Faye L. Schein v. Chest Service Co‪.‬

In setting aside the verdict for plaintiff, the Trial Justice ruled that the interests of justice required a new trial because
of certain prejudicial testimony given by plaintiff, when recalled as a witness in rebuttal, which impugned the morality of
a physician, who had examined her on behalf of defendants and, furthermore, that the verdict was excessive. While unquestionably
the testimony of plaintiff regarding the doctor was improper and prejudicial, that conclusion does not end the matter. The
record demonstrates that defendants clearly waived their objection by not timely moving for a mistrial. Instead, although
opportunity was given to defendants' counsel to so move for a mistrial, defendants, for reasons best known to counsel, waited
until after the verdict was rendered before making the motion. Counsel may not be permitted to speculate upon whether a verdict
will be favorable, before asserting a claim for a mistrial. Such a motion must be made in advance of the verdict. (See Collins
v. Ward, 240 App. Div. 985; Hough v. Doersch, 257 App. Div. 842, app. dism. 282 N. Y. 675.) Although we recognize that an
experienced Trial Justice is in a favorable position properly to gauge the effect of a prejudicial error upon a jury's determination,
and to grant a new trial in the interests of justice, we cannot permit counsel to press a challenged error after proceeding
in a manner constituting a waiver of an objection. Nevertheless, the record substantiates the correctness of the ruling of
the Trial Justice in finding that the verdict was excessive. Under the circumstances of this case, any verdict in excess of
$5,000 cannot stand. Consequently, we extend the option to plaintiff to accept a new trial or agree to a reduction of the
verdict to $5,000.