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Abbott v. Mandiola3/5/1999
Appeal from an order of the Superior Court of Orange County, H. Warren Siegel, Judge. Reversed and remanded.
Sometimes, because of congested court dockets and scheduling difficulties, the "direct calendar" Judge who is assigned a case for all purposes is not the Judge who conducts the trial. Such a reassignment can lead, as happened in the present case, to trouble. Certain pairs of proceedings must be heard by the same Judge if he or she is able to do so: for example, trials and new trial motions. (See Code Civ. Proc., ยง 661.) The Judge who presided at trial is obviously the best qualified to determine the validity of the new trial motion and it makes no sense to have another Judge hear it. The same goes for the pair of proceedings in the case before us now: a mistrial and a request for sanctions brought against a litigant for causing that mistrial. As a matter of common sense judicial administration and Supreme Court precedent governing the analogous area of new trial motions, we hold that, absent inability, the Judge who declares a mistrial must also hear any request for sanctions against anyone causing that mistrial.
In this case, a different Judge from the one who declared the mistrial considered a sanction motion based on the mistrial which allegedly resulted from a discrepancy between a litigant's deposition testimony and his trial testimony. The non-trial Judge assessed sanctions in excess of $43,000 on the premise that the litigant was a liar. We reverse the order. It was the trial Judge, otherwise available to hear the sanction request, who was in the best position to determine the credibility, true nature, and motive behind the discrepancy between the trial and deposition testimony. We remand the matter for the trial Judge to determine the sanctions motion.
Background Facts and Case History
Marshall Abbott, underwent hernia surgery by the defendant doctor, Sergio Mandiola. Hernia surgeries are known in the medical world as "herniorrhaphies." A hernia surgery using fiber optic technology and small incisions is known as a "laparoscopic herniorrhaphy." We shall refer to them as fiberoptically-aided hernia operations.
There has been a four-stage evolution in fiberoptically-aided hernia operations. Initially, small gauze patches were rolled into cylinders and used as plugs to fill the space created by the muscle tear. In the second stage, surgeons began to place a piece of gauze mesh loosely above the plugs. In the third stage, surgical staples were used to anchor the gauze mesh placed above the plugs.
Finally, Dr. Edward Felix pioneered the fourth stage. He developed a "technique" which dispensed with rolled cylinders altogether. Rather, two pieces of gauze were anchored with staples. Dr. Felix's technique is thus called a "double mesh" procedure.
Abbott experienced considerable pain following a "double mesh" fiberoptically-aided hernia operation in June 1992. He sued Dr. Mandiola for medical malpractice in September 1993. The case was assigned to Judge H. Warren Siegel.
At the doctor's deposition he had testified to two things of particular importance to Abbott's case: One, it had been his custom to use the double mesh procedure on "all" fiberoptically-aided hernia operations after he went to see Dr. Felix. Two, Abbott was either the first or second patient on which he had done a double mesh operation. Based on the latter statement, Abbott contended he should have been told about the doctor's relative inexperience with double mesh operations.
After his deposition but while he still had time to correct the transcript, Dr. Mandiola obtained a simple list from Western Medical Cente
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