On November 14, 2017 a
EXHIBIT(S) - L (Motion #31) - Transcript of Hearing on Motion for Mistrial dated October 17, 2022
was filed
involving a dispute between
Emmett Harris,
and
Andrew Tisser Do,
Emergency Medicine Associates Ipa, Inc.,,
Emergency Physician Services Of New York Pc,
Erik N Zeiner Rn,
John Ellis Md,
Lori A Kosakawski Tech,
Michael Garcia Do,
Michele Lisi Md,
Northeast Er Physicians Pa,
Patricia Lane Md,
Radiology Associates Of New Hartford Llp,
Rebecca Ende Rn,
Robert Singletary Md,
Rome Memorial Hospital,
Sahar Shiraj Md,
Sheila Marano Np,
Suny Upstate Medical Hospital,
Thomas K. Weidman Md,
Upstate Emergency Medicine, Inc.,
Virtual Radiologic Corporation,
Virtual Radiologic Professionals, Llc,
Virtual Radiologic Professionals Of New York, P.A., Pc,
Yvonne Moreno Md,
for Torts - Medical, Dental, or Podiatrist Malpractice
in the District Court of Oneida County.
Preview
FILED: ONEIDA COUNTY CLERK 08/17/2023 06:06 PM INDEX NO. EFCA2017-002388
NYSCEF DOC. NO. 813 RECEIVED NYSCEF: 08/17/2023
STATE OF NEW YORK FIFTH JUDICIAL DISTRICT
SUPREME COURT COUNTY OF ONEIDA
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * +
EMMETT HARRIS,
Plaintiff,
- against -
ROME MEMORIAL HOSPITAL, by and through its Agents, Officers
and/or Employees; JOHN ELLIS, M.D., Individually and as an
Agent, Officer and/or Employee of Rome Medical Radiology d/b/a
Radiology Associates of New Hartford, LLP; UPSTATE EMERGENCY
MEDICINE, INC., by and through its Agents, Officers and/or
Employees; THOMAS K. WEIDMAN, M.D., Individually and as an
Agent, Officer and/or Employee of Upstate University Hospital
and/or Upstate Emergency Medicine, Inc.; RADIOLOGY ASSOCIATES OF
NEW HARTFORD, LLP, by and through its Agents, Officers and/or
Employees and EMERGENCY PHYSICIAN SERVICES OF NEW YORK, P.C., by
and through its Agents, officers and/or Employees.
Defendants.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Index No.: EFCA2017-002388
RJI No.: 32-18-0051
Motions for Mistrial
Oneida County Courthouse
Utica, New York 13501
October 17, 2022
HELD BEFORE:
THE HONORABLE SCOTT J. DEL CONTE
SUPREME COURT JUSTICE
APPEARANCES:
JOHN C. CHERUNDOLO, ESQ.
MARTIN DUFFEY, ESQ.
ALLISON CHERUNDOLO, ESQ.
Attorneys for Plaintiff
Therese Plante, CSR, RPR
Senior Court Reporter
FILED: ONEIDA COUNTY CLERK 08/17/2023 06:06 PM INDEX NO. EFCA2017-002388
NYSCEF DOC. NO. 813 RECEIVED NYSCEF: 08/17/2023
APPEARANCES CONTINUED:
KIRSTEN A. KROFT, ESQ.
Attorney for Defendant Rome Memorial Hospital
CHRISTIAN TAYLOR PAYNE, ESQ.
Attorney for Defendants John Ellis, M.D. and
Radiology Associates of New Hartford, LLP
ZACHARY MATTISON, ESQ.
Attorney for Defendants Upstate Emergency
Medicine and Thomas K. Weidman, M.D.
COLLEEN K. MATTREY, ESQ.
Attorney for Defendant Michele Lisi, M.D.
JOHN PHELAN, ESQ.
Attorney for Defendant Emergency Physician
Services of New York, P.C.
