Mazzo et al v. Ibrahim et al

Filing 86

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS' MOTION SEEKING PERMISSION FOR DEFENSE COUNSEL TO IMPEACH DR. BEFFLER'S CREDIBILITY BY INTRODUCING EVIDENCE OF HIS CONTEMPT CONVICTION:For the reasons stated above, the defendants motion seeki ng permission for defense counsel to impeach Dr. Befelers credibilityby introducing evidence of his contempt conviction is DENIED. It is So Ordered. The Clerk is directed to transmit a copy of this order to counsel of record herein. (Signed by Judge Frederick P. Stamp, Jr on 11/30/2011) The Clerks Office Has Mailed Copies. (rj)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------X
SYLVIA MAZZO,

09 Civ. 10064 (FPS)

Plaintiff,

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

v.
WAGDI F. IBRAHIM, M.D. and
ROCKLAND SURGICAL ASSOCIATES, P.C.,
Defendants.
---------------------------------X
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,
2009.1

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.

1

The plaintiff contends that Dr. Ibrahim was negligent

By various consent orders, the claims against defendants Dr.
Rahklin, Ramapo Valley Surgical Associates, P.C., and Nyack
Hospital have been dismissed with prejudice.

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
2011.2

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

2

In 1983, Dr. Befeler was called to testify as an expert
witness in a medical malpractice case in the Superior Court of New
Jersey styled Mary Innocenti v. Holy Name Hospital.
When Dr.
Befeler learned that his testimony would continue into the
afternoon, he falsely told the trial judge that he needed to be
excused because he had to go to the hospital to perform surgery.
Dr. Befeler actually needed to be excused in order to attend to his
young son.
2

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, 2011.3

The plaintiff argues that the defendants’

motion in limine4 should be denied because the matter of Dr.
Befeler’s summary contempt conviction: (1) is remote in time; (2)

3

This Court received an unredacted version of the plaintiff’s
memorandum in opposition via facsimile. A redacted version was
filed via the ECF system (ECF No. 81).
4

The defendants did not style their memorandum regarding the
cross-examination of Dr. Befeler as a motion in limine, but the
plaintiff refers to it as such.
3

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 rehabilitation
of the person convicted.”

Fed. R. Evid. 609(c)(1).

4

In this case, there is no dispute that Dr. Befeler’s 1983
summary contempt conviction was the result of an “admission of an
act of dishonesty or false statement.”

Fed. R. Evid. 609(a)(2).

Thus, the question of whether the defendants can impeach Dr.
Befeler with evidence of his summary contempt conviction hinges
upon the time that has elapsed since the date of the conviction and
whether the expungement of the conviction constitutes a finding of
rehabilitation.
III.

Discussion

As stated above, the parties do not debate the fact that Dr.
Befeler’s contempt conviction constitutes a crime of dishonesty or
false statement.

Although this conviction would be admissible

under the general rule set forth in subsection (a) of Rule 609,
subsections (b) and (c) place limitations on the admissibility of
this evidence.

This Court will address both rehabilitation,

discussed in Rule 609(c), as well as the time limit set forth in
Rule 609(b).
A.

Rehabilitation
As the defendants highlight in their memorandum, the United

States Court of Appeals for the Second Circuit has held that Rule
609(c)(1) prevents the admission of a prior conviction “only when
there has been an express finding that the person convicted has
been rehabilitated.”

Zinman v. Black & Decker (U.S.), Inc., 983

F.2d 431, 435 (2d Cir. 1993).

Automatic pardons or those procured

by operation of statute do not imply a finding of rehabilitation.

