Ward v. Kovacs
1977 N.Y. App. Div. LEXIS 9987, 55 A.D.2d 391, 390 N.Y.S.2d 931 (1977)
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Rule of Law:
Under CPLR 4519, the Dead Man's Statute's prohibition on an interested party's testimony is waived when testimony from the deceased person concerning the same transaction is 'given in evidence,' regardless of which party introduces it. A new trial is warranted when a general verdict may have been predicated on an erroneous jury charge, improperly excluded expert testimony, or prejudicial references to insurance.
Facts:
- On September 12, 1968, a 24-year-old plaintiff sustained a minor, non-bleeding cut on her finger.
- The next day, the finger became red and swollen, prompting her to visit Dr. Kovacs.
- The plaintiff testified that Dr. Kovacs gave her penicillin tablets and instructions for a cold compress; Dr. Kovacs's pre-trial deposition stated he also administered a penicillin injection, which the plaintiff denied receiving.
- That evening, the plaintiff's condition worsened, with increased swelling, severe pain, and a fever. She claimed she telephoned Dr. Kovacs, who prescribed a painkiller, Darvon, over the phone and told her to go to bed.
- In his deposition, Dr. Kovacs did not recall the phone call but stated that if he had received such a call, he would have instructed her to come to his office.
- The following day, after several calls to his office by the plaintiff's neighbors, Dr. Kovacs visited her at 5:00 p.m. and found a 'fulminating streptococcus infection.'
- Dr. Kovacs immediately had the plaintiff evacuated to a hospital for treatment.
- Due to the severe infection and resulting gangrene, the plaintiff underwent six operations, including the amputation of her middle finger and partial amputation of three other fingers, rendering her hand functionally useless.
Procedural Posture:
- The plaintiff sued the estate of Dr. Kovacs for medical malpractice in the Supreme Court of Suffolk County, the trial court of first instance.
- The case was tried before a jury.
- The jury returned a general verdict for the plaintiff, awarding her $500,000 in damages.
- The defendant, Dr. Kovacs's estate, appealed the judgment to the Appellate Division of the Supreme Court.
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Issue:
Does New York's Dead Man's Statute (CPLR 4519) prohibit an interested party from testifying about a personal transaction with a deceased person after the interested party herself introduces the deceased's deposition testimony concerning that same transaction?
Opinions:
Majority - Gulotta, P. J.
No. The Dead Man's Statute does not prohibit an interested party's testimony where the deceased's own testimony is given in evidence, regardless of who introduces it. The plain language of CPLR 4519 contains an exception when 'the testimony of the...deceased person is given in evidence,' without specifying which party must introduce it. The court criticized the Dead Man's Statute as an outdated rule that obstructs the search for truth. Since the decedent, Dr. Kovacs, had already provided his version of events under oath in a deposition, the primary rationale for the statute—to protect the decedent's estate from claims that cannot be refuted—is significantly weakened. Allowing the plaintiff to introduce the deposition and then testify promotes disclosure and the search for truth over a trial strategy of concealment. However, the judgment is reversed on other grounds, including: (1) an erroneous jury charge that improperly removed a question of fact from the jury's consideration; (2) the improper exclusion of expert testimony regarding the plaintiff's LSD use as a potential contributing factor; and (3) repeated, prejudicial references to insurance by a witness that warranted a mistrial.
Concurring - Shapiro, J.
I concur in the result but disagree with the majority's reasoning regarding the Dead Man's Statute. The plaintiff should not be permitted to unilaterally waive the statute's protection by introducing the decedent's deposition as part of her own case. This 'bootstrap' operation effectively allows a party to circumvent the statute's purpose. The majority's interpretation amounts to judicial legislation. If CPLR 4519 is an outdated and deplorable rule, as commentators suggest, its repeal is a matter for the Legislature, not the courts. The reversal and new trial are appropriate due to the other substantial trial errors identified by the majority.
Analysis:
This decision represents a significant, liberal interpretation of an exception to the Dead Man's Statute, challenging the traditional view that only the decedent's estate can 'open the door' to testimony from an interested party. By prioritizing the search for truth over the statute's protective function, the court allows a claimant to strategically introduce a decedent's deposition to enable their own testimony. The sharp disagreement in the concurrence, however, signals that this is a contentious issue, suggesting the holding might not be uniformly adopted and highlights the ongoing debate about the fairness and utility of the Dead Man's Statute in modern litigation.
