Justice Jeffrey Arlen Spinner
Administratrix Marx moved for costs and sanctions against defendants in this action arising from her mother’s death at defendant nursing home in this negligence action. During trial, defendants’ cross-examination questions were objected to, and the court sustained a majority of plaintiff’s counsel’s objections. The court found defendants’ counsel’s conduct was sufficiently prejudicial to the extent it was not curable through curative instructions, and declared a mistrial. Plaintiff sought costs and sanctions arguing it would be inequitable to require plaintiff to bear costs associated with the trial as the mistrial was granted solely as a result of defendants counsel’s egregious conduct. Defendants argued there was no basis for imposition of costs as the questions posed that resulted in the mistrial were not knowingly or willfully improper. The court disagreed finding the questions attempted to solicit evidence from a witness based on records not in evidence, finding counsel engaged in frivolous conduct for which the imposition of costs was proper. In lieu of sanctions, the court directed defense counsel to reimburse plaintiff’s counsel for expenses incurred as a result of the frivolous conduct and mistrial.
