Santa Maria v. Metro-North Commuter R.R.

• Decision Date: 18 March 1996
• Docket Number: No. 296,METRO-NORTH,D,296
• Citation: 81 F.3d 265
• Parties: George G. SANTA MARIA, Plaintiff-Appellant, v.COMMUTER RAILROAD, Defendant-Appellee. ocket 95-7230.
• Court: U.S. Court of Appeals — Second Circuit

Page 265

81 F.3d 265

George G. SANTA MARIA, Plaintiff-Appellant, v. METRO-NORTH COMMUTER RAILROAD, Defendant-Appellee.

No. 296, Docket 95-7230.

United States Court of Appeals,

Second Circuit.

Argued Oct. 27, 1995.

Decided March 18, 1996.

Appeal from a judgment of the United States District Court for the Southern District of New York, Kevin T. Duffy, Judge, entered after a jury verdict against the appellant on his Federal Employers' Liability Act claim.

Joseph Smukler, Philadelphia, PA (Fox, Rothchild, O'Brien & Frankel, of counsel), for Plaintiff-Appellant.

William G. Ballaine, New York City (Edward Flores, of counsel), for Defendant-Appellee.

Before FEINBERG, OAKES and CABRANES, Circuit Judges.

OAKES, Senior Circuit Judge:

George G. Santa Maria ("Santa Maria") appeals from the judgment of the United States District Court for the Southern District of New York, Kevin T. Duffy, Judge, entered after a jury verdict for the defendant Metro-North Commuter Railroad ("Metro-North") on Santa Maria's Federal Employers' Liability Act claim, 45 U.S.C. § 51 et seq. (1994) ("FELA"). Santa Maria appeals the judgment on several grounds, arguing that the district court (1) failed to charge res ipsa loquitur; (2) made erroneous evidentiary rulings; (3) erroneously allowed interrogation by Metro-North's counsel regarding Santa Maria's receipt of benefits under the Railroad Retirement Act; and, most importantly, (4) abused its discretion in denying a mistrial after demonstrating antipathy towards Santa Maria's case and chastising, holding in contempt, and summarily removing his trial counsel, Joseph Smukler ("Smukler"), as counsel after four days of trial with only two and one-half days for replacement counsel to prepare. We believe that the trial judge's attitude, his treatment of Smukler, and the abrupt change of counsel midway through trial sufficiently prejudiced the plaintiff so as

                to require a new trial.   Accordingly, we vacate and remand
                

BACKGROUND

Santa Maria worked as a trainman and conductor for Metro-North at the time of his alleged accident. He claims that on December 19, 1990, he was alone in a cubicle in Grand Central Station, napping on a cot supplied by Metro-North for conductors, when the cot suddenly collapsed. Santa Maria sued Metro-North under FELA, 45 U.S.C. §§ 51 et seq. (1994), for neck and back injuries sustained during the collapse and for depression caused by his disability.

Santa Maria was not unfamiliar with personal injury suits: he had previously sued Metro-North four times for accidents on the job. In each case, as in the present action, he hired the same lawyer, Joseph Smukler of Philadelphia. The case went to trial before a jury on January 23, 1995.

Because this appeal concerns the fairness of the jury trial, we must examine the trial proceedings, which involved fairly complex medical disagreements among a battery of experts over the plaintiff's neck injuries, in some detail. Santa Maria claims that the court continually badgered Smukler and cast doubt on the veracity of Santa Maria's case by its treatment of witnesses, including the plaintiff. Given these claims and our decision to remand for a new trial, we focus our attention primarily on the actions of the court during the trial proceedings.

The first indication of a potential problem between the court and Smukler came during the direct examination of the plaintiff's first witness, a medical expert. The witness testified that "I had him see a colleague also for a second neurological opinion as to surgery, and he concurred that he felt this was--" whereupon there was a sustained objection. The witness apologized, but Smukler went on to ask, "You said you sent him to someone else who concurred--." The court sustained an objection, adding, "Now, look, counsel, you know that's improper. Next question. Ladies and gentlemen, withdraw what the lawyer just said. Next question."

During the recess with the jury not present, the court gave Smukler a warning in the following language:

THE COURT: Counsel, I have to tell you something. You pull what you pulled before where there was an objection taken that's to purely objectionable material and you repeat it as if it were a fact, I will declare a mistrial and I will charge you for the costs of impanelling the jury and recommend that you not be permitted to practice in this district again. Got the picture?

SMUKLER: I have the picture, your Honor.

THE COURT: Good.

