Defense Lawyer's Comment to Witness Means New Med Mal Trial for Ex-NFL Player
"'Five thousand. Five thousand of those radiologists and [the plaintiff] couldn't find one of them to come into this courtroom to support [his fact witness] did you know that?'" defense counsel asked the defendant's musculoskeletal radiology expert on the witness stand.
April 15, 2020 at 05:14 PM
3 minute read
The original version of this story was published on The Legal Intelligencer
The Pennsylvania Superior Court has upheld an order for a new trial in former Chicago Bears defensive back Craig Steltz's lawsuit against a surgeon who treated him for a hernia and allegedly failed to disclose the existence of a muscle tear in his leg.
A split three-judge panel in Steltz v. Meyers denied defendants Dr. William Meyers, Vincera Institute and Vincera Core Institute's appeal, upholding Philadelphia Court of Common Pleas Judge Stella Tsai's grant of a new trial. The majority was composed of Judges Kate Ford Elliott and Judith Olson while Judge Mary Jane Bowes dissented.
A new trial was granted because defense counsel asked the defendant's musculoskeletal radiology expert if he knew that the plaintiff provided no expert of his own in the field, according to Ford Elliott's April 14 majority memorandum.
"'Five thousand. Five thousand of those radiologists and [Steltz] couldn't find one of them to come into this courtroom to support [his fact witness] did you know that?'" according to a transcript of the question appearing in Ford Elliott's memorandum.
The jury came back in the defendants' favor. Ruling on post-trial motions, the trial judge agreed with Steltz that defense counsel's question was so prejudicial that a new trial had to be granted.
On appeal, the defendants argued that the question would have been proper as a statement if made during closing arguments and, therefore, was proper as an "unanswered question" asked by the lawyer during direct examination of its witnesses, Ford Elliott said.
However, Ford Elliott said that the finding of a torn ligament by MRI review of Dr. Paul Read, a fact witness for Steltz, was backed up by another doctor.
"The record demonstrates that counsel knew his questions involving the words 'couldn't find' were untrue and misleading when, in fact, Steltz did find a radiology expert, Dr. [Jaime] Checkoff, who agreed with Dr. Read's findings," Ford Elliott said. "Counsel emphasized the point of his question by asking it not once but, over Steltz's counsel's objection, asking it a second time when he stated, 'Not one, couldn't find one?' These questions were an attempt to remove the issue of whether Dr. Read's testimony was credible from the jury."
Ford Elliott continued, "While counsel is generally free to present his or her case in the light most suited to advance the client's position, counsel is not free to take liberties with the evidence and misconstrue it for the jury."
In her dissenting memorandum, Bowes said, "While I recognize that this court's standard of review over a trial court's award of a new trial is deferential, this case presents that rare circumstance in which the trial court has abused its discretion. In particular, I believe that both the trial court and the majority have mischaracterized the context of the question posed by appellant's counsel and overstated the existence of prejudice. Accordingly, I would reverse the trial court's order granting a new trial, and permit the jury's verdict to stand."
Clifford Haines represents Steltz and said in an email: "We are always heartened by a successful outcome. Judge Tsai is a very diligent and conscientious Judge. We were confident that she got it right and the Superior Court now agrees. Mr. Steltz is delighted."
Gary Samms of Obermayer Rebmann Maxwell & Hippel represents the defendants and did not respond to a request for comment.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllLitigators of the Week: After a 74-Day Trial, Shook Fends Off Claims From Artist’s Heirs Against UMB Bank
An ‘Indiana Jones Moment’: Mayer Brown’s John Nadolenco and Kelly Kramer on the 10-Year Legal Saga of the Bahia Emerald
‘It's Your Funeral’: Avoiding Doing Damage to Your Client’s Case With Uncivil Behavior
Law Firms Mentioned
Trending Stories
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250