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January 19, 2002

for mistrial based on

alleged attorney

misconduct denied.


Staff Writer

A motion for mistrial based on alleged attorney misconduct was denied Friday in the case of a woman who tripped and fell at the entrance to the Imperial Irrigation District auditorium in El Centro.

The woman, El Centro resident Carmen Hamrick, is suing IID alleging the cause of her Oct. 16, 1996, fall was dangerous conditions on public property.


Hamrick's attorney, Lowell Sutherland of El Centro, asked Superior Court Judge Joseph Zimmerman to declare a mistrial because of seven instances of alleged misconduct on the part of IID attorney Frank Oswalt. Sutherland said he found similar instances of misconduct in two other cases and asked the judge to cite Oswalt for misconduct.

Sutherland's motion came on the heels of what Zimmerman called "crucial" information about Hamrick's medical history of which Sutherland said he was unaware.

Central to the trial is whether Hamrick is in pain due to trauma to her neck from her 1996 fall. There is some question as to whether she suffered injury to the C4-C5 cervical disks before her fall on IID property in 1996.

Oswalt sought to introduce evidence that Hamrick suffered an injury to those disks in a whiplash accident in 1991. To bolster his argument he produced a three-page document from the San Dieguito Orthopaedic Medical Group that seemingly confirms the prior neck injury.

The document was not made public.

Sutherland said he did not have a copy of the document because Oswalt's law firm partner did not provide it to him as agreed-to verbally.

Oswalt produced written pre-trial questions and answers, or interrogatories, that he said should have led Sutherland to realize the document was in Oswalt's possession. Oswalt also produced a written request to the San Dieguito firm requesting that copies of documents sent to Oswalt be sent to Sutherland. Finally, Oswalt said Hamrick is Sutherland's client and he should be aware of all of her medical history.

Sutherland was adamant that the document was not supplied by Oswalt's office, and he argued a certain file was previously in the possession of someone else and perhaps that's why he did not have the document in question.

The document was first referred to during Oswalt's cross-examination of Sutherland's expert medical witness, Dr. Travis Calvin, an El Centro neurological surgeon, who agreed that were he to have information about a previous neck injury from before 1996, such information could cause him to change his conclusions about Hamrick's medical condition.

Calvin said he is Hamrick's doctor.

Meanwhile, in support of his allegation of misconduct, Sutherland said photographs of local businesses and parking lots — introduced by Oswalt — showing curbs less than 6 inches in height, were shown to the jury before being shown to him. Further, Sutherland argued, none of the photos was taken in high traffic areas as is allegedly the case with the auditorium entrance, and that high traffic areas of those businesses have ramps.

Zimmerman told Sutherland to take his own photographs and prove Oswalt wrong to the jury.

Sutherland also said Oswalt's attempt to include information about a malpractice allegation by Hamrick against an ophthalmologist was an attempt to make the jury think Hamrick files many lawsuits and amounted to misconduct.

Information at the County Courthouse dating to 1987 shows Hamrick filed lawsuits in 1994 and one in 1995, but they are not similar to this lawsuit against IID

Finally, Sutherland said the cumulative effect of Oswalt's actions merited a mistrial and warranted citing Oswalt for misconduct.

Oswalt argued the San Dieguito document was necessary to impeach statements by Hamrick about her medical condition.

Sutherland said Oswalt should go about it differently and without waving the San Dieguito document about, an action Oswalt said he did not do.

Zimmerman, reading from a bench guide for judges, said the failure to promptly object to something results in the waiver of the objection. Because Sutherland failed to do so in all but one instance, Zimmerman decided to admonish the jury only about the comment by Oswalt regarding the malpractice allegation. The comment was the last thing the jury heard while seated before lunch break.

Zimmerman dismissed each of Sutherland's other complaints, except for the San Dieguito document, which he said he would rule upon later.

"If that means we have a mistrial later, so be it," he said.

The trial resumed with the appropriate admonishment to the jury.

>>Staff Writer Rudy Yniguez can be reached at 337-3440.

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