kelly said in an interview.  Ms. Maraviglia's attorney, John J. Juliano of East Northport, who handled both the trial and the appeal, said he would represent her at a retrial.  "I think what you're seeing here is that this should not be tolerated, this kind of conduct," Mr. Juliano said in an interview. "You can be sharp in presentation, sharp in examination, but you can't demean the people before you. I think that is what happened."  He added, "This is a warning to attorneys that they have to practice professionally and not be like some Rambo-type individual in the courtrooms. We are still a profession and we have certain parameters that should be practiced in a court of law."  Mr. Kelly declined to comment on the "Rambo" reference.  Joel Stashenko can be contacted at jstashenko@alm.com.