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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
Filed - December 2, 2010
PROVIDENCE, SC.                                                                                              SUPERIOR COURT
SAVINE VANN, Individually and                                                                            :
as the Natural Parent and Guardian                                                                       :
of Minor SINNARA VANN                                                                                    :
                                                                                                         :   C.A. No. PC 01-3972
VS.                                                                                                      :
:
WOMEN & INFANTS HOSPITAL                                                                                 :
DECISION
GIBNEY, P. J.   Before this Court is Plaintiffs’ Motion for Costs and Fees.   Plaintiffs contend
that Defendant should reimburse Plaintiffs for their first trial costs and attorneys’ fees because
Defendant’s improper closing argument caused a mistrial.   Defendant objects. This Court heard
argument on October 19, 2009.   For the reasons discussed below, this Court directs Defendant to
pay a specific portion of Plaintiffs’ attorneys’ fees and costs. Jurisdiction of this matter is
pursuant to this Court’s inherent powers as an equity court.  See G.L. 1956 § 8-2-13.
I
Facts and Travel
Sinnara Vann (“Sinnara”) was born at Women & Infants Hospital in Providence, Rhode
Island on November 23, 2000.     Following a non-routine, shoulder dystocia delivery, Sinnara
sustained an injury to his right-side brachial plexus.   It is alleged that three or four of Sinnara’s
cervical spinal nerves (C5-C8) were at least partially avulsed from their root connections to his
spinal cord, resulting in a permanent injury to Sinnara’s right arm.
This Court notes—with respect to the within malpractice action that followed—that all
trial  counsel  are  seasoned  litigators  who  have  distinguished  themselves  as  exhaustive  and
tenacious advocates in the medical negligence arena.   Each is highly skilled and well-versed in




the rules of evidence, procedure, and applicable substantive law.  This Court holds all advocates,
including those with such credentials, to a high standard of professionalism.
At trial, Plaintiffs presented several medical experts to establish that excessive traction
applied to Sinnara’s head and neck by Defendant’s delivery room doctors caused Sinnara’s
injuries.   Defendant then sought to offer two experts—Dr. Jay Goldberg (“Dr. Goldberg”) and
Dr.  R.  K.  DeMott  (“Dr.  DeMott”)—to  refute  Plaintiffs’  causation  theory  and  present  its
alternative argument that natural forces caused Sinnara’s injuries.   Prior to and during trial,
Plaintiffs  filed  motions in limine  challenging the  admissibility of  Dr.  Goldberg’s  and  Dr.
DeMott’s  testimony.    This  Court’s  evidentiary  rulings  on  Defendant’s  two  experts  are  of
particular relevance to the mistrial and Plaintiffs’ instant request for costs and fees.
Through  these  motions,  Plaintiffs  requested  orders  prohibiting  these  experts  from
testifying to the cause of Sinnara’s injuries.   Before ruling on Plaintiffs’ motions, this Court
permitted voir dire of Dr. Goldberg and held a Rule 104 hearing relative to Dr. DeMott to
investigate the content and bases of their respective testimonies.   This Court ruled that Dr.
Goldberg could testify only to the obstetrical standard of care and could not testify to causation.
(Trial Tr. 7:11-8:4, June 5, 2009 Afternoon.)   The Court expressly disallowed any suggestion by
Dr. Goldberg that other factors—such as the mother’s propulsive birthing forces—may have
caused or contributed to Sinnara’s injuries.                                                            (Trial Tr. 57:7-60:17, June 5, 2009 Morning);1
1 During his voir dire, Dr. Goldberg articulated a variety of factors that can contribute to brachial
plexus injuries and may have been at work in Sinnara’s case.   According to Dr. Goldberg, these
factors include: “the natural forces of labor,” “the forces of the contractions,” “if the mother
changes position during delivery,” “the maneuvers needed to deliver the baby,” “the baby’s
resistance to stretch injury,” and “the force---the rate at which the baby delivers.”                   (Trial Tr.
57:14-59:3, June 5, 2009 Morning); (Trial Tr. 63:3-14 June 5, 2009 Afternoon.)   When pressed
to state his opinion as to which force was the probable cause in this case, Dr. Goldberg agreed
that he could not “offer[] an opinion as to what caused [Sinnara’s] injury to a reasonable degree
of medical certainty . . . [his] opinion [is] that there are many possible contributing factors.” Id.
2




