Mezrow Suffers Third Mistrial in Two-Year Period

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For the third time in just over two years, personal injury lawyer Steven M. Mezrow's actions have resulted in a mistrial in Philadelphia court.

But Mezrow said he doesn't believe he was at fault in at least two of those cases and his law partner at Pansini & Mezrow and co-counsel in each of those cases, Michael O. Pansini, agreed.

On Monday, Philadelphia Court of Common Pleas Judge Marlene F. Lachman issued an order granting a mistrial in Williams v. Parkway, after Mezrow referenced during his opening arguments the federal government's determination that his client was eligible for Social Security disability benefits.

Philadelphia solo attorney Dean E. Weisgold, defense counsel in the case, had filed a motion in limine Dec. 27, 2013, seeking to preclude mention of plaintiff Dartanya Williams' Social Security disability status, according to the docket in the case.

Weisgold said he was concerned that mention of the plaintiff's Social Security status would prejudice his client.

Weisgold, Pansini and Mezrow all said that, following oral arguments on the motion Jan. 21, Lachman ordered from the bench that mention of Williams' Social Security disability status was admissible in the context of explaining what information the expert witnesses relied on to form the basis for their opinions.

However, Lachman said Williams' Social Security disability status could not be pointed to as a reason for the jury to find in the plaintiff's favor, according to Weisgold, Pansini and Mezrow.

During opening arguments Jan. 23, according to an excerpt from the trial transcript, Mezrow told the jury that plaintiffs vocational rehabilitation expert Rosalyn Pierce would explain that, as part of her evaluation of Williams, she "took into consideration" that "even the United States federal government has rendered Dartanya disabled as of the date of this accident."

Weisgold immediately objected, according to the transcript excerpt, but Lachman overruled him.

The following day, however, Weisgold motioned for a retrial based on Mezrow's comment and Lachman granted it, according to Weisgold, Mezrow and Pansini.

Both Mezrow and Pansini told The Legal on Thursday that they believed Mezrow's comment during openings complied with Lachman's order.

"The intent was [to say] that Rosalyn Pierce relied on the records of the federal government," Pansini said.

"I strongly believe what we did was in conformance with what [Lachman] said," Mezrow said, adding that he believes Lachman granted the mistrial in an abundance of caution, recognizing that it would be easier to start the trial over since no witnesses had been called yet than it would be to go through the entire trial, only to have a verdict potentially overturned because of a statement that was made during openings.

Weisgold, however, said he thought Lachman had no choice but to grant the mistrial after an "obvious violation of her instructions."

"It's a real shame that the 12 jurors and all the lawyers and the witnesses had to go through this process," Weisgold said Thursday. "A lot of time was, unfortunately, wasted."

Williams was the latest in a string of mistrials involving Mezrow.

Last October, Philadelphia Court of Common Pleas Judge Lisa M. Rau declared a mistrial eight days into the trial in DiSalvio v. Cream-O-Land Dairy, after discovering Mezrow's law license had been suspended for failing to pay his annual registration fee and submit the requisite paperwork.

Before that, in November 2011, Philadelphia Court of Common Pleas Judge Gary F. DiVito declared a mistrial in Antonson v. Rothman Institute after defense counsel alleged that Mezrow cross-examined a defense witness on the stand regarding inadmissible evidence in an effort to mislead the jury into believing the witness had intentionally destroyed the evidence.

Rau issued an order in DiSalvio on Oct. 29, 2013, declaring a mistrial because Mezrow "did not disclose his administrative suspension to this court, opposing counsel or his clients at any point prior to or during the trial until this court raised the issue today."

Rau said in the order the court first learned of the suspension through the Office of the President Judge's list of attorneys who are administratively suspended.

Rau ordered Pansini & Mezrow to pay the defense's trial costs, excluding attorney fees.

Rau said in the order that "allowing an attorney unauthorized to practice law to represent the plaintiffs in this action contaminated the entirety of the trial and compromised the integrity of any verdict that might result."

Mezrow told Rau that he had received notice in August that he would be administratively suspended if he did not pay a fee for continuing legal education credits he obtained late, according to the trial transcript.

Mezrow said he made the payment by credit card and was told by someone at the Supreme Court that the issue was resolved, according to the trial transcript.

Mezrow told Rau he never opens his own mail but instead has a secretary do it, so he never saw any letter notifying him that he had failed to renew his registration, according to the trial transcript.

