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Lagola v. Thomas1/31/2005
On the third day of trial, Lagola was the first witness for the defense. She was examined, cross-examined, and examined again on redirect. The three basic points covered by both sides were the road conditions at the time of the accident; her speed at the time she saw Thomas's car stopped in the road ahead of her; and her distance from Thomas at the time she hit the brakes. After counsel concluded their questioning, the trial judge, who explained that he was trying to visualize the road and the accident, questioned Lagola on the same subjects. Thomas's attorney then followed up with another round of questions about speed and distances.
Lagola's second witness was Dr. Kirk Thibault, a biomechanical expert, who testified about the force of the crash, and opined that the level of force was insufficient to "provide the mechanism" for acute disc herniation. After fairly extensive cross-examination, the trial judge again asked the witness his own questions. This time, the trial judge explained that he was going to cover a point that had not been addressed during the parties' questioning. The trial judge then elicited Thibault's admission that: i) it would have been possible to calculate Lagola's speed at impact using her testimony as to the speed she was traveling when she hit the brakes, her distance from Thomas's car at that moment, and an appropriate coefficient of friction for an icy road; ii) Thibault did not perform such a calculation, but instead estimated the collision speed at 15 mph based on the extent of damage to the vehicles; and iii) if the collision speed was greater than 15 mph, the force level would be higher and the resultant damage would be greater.
The trial judge did not ask questions of Lagola's next witness, who was Lagola's sister and the passenger in Lagola's car at the time of the accident. On the following morning, however, when Lagola called her last witness, the trial judge again participated in the examination. Dr. Michael Brooks, a neuroradiologist, explained how Thomas's x-rays revealed certain degenerative changes in Thomas's spinal cord. Brooks opined that those changes could not have been caused by the accident because the bone formations he observed take a long time to develop. As Lagola's counsel was asking Brooks about an opposing expert's opinion, the trial judge interrupted counsel in mid-question to pursue his own line of inquiry.
The judge asked, in essence, whether a sudden impact could cause small changes in the bone or nerve alignment that would cause what had been asymptomatic degenerative changes to become symptomatic. After Brooks responded that there was nothing on the x-rays to indicate any new injuries, the judge asked whether there is some way of explaining what has happened when a patient develops pain after a traumatic event, but the x-rays do not show anything. Brooks responded that pain is subjective and that his analysis was concerned with objective findings from the x-rays. Lagola's counsel then resumed questioning his witness, and, after cross-examination and re-direct, the trial judge asked a few more questions. Through his final question, the judge pointed out that radiologists assist the surgeons, who make the decision on appropriate treatment and perform the operations.
It is apparent from the transcript that the trial judge did not question any witness for prolonged periods, and that his demeanor was not at all hostile. Nonetheless, I would hold that the trial court's questioning crossed the line and constituted plain error. Several factors support this conclusion. First, the trial judge questioned only Lagola's witnesses, and he questioned all but one of them. This fact, alone, strongly suggests to the jury that t
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