(Trial Tr. 1:4-8, June 5, 2009 Afternoon) (This Court stated: “[Dr. Goldberg’s] testimony about
how this injury could have happened for a variety of reasons out there is not enough.   I’m not
going to let him talk about that.”).   This Court held that the basis of Dr. Goldberg’s causation
opinion was  “unsound” and was not supported to a reasonable degree of medical certainty.
(Trial Tr. 7:20-23, June 5, 2009 Afternoon.)   In accordance with the Court’s directives, Dr.
Goldberg testified within the bounds of this ruling on June 5, 2009 and June 11, 2009.   On this
later  date,  this  Court  entertained  another  objection  from  Defendant  regarding  this  Court’s
limitations on Dr. Goldberg’s testimony.   After additional questioning, this Court reaffirmed that
Dr. Goldberg could testify only as to the applicable standard of care and could not “testify to a
reasonable degree of medical certainty that anything’s possible” as the cause of Sinnara’s
injuries.                                                                                                (Trial Tr. 1:24-2:7, June 11, 2009 Morning.)
Regarding Dr. DeMott’s Rule 104 hearing, this Court ruled that his testimony, like Dr.
Goldberg’s, would be limited to the standard of care of delivery room doctors.                           (Trial Tr. 27:18-
22, June 11, 2009 Afternoon.)   This Court agreed with Plaintiffs’ argument that Dr. DeMott’s
opinion on causation—rapid second stage delivery forces2 can cause brachial plexus injuries—
was not supported to a reasonable degree of medical certainty and was not sufficiently relevant
to Sinnara’s case.   Id. at 8:23-9:12.   Essentially, Dr. DeMott did not provide any explanation to
at 59:16-20.   Dr. Goldberg also agreed that he could not “quantify” which of the factors “had
more or less of a contribution to the ultimate injury in this case.”  Id. at 60:2-17.
2  Second stage refers to the time frame during labor when a mother is working with her
contractions to push and deliver her baby.                                                               “Rapid” second stage indicates that the delivery
happens more quickly than is typical.                                                                    (See Trial Tr. 35:4-17, June 17, 2009) (“You remember
Dr. Gurewitsch told you second stage, when mom first gets into second stage, that’s when she’s
dilated until she delivers the child, that usually lasts, for 80 percent of the patients that have had
babies before, about 50 minutes to an hour.   Only 10 percent deliver in under ten minutes, and
[Dr. Gurewitsch] told you about the 10 percent that deliver beyond 10 minutes, but most babies,
it’s going to take about somewhere in that  50-minute time range.    And that’s what makes
[Sinnara’s instant case] precipitous.    This was one of those babies that didn’t fall in the
average.”).
3




connect the existence of propulsive birthing forces with the cause of Sinnara’s specific injuries.
Id. at 8:7-22.  His opinion expressed only that the forces were possible factors to brachial plexus
injuries in general, rather than probable causes of Sinnara’s brachial plexus injury.   Id. at 11:22-
25;                                                                                                     22:2-6                                  (“At  his  deposition,  Dr.  DeMott  clearly  testified  no  one  has  correlated  this
phenomenon [rapid second stage leads to brachial plexus injuries] to the actual injury [Sinnara’s
cervical  avulsions].”).    Furthermore,  during  the  Rule                                             104  hearing,  this  Court  expressed
disapproval that Dr. DeMott cited a study that involved brachial plexus injuries in the absence of
shoulder dystocias because such circumstances were not present in the instant case. Id. at 23:15-
19.   As it is undisputed that Sinnara experienced shoulder dystocia during his birth, this Court
found any presentation of research on brachial plexus injuries that occurred without shoulder
dystocias to be a red herring and held the potential of confusing the jury.   Id.   Dr. DeMott was
therefore prohibited from testifying on the topic of causation.  3   Id. at 27:18-22 (“Dr. DeMott,
like Dr. Goldberg, will be able to give his opinions . . . relative to the standard of care, not
beyond that, not beyond that.”).
During final argument, Defendant displayed excerpted trial testimony given by Plaintiffs’
biomedical expert, Dr. Robert Harry Allen  (“Dr. Allen”).   Thereafter, based on Dr. Allen’s
statements, Defendant argued that Plaintiff’s expert had acknowledged that there were other
3 During the June 11, 2009 Rule 104 hearing for Dr. DeMott, Plaintiffs presented this Court with
a litany of evidentiary problems relative to Dr. DeMott’s testimony.   This Court took note that
the only disclosed support for Dr. DeMott’s opinion was the work of Dr. Acker, whose brachial
plexus  research  did  not  account  for  the  variable  of  physician  excessive traction  and only
examined a small sample size. (Trial Tr. 4:18-5:19 June 11, 2009.)   The Plaintiffs also focused
on the fact that Dr. DeMott was not current on all brachial plexus injury research, including a
large-scale study conducted in Sweden, the Metaizeau study conducted in France, and any of the
post-19th century cadaver studies, all factors which called into question his qualifications as an
expert.  Id. at 6:16-7:16.
4




