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July 7, 2019
By: Frank Scahill

The case of Bermejo v. New York City Health & Hosps. Corp., 2015 NY Slip Op 08374 (N.Y. App. Div. Nov. 18, 2015) generated a lot of press from the onset.

The case was heard in April of 2013 before Judge Hart in Queens County and resulted in a mistrial. Prior to the trial on the issue of damages in this personal injury action, the plaintiff's trial attorney surreptitiously videotaped an Independent Medical Examination conducted by Dr. Michael Katz, retained by the defendant Ibex Construction, LL. The attorney failed to disclose the existence of that recording to defense counsel, and then revealed its existence for the first time at trial, during redirect examination of his own paralegal, who took the witness stand to testify as to time elapsed during Dr. Katz's examination of the plaintiff. This resulted in the declaration of a mistrial, and Dr. Katz subsequently declared that he was not willing to testify at the new trial.

This was the case where Judge Hart accused Dr. Katz of lying, which the Appellate Division stated, "We further conclude that the declaration of a mistrial in this case was attributable to the conduct of the plaintiff's trial attorney. Moreover, we find that the orthopedist was unwilling to testify voluntarily at the new trial because of that conduct and because the Supreme Court repeatedly, without any basis in fact, accused the orthopedist of lying during his cross-examination. The court also repeatedly threatened to recommend that the District Attorney's office prosecute the orthopedist for perjury."

In a stunning rebuke of the Trial Court, Judge Roman noted, "At this point, we dispel the premise that underlies the plaintiff's arguments on these appeals, and the actions taken by the Supreme Court after declaring the mistrial, namely, the notion that Dr. Katz lied. The record does not reflect that Dr. Katz committed perjury.

Dr. Katz was asked how long the second IME took, and his answer was that he did not know. There is no evidence in this record that, at the time Dr. Katz gave that testimony, he actually did know how long the second IME took. Thus, that answer (or series of answers) has not been shown to be untruthful.

When Dr. Katz was then asked, by the court, "what [his] custom and practice would be" as to the length of an examination of this type, as noted, Dr. Katz's answer was that he thought that "in the range of between 10 and 20 minutes would be appropriate." There is no support in this record for the proposition that this answer was false. Moreover, even aside from the fact that the Supreme Court did not actually ask Dr. Katz about the length of the particular IME in question, it was improper to force him to specify an exact duration when his answer repeatedly was "I don't know." (see e.g. People v Samuels, 284 NY 410, 417). Accordingly, the record does not reflect a lie that would support a declaration of perjury by the Supreme Court."

Judge Roman described the "avalanche of errors that occurred in this case" and ordered plaintiff's counsel to pay "the costs they (the defendants) incurred in the first trial, and the costs they incurred in making and litigating the motions at issue on these appeals and in pursuing these appeals."

This case illustrates clearly that not only does the credibility of each side’s story during trial come into question, but the credibility of third party witnesses and presumed subject matter experts must be fully considered,  Failure to do so may drastically impact the outcome of a case.

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