There were no further problems before the jury that day until Smukler took exhibits consisting of x-ray enlargements and attempted to use them through the next witness, a neuroradiologist. Metro-North's counsel objected and the court admonished, "Counselor, look, let me make this very clear. Exhibits are supposed to be shown to the other side before you get to court, not saying, oh, I've got blowups, I've got this. The exhibit. Do you understand?" Smukler replied, "Sure, all right."

On redirect, Smukler inquired, "Has any question or any information given to you changed your opinion that this man has a herniated disc at C4-5 and C5-6?" and received a negative answer. He continued, "It still remains your opinion based on--." The court interrupted, "That's what he said. There goes your summation. Step down, Doctor." After the jury was excused, the court said to Smukler, "I understand this is an experiment that counsel sums up in the middle of a trial. I'm going to let you do it and you will get no summation at the end of it. Do it again, and you'll have none."

Plaintiff's third witness was a certified neurosurgeon who, when asked by counsel which hospitals he worked in, answered, "I went to several hospitals. I am working now out of an outpatient." The court said, "I'm sorry, is that the name of a hospital, outpatient?" The witness said, "No, no, no. I used to work in many hospitals. I am working out of an outpatient now for the last few years." The court: "So you're not working At the end of the examination of the third witness, the following exchange occurred in the presence of the jury:

                in any hospital?"   The witness:  "No."   The court:  "Okay."
                

COURT: Tell me, Doctor, you came way up from Philadelphia today. You didn't come dressed that way?

DOCTOR: No, I came from Northfield.

COURT: But you didn't wear the white smock?

DOCTOR: I was seeing a patient in Northfield.

COURT: You didn't answer my question.

DOCTOR: I'm sorry?

COURT: Did you wear the white smock up here?

DOCTOR: No. I was wearing the coat and I was carrying the white coat.

COURT: All right, thank you.

The third day of trial began with Smukler calling fellow employees of the plaintiff, who described the cots in the sleeping cubicles at Grand Central. Smukler said to a witness, "I want to show you what I have marked as Plaintiff Exhibits No. 11, 12 and 13 which the defendant has supplied us with, the exact cot involved in the accident. And I want you to look at that, please." Metro-North's counsel objected and the court said (apparently to Smukler), "If you want to testify I will swear you and I will disqualify you to be the lawyer because you cannot testify and be the lawyer in the same case. The way to show an exhibit to the witness is: I show you exhibit so-and-so. Can you tell me what it is? Period."

Later that same day, Santa Maria testified to his treatment and care by various doctors. After Santa Maria's testimony that he had seen Metro-North doctors every month from February 1991 to 1993, Smukler started to repeat the answer, "So from February of '91 to the summer of '93--." The court interrupted to say, "That's what he said. Next question." Smukler: "Okay, all I wanted to--." The Court: "Remember what I told you yesterday about summations?" Smukler: "No, I wanted to ask him the name of the doctor that he saw." The Court: "Yes, that's fine, that's a question." Smukler: "Judge,--." The Court: "What you're doing--ladies and gentlemen, time for a break. Take 10 minutes."

When the jury had left the courtroom, the following exchange occurred:

THE COURT: Mr. Smukler, if you insist on summing up in the middle of trial, that's fine, but you give up your summation, all right?

SMUKLER: May I be heard on that, sir?

THE COURT: Sure. All right.

SMUKLER: [sic] Stand up. Don't they do that in Philadelphia? ¹

SMUKLER: No.

THE COURT: They don't?

SMUKLER: They do.

THE COURT: You know, I have had some Philadelphia lawyers up here and they were wonderful.

SMUKLER: I'm trying to be. I'm trying to do everything this court requires.

THE COURT: Fine. Then please stop summing up in the middle of the trial. If you want to get up and testify, which you have done an awful lot--in fact, you introduce things which I don't think the witness could, there is an objection. But I warned you about this idea of summing up. Oh, I've got a wonderful point. I'm going to make sure it gets home to the jury. I'm going to repeat it again and again. Fine, but you give up your summation.

SMUKLER: Your Honor, on that last question that I asked, I started, if you'll but hear me, I asked him regarding that in order to ask him during all that period of time that you were being seen, what was the name of the doctor. I could not complete it. That was the question.

THE COURT: Fine. Can't you just ask what was the name of those doctors? I must tell you the entire exercise so far has Later in Santa Maria's direct examination, Smukler sought admission of the reports of the Metro-North doctor into evidence. When asked what they were being offered for, Smukler said "that the railroad doctor examined him on 19 occasions between January of--." The court interrupted him to say, "That's not what it says at all. It doesn't say that. They don't come in." Smukler then said, "It says that he was examined--." The Court replied, "It doesn't say that. Next."

                taken an hour and 15 minutes.   Anybody who was doing it properly could have done the whole thing that you've done up to this point in

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