possible causes or contributing factors for Sinnara’s specific injury.4   This Court disagreed that
Dr. Allen had so testified.    As such, Defendant’s closing argument contained a theory of
causation  that  was  unsupported  by  a  scientific,  medically  probable  basis  in  the  record.
Furthermore, Defendant’s strategy clearly circumvented this Court’s prior rulings relative to the
testimony of Dr. DeMott and Dr. Goldberg by proceeding with a presentation of its “anything is
possible” causation theory.                                                                           (Trial Tr. 80:24-82:11, June 17, 2009.)   Taking Dr. Allen’s excerpts
out of context, Defendant injected into the case two causation theories that this Court had already
4
For example, Defendant’s attorney stated in his closing argument:
“And what did Dr. Allen tell us? ‘Doctor, would you agree that in
the literature that you have reviewed in the course of years doing
this, in the literature has been reported permanent brachial plexus
injuries  that  occurred  without  physician  traction  and  without
shoulder dystocia?’ ‘Yes, they occur intrauterine.   There are - in
fact there are many causes of brachial - permanent brachial plexus
injuries in the newborn.’ That’s Dr. Allen, another one of their
experts.”                                                                                             (Trial Tr. 46:4-13, June 17, 2009.)
“Now, there’s another important piece of this puzzle as to how the
child was injured that was talked about even by the [P]laintiff[s’]
experts [who explained the role of muscle tone in the incidence of
brachial plexus injuries].” Id. at 55:15-17.
“. .                                                                                                  [A]nd I said ‘Doctor [Allen], you’ve talked about in your
papers whether or not tone, muscle tone is something that might
predispose  a  child  in  utero  when  they’re  being  delivered  to
suffering a brachial plexus injury, correct?’ His answer, ‘Yes.’”
Id. at 55:19-25.
“Does it make sense to say, when everybody says Dr. Watabe, who
had delivered a shoulder dystocia baby before, had applied gentle
downward traction, does it make sense that we should ignore that
and, because there was an injury, conclude that somehow it was
Dr. Watabe’s fault, when we know from their own experts what
actually happened to the child?”  Id. at 56:25-57:5.
“What we do know is that, like what Dr. Allen said about these
forces occurring in utero, is that both the training and education of
all the doctors is that, in fact, these forces can and do occur in
utero.”  Id. at 59:20-24.
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prohibited: that Sinnara’s injury happened due to in utero forces or due to his lack of tone at
birth.   Id. (“Defendant visited in his closing an area of discussion, the ‘possibilities’ discussion
that  I  had  previously  prohibited.  Defendant  circumvented  those  prior  rulings  and  it  was
disingenuous.”).   Accordingly, this Court declared a mistrial and passed the case on June 17,
2009.5
Thereafter on July 16, 2009, Plaintiffs filed the instant Motion arguing that Defendant’s
improper closing caused the mistrial and, in the interest of justice, Defendant should reimburse
Plaintiffs for all their trial expenses.   Defendant objected to Plaintiffs’ Motion, and on October
19, 2009, this Court afforded both parties an opportunity to be heard.
II
Analysis
A
Authority of This Court To Award Costs and Attorney’s Fees
Plaintiffs move for costs and fees. They maintain that they do not seek sanctions or a
finding of contempt, and their motion is entitled a request for costs and fees, rather than
sanctions.   Defendant responds that the within request for fees and costs constitutes a request for
sanctions, despite its nomenclature.
Our Supreme Court staunchly observes the  “American rule” that holds each litigant
responsible for its own attorney’s fees absent statutory authority or contractual liability.   Moore
v. Ballard, 914 A.2d 487, 489 (R.I. 2007) (citing Eleazer v. Ted Reed Thermal, Inc., 576 A.2d
1217, 1221 (R.I. 1990)).  This rule prohibiting fee shifting, however, is subject to exceptions.  Id.
On multiple occasions, our Supreme Court has recognized that courts have the “inherent power
5 Also noteworthy, during the on-the-record sidebar conference concerning Defendant’s closing
argument, Plaintiffs requested that this Court issue a curative instruction to the jury, while
Defendant specifically moved for the Court to declare a mistrial and pass the case.                     (Trial Tr.
76:14-23, 80:16-18, June 17, 2009.)
6




