A Pennsylvania physician claims that an attorney who cried during testimony unfairly tainted his malpractice trial and led to a $1.3 million jury award against him.
Jurors found obstetrician-gynecologist Charles H. Marks, DO, negligent for failing to follow up on a patient’s complex cyst and hyperechoic nodule, which resulted in a delayed ovarian cancer diagnosis. But during the doctor’s 4-day trial, several parties had emotional outbursts in front of the jury, including the plaintiff’s’ attorney, a physician expert witness, the patient, and a family member.
According to trial transcripts, a gynecologic oncologist expert began crying on the stand after providing a clinical description of the symptoms that plaintiff, Chasidy Plunkard, would probably experience leading up to her death. When asked how long the patient had to live, the oncologist said “months” and later added, “I think she is living for this trial.”
After these comments, Plunkard’s attorney, Kila Baldwin, also began crying and requested a break to regain her composure, according to district court documents. During the 3 minutes the attorney was gone, the courtroom was silent other than the sound of Plunkard and her cousin sobbing.
The following day, US District Judge Jennifer P. Wilson warned Baldwin that she would consider declaring a mistrial if the outburst happened again, according to trial transcripts.
“I expect counsel to maintain a professional demeanor even when eliciting emotionally laden testimony,” Judge Wilson said. “…I will not allow another recess. Further, if we have another incident like we had yesterday, I would have to entertain, if a motion for mistrial is made, I would have to seriously consider that, because I am concerned that this jury already has had a demonstration of a level of emotion that may make it difficult for them to set that aside and render a verdict that’s based only on a dispassionate consideration of what I perceive to be a legitimate dispute regarding liability.”
Judge Wilson later instructed jurors to disregard certain testimony at the request of Marks’ attorneys and reminded them not to be influenced by sympathy. After jurors rendered their $1.3 million verdict against Marks, he requested a new trial, claiming the witness’s testimony and the emotional displays of the witness and the attorney unfairly influenced the jury.
The expert witness “and plaintiff’s counsel undoubtedly affected the jury’s ability to decide this case in a dispassionate and impartial way and denied Dr. Marks his right to a fair trial,” attorney Matthew Rappleye wrote in Marks’ motion for a retrial. “Just as the court feared, as a result of these events, the jury was ‘tainted’ and could no longer decide this case divorced of sympathy for Ms. Plunkard.”
In response, an attorney for Plunkard emphasized that Marks did not request a retrial during the trial and that he was granted objections to the relevant testimony that he sought.
“In any event, the jury had the benefit of substantial evidence concerning Dr. Marks’ negligence, and the jury was entitled to construe that evidence in Plaintiff’s favor” attorney Charles Becker wrote. “…Indeed, the jury’s economic damages award of $585,000 not only fell well below the projection of plaintiff’s expert, but also ran at the low-end of the projection provided by Defendant’s economist. As to the non-economic damages, the jury’s award of $750,000 could have been far higher…. Nothing about either verdict or the damages award suggests a jury that was influenced by impermissible displays of emotion by the trial participants.”
In a December 13, 2021, decision, the US District Court for the Middle District Court of Pennsylvania denied Marks’ request for a retrial. In her decision, Judge Wilson wrote that nothing in the jury’s verdict appeared to indicate that jurors were swayed by sympathy and that the verdict appeared to be conservative in light of the testimony presented.
Attorneys for Marks did not respond to a request for comment. In a statement, Baldwin said that the judge’s decision was correct.
“The district court got it exactly right, and we look forward to Ms. Plunkard receiving the compensation awarded by the jury in this tragic case,” she said.
Why Did the Patient Sue?
Plunkard’s lawsuit against Marks stemmed from a January 2016 visit for complaints of bloating, pelvic pain, irregular periods, and an abnormal pelvic ultrasound. The ultrasound, ordered by her primary care physician, showed a thickened endometrial lining; a normal left ovary; and an enlarged, abnormal right ovary containing a complicated cyst, according to Plunkard’s complaint. Marks performed an endometrial biopsy and advised Plunkard that she would not need to take further measures if the result was benign, according to her lawsuit.
The result was benign, so Plunkard said she sought no further treatment for the cyst and none of her treating physicians followed up on the cyst. In February 2017, Plunkard presented to an emergency department with severe right upper quadrant abdominal pain and an ultrasound showed possible gallstones and pleural effusion, according to court documents.
After laparoscopic cholecystectomy, it was discovered that Plunkard had an inflamed pelvis and an omental lymph node was removed and biopsied. Surgeons reported that the lymph node showed metastatic cancer of probable gynecologic origin.
The patient underwent exploratory laparotomy, resulting in a radical abdominal hysterectomy, appendectomy, resection of the rectosigmoid with end-to-end anastomosis, and removal of cancerous implants. She was ultimately diagnosed with stage IVB low-grade metastatic ovarian cancer and went through six chemotherapy courses.
The patent’s cancer briefly went into remission but returned. In her complaint, Plunkard said Marks’ negligence allowed the cancer to spread from stage I to stage IVB, increasing her risk for harm and untimely death.
Marks argued that a follow-up ultrasound was not required, that the cyst on the patient’s right ovary was benign and resolved itself, that Plunkard’s cancer originated on the left, and that a follow-up ultrasound would not have detected primary cancer on the left ovary, according to legal documents.
On January 7, 2022, Marks appealed the jury’s verdict and the order denying his request for a retrial to the US Court of Appeals for the Third Circuit.
All court documents in this case can be found at https://pacer.uscourts.gov/.