In a case decided on January 22, 2009, the Appellate Division, Third Department, affirmed the trial court's granting of plaintiff's motion to set aside a defense verdict, based on defense counsel's violation of the principles of Arons v. Jutkowitz and HIPAA. The case is Straub v. Yalamanchili . H/Ts to Matthew Lerner and Nicole Black , each of whom posted about it on their respective blawgs.
The Third Department noted that defense counsel had engaged in ex parte conversations with two subsequent treating physicians during the trial, but had not obtained plaintiff's authorization through HIPAA. Plaintiff's counsel was surprised by the testimony defense counsel presented as a result of the conversations, and was unprepared to rebut it.
Citing to Arons and to Kish v. Graham , 40 A.D.3d 118 (2007), rev'd 9 N.Y.3d 393 (2007), the Court found that “[t]his was in clear violation of the law in effect at the time of trial…and plaintiff's counsel did not discover it until that time.” Because the testimony presented by defense counsel was “clearly prejudicial to plaintiff's case,” the Court found no abuse of discretion by the trial court when it set aside the verdict and ordered a new trial in the interest of justice.