to fashion an appropriate remedy that would serve the ends of justice.”   Vincent v. Musone, 574
A.2d 1234, 1235 (R.I. 1990); see, e.g., Jem Co., Inc. v. Fairway Capital Corp., 678 A.2d 1247
(R.I. 1996) (stating that “we acknowledge, however, that in an appropriate case this Court may
exercise its inherent power to fashion a remedy concerning counsel fees that would serve the
ends of justice”); Truk Away of R.I. v. Macera Bros. of Cranston, 643 A.2d 811, 817 (R.I. 1994)
(imposing both usual costs of the action and attorneys’ fees by virtue of its inherent power).
Specifically, in Vincent v. Musone, our Supreme Court exercised its inherent power to
award attorneys fees and costs to further the ends of justice.                                         574 A.2d at 1235.   In that case,
justice was served by an award of a counsel fee to defense counsel as a result of an inordinate
delay by the plaintiff in amending a complaint, resulting in a remand.   Id.  The Court crafted this
“fair solution [that called] for payment by the plaintiff of the reasonable expenses incurred by the
defendants in connection with the first trial, including reasonable counsel fees.”  Id.
With respect to this inherent power to impose fees and costs, this Court notes the exercise
of such is limited to “unique circumstances” when this imposition is “the only remedy available
at the time.”   Blue Cross & Blue Shield of R.I. v. Najarian, 911 A.2d 706, 710 (R.I. 2006).   In
Najarian,  the  Rhode  Island  Supreme  Court  found  that  only  unique  circumstances—as  for
example, those in Truk Away of R.I. which involved the wrongful issuance of an injunction from
a public contract award—merited a court’s deviation from the American Rule.  Id. at 710-11.
B
Circumstances Warranting the Imposition of Attorney’s Fees and Costs
This Court has the inherent power to award attorney’s fees and costs to a party in unique
circumstances when that remedy would serve the ends of justice and no other remedy is
available.   See Najarian, 911 A.2d at 710; Truk Away of R.I., Inc., 643 A.2d at 817; Vincent,
574 A.2d at 1235.   Here, this Court cannot impose a sanction against Defendant for willfully
7




