The Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”), in its opinion dated September 28, 2020, affirmed a New Jersey medical malpractice birth injury verdict in the amount of $20 million, despite the defense attorney having suffered an ischemic stroke just before the close of the plaintiff’s case during trial.
The plaintiffs contended that the defendant OB failed to timely diagnose and treat fetal distress, which would have led to an earlier delivery of the plaintiffs’ twin babies and would have avoided one of the babies suffering permanent brain damage. The jury returned its verdict in favor of the plaintiffs in the amount of $20 million, and the defendant argued on appeal, among other alleged errors by the trial court, that the trial judge committed reversible error when she failed to declare a mistrial after his attorney became ill during the trial.
Defense Counsel’s Stroke
Counsel for the parties delivered their opening statements on September 27, 2018. Over the next week, plaintiffs presented the testimony of almost all of their witnesses. However, before plaintiffs completed their case, defendant’s designated trial counsel, Michael Keating (Mr. Keating), was hospitalized in a neurological intensive care unit, on the evening of Friday, October 5, 2018, with a diagnosis of ischemic stroke. Mr. Keating’s condition was successfully treated, and he was discharged from the hospital on Sunday afternoon. Since the next day was a court holiday, Mr. Keating contacted the trial judge and plaintiffs’ counsel to inform them of these developments.
On Tuesday, October 9, 2018, after three hours of in-chamber discussions, Mr. Keating requested a mistrial, stating, “My client doesn’t feel comfortable with me continuing to represent him under the circumstances.” However, Mr. Keating did not state he was medically unable to continue.
The trial judge expressed her concerns regarding the fairest decision for all parties, explaining that plaintiffs had presented their entire case except for one remaining expert, the jury had invested two weeks of their time, and if she ordered a mistrial, defendant would gain an “unfair advantage.” The judge requested Mr. Keating provide “proof from a doctor, your neurologist . . . that you cannot go forward.” The trial judge stated to Mr. Keating: “Obviously[,] you were able to come to court today. You talked about having to go to court in another county. You spoke sensibly to me at length yesterday and sensibly at length today. . . . I see no measurable difference in you today than . . . the way you’ve been the last couple of weeks. But I’m not a doctor.”
The trial judge did not rule on defendant’s request for a mistrial but instead adopted a “try and see” approach. The next day, October 10, 2018, Russell Hewit (Mr. Hewit), a senior partner from Mr. Keating’s law firm, appeared at trial, along with Mr. Keating. Mr. Hewit informed the judge that Mr. Keating had symptoms of a stroke and needed “one to three” weeks of recovery and “two to three” weeks without any stressful setting. For these reasons, he renewed defendant’s motion for a mistrial.
After extended discussions, both in chambers and on the record, the judge explained the need to explore lesser alternatives to a mistrial. The judge denied defendant’s motion for a mistrial, without prejudice, and instead allowed plaintiffs’ counsel to complete the testimony of the baby’s father, which took less than twenty-five minutes, and allowed plaintiffs’ counsel to play the videotape testimony of his causation expert, after which she continued the trial until October 22 to allow time for Mr. Keating to rest and recover. At that point, Mr. Keating presented the video of the de bene esse testimony of his causation expert, Joel Lavine, M.D., an expert in pediatric gastroenterology and pediatric liver diseases. At the completion of the video, the trial judge explained to the jurors that due to “issues with availability,” they would return in one week, on October 17, to hear the testimony of defendant’s last expert, Dr. Cohen. After that, they would return the following week, on October 23, to hear summations, receive jury instructions, and then deliberate.
After the trial concluded and the jury awarded $20 million to the plaintiffs, the defendant appealed, arguing, among other things, that the judge erred in refusing to grant the motion for mistrial after his attorney had suffered a stroke during the trial.
New Jersey Appellate Court Opinion
The New Jersey Appellate Court stated: “In response to the mistrial motion defendant made on October 9, the judge took note of all the time, effort, and money already expended in this substantially tried case, and explained that granting a mistrial is “the last resort.” She also appropriately noted that Mr. Keating was “able to come to court” and “talked about having to go to court in another county.” She further recounted that Mr. Keating “spoke sensibly to me at length yesterday and sensibly at length today.” While acknowledging she is “not a doctor,” she noted the absence of any medical documentation to support the application. Based on the record before her, the judge reasonably exercised her discretion by deferring a formal decision on the mistrial application, particularly in the absence of any supporting medical documentation. Instead, the judge reasonably proceeded with a “try and see” approach, inquiring about the possibility of Mr. Keating presenting the testimony of his out-of-state liability expert, who was in court and ready to testify, and allowing plaintiffs to finish their case by completing the testimony of Kylie’s father and playing a de bene esse videotape of their final expert. Mr. Keating did not object to the judge’s proposed plan.”
The New Jersey Appellate Court further explained: “After allowing plaintiffs to finish the testimony of one witness and present a final expert on video, the judge attempted to accommodate Mr. Keating’s condition by delaying the trial for almost two weeks. Just before noon, Mr. Hewit presented a report from Dr. Hanna advising that Mr. Keating needed one to three weeks to recover. After receiving this report, and discussing the matter in chambers with trial counsel, the judge announced a two-week postponement of the trial, a postponement which fell within the two- to three-week time frame identified by Dr. Hanna. The judge explained that she came to her decision “because of the frank discussion” she had “in chambers with Mr. Keating.” The judge was prepared to declare a mistrial if that result was indicated, as she later explained, “[A]ll I needed was Mr. Keating to say I can’t go forward . . . .””
The New Jersey Appellate Court continued: “During the next two weeks, Mr. Keating presented no further documentation concerning his medical condition, nor did he advise the judge that he could not continue, or otherwise renew the mistrial motion. The judge concluded that putting the case off for two weeks, absent further information or developments, was sufficient to preserve a fair trial, and her decision is entitled to deference.”
The New Jersey Appellate Court held: “We are satisfied the judge’s decision to deny defendant’s mistrial motion without prejudice did not amount to an abuse of discretion … The record contains no credible explanation why the information contained in the certifications submitted by defendant in support of his post-trial motions was not made known to the trial judge before the trial continued with Dr. Cohen’s testimony on October 17 … If defendant had an objection to the trial continuing, that objection should have been made known to the trial judge, before Dr. Cohen’s testimony, and certainly before summations. Instead, before Dr. Cohen’s testimony, Mr. Keating assured the judge he was “okay” and ready to go forward. A party should not be permitted to take a chance on a verdict by one jury and then complain if the verdict is unfavorable … Those concerns are heightened here, where the trial judge received direct confirmation from Mr. Keating that he was able and ready to proceed. Absent plain error, of which we find none, defendant is not entitled to relief from the consequences of chosen trial strategies.”
Source Tapia v. Alam, Docket No. A-2611-18T1.
If you or your baby suffered a birth injury (or worse) during labor and/or delivery in New Jersey or in another U.S. state, you should promptly find a birth injury lawyer in your state who may investigate your birth injury claim for you and represent you and your child in a birth injury medical malpractice case, if appropriate.
Click on the “Contact Us Now” tab to the right, visit our website, or call us toll-free in the United States at 800-295-3959 to find birth injury attorneys in your state who may assist you.
Turn to us when you don’t know where to turn.