Medical Malpractice Verdict Overturned Due to “Improper Conduct” of Trial Judge

In an unsigned order issued on Wednesday, the Appellate Division, Second Department, overturned a medical malpractice verdict on grounds that the trial judge had engaged in behavior meant “to interrupt, patronize and admonish” the attorney for the plaintiff. The appeals court ordered a fresh trial with a new judge.

The plaintiff, Teresa Porcelli, had brought a malpractice claim against physician Melissa Tsai, along with reinstating a cause of action for vicarious liability against Northern Westchester Hospital Center, the organization employing the physician.


Porcelli’s original complaint made in 2003 accused Tsai of negligently inserting an endotracheal tube in Porcelli’s newborn. Tsai was acquitted of any liability by a jury in 2011, in the trial whose proceedings were appealed against. In a separate judgment, the trial judge, Supreme Court Justice Mary Smith, dismissed all claims of direct and vicarious liability against the hospital that employed Tsai.

Porcelli appealed against both decisions arguing that the trial judge had acted erroneously.

On Wednesday, the Appellate Division, Second Department concurred and observed, “the trial justice’s excessive intervention in the proceedings, as well as the cumulative effect of the trial court’s improper conduct, deprived the plaintiff of her right to a fair trial.”

In the decision, the Appellate Division, Second Department noted a number of altercations between Porcelli’s lawyer, Anthony Pirrotti, and the trial judge that happened before the jury, raising the chances of the jury becoming influenced. On different occasions the trial judge questioned the conduct of Porcelli’s lawyer and made comments sufficient to influence his standing before the eyes of the jury.

On one occasion, Justice Smith told Pirrotti to “tone down the histrionics,” and on another she expressed that she was confused by Pirrotti’s questioning terming one of his questions as “not very good.” On another occasion, the judge told the plaintiff’s lawyer in front of the jury to “go review the books tonight.”

The court held that the trial judge was required to maintain an impartial attitude before the jury, and also act impartially, even though noting that Pirotti, “may have been overly aggressive.”

The neat result of the exchanges between the plaintiff’s lawyer and the trial judge, according to the Appellate Division, Second Department, was that “the jury could not have considered the issues at trial in a fair, calm and unprejudiced manner.”

The case is Porcelli v. Northern Westchester Hospital Center, New York State Supreme Court, Appellate Division, Second Department, No. 2012-151.