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629
I
2
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STEPHEN!
5 of the Estate of
deceased, and r
6 individually,
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
I as Administrator
_.LKELLER.
PHEN KELLER,
CV-96-0470
United States Courthouse
Haupnauge, New York
[-RUDDY. O. QAISAR
__. CHEST PHYSICIANS,
and BROOKHAVEN
'QIC ASSOCIATES, P.C,
June 4,1998
-X 9:30 o'clock ajn.
TRANSCRIPT OF TRIAL
BEFORE THE HONORABLE DENIS R. HUR]
UNITED STATES DISTRICT JUDGE, and a jury.
APPEARANCES:
2Nev?Vork,rNew York 10007
7 For the Plaintiff: BY: BRADLEY A. SACKS, ESQ.
18 REGINAJABBOUR.ESQ.
19
20 For the Defendant: MARTIN, CLEARWATER & BELL
For Deft. White-Ruddy
21 220 East 42nd Street
New York. New York 10017
22 BY: BRUCE HABIAN, ESQ.
3 LAW OFFICES OF GERARD J. MARULLI
24 For Deft. AfzalA Suffolk
115 Broadway
25 New York. New York 10006
BY: SANDFORDR. LINDENBAUM, ESQ.
MARYANN STEIGER, CSR OFFICIAL COURT REPORTER
1 THE COURT: Good morning, everybody. If you would
2 all be seated.
3 Yes, Mr. Undenbaum.
4 MR. LINDENBAUM: Your Honor, I happened to see a
5 news broadcast last night on channel S and heard a
6 broadcast on the radio -1 think it was WFAN - on the way
7 home last night about a football player, LeShon Johnson,
8 who plays (or the Giants who was diagnosed yesterday - or
9 it was announced yesterday-be was diagnosed with
10 rymphoma.
11 What was significant is that all of the broadcasts
121 heard, and including the New York Times article on it
13 this morning, I haven't seen any other papers describe it.
14 Essentially I'm quoting from the Times:
15 Team doctors detected an abnormality after a
16 routine chest X-ray last month and in subsequent tests
17 determined Johnson, 27, had a cancerous tumor.
18 That's excerpted from the article.
19 I would simply ask the Court to give an
20 appropriate instruction to the jury. I'm not suggesting
21 that the plaintiff has done anything to engender this, of
22 course, but because it was a football player, because it
23 has been made public, we have eight people on the jury.
24 How many of them listen to sports broadcasts or listen to
25 the news, this happened to have been a news item I heard as
MARYANN STEIGER, CSR OFFICIAL COURT REPORTER
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1 APPEARANCES: (Continued.)
MATTURRO & ASSOCIATES
Court Reporter MARY ANN STEIGER
6 300 Rabro Drive
Haupnauge, New York 11788
7 (5I6J582-1147
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MARYANN STEIGER, CSR OFFICIAL COURT REPORTER
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1 opposed to a sports broadcast on television. I think an
2 instruction would be appropriate.
3 THE COURT: The next question is, firstly, what
4 the instructions should be.
5 I assume what it ought to be is reiterating the
6 fact that their decision has to be based on the evidence
7 adduced during the course of the trial, and anything they
8 may see or read concerning cancer, other persons afflicted
9 with cancer, cannot, in any way -- do you want me to go
10 beyond that?
11 MR. LINDENBAUM: I will think out loud for a
12 minute if I may, Judge, because I think it's a common
13 problem for all of us.
14 But something along the lines that from time to
15 time the media reports certain things about cancer about
16 people. Those circumstances should not be construed to
17 have any relationship to this case. The facts there may be
18 entirely different from the facts here, and there's no
19 relationship and no conclusions that you should draw
10 Oerefrom and the balance of what you were suggesting is
21 fine.
22 THE COURT Is it satisfactory that I do something
23 like that with the jury?
24 MR. SACKS: No, it's not.
25 You instructed the jury in the preliminary
MARYANN STEIGER, CSR OFFICIAL COURT REPORTER
• PAGE 633 SHEET 2
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1 instruction that the case is to be decided based on the
2 evidence they heard in the courtroom, and you're going to
3 instruct the jury as to the same thing at the close of all
4 of evidence.
5 This is nothing more than what we read in the
6 papers everyday. There have been articles throughout the
7 last few weeks regarding smoking, regarding cancer,
8 regarding treatments for cancer, regarding treatments for
9 breast cancer, lung cancer. It is a daily matter in the
10 newspapers.
11 There is no reason to highlight this particular
12 issue other than what you will say in your ordinary
13 charge.
14 To repeat the instruction now, you're highlighting
15 something that in and of itself is not prejudicial to
16 anybody.
17 There's no evidence that can be presented that the
18 mere fact that somebody was diagnosed with cancer on an
19 X-ray will effect this jury, so there is no need to go
20 beyond the instructions you given them and will give them.
21 Every event in life does not require a special
22 instruction.
23 It would be plaintiffs position that at the
24 a