continued Warren Parr, who was asked to visit the court by Sussman, said, "What struck me most was the judge's incompetence. It was just stunning to me. He spent two hours contradicting himself. He said he was uncomfortable with the trial; if he let it continue, something bad was going to happen."
Pfingst asked for the mistrial. On February 28, he said that throughout the case, "Plaintiff's counsel has repeatedly and unceasingly asked improper questions." This caused him to object numerous times, giving jurors the impression he was "trying to hide something." He claimed that the plaintiff's lawyers were trying to insert impermissible evidence. They attempted "trial by ambush" by introducing the topic of a type of baby heart rhythm, which his client said was caused by anemia.
But Sussman and Parker rebutted that it was the defendant who had introduced this topic. They then put an expert witness on the stand who said that this abnormal rhythm was not caused by anemia but by lack of oxygen. They accuse Pfingst of "egregious misconduct" and said he had introduced impermissible hearsay evidence.
At one point in the trial, the defendant had been asked a question about previous medical procedural errors he had made. Pfingst had not objected to the question. Pfingst later said, "I'm not an ob/gyn" and admitted he didn't know about the topic. "I told the court at this time I don't know anything about this," Pfingst had said in court. "I am learning about it for the first time." Sussman and Parker, who both specialize in such litigation, claimed ignorance is no defense.
After much sound and fury, as well as confusion, Wickersham granted the mistrial, admitting that he had made errors during the case.
In an interview, Pfingst defended Wickersham. "He was not sleeping on the bench," said the former district attorney. Wickersham "was incredibly patient with Sussman as she asked a series of objectionable questions that a first-year law student would know were objectionable." Wickersham did not return a call for comment.
The jurors favored the plaintiff because "we hadn't gotten to the defense case," Pfingst said. He claimed his letter to Sussman was not threatening. "I'm just giving her an opportunity to withdraw the statements. People say things in the heat of the moment." Pfingst said he can't remember whether he worked on that pension-related case later that day.
"The jury saw right through Pfingst," said Parker in an interview. "You can only keep that veneer of falsehood so long. All he said was smoke and mirrors. We had a unanimous decision going. The reason a mistrial was called was that Nancy and I made [Pfingst] look stupid." She calls the mistrial "a legal Mulligan" -- an errant golf shot that is re-hit without a taking a penalty.
Sussman said Wickersham's motivation seemed to be: "Let's get Mr. Pfingst out of this any way I can."