What if it was a bench trial?

Kelly v Metropolitan Ins. & Annuity Co., 2011 NY Slip Op 00417 (App. Div., 1st 2011)

But rather than issuing a simple curative instruction, as would have been appropriate under the circumstances, the court interrogated each of the jurors individually concerning the nature of the gesture or sigh made by the expert. This protracted episode left the jurors with the distinct and unmistakable impression that the court disapproved of plaintiffs' expert and credited none of her testimony. Indeed, shortly following this interrogation, the court threatened to preclude plaintiffs' expert from testifying further, leaving plaintiffs without expert testimony on the crucial issue of defendants' negligence.

This prejudicial treatment of plaintiffs' expert is to be contrasted with the court's treatment of the defense expert, whom the court accorded wide latitude. Notably, the court did not similarly chide the defense's expert when he transgressed courtroom protocol. Defendant's expert, during direct, inappropriately interjected that the infant plaintiff "[p]robably should have left the [training wheels] on to begin with," a gratuitous statement intended to undermine the court's ruling that in light of the infant's age, neither he nor his parents could be considered comparatively negligent. This statement, in direct contravention of the court's ruling, arguably tainted the jury, and, unlike plaintiffs' expert's "sigh" or gesticulation, was an unambiguous statement, uttered directly to and intended to prejudice the jury. Indeed, plaintiffs' counsel pointed out that, in contradistinction to plaintiffs' expert, the defense expert had "intentionally responded . . . having nothing to do with the question to insert his opinion about the happening of the accident in the first place." The court agreed that the actions of the expert were "egregious," but nonetheless denied the plaintiffs' motion to strike his testimony, issuing instead a simple curative instruction.

The prejudice was compounded by the failure of the trial court to give the charge requested by plaintiffs, i.e., that the absence of a building code violation is not tantamount to the absence of negligence. This left the jury with the distinct impression that defendants' compliance with the building code was a defense to liability.

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Because these errors served cumulatively to deprive plaintiffs of a fair trial, we hereby modify the judgment as indicated, and order a new trial.

The bold is mine.