Reported By:
Therese Plante, CSR, RPR
Senior Court Reporter
FILED: ONEIDA COUNTY CLERK 08/17/2023 06:06 PM INDEX NO. EFCA2017-002388
NYSCEF DOC. NO. 813 RECEIVED NYSCEF: 08/17/2023
3
1 THE COURT: We're on the record. Miss Myers.
2 THE CLERK: We're here today in a virtual courtroom
3 of the New York State Supreme Court, Oneida County in the
4 Matter of Emmett Harris vs. Rome Memorial Hospital, et al.
5 under Index No. EFCA 2017-002388. Will counsel please state
6 your names and appearances for the record?
7 MR. CHERUNDOLO: John Cherundolo, Marty Duffey and
8 Alice Cherundolo on behalf of the plaintiff.
9 MR. PAYNE: Taylor Payne on behalf of Dr. John
10 Ellis and Radiology Associates of New Hartford, LLP.
11 MS. KROFT: Kirsten Kroft on behalf of Rome
12 Memorial Hospital.
13 MR. MATTISON: Zach Mattison from the Sugarman Law
14 Firm on behalf of Dr. Weidman and Upstate Emergency
15 Medicine, Inc.
16 MR. PHELAN: Jack Phelan and Tim Tripp on behalf of
17 Emergency Physician Services of New York, PC.
18 MS. MATTREY: Colleen Mattrey on behalf of Michele
19 Lisi, MD.
20 THE COURT: Thank you, Counsel. We are in the
21 virtual courtroom this afternoon while this jury trial is on
22 pause. The jury trial has been on pause since Tuesday
23 evening of last week when one of our attorneys reported a
24 positive test for COVID. A second attorney reported a
25 positive test for COVID on Friday. This morning, we learned
FILED: ONEIDA COUNTY CLERK 08/17/2023 06:06 PM INDEX NO. EFCA2017-002388
NYSCEF DOC. NO. 813 RECEIVED NYSCEF: 08/17/2023
4
1 that one of our jurors tested positive for COVID over the
2 weekend. And it was also reported from Miss Mattrey that
3 Defendant, Michele Lisi, has reported positive for COVID.
4 I have conferenced this matter with Counsel since
5 we've been on pause three times I believe virtually. And
6 I understand that, at this juncture, Attorney Mattrey on
7 behalf of Dr. Lisi wishes to make an oral motion.
8 Miss Mattrey.
9 MS. MATTREY: Yes, Your Honor. We have discussed
10 in our conferences, at this point, we are making an
11 application under CPLR 4402 for a mistrial and for a new
12 trial to be scheduled at a date to be agreed upon by the
13 parties.
14 As Your Honor indicated, due to the various COVID
15 diagnoses of attorneys, parties and a juror, in addition to
16 the pushing back of the pause back into potentially
17 November, I myself am running into a scheduling issue with
18 my expert who is unavailable to appear. So at this point, I
19 would ask in the interests of justice that a mistrial be
20 granted.
21 THE COURT: I will hear from any other defense
22 counsel who wish to join in that motion. And then,
23 Mr. Cherundolo, I will hear from you if you are in
24 opposition. So defense counsel?
25 MR. PAYNE: And I join in that application on
FILED: ONEIDA COUNTY CLERK 08/17/2023 06:06 PM INDEX NO. EFCA2017-002388
NYSCEF DOC. NO. 813 RECEIVED NYSCEF: 08/17/2023
5
1 behalf of Dr. Ellis and Radiology Associates of New Hartford
2 given my expert's unavailability going into the week of
3 October 31st and the fact that we were basically
4 scheduled -- you we were at
know, looking early next week,
5 and that's the availability that expert had. And so we're
6 really up against it in that situation in terms of expert
7 availability issues. And the substantial prejudice to take
8 in two defense experts out of order, potentially out of
9 order, and clients out of order during the plaintiff's case
10 in chief is, to me, it's substantially prejudicial.
