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JUDGE’S IMPROPER COMMENTS CONCERNING PLAINTIFF’S EXPERT WARRANTED A NEW TRIAL ON DAMAGES.

In finding a motion to set aside the verdict in a personal injury case should have been granted, the Second Department determined the plaintiff was entitled to a new trial on damages (in part) because of the improper comments made by the judge. The judge cast doubt on the plaintiff’s expert’s testimony:

A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice may be granted where improper comments by the trial court deprive a party of a fair trial … . “[L]itigants are entitled, as a matter of law, to a fair trial free from improper comments by counsel or the trial court” … . A trial court “has broad authority to control the courtroom, rule on the admission of evidence, elicit and clarify testimony, expedite the proceedings and to admonish counsel and witnesses when necessary” … . Nevertheless, “[a] trial judge should at all times maintain an impartial attitude and exercise a high degree of patience and forebearance. A trial judge may not so far inject himself [or herself] into the proceedings that the jury could not review the case in the calm and untrammeled spirit necessary to effect justice” … .

Here, at the trial on the issue of damages, the plaintiff presented the expert testimony of an orthopedic surgeon who examined the injured plaintiff. Before that examining physician testified, the trial court directed plaintiffs’ counsel to ask questions in hypothetical form as to the physician’s opinion regarding prognosis and the need for future medical care, and during the physician’s direct testimony, defense counsel made a number of objections to those questions. In responding to those objections, the trial court gratuitously and repeatedly emphasized that the physician was an examining rather than treating physician and that he was only “assuming” that the injured plaintiff would need future medical care that was causally related to the accident. The record reflects that, with these repeated comments, “[t]he court conveyed an impression of incredulity” toward the physician’s opinions … . The cumulative effect of the court’s comments deprived the plaintiffs of a fair trial on the issue of damages … . Ioffe v Seruya, 2015 NY Slip Op 09407, 2nd Dept 12-23-15

CIVIL PROCEDURE (MOTION TO SET ASIDE VERDICT SHOULD HAVE BEEN GRANTED BASED ON JUDGE’S IMPROPER COMMENTS)/MOTION TO SET ASIDE VERDICT (JUDGE’S IMPROPER COMMENTS)/JUDGES (IMPROPER COMMENTS WARRANTED SETTING ASIDE DAMAGES VERDICT)

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