Silver Spring, MD – Trial Court Efficiency Trumps Jewish Holiday

Silver Spring, MD – An Orthodox Jewish plaintiff in a medical malpractice suit lost his argument on appeal that the trial judge’s failure to reschedule the trial, which fell during the Jewish holiday of Shavuot, violated his right to freedom of religion.

Alexander H. Neustadter, who sued two medical facilities and their doctors on behalf of his deceased father, filed multiple motions to suspend the trial on June 9 and 10, 2008. The motions were denied, and neither Neustadter nor his attorney, Ronald H. Jarashow, appeared on those two days.

In their absence, Holy Cross Hospital of Silver Spring, the only defendant at the time of trial, presented testimony from four expert witnesses and a doctor who treated Neustadter’s father. The jury found for the hospital.

The Court of Special Appeals held that the government interest in the “efficient and orderly administration of justice” was sufficiently compelling to justify the denial of the motions, in part because witnesses could not easily be rescheduled.

Stephen B. Mercer, a Rockville lawyer who represented Neustadter on appeal along with Rene Sandler, argued that “convenience of the witnesses” does not outweigh “a party’s free exercise of his sincerely held religious beliefs.”

“The notion that allowing a trial to proceed in the absence of a party and his attorney is the least restrictive means to accomplish the governmental interest of the court managing its docket falls under its own weight,” Mercer said.

Attorneys for the hospital, David Levin and Michelle Mitchell of Wharton Levin Ehrmantrout and Klein, could not be reached for comment on Friday.

The trial was first postponed in January 2008 at the request of Holy Cross’ counsel, who needed more time to complete discovery, according to the Court of Special Appeals’ unreported opinion. It was rescheduled for the first week in June.

Four days after the new date was set, Jarashow e-mailed opposing counsel, saying he just learned from Neustadter that Shavuot fell on June 9 and 10. He asked if Holy Cross would consent to suspending the trial for those two days. It declined.

That May, Jarashow filed the first of several unsuccessful motions to suspend or postpone the trial. In one motion to reconsider, he appended letters from Neustadter and his rabbi.

The rabbi explained, “ ‘Mr. Alexander Neustadter must instruct his lawyer to do no work whatsoever on his behalf during the two days of Shavuous,’ which includes ‘instructing his lawyer not to appear in court on his behalf during those days,’ ” according to the opinion.

Affirming the verdict, the court said Neustadter did not file his first motion until less than a month before the trial, by which time the defendants had invested time and money in scheduling its witnesses.

But Mercer pointed out that counsel for Holy Cross had notice of the conflict much earlier. “As in any complex litigation where there are scheduling issues in play, the parties were conferring amongst themselves. There had been notice given to the other side immediately that there was a conflict,” he said, referring to Jarashow’s e-mail in January. “What that demonstrates is that the other side was not prejudiced by the delay of filing the motion itself.”

Mercer said he and Sandler are considering a petition for certiorari.

Abba David Poliakoff, an observant Jewish lawyer not connected to this case, pointed out that, contrary to what many people believe, “Shavuot is a major holiday for observant Jews.” Poliakoff, a transactional attorney with Gordon, Feinblatt, Rothman, Hoffberger & Hollander LLC, said he has never had a problem scheduling a meeting, transaction or negotiation around the holidays.

He acknowledged that he did not know all the facts surrounding this particular case that led the court to rule the way it did. But, “[a]ssuming the proper notice was given,” he said, “I don’t understand.”