11 THE COURT: Thank you, Mr. Payne. Miss Kroft?
12 MS. KROFT: I am going to join in the application
13 as the expert who is unavailable to testify is a joint
14 defense causation expert and, therefore, the unavailability
15 of that expert would substantially prejudice my client as
16 well, Your Honor.
17 THE COURT: Mr. Phelan?
18 MR. PHELAN: On behalf of Emergency Physician
19 Services of New York, I would join for the reasons stated.
20 THE COURT: Mr. Mattison?
21 MR. MATTISON: And I do as well, Your Honor, on
22 behalf of my client join in the motion for the reasons set
23 forth by my colleagues.
24 THE COURT: Mr. Cherundolo?
25 MR. CHERUNDOLO: Judge, we object to the motion for
FILED: ONEIDA COUNTY CLERK 08/17/2023 06:06 PM INDEX NO. EFCA2017-002388
NYSCEF DOC. NO. 813 RECEIVED NYSCEF: 08/17/2023
6
1 the purposes that we've already described to the Court.
2 However, I do understand the scheduling issues that's been
3 presented for the pause that has taken place.
4 So I just would ask that there be part of the order
5 from the Court if the Court is inclined to grant the
6 mistrial under 4402 that there be no cost to any party and
7 that there be no prejudice to setting a new trial date in
8 Supreme Court Oneida County at sometime in the future so
9 that the case can proceed, hopefully, to a jury verdict at
10 that time.
11 Other than that, I don't think I have anything else
12 to add that we haven't discussed previously, Your Honor.
13 THE COURT: You mentioned earlier you wanted to
14 reserve a right to make a motion in the event the Court does
15 grant the mistrial request, Mr. Cherundolo.
16 MR. CHERUNDOLO: That is true, Judge. We would
17 like to reserve the right to -- now I'm a brain
having
18 block. What am I asking, Marty?
19 (Discussion off the record.)
20 MR. CHERUNDOLO: Oh, that none of the live
21 testimony that has been presented be used in a second trial
22 of this case. I don't know if this is the proper time to
23 bring it up or at a later time. I guess I would reserve my
24 right to bring that motion at a later time before this Court
25 with regard to not using any of the testimony up to date in
FILED: ONEIDA COUNTY CLERK 08/17/2023 06:06 PM INDEX NO. EFCA2017-002388
NYSCEF DOC. NO. 813 RECEIVED NYSCEF: 08/17/2023
7
1 this case at a future trial.
2 THE COURT: All right. So, defense counsel, there
3 has been a request in the event the Court grants the
4 mistrial that Mr. Cherundolo reserves his right to make an
5 additional request as to the use of live trial testimony.
6 And that would be Dr. Haber and Dr. Weidman, who was in the
7 midst of testifying while this application is now presented
8 to the Court.
9 Is there any objection from our defense counsel to
10 Mr. Cherundolo's reservation of his rights to file a
11 subsequent motion on those issues?
12 MR. PHELAN: No, Your Honor.
13 MR. PAYNE: No.
14 MR. MATTISON: No objection.
15 THE COURT: Mr. Cherundolo reserves his right on
16 behalf of his client, Emmett Harris, to make a subsequent
17 motion regarding the use of the live trial testimony at a
18 subsequent trial if the mistrial is granted.
19 One last piece for our record. Under our current
20 court protocols, anyone who has tested positive for COVID is
21 prohibited from entering the courtroom for five days. After
22 the five days expire, those individuals must wear masks for
23 ten days.
24 So Mr. Cherundolo and Mr. Duffey, you would have to
25 wear a mask for the next 10 days when we return to the
FILED: ONEIDA COUNTY CLERK 08/17/2023 06:06 PM INDEX NO. EFCA2017-002388
NYSCEF DOC. NO. 813 RECEIVED NYSCEF: 08/17/2023
8
1 courtroom.
2 All right. Is there anything further for the
3 record because I am going to reserve on the motion?
