Philadelphia City Hall in Downtown Philadelphia
PHILADELPHIA – A Pennsylvania appeals court has sustained a large medical-malpractice verdict against a University of Pennsylvania Health System doctor despite a judge declaring the plaintiff’s lawyer engaged in “deplorable” conduct to sway the jury.
The Philadelphia trial court judge claimed lawyer Thomas Bosworth continued to argue his client was “fired” and “terminated” as a result of her injuries “to inflame the jury,” yet defendants in Diane Melendez’s lawsuit failed to call for a mistrial or preserve the issue for their appeal of a nearly $20 million verdict, the Superior Court found Sept. 11.
The case concerned Melendez’s health, which began deteriorating in 2012, and whether her incomplete paraplegia would have been prevented had Dr. Gyi Mo, her primary care physician, referred her to a neurologist.
It took more than four years for a diagnosis of spinal dural arteriovenous (AV), a condition that can be cured if caught at an early stage. That didn’t happen for Melendez, who can’t walk without a walker and requires assistance for most activities.
She also couldn’t work at the Hospital of the University of Pennsylvania anymore, leading Bosworth to paint the organization as both the cause of her injuries and unsympathetic to them, defendants argued. The lawsuit was specific to her medical treatment and not whether she had been wrongly terminated.
Judge Anne Lazarus said Bosworth’s conduct warranted a mistrial had one been properly requested.
“I find it apparent, as did the trial court, that Plaintiff’s counsel thought there was something to be gained through repeated reference to Melendez’s termination from Penn, so much so that he chose to refer to it with his final words to the jury,” Lazarus wrote in a concurring opinion.
“This line of argument was improper, and I agree with the Honorable Craig R. Levin’s accusation that Plaintiff’s counsel referenced Melendez’s termination specifically to inflame the jury.”
Levin and Bosworth routinely clashed during the trial, with Levin at first telling Bosworth to stop using the word “fired.” He switched to “terminated,” asked Melendez about her split from HUP and at the close of trial said HUP “kicked her to the curb and now they dragged her through the mud.”
What was requested was a curative instruction to the jury and not a mistrial.
“I just don’t understand you, Mr. Bosworth,” Levin told him. “You get an inch and you take 10 yards… You were lucky enough to get an agreed-upon jury charge which didn’t really call into account some of your behavior in this trial. But now, because you just couldn’t help yourself, I have to now instruct the jury specifically, and I’m going to instruct them specifically they’re to ignore those comments.”
“Which comments,” Bosworth asked.
“The comments how they kicked her to the curb, they fired her,” Levin answered.
“They did fire her,” Bosworth said.
This exchange broke the dam on whatever Levin was holding in, as he told Bosworth that his behavior during portions of the trial “has been deplorable” and that he has to fix the damage to avoid a mistrial.
After an apology, Levin said he was tired of his apologies and that Bosworth had “put the judge in a bad situation.” Still, the jury awarded Melendez almost $18.5 million, and the Superior Court rejected several arguments made by the defendants on appeal.
They failed to object to Bosworth’s opening statement and did not move for a mistrial at the time, and they did not seek a mistrial during questioning about Melendez’s termination or at the conclusion of the trial, the Superior Court found.
Bosworth worked at the firm Kline & Specter before a messy split and three years ago was ordered to pay a defendant almost $20,000 for his conduct during depositions. A federal judge found he had made “countless” improper objections, coached his witnesses and testified himself.