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Zealous Advocacy Addressed in Mark v. Rosalind

November 1, 2014
By: Scahill Law Group PC

When does zealous advocacy cross the line for a defense counsel and cause a mistrial based on improper comments in summation or a line of questioning on cross-examination that the court deems prejudicial?

Obviously there is no bright line rule in this area and in large part depends on what judge you are before. Would Judge Winslow or Judge Wexler cut you off at the knees before your cross got too far? I would say the answer to that question is a resounding yes.

Would another judge give you enough rope to hang yourself and cause a mistrial? Well, yes that happens too. Marx v. Rosalind, decided by Judge Spinner on January 14, 2014 is worth a close look.

In this case against the Rosalind and Joseph Gurwin Jewish Geriatric Center of Long Island, the plaintiffs claimed negligence against the nursing home for failing to properly treat the decedent who suffered decubitus ulcers, prior to her death in 2005.

The defense, through cross-examination, tried to show the patient was difficult, had previously abused the staff and had a psychiatric admission to South Oaks Psychiatric Center.

The court insisted that the behavior of the decent was not at issue and the questioning of the plaintiff's witnesses on a psychiatric admission, so tainted the jury, to warrant a mistrial.

The line of inquiry defense counsel attempted was, in our view, proper, however; the problem was that the records, upon which the cross-examination was based, were not in evidence.

Judge Spinner ruled, "The record demonstrates that Sandonato was attempting to solicit testimony from Marx, a lay witness, from a hospital record which was not in evidence, was not subpoenaed to the court and not received by the court. While the court sustained plaintiff's counsel's objections to this line of questioning four times in succession, Sandonato intentionally and repeatedly continued this line of questioning, in a manner prejudicial to the plaintiff, poisoning the jury, resulting in a mistrial."

The court ordered a hearing on sanctions to be imposed in this matter. The case is likely to be seen shortly in the Appellate Division, if the matter is not resolved. (see Maraviglia v. Lokshina (92 A.D.3d 924, N.Y.A.D. 2 Dept., 2012), decided by the Second Department in 2012.

In this medical malpractice action, defense counsel made remarks on summation that the plaintiff's treating physician and the plaintiff were "working the system."

He also commented that the injured plaintiff's treating physician testified "at an enormous amount of Workers [Compensation] proceedings" and was the "go-to" doctor in Suffolk County for patients who wished to stop working.

By contrast, counsel vouched for the credibility of the defendant's expert witness by thanking "God there are people like [him] who are the stop gap."

During cross-examination of the plaintiff's expert anesthesiologist, counsel for the defendants twice referred to the medical center where this doctor performed certain procedures as a "parking lot".

Here, a defense verdict was overturned and the case settled before trial in 2013.

Read the decision here.

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