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Legal Ethics

Med-Mal Plaintiff Granted New Trial Based on Defense Counsel’s ‘Inflammatory’ Comments

Posted Mar 5, 2012 7:00 AM CDT
By Debra Cassens Weiss

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A defense lawyer in a medical malpractice trial who complained the plaintiff was “working the system” has lost an appeal that targeted the counsel’s comments.

A New York appeals court granted a new trial to the plaintiff, citing the lawyer’s “inflammatory and improper summation comments” and an “inappropriate cross-examination,” the Legal Profession Blog reports.

The decision by the New York Appellate Division, Second Department, does not identify the defense lawyer, but does include some of the comments deemed inappropriate. Besides commenting on “working the system,” the defense counsel had:

• Called the plaintiff’s treating physician the “go-to” doctor in Suffolk County for patients who wanted to stop working.

• Claimed the plaintiff's expert anesthesiologist was “out of control" and questioned the expert about a probe of "anesthetic mishaps" even though there was no evidence the probe involved the expert's practice.

• Vouched for the credibility of a defense expert by thanking "God there are people like [him] who are the stopgap."

While cross-examining the plaintiff’s economic expert, the court said, the defense lawyer also managed to ask about “the state of the local Suffolk County economy, the foreclosure rate in that county, and the 12-year period during which judges in New York state had continued to work without receiving a raise.”

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