Lawyer's Line of Questioning Prompts Fine, Causes Mistrial

, New York Law Journal

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Wilson Elser Moskowitz Edelman & Dicker has been ordered to pay its adversary as much as $35,800 in legal fees and costs after a judge found a Wilson Elser attorney repeatedly asked inappropriate questions in court, leading to a mistrial in a nursing home negligence case.

Suffolk County Acting Supreme Court Justice Jeffrey Spinner (See Profile) said Elizabeth Sandonato, of counsel at Wilson Elser who represented the nursing home, repeatedly and inappropriately referenced the psychiatric history of a deceased woman whose estate was suing the facility.

"The conduct by Sandonato was sufficiently prejudicial and poisoned the jury," Spinner said in Marx v. Rosalind, 06-117.

Wilson Elser represented the Rosalind and Joseph Gurwin Jewish Geriatric Center of Long Island. The estate of Ruth Wiener sued the nursing home for pain, suffering and negligence after Wiener died there in February 2005. The estate claimed she suffered from injuries such as bed sores.

During trial in August 2013, Marissa Wiener described her mother-in-law's care and treatment, her activities and her pain.

Sandonato's questions on cross examination prompted her adversary, Justin Varughese, an associate at Parker Waichman, to raise 27 objections to questions he called prejudicial. For example, Sandonato multiple times questioned the patient's behavior, whether she refused care and medication. The judge sustained Varughese's objections.

The following day, Wiener's daughter, Arlene Marx, testified about the home's alleged inadequate attention to her mother's basic needs, such as failing to change her, putting a call bell out of her reach, and leaving her in a wheelchair slumped over and in pain.

Sandonato asked Marx in several ways whether it was true her mother was transferred to a psychiatric facility. At a couple of points, she referred to medical documents and asked Marx if they refreshed her memory about her mother's transfer to a psychiatric facility or her transfer from the facility to the hospital. Varughese objected 14 times during the testimony.

At recess, Varughese reserved the right to move for a mistrial based upon Sandonato's cross-examination of Marx and asked the court to give instructions to the jury to disregard the psychiatric history discussion.

Spinner then said in court that for a case of alleged nursing home negligence, with no claim for emotional distresses or physical abuse by the defendants, the case is limited to the bed sores allegation and physical injury to Wiener's left heel.

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