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IMPROPER IMPEACHMENT REQUIRED NEW TRIAL.

The Fourth Department ordered a new trial in a personal injury action because defense counsel violated rules of evidence re: impeachment with collateral matters. Defense counsel improperly introduced evidence of plaintiff's drug test results and improperly informed the jury of prior lawsuits brought by plaintiff:

It is well settled that a cross-examiner at trial is “bound by the answers of the witness to questions on collateral matters inquired into solely to affect credibility” … , and extrinsic evidence cannot be used to impeach a witness's credibility after the witness has provided an answer with which the cross-examiner is unsatisfied … . Here, defense counsel asked plaintiff during cross-examination whether she had failed an employment-related drug test, a collateral issue relevant only to plaintiff's credibility. In response, plaintiff testified that the test result was a “false positive” that was proved false upon retesting. Defense counsel then violated the collateral evidence rule when she not only referred to a lack of evidence supporting plaintiff's assertion, but introduced the drug test result in evidence in an attempt to impeach plaintiff's credibility … .

The impact of that improper conduct was compounded when defense counsel thereafter questioned defendant's medical expert, over plaintiff's objection, about “drug use history” notations in plaintiff's medical records that, according to the expert, raised questions as to plaintiff's “credibility.” * * *

Finally, despite the court's pretrial ruling precluding defendants from questioning plaintiff about a personal injury claim she had filed in connection with a prior accident, defense counsel, over objection, asked plaintiff if she had been involved in any “legal action” related to her “neck and/or back condition.” Because evidence of prior accidents and lawsuits related thereto “may not [be used to] . . . demonstrate that plaintiff is litigious and therefore unworthy of belief” … , it was error for the court to allow that questioning. In our view, the improper attacks on plaintiff's credibility, viewed as a whole, denied plaintiff a fair trial. Dunn v Garrett, 2016 NY Slip Op 03283, 4th Dept 4-29-16


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