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Harding v. Deiss6/27/2000
ry to disregard defense counsel's statements.
Appellant further claims that defense counsel's questioning on cross-examination regarding her education which was limited to special education through grade school, her unmarried status at the time of Candice's birth, and on having two other children with different last names than Appellant, was designed to embarrass and ridicule her. During cross-examination of Appellant, defense counsel asked her, "when Candice was born on January 6, 1978, to whom were you married at that time?" Upon objection to the question's relevance, defense counsel stated " ell, let me rephrase it. Candice; was the last name given to her at the time of birth, Shucks ?"
Appellant insists the cumulative effect of defense counsel's questions and comments indicating that Candice had prior problems with the law, that she had abused drugs, that Appellant had graduated only from special education classes and was unmarried at the time of Candice's birth, was inflammatory, highly prejudicial, and improper in a case of medical malpractice. Therefore she arges that the District Court should have granted her motion for mistrial.
Respondents give no explanation for defense counsel's questioning of Appellant regarding her marital status at the time of Candice's birth. However, they claim the District Court did not abuse its discretion in refusing to grant a mistrial because the evidence regarding Candice's drug use and trouble with the law was relevant to show Candice was "rebellious and noncompliant," in support of their theory that Candice "was rebellious and ignored her own care and that is why she got into trouble." Moreover, Respondents claim such evidence is admissible because Appellant did not move in limine to exclude such evidence.
In a factually similar case the plaintiff contended that she suffered "devastating, incurable prejudice" by the court's failure to preclude the defendants from referring, in their opening statements, to the decedent's alleged comparative negligence. In a memorandum opinion, the New York Appellate Court stated;
hile it is true that the alleged negligence of the decedent prior to coming to the hospital was not relevant, because the defendants' liability extends only to that portion of the plaintiff's injuries attributable to the defendants' malpractice. . . , nevertheless, the defendants' opening comments on the subject were brief. Indeed, the trial court ultimately properly dismissed the defenses of comparative negligence and gave, by the plaintiff's own admission, a proper charge to the jury on this subject instructed the jury to "completely disregard defense counsels' opening statements which alluded to the question of [decedent's] blame or fault before coming to the hospital." Mendoza v. Kaplowitz, 215 A.D. 2d 735, 735-36 (N.Y. App. Div. 1995).
The court further concluded that the plaintiff's allegation of "incurable" prejudice is belied by her actions at trial, where, after the opening statements, and after having moved for a mistrial on these grounds, the plaintiff was confronted with a problem of jurors' availability, and argued forcefully against a mistrial, stating, among other things. . . "I really want to proceed with this trial." Mendoza, 215 A.D. 2d at 736.
Given the plaintiff's statements, the court concluded that the plaintiff "appeared convinced that any prejudice resulting from the opening statements had abated." Mendoza. 215 A.D.2d at 736.
In the instant action, Appellant repeatedly moved for a mistrial based on Respondents' comments during opening statement claiming she could no longer get a fair trial. Of equal importance, unlike the court in
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