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HomeMy WebLinkAbout97-3020 civilPATTI J. HURLEY and MICHAEL HURLEY, Plaintiffs Vo KEVIN A. SHUSS, Defendant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COLri~ITY, PENNSYLVANIA · · NO. 97-3020 CIVIL TERM · AND/OR SANCTIONS BEFORE coUIDO, ~ _ ORDER OF COURT AND NOW, this /'~~'-day of SEPTEMBER, 1999, after heating, and for the reasons stated in the attached opinion, Defendant's Motions for Sanctions and/or Attorney's Fees is DENIED. By Edward E. Guido, J. Mark D. Schwartz, Esquire For the Plaintiff James G. Nealon, III, Esquire For the Defendant :sld PATTI J. HURLEY and MICHAEL HURLEY, Plaintiffs Ve KEVIN A. SHUSS, Defendant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · · · NO. 97-3020 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR ATTORNEYS' FEES _AND/OR SANCTIONS BEFORE GUIDO, J._ OPINION AND ORDER OF COURT A jury trial commenced in this case on Monday, February 1, 1999. On Wednesday afternoon February 3, 1999, we granted the Defendant's request for a mistrial as a result of improper questioning of a defense witness by Plaintiffs' Counsel. Currently before us is Defendant's Motion for Attorneys' Fees and/or Sanctions. A heating on the motion was held before this Court, the parties have filed briefs, and the matter is ready for disposition. FACTUAL BACKGROUND This case arises out of an automobile accident involving minimal vehicle damage but resulting in the allegation of very serious personal injuries. All issues were hotly contested, with both parties expending substantial sums on expert witness fees.~ On the morning of the third day of thai, Plaintiffs' counsel attempted to establish that one of the defense experts was working for an insurance company. We immediately convened a sidebar conference. Plaintiffs' counsel argued that, pursuant to recently ~ Defendant's expert fees exceeded $10,000. (See hearing Exhibit 4, April 9, 1999). Plaintiff incurred well over $5,000 in expert fees. (.$_~ transcript of testimony, April 9, 1999, p. 26). 97-3020 CIVIL adopted Pennsylvania Rule of Evidence 411, evidence that a witness is being paid by an insurance company to testify is admissible to establish bias.2 We held that the new role does not change prior case law. Therefore, we precluded counsel from asking any further questions along those lines. We specifically advised counsel that no more mention of insurance should be made at trial. During the afternoon session on the same day the defense called Dr. John R. Zeleznock as an expert witness. While Plaintiffs' Counsel was cross examining the doctor on his qualifications, the following exchange took place: Q Dr. Zeleznock, Mr. Nealon asked you how many patients - or asked you whether you treat TMJ patients. How many do you have currently? A I can't tell you how many I have fight now, and I'll tell you why. But there's a lot, and if I may, I will -- maybe I shouldn't say this or not, but the reason I have much more than I normally have is that Keystone and a couple other insurance companies want me to see their patients. Q Okay. A Because we obviously lost one person in York who treated some also. Q So you're here on behalf of an insurance company? MR. NEALON: Your Honor, may we approach? MR. KNAUER: Withdraw the question. THE COURT: Approach the bench.3 At the request of Defendant's counsel, we declared a mistrial. 2 Pa. Rule of Evidence 411 provides as follows: Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This role does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as Proof of agency, ownership, or control, or bias or prejudice of a witness. 3 Transcript of testimony of John R. Zeleznock, p. 10-11, 97-3O2O CIVIL DISCUSSION It is well established that the courts of this Commonwealth possess the inherent power to enforce their orders by imposing penalties and sanctions for failure to comply. Brocker v. Brocke~r, 429 Pa. 513,241 A. 2d 336 (1968); Davis v. SEPTA, 680 A.2d 1223 (Pa. Comm. 1996). Such penalties and sanctions, including attorneys' fees, may be imposed against an attorney who "recklessly and knowingly" causes a mistrial by "willfully" violating an evidentiary ruling. Davis v. SEPTA, 680 A.2d at 1225. The imposition of such penalties or sanctions is within the sound discretion of the trial judge. In the instant case Plaintiffs' counsel argues that he honestly felt that Dr. Zeleznock's repeated reference to his work for insurance companies opened the door for his question.4 His argument goes something to the effect that if the doctor wanted to impress the jury with the fact that insurance companies seek him out to treat their patients then the Plaintiffs should be able to establish that he was being paid by an insurance company for his trial testimony. While we question both the logic of counsel's argument and the wisdom of his actions, we do not question his sincerity. Defendant's counsel argues that Plaintiffs' counsel intentionally caused a mistrial because he felt that his case was going badly. If we felt that there was even a remote possibility that counsel's conduct was aimed at intentionally causing a mistrial, we would not hesitate to sanction him harshly. However, we believed him when he testified that "the last thing I wanted is a mistrial.''s He went on to state the following: 4 Prior to the fateful question, Dr. Zeleznock made reference to his work for insurance companies on at least two other occasions. 5 Transcript of testimony, April 9, 1999, p. 19. 97-3020 CIVIL Mr. Nealon is talking about his costs. We also got clocked for thousands of dollars so that I try to try a case to the best of my ability one time through. I don't try to blow a case. We were at the end of almost three days of testimony. That was their last witness, and if Dr. Zeleznock had stayed away from insurance and stayed away from using that to bolster his expertise, you would have never heard the word insurance from our mouths period.6 We are satisfied that the actions of Plaintiffs' Counsel were based upon his good faith, albeit misguided, belief that the defense had waived the benefit of our prior ruling. We are further satisfied that to grant Defendant's request for mistrial was the appropriate remedy for the inappropriate conduct of Plaintiff's counsel. Under the unique circumstances of this case, the imposition of further sanctions would not be appropriate. AND NOW, this ORDER /~day of SEPTEMBER, 1999, after heating, and for the reasons stated in the attached opinion, Defendant's Motions for Sanctions and/or Attorney's Fees is DENIED. By the Court, /s/Edward E. Guido Edward E. Guido, J. Mark D. Schwartz, Esquire For the Plaintiff James G. Nealon, III, Esquire For the Defendant :sld 6 Transcript of testimony, April 9, 1999, p. 19.