disobeying a court order in the absence of clear and convincing proof that counsel violated an
express order of the Court.   See Now Courier, LLC v. Better Carrier Corp., 965 A.2d 429, 436
(R.I. 2009).   At trial, the Court did not specifically direct Defendant to refrain from using Dr.
Allen’s testimony to introduce its alternate causation theory, nor did the Court issue an order
specifying the parameters of final argument. Furthermore, the Court was never called upon to
rule on the “anything’s possible” argument as it related to Dr. Allen, nor did either party file a
motion in limine to limit the use of Dr. Allen’s testimony during final argument.   Accordingly,
sanctions are not applicable to these circumstances.
With respect to the final argument, Defendant maintains that given an advocate’s broad
ability to summarize and argue in closing, its efforts to cast doubt on Plaintiffs’ excessive
traction causation theory cannot be the basis for an attorney’s fees or cost award to Plaintiffs.
Defendant relies heavily on State v. Boillard, 789 A.2d 881, 885 (R.I. 2002), to justify the use of
Dr. Allen’s testimony to introduce the “anything is possible” theory of causation to the jury.   In
Boillard, the court allowed the elements of the State’s closing argument, which touched upon
alternate explanations for the alleged victim’s denials of sexual assault.   Id. at 883.   Defendant
argues that because the State in Boillard was permitted to offer alternate explanations of the
alleged victim’s lack of memory, it too should be able to “poke holes” in Plaintiffs’ causation
theory using alternate explanations of Sinnara’s injuries, allegedly raised by Dr. Allen in his
testimony.   Thus, Defendant maintains that it does not have to introduce its own expert to
disprove Plaintiffs’ assertion that excessive traction was the cause of Sinnara’s injuries.   See
Wilder v. Eberhart, 977 F.2d 673, 677 (1st Cir. 1992) (applying New Hampshire law, which is
analogous to Rhode Island law, and stating that a “Defendant need not disprove causation . . .
Defendant need not prove another cause; he only has to convince the trier of fact that the alleged
8




negligence was not the legal cause of injury”).  Effectively, Defendant argues that it “is under no
obligation to disprove that which the plaintiffs                                                          . assert or claim; rather the plaintiffs must
prove that which they assert or claim.” Woodward v. United Transit Co., 94 R.I. 446, 450, 181
A.2d 622, 624 (R.I. 1962).
This Court recognizes that the closing argument permits an advocate to raise “reasonable
inferences from the record” and argue its version of the case to the jury.   See Boillard, 789 A.2d
at 885 (citing State v. Scott, 114 R.I. 132, 137, 330 A.2d 66, 70 (1974)).   Nonetheless, a trial
justice has considerable discretion to find certain remarks during closing arguments improper
and to choose the appropriate remedy for these remarks.   See, e.g., State v. Hak, 963 A.2d 921,
929 (R.I. 2009) (stating that the decision to declare a mistrial is left to the discretion of the trial
justice because “the trial justice has a ‘front row seat’ during the trial [thus] he or she ‘can best
determine the effect of the improvident remarks upon the jury’” (quoting State v. Figueroa, 673
A.2d  1084,  1091  (R.I.  1996)); State v. Ensey,  881 A.2d  81,  95  (R.I.  2005)  (finding that
cautionary instructions are one appropriate remedy for improper remarks during a closing
argument (citing Boillard, 789 A.2d at 883)).   In a number of cases, both civil and criminal, the
Rhode Island Supreme Court has found to be inappropriate those remarks that involve name-
calling, stray from evidence properly admitted at trial, and inflame and arouse the passions of the
jury.  However, their inclusion at closing arguments, which are not evidence, neither necessitates
the mistrial nor constitutes harmless error if a mistrial is denied.   See, e.g., State v. Horton, 871
A.2d  959,  965-66  (R.I.  2005)  (finding that despite the prosecutor’s characterization of the
defendant as a “monster” in closing argument, the denial of a mistrial could not rise beyond the
level of harmless error); Boillard, 789 A.2d at 883-86 (stating that a cautionary instruction to the
jurors after certain inappropriate remarks during a closing argument served as a proper remedy);
9




