The opinion of the court was delivered by: NORMA SHAPIRO, Senior District Judge
Vincent and Rebecca McCalla brought an action against Dr. Therese Alban
for negligently performing Lasik eye surgery on Vincent McCalla
("McCalla") at Nusight Vision Centers/Millenium Laser Eye Centers. Lasik
eye surgery involves two steps. First, cutting a flap in the cornea and
second projecting a laser into the eye (laser ablation). Opthamologist
Brian Marr, M.D., who was dismissed from this action, began the Lasik
procedure on McCalla's right eye on October 12, 2000. Dr. Marr
encountered a complication while cutting the corneal flap in McCalla's
right eye and could not perform the laser portion of the surgery that
day. McCalla was told to wait three months and return for a second
On January 5, 2001, McCalla returned for surgery; Dr. Alban was the
opthamologist assigned to perform McCalla's surgery. Dr. Alban was aware
of the prior aborted procedure and intended to
make a larger and deeper cut on the right eye to encompass the
original flap in diameter and depth. Dr. Alban encountered a problem when
the cut she made to the cornea intersected with the flap Dr. Marr had
cut. She attempted to smooth the corneal stromal bed, but in the process,
removed some tissue from the eye. She completed the right eye and
proceeded with the Lasik procedure without complication on McCalla's left
Plaintiffs asserted it was a breach of the standard of care for Dr.
Alban to continue with the surgery after the flap complication.
Plaintiffs argued that McCalla suffered headaches and permanent irregular
astigmatism resulting from the surgery, must wear a contact lense in his
right eye to correct his vision, and is unable to wear glasses.
A jury trial was held on October 27, 2003. Dr. Alban's expert testified
that her choice in proceeding with McCalla's surgery was appropriate.
Witnesses for the plaintiffs testified that Dr. Alban should have aborted
the surgery when she encountered the intersecting flap. On October 29,
the jury returned a verdict in favor of Dr. Alban. Plaintiffs, filing a
timely motion for new trial, argue that improper and prejudicial remarks
were made by defendant's counsel during closing argument.
Whether conduct by counsel warrants a new trial is within the
discretion of the trial court. Fineman v. Armstrong World
Industries, Inc., 980 F.2d 171, 207 (3d Cir. 1992). Not
all improper remarks are so prejudicial that they require a new trial.
The test is "whether the improper assertions have made it `reasonably
probable' that the verdict was influenced by prejudicial statements."
Id. (quoting Draper v. Airco, Inc., 580 F.2d 91, 95
(3d Cir. 1978)). The court looks to the cumulative effect of the
statements to determine if the verdict was improperly influenced.
Davis v. General Accident Ins. Co. Of Am., 153 F. Supp.2d 598,
602 (E.D. Pa. 2001).
Plaintiffs first object to defense counsel's comment on plaintiffs'
failure to call a witness. Prior to trial Vincent McCalla had been
examined by Dr. Kremer, but plaintiffs did not call Dr. Kremer as a
witness. Noting Dr. Kremer's absence, defense counsel stated during
closing argument, "And by the way, where is Dr. Kremer? Don't you think
if Dr. Kremer had something helpful to say [for Mr. McCalla] . . . don't
you think he would be here?" Plaintiffs' counsel immediately
objected and the court instructed the jury that Dr. Kremer was "equally
under the control of the plaintiff and the defendant, the defendant could
also have brought in Dr. Kremer, if he had something favorable to the
defendants, therefore, I'll sustain your objection." The court also
repeated this instruction at the end of trial.
The court cured any unfair influence the statement might
have had. See, e.g., United States v. Thornton,
1 F.3d 149, 155 (3d Cir. 1993). Defense counsel's reference to plaintiffs'
failure to call Dr. Kremer as a witness is not grounds for new trial.
Plaintiffs next argue that defense counsel made "derogatory remarks
regarding opposing counsel's veracity and integrity." Defense counsel
stated that had Dr. Alban aborted the procedure and subjected McCalla to
a third, more complicated surgery, as plaintiff contended she should
have, "Ms. Giordano would be in the courtroom now suing her for that."
Defendant argues this statement was not meant to inflame the jury or
attack counsel, but to refer to the difficult professional decision Dr.
Alban faced when performing the surgery on Mr. McCalla. This singular
statement was not sufficiently inflammatory or egregious to warrant a new
trial. Anastasio v. Schering Corp., 838 F.2d 701, 706 (3d Cir.
1988); cf. Fineman, 980 F.2d at 207 (plaintiff's counsel made
numerous "vituperative" statements regarding opposing counsel and other
"impassioned" inappropriate statements).
Plaintiffs also argue that defense counsel made an improper comment
that Dr. Alban had never been sued before. When plaintiffs objected, to
this comment, the court instructed the jury to ignore the comment and any
other comment invoking sympathy or bias; this was sufficiently curative.
Plaintiffs assert that defense counsel attempted to engender
sympathy towards defendant by questioning her about her emotional
stress on failing the medical specialty board examinations the first time
she took them. This was not an appeal to sympathy but a response to
plaintiffs' repeated attempts to discredit Dr. Alban. Even if it were an
appeal to sympathy, the court instructed the ...