4 MR. CHERUNDOLO: We don't have anything further,
5 Judge.
6 MS. MATTREY: No.
7 MR. PHELAN: No, Your Honor.
8 THE COURT: I'm reserving on the motion and will
9 issue a decision shortly. So we are now off the record.
10 Thanks, Therese.
11 (Discussion off the record.)
12 (Whereupon, the proceedings were concluded.)
13
14
15 C E R T I F I C A T I O N
16
17 The foregoing is a true and accurate transcript of my
18 stenographic notes in the above-entitled matter.
19 ted: 16, 2023.
20
21
Therese lante/Senior CourÉ Reporter .
22
23
24
25
Preview
FILED: ONEIDA COUNTY CLERK 08/17/2023 06:06 PM INDEX NO. EFCA2017-002388 NYSCEF DOC. NO. 813 RECEIVED NYSCEF: 08/17/2023 STATE OF NEW YORK FIFTH JUDICIAL DISTRICT SUPREME COURT COUNTY OF ONEIDA * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * + EMMETT HARRIS, Plaintiff, - against - ROME MEMORIAL HOSPITAL, by and through its Agents, Officers and/or Employees; JOHN ELLIS, M.D., Individually and as an Agent, Officer and/or Employee of Rome Medical Radiology d/b/a Radiology Associates of New Hartford, LLP; UPSTATE EMERGENCY MEDICINE, INC., by and through its Agents, Officers and/or Employees; THOMAS K. WEIDMAN, M.D., Individually and as an Agent, Officer and/or Employee of Upstate University Hospital and/or Upstate Emergency Medicine, Inc.; RADIOLOGY ASSOCIATES OF NEW HARTFORD, LLP, by and through its Agents, Officers and/or Employees and EMERGENCY PHYSICIAN SERVICES OF NEW YORK, P.C., by and through its Agents, officers and/or Employees. Defendants. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Index No.: EFCA2017-002388 RJI No.: 32-18-0051 Motions for Mistrial Oneida County Courthouse Utica, New York 13501 October 17, 2022 HELD BEFORE: THE HONORABLE SCOTT J. DEL CONTE SUPREME COURT JUSTICE APPEARANCES: JOHN C. CHERUNDOLO, ESQ. MARTIN DUFFEY, ESQ. ALLISON CHERUNDOLO, ESQ. Attorneys for Plaintiff Therese Plante, CSR, RPR Senior Court Reporter FILED: ONEIDA COUNTY CLERK 08/17/2023 06:06 PM INDEX NO. EFCA2017-002388 NYSCEF DOC. NO. 813 RECEIVED NYSCEF: 08/17/2023 APPEARANCES CONTINUED: KIRSTEN A. KROFT, ESQ. Attorney for Defendant Rome Memorial Hospital CHRISTIAN TAYLOR PAYNE, ESQ. Attorney for Defendants John Ellis, M.D. and Radiology Associates of New Hartford, LLP ZACHARY MATTISON, ESQ. Attorney for Defendants Upstate Emergency Medicine and Thomas K. Weidman, M.D. COLLEEN K. MATTREY, ESQ. Attorney for Defendant Michele Lisi, M.D. JOHN PHELAN, ESQ. Attorney for Defendant Emergency Physician Services of New York, P.C. Reported By: Therese Plante, CSR, RPR Senior Court Reporter FILED: ONEIDA COUNTY CLERK 08/17/2023 06:06 PM INDEX NO. EFCA2017-002388 NYSCEF DOC. NO. 813 RECEIVED NYSCEF: 08/17/2023 3 1 THE COURT: We're on the record. Miss Myers. 2 THE CLERK: We're here today in a virtual courtroom 3 of the New York State Supreme Court, Oneida County in the 4 Matter of Emmett Harris vs. Rome Memorial Hospital, et al. 5 under Index No. EFCA 2017-002388. Will counsel please state 6 your names and appearances for the record? 7 MR. CHERUNDOLO: John Cherundolo, Marty Duffey and 8 Alice Cherundolo on behalf of the plaintiff. 9 MR. PAYNE: Taylor Payne on behalf of Dr. John 10 Ellis and Radiology Associates of New Hartford, LLP. 11 MS. KROFT: Kirsten Kroft on behalf of Rome 12 Memorial Hospital. 