Lariverie v. Dayton Safety Ladder Co., 525 A.2d 892, 899 (R.I. 1987) (finding no error in the
trial justice’s denial of a motion to strike plaintiff’s introduction of a “brand-new theory” during
the closing argument  because counsel was making inferences from the expert’s testimony).
Conversely, in the unique circumstances of this case, Defendant’s remark was not only
improper, but the Court had expressly prohibited Defendant from referencing the “anything is
possible” causation theory.   Although this prohibition was prompted by motions relative to the
testimony of Drs. Goldberg and DeMott, the “anything is possible” argument has no place in
medical malpractice litigation regardless of which party proffers the theory or through which
witnesses. See Ferguson v. Wayland Manor Assocs., 771 A.2d 888, 892 (R.I. 2001) (“We have
frequently held that to be admissible, an expert must testify in terms of probability and not
possibility.”                                                                                           (citing Simon v. Health-Tex, Inc.,   490  A.2d  50,  51  (R.I.  1985); Montouri v.
Narragansett Electric Co., 418 A.2d 5, 10 (R.I. 1980); Sweet v. Hemingway Transp., Inc., 114
R.I.                                                                                                    348,                                 355,                                            333  A.2d  411,  415  (1975)).    Nevertheless,  counsel  went  forward  with  a
presentation of this precluded theory by manipulating Dr. Allen’s actual testimony.
Although Plaintiffs have the burden of proof, including the burden to prove causation, it
does not follow that Defendant may introduce a medical causation theory that lacks valid expert
support—particularly in the face of this Court’s prohibition of referencing such causation theory.
See Ferguson, 771 A.2d at 892 (citations omitted).   Here, Defendant explicitly told the jury that
Dr. Allen presented “another important piece of this puzzle as to how the child was injured” and
then pried out of context Dr. Allen’s statement that “there are—in fact there are many causes of
brachial—permanent brachial plexus injuries in the newborn” when making its final argument.
Dr. Allen did not testify that Sinnara experienced these other factors or that they contributed to
his injuries, nor did Dr. Allen suggest another “piece of the puzzle” for the jury to consider.   Dr.
10




Allen, like Plaintiffs’ other experts, stated to a reasonable degree of medical certainty his opinion
that Sinnara suffered an excessive traction injury.   Dr. Allen acknowledged that in the realm of
all medical possibility, there are documented cases of brachial plexus injuries occurring in the
absence of excessive traction.   However, he did not state that there was any question that these
factors were involved with or probable causes in the instant case.   In fact, Defendant clearly was
on notice that its multi-factor, “anything is possible” causation theory was off-limits based on
this Court’s orders relative to the testimony of Dr. DeMott and Dr. Goldberg.   Nonetheless,
Defendant chose to convey to the jury that Dr. Allen’s testimony provided a basis for the
disallowed causation theory.   Accordingly, this case presents unique and different circumstances
from those involving mere improper statements during a closing argument.   Cf. Horton, 871
A.2d at 965-66; Boillard, 789 A.2d at 883-86.
Defendant further relies on Lariverie to argue that using Dr. Allen’s testimony to “poke
holes” in Plaintiff’s causation theory was allowable.   See 525 A.2d at 899.   Defendant argues
that  it  may                                                                                              “connect  the  dots”  between  the  facts  in  the  instant  case  and  Dr.  Allen’s
acknowledgment of other factors related to brachial plexus injuries in general.   In Lariverie, a
personal injury case wherein a plaintiff fell from a negligently designed ladder, the plaintiff’s
expert stated that among other causative factors for the break,6 “the more you increase the slope
[of the wood], the greater the weakness, because the spring wood, the low density component of
the wood, becomes more active in resisting fracture.”   Id. at 894.   In its closing, the Lariverie
6 The plaintiff’s expert “observed that the groove cut into the right leg to accommodate the step
as well as the hole used to insert a clamp that was put in to join the step to the right rail were
‘factors [that] tend[ed] to weaken the rail at that point . . . in addition [to having] a very weak rail
to begin with because of the condition of the wood.’”   Lariverie, 525 A.2d at 894.   The expert
also pointed to slope in the cross-grain of the wood as a factor for the break, which did not meet
OSHA standards.  Id.
11




