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Sylvia Mazzo v. Wagdi F. Ibrahim

November 30, 2011

SYLVIA MAZZO,
PLAINTIFF,
v.
WAGDI F. IBRAHIM, M.D. AND ROCKLAND SURGICAL ASSOCIATES, P.C.,
DEFENDANTS.



The opinion of the court was delivered by: Frederick P. Stamp, Jr. United States District Judge

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS' MOTION SEEKING PERMISSION FOR DEFENSE COUNSEL TO IMPEACH DR. BEFELER'S CONVICTION CREDIBILITY BY INTRODUCING EVIDENCE OF HIS CONTEMPT

I. Background

The plaintiff, Sylvia Mazzo, brought this medical malpractice action against defendants Wagdi F. Ibrahim, M.D., a New York surgeon, and Rockland Surgical Associates, P.C. ("Rockland Surgical"), his wholly-owned professional corporation, arising out of a laparoscopic cholecystectomy procedure (gallbladder removal surgery) that Dr. Ibrahim performed on Mrs. Mazzo on February 4, 2009.*fn1

After her discharge from the hospital on February 4, 2009, the plaintiff began experiencing pain, nausea, and vomiting. She was then re-admitted to Nyack Hospital on February 8, 2009 and underwent an emergency exploratory laparotomy, during which Dr. Ibrahim discovered and repaired a perforation in Mrs. Mazzo's small intestine. The plaintiff contends that Dr. Ibrahim was negligent in failing to detect and repair the perforation before concluding her gallbladder removal.

On or about April 6, 2011, through expert witness exchange, counsel for the plaintiff advised the defendants that the plaintiff intends to call David Befeler, M.D. as an expert witness in this case. According to the plaintiff, Dr. Befeler is expected to testify to a reasonable degree of medical certainty that the perforation of Mrs. Mazzo's small intestine was caused during the February 4, 2009 laparoscopic cholecystectomy procedure and that Dr. Ibrahim was negligent in failing to detect and repair the perforation before concluding that procedure. A subsequent investigation by the defendants revealed that in 1983, Dr. Befeler was convicted of summary contempt in the Superior Court of New Jersey for lying to a judge. Dr. Befeler admitted the underlying facts of the conviction during his testimony in two trials held before the Supreme Court of the State of New York in 2009 and 2011.*fn2 Trial Tr., Mar. 25, 2009, 485:13-25; Trial Tr., June 16, 2011, 97:25-98:21-16. In 1993, that conviction was expunged pursuant to N.J.S.A. 2C:52-3, which permits a person convicted of a disorderly persons offense to apply for expungement of the conviction after the expiration of five years as long as the person has not been convicted of any prior or subsequent crimes and has paid any fine associated with the conviction. Mem. in Supp. of Defs.' Intent to Question Dr. Befeler, Ex. 1.

In preparation for trial, on November 21, 2011 the defendants filed a memorandum of law in support of their intent to question Dr. Befeler regarding his summary contempt conviction. In this memorandum, the defendants argue: (1) evidence of Dr. Befeler's contempt conviction should be admitted because it constituted a crime of dishonesty; (2) the time limit exception of Rule 609(b) of the Federal Rules of Evidence is inapplicable because the probative value of the conviction outweighs its prejudicial effect; and (3) the exception enumerated in Rule 609(c) of the Federal Rules of Evidence is inapplicable because there is no evidence that the expungement resulted from Dr. Befeler's rehabilitation or a finding of innocence.

The plaintiff responded to the defendants' memorandum regarding Dr. Befeler by filing a memorandum in opposition on November 28, 2011.*fn3 The plaintiff argues that the defendants' motion in limine*fn4 should be denied because the matter of Dr. Befeler's summary contempt conviction: (1) is remote in time; (2) has been expunged; (3) did not involve any medical testimony given to a jury; (4) does not involve a party; and (5) is more prejudicial than probative. After considering the memoranda of the parties and the relevant law, this Court finds that the defendants' motion for permission to impeach Dr. Befeler's credibility by introducing evidence of his contempt conviction must be denied.

II. Applicable Law

Rule 609 of the Federal Rules of Evidence provides, in pertinent part:

(a) General rule. -- For the purpose of attacking the character for truthfulness of a witness, . . .

(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

Fed. R. Evid. 609(a)(2). However, Rule 609 also states:

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction . . . unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

Fed. R. Evid. 609(b). Further, evidence of a conviction is not admissible under Rule 609 if "(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the ...


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