Retrial Ordered After Judge Belittled Lawyer

     Jeff D. Gorman
     (CN) – A New York judge deprived a mother of a fair trial in her medical malpractice case by making belittling comments about the woman’s attorney, an appeals court ruled.
     In her malpractice complaint against Northern Westchester Hospital Center, Teresa Porcelli claimed that her newborn daughter developed respiratory problems shortly after her November 2000 delivery because a doctor intubated the baby to check for meconium, or early-stage feces, in her stomach and throat.
     Porcelli said her baby needed several surgeries, including a thoracotomy, to treat the injuries she sustained from intubation.
     Though a jury with the Westchester County Supreme Court ruled for the hospital, and Justice Mary Smith closed the case, the Appellate Division’s Brooklyn-based Second Judicial Department concluded that Smith’s conduct warranted a new trial under a different justice.
     “The trial justice’s excessive intervention in the proceedings, as well as the cumulative effect of the trial court’s improper conduct, deprived the plaintiff of her right to a fair trial,” according to the unsigned opinion from a four-member panel.
     “The trial justice demonstrated a propensity to interrupt, patronize and admonish the plaintiff’s counsel, and gave significantly less leeway with regard to examiniation and cross-examination of witnesses than that which was afforded the defendants’ counsel,” the appellate judges added.
     In a note of explanation for Smith’s comments, the ruling notes that Porcelli’s attorney “may have been overly aggressive, and at times even antagonized the trial justice.”
     “Nonetheless, a trial justice should at all times maintain an impartial attitude and exercise a high degree of patience and forbearance,” the appellate justices added.
     Smith had told Porcelli’s attorney to “tone down the histrionics” and “go review the books tonight.” She also remarked that his questions were “not that important” and “not that good.”
     Another time, Smith interrupted the lawyer to say she would “not allow the reporter to take any more words from you at this point because I don’t think that you are going to do any service to yourself, the type of emotional tantrums you’ve been having.”
     In addition, Smith had said, in front of the jury, that if she were to let the lawyer cross-examine the hospital’s expert witness before trial, he would be “like a leech on a horse,” according to the ruling.
     “As a result, the jury could not have considered the issues at trial in a fair, calm and unprejudiced manner,” the justices ruled.
     The retrial order applies only the vicarious liability claims against the hospital and physician Melissa Tsai, the justices noted.
     It does not revive claims over the hospital’s alleged policy of intubating newborn infants who had observable retained meconium – a count that Smith dispatched by granting the hospital moved for judgment as matter of law.

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