Kravitz v. Long Island Jewish-Hillside Medical Center

Brown, J. (dissenting).

The majority would grant a new trial on the issue of damages upon the ground that the admission of opinion testimony with regard to plaintiff’s credibility, in the absence of a direct attack on his character relating to veracity, was erroneous. The objectionable evidence, as indicated by the majority, consisted of testimony on redirect examination by plaintiff’s long-time family physician who had been called as an expert witness and who was permitted to testify, over objection, that in his practice he had treated patients who were malingerers and that in his opinion plaintiff was "a very stable type of individual who would not try to pull the wool over my eyes”.

It seems to me, however, that appellants’ counsel, by posing a series of questions to plaintiff’s doctor during cross-examination which were clearly intended to imply that plaintiff was lying with regard to his claims of pain and suffering and to discredit the testimony of the physician, had opened the door to the testimony to which he and my colleagues in the majority object. After the plaintiff’s physician had admitted that the complaints plaintiff had made to him were subjective, defense counsel continued this line of inquiry, asking "In other words, there is no test that you can do to verify whether or not what Mr. Kravitz is complaining about is true?” The witness responded "There’s no test”, but was cut off by counsel when he attempted to add a comment to his answer. Later, defense counsel again took up this line of questioning, asking the witness whether it was only as a result of plaintiff telling *585him that his abdomen bothered him that he was able to form his opinion as to the cause of pain. The witness answered affirmatively. When he was again asked if there was any test to verify his opinion, the physician stated that "since there is no test that can be done, you have to know your patient”, and attempted to state that he knew plaintiff to be very stable, but was cut off by counsel. Thus, on cross-examination, defense counsel was able to severely discredit the testimony of the physician by implying that the plaintiff had lied to him and that his opinion was formed without any basis. Therefore, I submit that it was proper for plaintiff’s doctor to testify on redirect examination that, notwithstanding the lack of an objective test, based upon both his general medical experience and his professional relationship with his patient, plaintiff was not, in his opinion, a malingerer. Where an opposing party opens the door on cross-examination to matters not touched upon during direct examination, by, for example, pointing out apparent inconsistencies in a witness’ statements in an attempt to discredit his testimony, a party has a right on redirect to explain, clarify, or fully elicit the question only partially explored on cross-examination (People v Melendez, 55 NY2d 445, 451; People v Regina, 19 NY2d 65, 78). In this case, plaintiff was entitled to have his witness explain the manner in which he formed his opinion that plaintiff was not simply lying to him about his pain and suffering.

Moreover, even assuming that the testimony to which the majority objects was erroneously admitted, I would conclude that any such error must be viewed as harmless under the facts of this case. Directly following the admission of the disputed testimony, the following exchange occurred:

"Q. Doctor, in your opinion was Mr. Kravitz a malingerer or a faker or an exaggerator in any sense of the word regarding these matters that he has talked to you about?
"mr. brown: [Defense counsel] Objection, your Honor, it is a question for the jury.
"the court: I will allow it.
"A. He is not. He is a very stable, trustworthy individual. "mr. brown: Objection. Move to strike.
"the court: The latter statement I will strike”.

Thus, within minutes of the admission of the allegedly erroneous testimony, the court granted a motion to strike this virtually identical testimony relating to the witness’ opinion of plaintiff’s character. Although no request was made at that *586time for curative instructions to the jury, the striking of the evidence was the equivalent of an instruction to the jury to disregard it (see, 8 Carmody-Wait 2d, NY Prac § 59:34). Therefore, in the absence of a request by defense counsel for further instruction, it must be assumed that he was satisfied that the jury would disregard this latter testimony. That being so, I cannot conclude that the prior admission of the virtually identical testimony substantially affected the outcome of the case. If the jury disregarded the latter testimony of the expert witness as to plaintiff’s character, the earlier admission of similar testimony must be deemed harmless.

Accordingly, I dissent and vote to affirm the judgment appealed from.

Bracken and O’Connor, JJ., concur with Lazer, J. P.; Brown, J., dissents and votes to affirm the judgment appealed from, with an opinion.

Judgment of the Supreme Court, Nassau County, dated December 14, 1983, reversed, on the law, and in the interest of justice, and new trial granted on the issue of damages only, with costs to abide the event.