5

See Smith v. Tidewater Marine Towing, Inc., 927 F.2d 838, 840-41
(5th Cir. 1991); see also United States v. DiNapoli, 557 F.2d 962,
966 (2d Cir. 1977) (“A pardon or its equivalent granted solely for
the

purpose

of

restoring

civil

rights

lost

by

virtue

of

a

conviction has no relevance to an inquiry into character.” (quoting
Fed. R. Evid. 609 advisory committee’s note)).
In her memorandum in opposition, the plaintiff cites to
N.J.S.A. § 2C:52-27, which explains the effect of expungement:
Unless otherwise provided by law, if an order of
expungement is granted, the arrest, conviction and any
proceedings related thereto shall be deemed not to have
occurred, and the petitioner may answer any questions
relating to their occurrence accordingly . . . .
N.J.S.A. § 2C:52-27. The plaintiff acknowledges, however, that Dr.
Befeler’s expungement does not appear to fall within the exception
described in Rule 609(c).

Pl.’s Mem. in Opposition n.3.

This

Court finds that the plaintiff has failed to establish that the
expungement of Dr. Befeler’s conviction was based upon a finding of
innocence or rehabilitation.

The fact that the conviction is

deemed not to have occurred as a result of the expungement does not
mean that there has been an express finding of rehabilitation. Dr.
Befeler’s conviction was expunged pursuant to N.J.S.A. § 2C:52-3,
which makes no mention of rehabilitation.

This Court will not

imply a finding of rehabilitation simply because Dr. Befeler’s
conviction was expunged when the plaintiff has not set forth any
facts in support of such a conclusion.

6

B.

Time Limit
Although this Court finds that the exemption set forth in Rule

609(c)(1) is not applicable in this case, the time limit set forth
in subsection (b) does prevent the admission of the evidence of Dr.
Befeler’s conviction. Rule 609(b) expressly provides that evidence
of a conviction more than ten years old may be admitted only if its
probative value substantially outweighs its prejudicial effect.
See Zinman, 983 F.2d at 434 (“We have recognized that Congress
intended that convictions over ten years old be admitted very
rarely and only in exceptional circumstances.”) (internal quotation
omitted).

Further,

the

Second

Circuit

has

held

that

“when

convictions more than ten years old are sought to be introduced
into evidence pursuant to Rule 609(b) the district judge should
make an on-the-record determination supported by specific facts and
circumstances

that

the

probative

value

of

substantially outweighs its prejudicial effect”.

the

evidence

United States v.

Mahler, 579 F.2d 730, 736 (2d Cir. 1978).
The
Befeler’s

defendants

contend

28-year-old

that

conviction

the

probative

substantially

value

of

Dr.

outweighs

any

prejudice the plaintiff might suffer if the evidence is admitted.
According to the defendants, the circumstances of Dr. Befeler’s
conviction are identical to those presented in this case -- Dr.
Befeler made a false statement while testifying as an expert
witness, and he will once again be testifying as an expert witness
in the trial in this case.

The plaintiff counters that the

7

defendants

have

failed

to

demonstrate

that

exceptional

circumstances exist to justify the admission of the conviction for
impeachment purposes.
This Court finds that the probative value of Dr. Befeler’s 28year-old conviction does not substantially outweigh its prejudicial
effect.

First, twenty-eight years has elapsed since the date of

the conviction, which is significantly more than the ten year time
frame contemplated by Rule 609(b).

Second, the false statement

underlying the 1983 conviction did not involve the credibility of
Dr.

Befeler’s

testimony

as

a

medical

undermine his medical credentials.
party expert witness in this case.

expert

and

it

did

not

Third, Dr. Befeler is a nonWhile his testimony as an

expert witness on the standard of care might be important to assist
the jury as triers of fact, it is not the only evidence the jury
will consider and it is not central to the case.
consider

many

other

facts,

defendants’ expert witness.

including

the

The jury will

testimony

of

the

Moreover, the jury will be instructed

to consider Dr. Befeler’s testimony in light of all the evidence
presented.

Thus, this Court finds that the evidence of Dr.

Befeler’s summary contempt conviction is inadmissible.
IV.

Conclusion

For the reasons stated above, the defendants’ motion seeking
permission for defense counsel to impeach Dr. Befeler’s credibility
by introducing evidence of his contempt conviction is DENIED.
IT IS SO ORDERED.

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The Clerk is directed to transmit a copy of this order to
counsel of record herein.
DATED:

November 30, 2011

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
Sitting by Designation

9