Wednesday March 29, 2:59 am ET
Hank Grezlak, The Legal Intelligencer
The Pennyslvania Superior Court has thrown out sanctions in the amount of $52,000 leveled at a defense attorney whose reference during opening arguments in a medical malpractice trial to expert testimony the trial court had already barred resulted in a mistrial.
The three-judge panel in Stahl v. Redcay ruled that while a mistrial was necessary because of the lawyer's comments, the judge's orders weren't specific enough to warrant sanctions.
Although the trial court precluded the defense's witness -- a nurse and midwife -- from testifying about whether a mother's smoking during pregnancy could have caused a child's birth defects, the attorney for the doctor in the case said during opening arguments that the defense had "a host of well-qualified experts" who would testify that smoking causes birth defects.
A mistrial was declared, and after a hearing the trial judge "conservatively ordered" the defense attorney to pay the plaintiffs' counsel $52,088.
But writing for the unanimous three-member panel, Superior Court Judge Susan Peikes Gantman said that while the trial court had issued several orders relating to the effects of smoking on pregnancies, the judge didn't cite one specifically when ordering the lawyer to pay the sanctions.
"We definitely do not condone appellant's trial strategy in misstating the evidence, even under the aegis of an aggressive defense," she wrote. "Nevertheless, we hold the court's ruling subject to review has no foundation of record, absent a definite, clear and specific order of record prohibiting the use at trial of evidence of mother's smoking during pregnancy as a cause of the minor child's alleged birth defects. Thus, we are constrained to reverse."
Gantman was joined in her opinion by Judges John T. Bender and Justin Johnson.
The plaintiffs lawyer said he intends to petition for re-argument before the Superior Court, and if that fails, appeal to the state Supreme Court.
He said that if the Superior Court's decision is upheld, complex trials "could become a free-for-all."
The case centers around Michelle and James Stahl's medical malpractice action brought on behalf of their daughter, Heaven Lee Angel Stahl, for serious injuries "arising out of" her birth.
According to the Stahls' lawyer, Joseph Lenahan of Lenahan & Dempsey in Scranton, Heaven Lee Angel is blind, deaf and suffering from brain damage.
"She's basically Helen Keller without the intellectual capacity," he said.
The defense was contending that her injuries were caused by her mother's smoking. The attorney for one of the defendants, Michael M. Badowski of Margolis Edelstein, sought to introduce the testimony of Elana Kehoe, a nurse and midwife, that Heaven Lee Angel's injuries were caused by her mother's smoking during her pregnancy.
The trial court ruled in January 2004 that Kehoe's testimony was inadmissible.
According to the opinion -- citing the trial court -- Lenahan "had carefully been seeking to define issues to avoid a mistrial."
Lenahan said there were 36 motions in limine to address various issues.
Kehoe, the opinion said, was the only witness Badowski had who would testify that smoking caused the type of injuries Heaven Lee Angel had.
Despite that, Badowski "launched into a long recitation of the poisonous [effects] of a pregnant mother's smoking on the fetus," the opinion said, again quoting the trial court. He said he had a host of well-qualified experts who could support the theory that "smoking causes microcephaly."
Lenahan asked for a mistrial, which the trial court granted.
Following a hearing in June 2004, the trial court ruled that Badowski had "acted willfully and recklessly in his statements to the jury" and sanctioned him, ordering him to pay Lenahan $52,088. Badowski appealed.
Gantman, citing the Superior Court's decision in In re Contempt of Cullen, said that an attorney must violate a "definite, clear, and specific" court order for contempt to apply.
Gantman said that while the trial court did issue a number of orders relating to evidentiary issues, including Kehoe, it never issued an order "prohibiting the use of evidence of mother's smoking during pregnancy as a cause of child's alleged birth defects."
In fact, she said, the trial court denied the plaintiffs' request to prohibit evidence of the mother's smoking three times.
Badowski argued that defense expert witness reports would supply "sufficient evidence" with regard to smoking causing birth defects, and that he would have "strengthened this evidence" through "skilled cross-examination" of the plaintiffs' expert witnesses.
But Gantman said that Badowski did not have a host of experts, that he clearly "had in mind" Kehoe's testimony, who was already precluded from testifying about causation, and that when asked which of the plaintiffs' experts might have supplied that type of testimony, he replied "I don't know."
"[Badowski] cannot simply rely on his anticipated skilled cross-examination to elicit the necessary testimony from [the Stahls'] own experts," Gantman said. "[Badowski's] opening statements necessitated the mistrial to address the obvious jury taint."
However, Gantman said that in regard to the contempt petition, the Stahls couldn't point to a specific order. She said they referred to an "unrecorded teleconference" in which the trial court "decided smoking could be admitted only as a risk factor, but not as a cause" of Heaven Lee Angel's injuries.
But that conference doesn't constitute a "definite, clear and specific" order, she said.
As for the order barring Kehoe's opinion on causation, Gantman said, it didn't bar her entire testimony. Given that, she said, it wasn't enough to serve as the basis for the sanctions.
Gantman said the trial court relied on an April 7, 2004, order, in which it denied the Stahls' request to exclude evidence of the mother's smoking during her pregnancy.
"That the court would also entertain appropriate cautionary instructions does not illuminate our analysis," Gantman said. "What we're looking for in this record is a definite, clear, specific order precluding causation evidence at issue, something in the nature and form of the court's later 'clarification' order of June 7, 2004.
"We conclude the court's orders of Jan. 30 and April 7 are simply too vague to serve as a proper foundation for the contempt/sanctions order on appeal."
Lenahan said that while attorneys "should be given leeway" in complex cases, and that "mistakes can cause mistrials," the sanctions were warranted in this case.
He warned the court's opinion could cause problems in other trials.
"If that kind of behavior can't be sanctioned, then complex trials could become a free-for-all," Lenahan said.
According to court records, Badowski was represented on appeal by Jonathan Herbst, also from Margolis Edelstein. Herbst said calls should be referred to Margolis Edelstein managing partner Michael P. McKenna. McKenna could not be reached for comment at press time.