Berkowitz v. Marriott Corp.

• Decision Date: 03 July 1990
• Citation: 163 A.D.2d 52,558 N.Y.S.2d 511
• Parties: Eric BERKOWITZ, et al., Plaintiffs-Respondents, v. MARRIOTT CORP., et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 511

558 N.Y.S.2d 511

163 A.D.2d 52

Eric BERKOWITZ, et al., Plaintiffs-Respondents, v. MARRIOTT CORP., et al., Defendants-Appellants.

Supreme Court, Appellate Division,

First Department.

July 3, 1990.

S. Weinraub, for plaintiffs-respondents.

J. Heisler, for defendants-appellants.

Before ROSS, J.P., and MILONAS, ROSENBERGER, KASSAL and RUBIN, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, New York County (Stephen Smyk, J.), entered on or about June 12, 1989, which, following a jury trial, awarded plaintiff Eric Berkowitz the sum of $7,625,000 plus interest and costs and awarded plaintiff Boni-Sue Berkowitz the sum of $300,000 plus interest and costs, is unanimously reversed on the law and the matter remanded for a new trial, with costs and disbursements.

This is an action for damages for personal injuries sustained by plaintiff Eric Berkowitz arising out of the collision between a Mercedes automobile operated by him and a tractor trailer driven by defendant Charles Haring and owned by defendant Marriott Corporation. Following a trial conducted in this matter, the jury, apparently finding that defendants' vehicle was entirely responsible for the accident and that plaintiff's severe back problems were not, as claimed by defendants, the result of childhood scoliosis but primarily caused, or greatly exacerbated by, the subject accident, rendered a verdict in favor of plaintiffs in a total amount in excess of $7,900,000. On appeal, defendants challenge the judgment against them on a variety of grounds relating to certain allegedly erroneous evidentiary rulings made by the court, the excessiveness of the monetary award and the purportedly improper cross-examination and summation by plaintiff's counsel.

In that regard, it should be noted that while the trial judge did make some inappropriate evidentiary decisions, specifically by precluding Dr. Robert April from testifying about his second examination of plaintiff (see Valenti v. Chanice, 75 A.D.2d 850, 427 N.Y.S.2d 849, wherein the court observed that the sanction of preclusion should not be invoked in the absence of surprise or prejudice) and accepting into evidence the police report notwithstanding that its contents consisted largely of inadmissible hearsay, these errors would not, by themselves, have required reversal of the judgment herein. However, what does mandate reversal is the reprehensible conduct of plaintiffs' counsel in cross-examination and particularly during his summation in the course of which he engaged in an unfair and highly prejudicial attack upon the credibility and competence of defendants' expert witnesses and attorneys. Accordingly, the two physicians retained by the defense were repeatedly depicted as "hired guns" who were brought into the litigation to "fluff up the case" and "fill up some time", and moreover, their testimony was attacked as having been designed solely to bolster defendants' attorney's "promise to you that he's going to show that there was no reason to obtain physicians from Suffolk County except that they could not locate a physician who would support their case "from here to Suffolk County.... After that, boy, it's Europe."

Plaintiffs' lawyer, referring to matters not in evidence, speculated that the Suffolk County physicians had been hired because there was some undisclosed relationship between them and defendants' present or prior counsel. Therefore, he remarked, "I can't conceive of any reason why you would have to go to Suffolk County to hire a doctor when you have so many doctors right here, the best in the world." Equally egregious was his statement that the defense attorney was merely carrying out "instructions from his principals, and possibly he doesn't even believe himself some of the things that he said, but he has to do what he has to do." The impact of the summation by plaintiffs' counsel, whose purpose was undoubtedly to discredit defendants' expert witnesses and attorneys, could only have been devastatingly prejudicial to defendants and amounted to a violation of their right to a fair trial. Although it would have been preferable for defense counsel to have objected to the improper comments as they were being uttered rather than waiting until the conclusion of the summation, the fact remains that the interest of justice compels that the judgment be set aside and the matter remanded for a new trial.

In order to illustrate the nature of the summation perpetuated by plaintiffs' counsel, some of his statements are being appended.

APPENDIX

It is the finest form of democracy; it is letting the little fellow bring his case in to court and have his case decided by a jury of his peers. And that is the most important thing that any of us can ever ask for is the ability to have the right to come before a jury of our peers and have our case decided by them.

Now, Eric Berkowitz wouldn't have had any chance against a corporation the size of the Marriott Corporation if it weren't for the fact that in the eyes of the law everybody is the same, everybody has the same rights and everybody has the same obligations. And just as Eric has an obligation to prove certain things, so the Marriott Corporation has an obligation to prove certain things, depending on what the evidence shows.

* * *

... my colleague is a very experienced member of the Bar, and while I have never worked with him before, I respect him and I like him and I don't blame him for the way that he tried this case. I know he had instructions from his principals, and possibly he doesn't even believe himself some of the things that he said, but he has to do what he has to do.

* * *

Not one doctor that he brought in, and I'll comment--obviously I will comment on why he had to go all the way out to the end of the world in New York, Suffolk County, and find two young doctors to testify, friend of each other. And why he would say to us during the course of his jury selection that he was going to prove certain things, when in fact he hasn't even hired his doctors yet.

I think that possibly that might be something that you might want to know because he hired this fellow Kramer on Memorial Day. We'd already been on trial a week. And that was what Kramer said was the first time he ever spoke to him. So my colleague must really, really have some sort of insight into what's going on, if he knew before he even hired the guy what the guy was going to say.

* * *

Then it occurred to me, when I offered into evidence two reports of a Dr. April, it occured [sic] to me that the reason maybe that they went to Suffolk County is that Dr.--Mr. Steinbrecker, the prior attorney, had an office in Suffolk County.

Now, I never thought to ask these guys if they knew Steinbrecker, but I can't conceive of any reason why you would have to go to Suffolk County to hire a doctor when you have so many doctors right here, the best in the world.

* * *

He didn't have to bring Fox in here; he had to bring doctors in to fluff up the case. He didn't have to bring Fox in; he offered the records into evidence. I didn't object.

* * *

Did Fox actually add anything to this case?

Did his Dr. April add anything to this case? He brought him in here so that he could fill up some time.

We were going a witness a day so that it would appear as if he...