13 MR. MATTISON: Zach Mattison from the Sugarman Law 14 Firm on behalf of Dr. Weidman and Upstate Emergency 15 Medicine, Inc. 16 MR. PHELAN: Jack Phelan and Tim Tripp on behalf of 17 Emergency Physician Services of New York, PC. 18 MS. MATTREY: Colleen Mattrey on behalf of Michele 19 Lisi, MD. 20 THE COURT: Thank you, Counsel. We are in the 21 virtual courtroom this afternoon while this jury trial is on 22 pause. The jury trial has been on pause since Tuesday 23 evening of last week when one of our attorneys reported a 24 positive test for COVID. A second attorney reported a 25 positive test for COVID on Friday. This morning, we learned FILED: ONEIDA COUNTY CLERK 08/17/2023 06:06 PM INDEX NO. EFCA2017-002388 NYSCEF DOC. NO. 813 RECEIVED NYSCEF: 08/17/2023 4 1 that one of our jurors tested positive for COVID over the 2 weekend. And it was also reported from Miss Mattrey that 3 Defendant, Michele Lisi, has reported positive for COVID. 4 I have conferenced this matter with Counsel since 5 we've been on pause three times I believe virtually. And 6 I understand that, at this juncture, Attorney Mattrey on 7 behalf of Dr. Lisi wishes to make an oral motion. 8 Miss Mattrey. 9 MS. MATTREY: Yes, Your Honor. We have discussed 10 in our conferences, at this point, we are making an 11 application under CPLR 4402 for a mistrial and for a new 12 trial to be scheduled at a date to be agreed upon by the 13 parties. 14 As Your Honor indicated, due to the various COVID 15 diagnoses of attorneys, parties and a juror, in addition to 16 the pushing back of the pause back into potentially 17 November, I myself am running into a scheduling issue with 18 my expert who is unavailable to appear. So at this point, I 19 would ask in the interests of justice that a mistrial be 20 granted. 21 THE COURT: I will hear from any other defense 22 counsel who wish to join in that motion. And then, 23 Mr. Cherundolo, I will hear from you if you are in 24 opposition. So defense counsel? 25 MR. PAYNE: And I join in that application on FILED: ONEIDA COUNTY CLERK 08/17/2023 06:06 PM INDEX NO. EFCA2017-002388 NYSCEF DOC. NO. 813 RECEIVED NYSCEF: 08/17/2023 5 1 behalf of Dr. Ellis and Radiology Associates of New Hartford 2 given my expert's unavailability going into the week of 3 October 31st and the fact that we were basically 4 scheduled -- you we were at know, looking early next week, 5 and that's the availability that expert had. And so we're 6 really up against it in that situation in terms of expert 7 availability issues. And the substantial prejudice to take 8 in two defense experts out of order, potentially out of 9 order, and clients out of order during the plaintiff's case 10 in chief is, to me, it's substantially prejudicial. 11 THE COURT: Thank you, Mr. Payne. Miss Kroft? 12 MS. KROFT: I am going to join in the application 13 as the expert who is unavailable to testify is a joint 14 defense causation expert and, therefore, the unavailability 15 of that expert would substantially prejudice my client as 16 well, Your Honor. 17 THE COURT: Mr. Phelan? 18 MR. PHELAN: On behalf of Emergency Physician 19 Services of New York, I would join for the reasons stated. 20 THE COURT: Mr. Mattison? 21 MR. MATTISON: And I do as well, Your Honor, on 22 behalf of my client join in the motion for the reasons set 23 forth by my colleagues. 24 THE COURT: Mr. Cherundolo? 25 MR. CHERUNDOLO: Judge, we object to the motion for FILED: ONEIDA COUNTY CLERK 08/17/2023 06:06 PM INDEX NO. EFCA2017-002388 NYSCEF DOC. NO. 813 RECEIVED NYSCEF: 08/17/2023 6 1 the purposes that we've already described to the Court. 