No Prior order, No Civil Comtempt DD-09/06
Defense Digest
Pennsylvania - Civil Practice
No Prior Order, No Civil Contempt
The Pennsylvania Superior Court recently held in Stahl v. Redcay, 897 A.2d 478 (Pa. Super 2006), that to be punished for civil contempt, a party must not only have violated a court order, but that order must have been "definite, clear and specific – leaving no doubt in the mind of the contemnor of the prohibited conduct." This holding not only underlines the importance of notice, but puts attorneys on alert to establish a clear and unambiguous court record. This is in accord with the trend the Superior Court has been showing since their holding in Fine v. Checchio, 2005 Pa. Super. LEXIS 6024.
Stahl was a Union County Court of Common Pleas case dealing with alleged medical malpractice surrounding the birth and delivery of Heaven Lee Angel Stahl. One of the defense theories in the case was that Heaven Stahl suffered from microcephaly. According to the National Institute of Neurological Disorders and Stroke, microcephaly is a medical condition in which the circumference of the head is smaller than normal because the brain has not developed properly. It is associated with Down’s syndrome, chromosomal syndromes, and neurometabolic syndromes. Babies may also be born with microcephaly if, during pregnancy, their mothers abused drugs or alcohol. Children with microcephaly may have mental retardation, delayed motor functions and speech, difficulties with coordination and balance, and other neurological abnormalities.
With the medical lesson now aside, the crux of the Stahl decision did not involve the original defendants, who were various physicians and hospitals, but, rather, with the conduct of the defense attorney. In his opening statement, counsel for the defendants stated that Mrs. Stahl, while pregnant with her daughter, continued to smoke, which in turn caused the microcephaly. Counsel for the plaintiffs, James and Michelle Stahl, asked for a mistrial, which was granted, because only one of the defense experts, a nursing mid-wife, had opined that smoking actually caused the microcephaly. Although the defense did have multiple experts who, in their reports, stated that smoking was a risk factor in the disease, only the mid-wife expert actually reported on direct causation. Because the nurse mid-wife was not a physician, she was not allowed to offer any causation testimony at trial. The trial court granted the mistrial and also granted the plaintiffs’ request for sanctions in the form of a contempt motion against defense counsel, agreeing with the plaintiffs that the jury had been "poisoned" by defense counsel’s opening remarks about Mrs. Stahl’s smoking. The plaintiffs were awarded $52,088.02 in fees and costs, which were to be paid directly by defense counsel. This decision was immediately appealed, while the underlying trial was stayed. In response to the appeal, plaintiff’s counsel threatened to file a motion for sanctions for the delay in payment, asking for a fine of $1,000 per day until the sanctions were paid.
The first issue that came up was whether the contempt order was subject to an immediate appeal. In trying to resolve that issue, the Superior Court also had to determine if the trial court’s contempt finding was civil or criminal in nature. In citing Commonwealth v. Ashton, 824 A.2d 1198 (Pa. Super. 2003), the Stahl Court noted that if the dominant purpose of the contempt order is to vindicate the dignity and authority of the court and to protect the interest of the general public, then it is a proceeding for criminal contempt. However, if the benefit is primarily to a private party, then it is civil in nature.
In Stahl, the benefit of the contempt order was determined to be for the private benefit of the plaintiffs and was, therefore, a civil contempt sanction. The court held that because civil contempt orders imposing sanctions generally constitute a final order, they are appealable. As such, there was a right to immediate appeal in this case. However, it should be noted, especially for purposes of general litigation practice, that the Stahl Court did insert a footnote into the decision that kept sanction orders based on discovery outside of the area of immediate appeal, barring "unusual circumstances."
After determining that the trial court’s sanction for contempt was civil, the Stahl Court turned their attention to the argument that defense counsel, in the opening statements, did not violate any definite, clear and specific order. The issue in this case was somewhat muddied because there was a prior court conference, which was not recorded, wherein the plaintiffs asserted that the trial court had decided that smoking could be admitted only as a risk factor of microcephaly, not as a cause. However, the plaintiffs were unable to cite any specific court order. Quite to the contrary, the trial court had issued multiple orders in response to motions in limine denying the plaintiffs' attempts to limit the admissibility of smoking testimony. The only order limiting the smoking testimony was the preclusion of the mid-wife expert from testifying as to causation. The Superior Court held that allusions to an unrecorded conference, and the parties’ understandings about the inadmissibility of the evidence at issue, did not constitute a "definite, clear and specific order" required for civil contempt.
Thus, it can be seen that the Superior Court, based on this reasoning, as well as their reasoning in Fine, is drawing a hard line that a clean and clear record must be made for purposes of appeal. It would be advisable to keep this in mind when trying a case in a lower court, and to go through all measures possible to ensure that pertinent conferences be documented, be it at sidebar, in chambers or in open court. Even prior to trial, it is imperative to not rely on judicial assurances but, rather, to get all important decisions in the form of an order. Although different judges may react to this differently…we all know that a trial court judge does not want to see his or her name on a reversal order…the lack of a record gives the Superior Court an "out" when making a determination to reverse.
*Tom is an associate in our Philadelphia, PA office. He can be reached at (215) 575-2655 or tjmarcoz@mdwcg.com.
