Were Counsel’s Closing Remarks Passion or Bad Behavior?

Were Counsel’s Closing Remarks Passion or Bad Behavior?

The story

Plaintiff contended Defendant Doctor failed to diagnose a back infection, in a hotly contested medical malpractice case. After a lengthy trial, the jury returned a verdict of no cause of action. Jury deliberations lasted less than two hours.


On November 8, 2004, Lawrence McKay (Lawrence) — a medical doctor — experienced back pain as a result of a rough plane landing. He complained to his wife Kay M. McKay (Kay) — a nurse — and he started taking Tylenol. The pain continued and on November 23, 2004, Lawrence sought medical treatment at Primary Care Associates (PCA).

On November 29, 2004, defendant Dr. Robert Dubow, an internist and staff physician at PCA, observed tenderness on Lawrence’s back.

On Friday, December 10, 2004, Dubow and Lawrence communicated by phone, and the next day, Lawrence had a blood test at PCA.

On Monday, December 13, 2004, Dubow learned that Lawrence had seen an orthopedist and planned to see a chiropractor.

Plaintiffs contended that Dubow learned on December 13 that Lawrence suffered from an abnormal liver, lost twenty-four pounds during the preceding ten days, and showed signs of vertebral osteomyelitis. Plaintiffs’ theory was that Dubow failed to order an emergency MRI, which would have revealed the condition, which plaintiffs argued was treatable with antibiotics. Instead, Lawrence was admitted into the hospital on December 17, 2004, suffered acute renal failure, and died on November 14, 2005.

Dubow’s primary defense was that Lawrence refused to follow Dubow’s request to return for an examination. Dubow testified that he called Lawrence on December 13, talked to Kay, informed her about the abnormal blood test, and requested that Lawrence return to his office. At trial, Dubow contended that Lawrence was overmedicated and resisted treatment.

What went wrong?

Plaintiff presented a passionate closing argument to the jury. The trial judge gave a limiting instruction to the jury because of plaintiffs’ counsel’s remarks, as following:

I suggest that[] what Smialowicz really tells doctors [is] . . . [t]his is what you have to do after you’re sued, say whatever you have to say, do whatever you have to do. Hey, Smialowicz is a perfect example of it.. . . . His opinions don’t change at all because he will say whatever has to be said and do whatever has to be done so that [Smialowicz] can help other doctors be, quote/unquote, successful defendants in medical malpractice lawsuits. I suggest that’s what’s happening in this case…

Referring to Smialowicz later in his summation, plaintiffs’ counsel commented:

Say what you got to say, do whatever you have to do to be a, quote, successful defendant in a medical malpractice case. Dr. Smialowicz is practicing what he teaches in this case.

. . . .

[H]e wants to help [Dubow] be a successful defendant . . . . [Smialowicz] said exactly what no doctor could ever say because he has to. [Smialowicz] has to say something to help [Dubow's] case.

. . . .

You think Dr. Smialowicz might have some bias, teaching doctors how to win lawsuits? You think?

. . . .

Smialowicz, he’s out in the island all by himself.

This is the kind of witness you’re going to rely upon? Dr. Smialowicz? Please. For [Lawrence's] sake, don’t do that.

The appellate division decision

The appellate division affirmed the conduct of the trial court:

We reject the contention that plaintiffs were denied a fair trial as a result of improper judicial interference. We find no evidence to support plaintiffs’ numerous claims of prejudicial conduct by the judge. Rather, the judge employed great patience during the lengthy trial and conducted the proceedings to ensure fairness to both parties.

We have stated that “it is improper for an attorney to make derisive statements about parties, their counsel, or their witnesses.” Szczecina v. PV Holding Corp., 414 N.J. Super. 173, 178 (App. Div. 2010). “Although attorneys are given broad latitude in summation,” it is improper to “accuse a party’s attorney of wanting the jury to evaluate the evidence unfairly, or trying to deceive the jury, or of deliberately distorting the evidence.” Rodd v. Raritan Radiologic Assocs., P.A., 373 N.J. Super. 154, 171 (App. Div. 2004).

Overall, the statements made by plaintiffs’ counsel during his summation suggested that the defense attorney and Smialowicz worked together to fabricate a defense. Accusing defense counsel of being desperate, and Smialowicz of teaching defendants to “say whatever you have to say, do whatever you have to do,” the summation of plaintiffs’ counsel implied that the defense tried to confuse the jury and concoct a defense. There was an insufficient basis for any such contentions.

“To remedy the prejudice caused by untrue statements or inferences, trial courts may, depending on the severity of the prejudice, issue a curative instruction or grant a mistrial.” Bender v. Adelson, 187 N.J. 411, 433 (2006). We give deference to the court making such a determination, which rests “`within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting.’” Khan v. Singh, 397 N.J. Super. 184, 202 (App. Div. 2007) (quoting State v. Winter, 96 N.J. 640, 646-47, (1984)), aff’d, 200 N.J. 82 (2009).

We have noted that “[a] judge must conduct a trial in a fair and impartial manner, refraining from remarks that might prejudice a party or might influence the minds of the jury.” Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 297-98 (App. Div. 1999) (citing Cestero v. Ferrara, 110 N.J. Super. 264, 273 (App. Div. 1970), aff’d, 57 N.J. 497 (1971)). “[A] trial court has wide discretion in controlling the courtroom and the court proceedings,” and any “[a]lleged misconduct by a trial judge must be reviewed within the context of the entire record in order to determine whether it had prejudicial impact.” D.G. ex rel. J.G. v. N. Plainfield Bd. of Educ., 400 N.J. Super. 1, 26, (App. Div.) (citations omitted), certif. denied, 196 N.J. 346 (2008). A judge should never unfairly criticize counsel, especially in front of the jury. Id. at 25-26 (citing Mercer, supra, 324 N.J. Super. at 298).

Applying these standards, we find that the judge’s curative instruction had no prejudicial impact and that the judge did not abuse his discretion in giving the instruction. He presided over a lengthy trial, determined that a mistrial would be unwarranted, and issued an appropriate curative instruction necessitated after plaintiffs’ counsel made unwarranted remarks.


I am a dyed in the polyester, life long, plaintiff’s lawyer. I regret to say counsel’s closing remarks went too far, and really served no useful purpose.

My limiting instructions to myself are my commentary is based solely upon reading the appellate decision, which contains a portion of a cold transcript from a lengthy heated trial.

Read the complete appellate decision…McKay v. Primary Care Associates et al.



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