Pansini, who was trying the case with Mezrow, told Rau that Mezrow had a secretary but that she was fired in the spring and never replaced, according to the trial transcript.

Mezrow told The Legal in November that his suspension had been the product of "nothing more than the tardy receipt of the annual fee which I thought had already been paid."

"Within hours of learning that it had not been paid, the fee was hand-delivered and the administrative suspension was immediately lifted and I was immediately reinstated," Mezrow said.

The mistrial in DiSalvio came about two years after the first of two mistrials in Antonson.

In Antonson, DiVito granted the defense counsel's motion for a mistrial, which alleged that Mezrow had questioned a defense witness on the stand about inadmissible photographs of the sidewalk where the injury allegedly occurred in an attempt to make the jury believe the witness had intentionally destroyed the photographs.

DiVito ordered Mezrow to reimburse attorney fees and court costs to the defense within 10 days.

Pansini, who was also co-counsel in that case, filed a motion for reconsideration and a cross-motion for attorney fees and costs Dec. 2, 2011, calling the defense's allegations "fallacious and disingenuous."

In Antonson, according to the defense's motion for mistrial, plaintiff Laura Antonson alleged she suffered a traumatic brain injury when she tripped on an uneven portion of sidewalk outside a rehabilitation facility.

The defense alleged in the motion for mistrial that the defendants' corporate designee, Suzanne Basile, testified in her pretrial deposition that she had taken cellphone photographs of the sidewalk while it was undergoing repairs two years after—and unrelated to—Antonson's alleged injury.

Following that deposition, according to the motion for mistrial, DiVito barred admission of all evidence pertaining to remedial repairs performed after Antonson's alleged injury.

On Nov. 18, 2011, the fourth day of trial, according to the motion, Mezrow asked Basile during cross-examination whether she had ever taken any photographs of the area of sidewalk where Antonson allegedly fell.

Defense counsel, Jane North of Deasey, Mahoney, Valentini & North in Philadelphia, immediately asked for a sidebar and objected to that line of questioning, arguing that the only photographs Basile ever took of the sidewalk were taken during subsequent remedial repairs, according to the motion.

Mezrow told DiVito that his questions went to the issue of spoliation of evidence and that he would not mention the inadmissable remedial repairs. DiVito allowed Mezrow to continue questioning Basile about the photographs, according to the motion.

According to the motion, Mezrow had "knowingly failed to inform the court that the photographs were of the subsequent construction" he had previously agreed during sidebar not to mention in his cross-examination.

According to the motion, Basile was forced to admit that she had taken photographs of the sidewalk and that they were most likely contained on an old cellphone she no longer had in her possession.

At the end of the day on Nov. 18, 2011, according to the motion, North again argued to DiVito that Mezrow's line of questioning had pertained to the inadmissible sidewalk construction and DiVito advised defense counsel to file a motion for mistrial.

The defense filed its motion for mistrial Nov. 20, 2011, and a hearing was held Nov. 21, 2011, at the end of which DiVito granted the motion.

The second trial in Antonson actually resulted in a second mistrial in April 2012, after Mezrow objected to North's assertion during cross-examination of plaintiff's liability expert, Julius Pereira, that she "was a religion major in college" and the defense objected to Antonson's testimony that the defendants had insurance.

Ultimately, Philadelphia Court of Common Pleas Judge Paul P. Panepinto granted both parties' motions for mistrial but refused to grant either side attorney fees and costs, according to North.

Pansini told The Legal on Thursday that while he respects the court's rulings in all three cases, he does not believe Mezrow violated the court's orders in either Williams or the first Antonson trial.

"With regard to Antonson, that was something where Steve actually cleared it with the court before he did it," Pansini said, referring to DiVito's allowance of Mezrow to continue questioning Basile on the photographs over North's objections.

"The record will speak for itself," Mezrow added Thursday with regard to Antonson. "The court said, 'This is a proper question. Ask the question.' There was no objection and then two, three days later there was a motion saying the question shouldn't have been asked."

Pansini said of the practice in general that he believes the decision by defense counsel to seek mistrial is often a matter of strategy.

"From my perspective, I will say that I believe that if you are a defendant or a defense counsel and you feel that your case is going well and you have a jury who is going to find in favor of your client, you are not going to ask for a mistrial," Pansini said.

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI.

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