The sad tale of improper remarks during closing argument
A state appeals court affirmed the setting aside of a $25 million medical malpractice verdict, partly because the plaintiff’s attorney warped an expert’s statistical testimony.
Though the expert neurologist testified that the malpractice at most increased the plaintiff’s risk of a bad surgical result by 37 percent, the plaintiff’s attorney in his summation repeatedly argued the risk was increased by 1,233 percent and that there was a 92.5 percent probability that post-surgical complications resulted from the delay in treatment.
‘Counsel’s argument misstated the expert’s testimony and was inconsistent with the legally correct approach to quantifying the increased risk of harm attributable to malpractice where a plaintiff has a pre-existing condition,’ the court said in Santana v. Chaudri, A-0782-10.
The trial judge’s failure to instruct the jury to disregard those improper arguments increased the potential for prejudice, the court found” [via N.J. Law Journal].
Plaintiff counsel’s loose lips
Here’s what N.J. App. Div. had to say:
In this case, plaintiffs’ expert neurologist testified that the risk to Stanford of a poor result from aneurysm surgery would have been 3% if the surgery had been performed on November 16, 2001, but the risk increased to 30% by November 19, and to 40% by the time the surgery was actually performed on November 23. Thus, according to the expert, at most the malpractice increased Stanford’s risk of a bad surgical result by 37%. However, in his summation, plaintiffs’ counsel repeatedly argued that the defendant doctors’ alleged mistakes increased Stanford’s risk of injury by 1233%, and that there was a 92.5% probability that Stanford’s post-surgical complications resulted from the delay in treatment.
Counsel’s argument misstated the expert’s testimony and was inconsistent with the legally correct approach to quantifying the increased risk of harm attributable to malpractice where a plaintiff has a pre-existing condition. See Scafidi, supra, 119 N.J. at 113-14. The increased risk is to be expressed as a percentage, with the relative percentages attributable to the malpractice and the pre-existing condition adding up to 100%. However, by extrapolating the expert’s testimony into a “percentage of a percentage,” plaintiffs’ counsel distorted and greatly exaggerated the extent to which the alleged malpractice was responsible for the injuries. The misstatements also had the clear capacity to confuse the jury by convincing them that there was a 92.5% chance that defendants’ malpractice was a substantial factor in causing Stanford’s injury. Moreover, despite defense counsel’s vociferous objections, the trial judge did not instruct the jury to disregard those improper arguments.
Commentary
I hate piling on after a case is whistled dead by the App. Div., but…C’mon man. Was this (a) A rookie mistake? (b) A mistake. period. (c) A lawyer not understanding the law of the case? or (d) Bad behavior
In any event, what a shame, what a crying shame.
Read more…
Santana v. Chaudri, A-0782-10.
