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Trial postponed; judge mulls gag order in DeGraff death case

The trial in the case of a man who was pronounced dead in the DeGraff Memorial Hospital emergency room, even though he was still alive, may not occur for a year or more.

State Supreme Court Justice Frank Caruso may be leaning toward imposing a gag order on all parties and their attorneys until a verdict, based on the tenor of his comments at a hearing Thursday.

Jury selection had been set for April 18 in the lawsuit brought by Michael Cleveland's widow against Kaleida Health, owner of the North Tonawanda hospital, and Dr. Gregory C. Perry, the emergency department doctor who declared Cleveland dead Oct. 10, 2014. The doctor allegedly refused to reconsider his finding even after the family and a Niagara County coroner told him Cleveland was still moving.

Tammy Cleveland, pictured with her late husband, Michael.

Cleveland, 46, of Amherst, died the next morning, after he was transferred to Buffalo General Medical Center.  The lawsuit by widow Tammy Cleveland contends that the time lost in the DeGraff emergency department while her husband was gasping for breath made it impossible to save his life. He had suffered a heart attack while shopping in a Tops Market in the City of Tonawanda.

Caruso ruled the widow is not entitled to punitive damages because Perry's actions were not "wanton, reckless or malicious." He also threw out a claim for alleged "intentional infliction of emotional distress." Medical malpractice and negligence would be the issues at trial.

Charles F. Burkwit, the attorney for Tammy Cleveland, said in court Thursday that he intends to appeal those rulings.

"That gives you another year for publicity. I'm not saying that's why you're doing it," Caruso told Burkwit. "I am concerned about responsible behavior during the course of this case."

"We don't even know when the trial will be. It may not be until a year from now," Burkwit said in arguing against motions by attorneys for Kaleida and Perry to extend the temporary gag order.

Burkwit and Tammy Cleveland have given interviews to The Buffalo News and other newspapers as well as local and network television reporters. Attorneys for the hospital and the doctor have not, contending that federal patient privacy laws prohibit them from doing so.

"There's been a tremendous amount of publicity in this case, all of it one-sided," said Mark D. Arcara, Kaleida's lawyer. "At trial, Kaleida Health is prepared to challenge those facts."

Arcara and Brian Sutter, Perry's lawyer, said that Burkwit and Tammy Cleveland should be ordered not to talk to the media until the case is over, for fear of creating bias in the minds of prospective jurors.

"It's not fair. It's going to impact the chances of a fair trial," Sutter said.

"That's being broadcast to the potential jurors. The reporting in The Buffalo News is going to the jury pool," Arcara said.

Burkwit noted that the lawsuit originally was filed in Monroe County, where Tammy Cleveland now lives, and was shifted to Niagara County at the request of the defendants.

"I didn't go running to the media," Burkwit said. "What happened at DeGraff Memorial Hospital produced the publicity."

He suggested moving the case back to Rochester, but Caruso said Burkwit is wrong "if you think for one minute the media attention would stop if it moved back to Monroe County. This is a case that demands media coverage."

Arcara accused Burkwit of a "campaign of trial by sound bite. They want to have their trial in the media. We want to have it here in the courtroom."

Burkwit contended that no court in New York ever has upheld a gag order in a civil case. Caruso reserved decision, saying he wanted to research some previous cases on the issue.

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