A Rare Decision Overturning Mistrial, Costs Orders
Congratulations to my partner Randy Arnold and, less modestly, to me. We just got the court of appeal’s decision in Smith v. Weigelt, et. al, from the District 1 Court of Appeals. We were retained to defend a surgeon accused of malpractice when a sponge was left in a patient after emergency surgery. Randy and I tried this Milwaukee County case one and a half times.
The first trial ended (early) in mistrial and the court ordered our client to pay costs and fees to the plaintiff’s counsel. The court found that a question and answer during the direct examination of the defendant violated a pre-trial order in limine preventing any testimony that the doctors had saved the plaintiff’s life. The court ordered the case re-tried. After the second trial, in which the jury found that our surgeon client had not been negligent (yeah, you read that right), we appealed the mistrial and costs order. The court of appeals agreed with us, and overturned the trial court’s mistrial order and order to pay costs.
Today’s decision is fact-specific, doesn’t break any new legal ground, and likely won’t be published. The court analyzes the specific question asked on direct examination in light of the pre-trial order in limine. But it sure is nice to have some vindication of a defense strategy and related trial action. If you read it, I hope you enjoy it – I know I did.
