Lumerman v. Dikoff

BURKE, P. J. In this action three plaintiffs seek damages for personal injuries resulting from a freeway accident in which their ear, which had been stopped by traffic conditions, was “rear-ended” by defendant’s car. The case was tried to a jury and a defense verdict resulted.

As a basis for appeal plaintiffs complain of an incident at the trial which occurred at 18 minutes before the 12 o’clock recess when counsel for the defense approached the bench and out of the hearing of the jury moved that the defense be given an opportunity to have its heart specialist examine one of the plaintiffs, Joseph H. Lumer, during the noon recess. This motion was opposed by counsel for plaintiffs upon the basis that the motion was not timely made; the defense had known through discovery proceedings that this plaintiff had had a preexisting heart condition and that the testimony given concerning this condition could not have come to defense counsel unexpectedly or through surprise. Plaintiffs’ counsel further argued that if such permission were to be granted by the court it would mean that plaintiffs would then be put in the position of having to ask for a recess and an opportunity to have their own expert reexamine Mr. Lumer.

The trial judge indicated that since plaintiffs’ counsel objected to the examination if a specialist called by plaintiffs was to give testimony based only on his review of the hospital records and cardiograms in evidence “the jury will be entitled to know he has not examined the patient, and that the patient has refused to be examined. ’ ’ Counsel for plaintiffs indicated he thought “that would prejudice the jury against us.” The [492]court remarked, “It might well do so.” The court took the motion under submission. Prior to the noon recess counsel were advised out of the presence of the jury that the motion was denied.

After plaintiffs had rested, the defense called plaintiffs’ attorney to the stand as a defense witness and asked him, “Mr. Brownfield, it is a fact that shortly before noon today you refused to agree to allow Mr. Joseph Lumer to be examined by Dr. La Joie; is that not correct?” Counsel replied, “This is not true. This matter was heard before the judge and the judge decided that this request was an improper one.” The examination continued:

“Q. Did you object to my request?

“The Court: Just a moment, please. You may answer the question yes or no.