2 However, I do understand the scheduling issues that's been 3 presented for the pause that has taken place. 4 So I just would ask that there be part of the order 5 from the Court if the Court is inclined to grant the 6 mistrial under 4402 that there be no cost to any party and 7 that there be no prejudice to setting a new trial date in 8 Supreme Court Oneida County at sometime in the future so 9 that the case can proceed, hopefully, to a jury verdict at 10 that time. 11 Other than that, I don't think I have anything else 12 to add that we haven't discussed previously, Your Honor. 13 THE COURT: You mentioned earlier you wanted to 14 reserve a right to make a motion in the event the Court does 15 grant the mistrial request, Mr. Cherundolo. 16 MR. CHERUNDOLO: That is true, Judge. We would 17 like to reserve the right to -- now I'm a brain having 18 block. What am I asking, Marty? 19 (Discussion off the record.) 20 MR. CHERUNDOLO: Oh, that none of the live 21 testimony that has been presented be used in a second trial 22 of this case. I don't know if this is the proper time to 23 bring it up or at a later time. I guess I would reserve my 24 right to bring that motion at a later time before this Court 25 with regard to not using any of the testimony up to date in FILED: ONEIDA COUNTY CLERK 08/17/2023 06:06 PM INDEX NO. EFCA2017-002388 NYSCEF DOC. NO. 813 RECEIVED NYSCEF: 08/17/2023 7 1 this case at a future trial. 2 THE COURT: All right. So, defense counsel, there 3 has been a request in the event the Court grants the 4 mistrial that Mr. Cherundolo reserves his right to make an 5 additional request as to the use of live trial testimony. 6 And that would be Dr. Haber and Dr. Weidman, who was in the 7 midst of testifying while this application is now presented 8 to the Court. 9 Is there any objection from our defense counsel to 10 Mr. Cherundolo's reservation of his rights to file a 11 subsequent motion on those issues? 12 MR. PHELAN: No, Your Honor. 13 MR. PAYNE: No. 14 MR. MATTISON: No objection. 15 THE COURT: Mr. Cherundolo reserves his right on 16 behalf of his client, Emmett Harris, to make a subsequent 17 motion regarding the use of the live trial testimony at a 18 subsequent trial if the mistrial is granted. 19 One last piece for our record. Under our current 20 court protocols, anyone who has tested positive for COVID is 21 prohibited from entering the courtroom for five days. After 22 the five days expire, those individuals must wear masks for 23 ten days. 24 So Mr. Cherundolo and Mr. Duffey, you would have to 25 wear a mask for the next 10 days when we return to the FILED: ONEIDA COUNTY CLERK 08/17/2023 06:06 PM INDEX NO. EFCA2017-002388 NYSCEF DOC. NO. 813 RECEIVED NYSCEF: 08/17/2023 8 1 courtroom. 2 All right. Is there anything further for the 3 record because I am going to reserve on the motion? 4 MR. CHERUNDOLO: We don't have anything further, 5 Judge. 6 MS. MATTREY: No. 7 MR. PHELAN: No, Your Honor. 8 THE COURT: I'm reserving on the motion and will 9 issue a decision shortly. So we are now off the record. 10 Thanks, Therese. 11 (Discussion off the record.) 12 (Whereupon, the proceedings were concluded.) 13 14 15 C E R T I F I C A T I O N 16 17 The foregoing is a true and accurate transcript of my 18 stenographic notes in the above-entitled matter. 19 ted: 16, 2023. 20 21 Therese lante/Senior CourÉ Reporter . 22 23 24 25