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Merker v. Rice

decided: May 26, 1981.

GENE MERKER AND TIMOTHY EBNETH, PLAINTIFFS-APPELLANTS,
v.
ROBIN RICE, GORDON CAR & TRUCK RENTAL, AVIS RENT-A-CAR SYSTEMS, INC., DEFENDANTS-APPELLEES .



Appeal from a judgment of the United States District Court for the Southern District of New York, Thomas P. Griesa, J., dismissing plaintiffs' action for want of prosecution. Reversed and remanded for trial.

Before Feinberg, Chief Judge, Lumbard and Van Graafeiland, Circuit Judges.

Author: Feinberg

Plaintiffs Gene Merker and Timothy Ebneth appeal from a judgment of the United States District Court for the Southern District of New York, Thomas P. Griesa, J., dismissing their action for want of prosecution. Because we conclude that the dismissal constituted an abuse of the district judge's discretion, we reverse and remand the case for trial.

I

Merker and Ebneth were injured in an automobile accident in January 1979, when the car in which they were passengers went out of control and hit the median divider of a highway on Long Island. Following the accident, Ebneth received emergency room treatment for a concussion, bruised ribs, and lacerations; Merker's injuries, including contusions and lacerations, required more than a week's hospitalization. After his release, Merker allegedly continued to suffer from dizziness, headaches, and arm weakness, which compelled him to resign from his job as a cargo agent for Air France in February 1979.

Plaintiffs brought this action in October 1979, alleging that the accident resulted from the "carelessness, recklessness and negligence of the defendants in the ownership(,) operation and control" of the car. After a period of discovery, which was completed with reasonable dispatch, the case was scheduled for trial beginning September 25, 1980. However, when informed that defendants' counsel would be unavailable at that time, the district court rescheduled the case for October 6, a Monday. On Friday, October 3, the clerk of the court informed plaintiffs that the case was to be put over once again, until October 7, because of the continuing unavailability of defendants' counsel. At this point, plaintiffs sought an additional delay because one of their two medical witnesses, Dr. Jesus Cheda, was scheduled to leave the country in the afternoon of October 7. The application was denied, however, and the court directed plaintiffs to proceed with the trial in the morning of October 7, beginning with the testimony of Dr. Cheda.

In accordance with the court's direction, the parties appeared in court on October 7. After the jury was selected and sworn, Judge Griesa explained the unusual order in which testimony would be presented, warning the jury that "(y)ou have to do a little bit in the way of mental gymnastics by taking that testimony (of plaintiff's doctor) and considering it before you have really heard about the accident from the plaintiff, the plaintiffs' standpoint, the events, but I don't think that will present you very much difficulty." Immediately after the opening statements, plaintiffs' counsel called Dr. Cheda to the stand, establishing through direct examination that Dr. Cheda had been plaintiff Merker's personal physician since June 1978, and had treated him both before and after the accident. (He did not, however, treat Merker during the period of hospitalization immediately after the accident.) Dr. Cheda also explained the results of an electroencephalogram administered at the hospital, which indicated a mild right frontal temporal dysfunction.

Counsel then began putting a hypothetical question to Dr. Cheda, designed to ascertain whether such an injury might have been caused by an automobile accident. Before he had framed the question, however, counsel for the defendants objected and the judge excused the jury. Judge Griesa explained that he thought Dr. Cheda's testimony "was an imposition because this doctor has not added anything We have had the jury get a doctor before them who does nothing. If I had known this was going to happen, I would never have permitted it." He then solicited and granted a motion to strike the testimony. Evidently deciding that this alone was not enough, the judge went on:

THE COURT: The problem is that the defense was absolutely right. The case should have proceeded with a factual presentation of the plaintiffs' evidence about the nature of the accident and it should not have started with a damage witness or a doctor unless that doctor was essential, had evidence which could not have been presented in any other way, and the doctor could not testify at any other time than this time.

I was under the impression that this doctor was an essential, necessary witness. It is the only reason I overruled the objection of the defense. This doctor was not an essential and necessary witness. He has done practically nothing but read (hospital) records His testimony about his own examinations and treatments of the plaintiff was virtually trivial and I just sat here in amazement of this.

I think there has been an unfairness here and I am not going to countenance it. I don't think you can rectify it by striking the testimony. What is the jury supposed to do, ignore all of this and reorient itself?

I think there has to be a mistrial, we have to select a new jury and I would impose costs on the plaintiff.

MR. LANZA (Defense counsel): I ...


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