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Onstad v. Wright8/21/2001
Appellant's Motion for Rehearing was OVERRULED September 18, 2001.
ROCKNE ONSTAD, APPELLANT
v.
JAMES O. WRIGHT, III, M.D., ET AL., APPELLEES
On Appeal from the 5th Judicial District Court Bowie County, Texas Trial Court No. 96C1613005
Before Cornelius, C.J., Grant and Ross, JJ.
The opinion of the court was delivered by: Justice Grant
OPINION
Rockne Onstad, counsel for plaintiffs in a medical malpractice lawsuit, appeals from the imposition of a monetary sanction by the trial court on him personally after it declared a mistrial in the lawsuit. Onstad contends that the trial court's imposition of the sanction for a violation of its order in limine was outside its authority, that it was excessive, that prerequisites to issuance of a sanction were not met, and that the sanction violated Tex. Civ. Prac & Rem. Code Ann. ยง 7.011 (Vernon 1986).
Onstad violated an order on a Motion in Limine during the trial of the underlying case. Because of the violation, the trial court ordered a mistrial and, after a hearing, imposed a sanction of over $32,000, a part of the amount expended by the defendants to participate in the trial to that point. Onstad appeals from that order.
The record shows that during the course of a medical malpractice lawsuit, after an extensive hearing, an order on a Motion in Limine was granted in which the trial judge ordered that no mention be made of a "shutdown" of a medical unit after the incident on trial. The surgical unit was shut down in June 1993. The surgery was in May 1993.
Plaintiffs' witness Dr. James Hurley testified that he had not talked to a doctor since the program had been shut down. Plaintiffs' counsel then asked Dr. Hurley whether he had anything to do with the surgical program being shut down. Dr. Hurley answered yes, and the trial judge intervened reminding counsel pointedly that the testimony was outside what was authorized.
Counsel then asked Dr. Hurley whether he had begun referring patients elsewhere because of the increase in infection, to which he answered, "Yes." Counsel then asked him to compare the results at the transferee hospital with those at St. Michael Hospital during the first half of 1993. Hurley's answer was, "Well, after the program was shut down, there was some places . . . ."
The trial judge intervened again, removed the jury, and castigated counsel for ignoring his ruling yet again. Defense counsel then moved for a mistrial based on undue prejudice caused by the admission of the evidence. The court reserved taking further action at that time and proceeded with the case.
The next day, before proceedings began, the trial judge stated that he had the court reporter transcribe the relevant portions of testimony for his review. Based on counsel's direct disregard of his order, the judge ordered a mistrial. He then informed all counsel by letter that he would hold a hearing on sanctions. That hearing was conducted on March 23, 2000. All parties were given the opportunity to present evidence and arguments. The judge stated that he would impose a sanction. Evidence was then presented regarding the expenses caused by the mistrial, and the court imposed a sanction in that amount.
The sanction is payable by Rockne Onstad personally and was originally due to be tendered by May 1, 2000. Onstad first sought review through mandamus, and on May 24, 2000, this court entered an order in which we found that he had an adequate remedy through appeal, but directed him to pay the sanction
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