plaintiff                                                                                                “claimed that the defendant violated the ANSI7 standards and or  [sic] the OSHA8
standards by creating and manufacturing a product which was less dense than allowed by the
standard.”   Id. at 899.   The defendant objected, contending that this closing argument was a
brand new theory not supported by evidence in the record because the plaintiff’s expert never
actually stated that the density of the wood violated OSHA or ANSI.   Id.   The Lariverie Court
permitted the plaintiff’s closing statement because his expert had testified that the low density of
the spring wood was at least one cause of the fracture and the ANSI wood density standard,
which states that in the manufacture of portable wood ladders “low density wood shall not be
used,” was admitted into evidence.   Id. at 889.   Thus, in Lariverie, it was proper for the plaintiff
to “connect the dots”—the existence of low density wood, the expert’s opinion that low density
wood was a causal factor in that case, and the ANSI standard for low density—despite its expert
not explicitly making the statement that the wood violated an ANSI standard.   Id.   Essentially,
the plaintiff did, in fact, make a proper inference from the evidence in the record during its
closing.
In the instant case, unlike Lariverie, Dr. Allen simply stated that in the expanse of all
brachial plexus research, there is some evidence that decreased tone or the forces of childbirth
can contribute to these types of injuries.   Dr. Allen did not say that these were factors at issue in
the instant case.  Thus, while the Lariverie expert said that low density was a cause for the ladder
rung to break, and the trial judge never specifically prohibited such testimony.   Here, Dr. Allen
never said that tone or propulsive forces were causes of Sinnara’s cervical avulsions, and this
Court had already prohibited such testimony from Dr. Goldberg and Dr. DeMott.   In contrast to
the circumstances of Lariverie, those of the instant case are unique because counsel’s final
7
“ANSI” refers to the American National Standards Institute.
8
“OSHA” refers to the Occupational Safety and Health Administration.
12




argument  was  in  derogation  of  record  evidence,  and  this  Court  explicitly  disallowed  the
referencing of this very causation theory.
As such, regardless of Defendant’s motives, upon examination of the record, this Court
finds that these unique circumstances caused a mistrial and warranted costs and fees.    See
Najarian, 911 A.2d at 710; Vincent, 574 A.2d at 1235. Defendant circumvented this Court’s
rulings on causation and disregarded well established legal principles by putting forth the
“anything is possible” theory in the context of Dr. Allen’s testimony.  See Ferguson, 771 A.2d at
892 (citations omitted).   Without introducing admissible evidence to support its causation theory
and while on notice that this Court was not satisfied with Dr. Goldberg and Dr. DeMott’s
proffered  testimony  on  causation,  Defendant  nonetheless  suggested  that  Dr.  Allen’s  mere
mention of general possibilities served to negate his medically certain conclusion that excessive
traction was the most probable cause of Sinnara’s permanent injuries in the instant case.   Thus,
this argument rose above the level of mere improper statements in closing.   Cf. Lariverie, 525
A.2d at 899 (permitting the plaintiff to “connect the dots” in its closing statement).   In these
unique circumstances, no other remedy—besides the use of this Court’s inherent power to award
costs and fees to the Plaintiff—is available to serve the ends of justice.   See Najarian, 911 A.2d
at 710; Truk Away of R.I., Inc., 643 A.2d at 817; Vincent, 574 A.2d at 1235.
C
Remedy
Plaintiffs seek reimbursement for costs and fees incurred during the trial. This Court has
the authority to fashion remedies under its supervisory and revisory powers.    Cheetham v.
Cheetham, 121 R.I. 337, 342, 397 A.2d 1331, 1334 (1979) (citations omitted).   Finding the
circumstances of this mistrial unique and warranting an appropriate remedy, this Court will
exercise its inherent powers to serve the ends of justice.   See Najarian, 911 A.2d at 710; Truk
13




Away of R.I., Inc., 643 A.2d at 817; Vincent, 574 A.2d at 1235.   In this case, the Court fashions
a remedy that compensates the Plaintiffs for some, but not all, of their costs and fees incurred
during the presentation.   To award Plaintiffs either all or none of their costs and fees would not
serve the legitimate goal of crafting a fair solution.   See Vincent, 574 A.2d at 1235 (crafting a
“fair solution” through the exercise of the court’s “inherent power to fashion an appropriate
remedy that would serve the ends of justice”).
Accordingly, this Court equitably fashions a remedy that requires Defendant to reimburse
Plaintiffs for attorneys’ fees and costs related to Dr. Allen’s appearance at the first trial.   This
remedy shall not include any discovery or pre-trial preparation expenses for Dr. Allen that may
be reused in a new trial.
This Court directs Plaintiffs’ counsel to prepare an accounting of its expenses and
attorneys’ fees relative to Dr. Allen and submit a copy to this Court for its review.
Counsel also shall prepare and submit the appropriate judgment for entry in accordance
with this Decision.
14

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Rhode Island Law