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The Pennsylvania Superior Court has upheld an order for a new trial in former Chicago Bears defensive back Craig Steltz's lawsuit against a surgeon who treated him for a hernia and allegedly failed to disclose the existence of a muscle tear in his leg.

A split three-judge panel in Steltz v. Meyers denied defendants Dr. William Meyers, Vincera Institute and Vincera Core Institute's appeal, upholding Philadelphia Court of Common Pleas Judge Stella Tsai's grant of a new trial. The majority was composed of Judges Kate Ford Elliott and Judith Olson while Judge Mary Jane Bowes dissented.

A new trial was granted because defense counsel asked the defendant's musculoskeletal radiology expert if he knew that the plaintiff provided no expert of his own in the field, according to Ford Elliott's April 14 majority memorandum.

"'Five thousand. Five thousand of those radiologists and [Steltz] couldn't find one of them to come into this courtroom to support [his fact witness] did you know that?'" according to a transcript of the question appearing in Ford Elliott's memorandum.

The jury came back in the defendants' favor. Ruling on post-trial motions, the trial judge agreed with Steltz that defense counsel's question was so prejudicial that a new trial had to be granted.

On appeal, the defendants argued that the question would have been proper as a statement if made during closing arguments and, therefore, was proper as an "unanswered question" asked by the lawyer during direct examination of its witnesses, Ford Elliott said.

However, Ford Elliott said that the finding of a torn ligament by MRI review of Dr. Paul Read, a fact witness for Steltz, was backed up by another doctor.

"The record demonstrates that counsel knew his questions involving the words 'couldn't find' were untrue and misleading when, in fact, Steltz did find a radiology expert, Dr. [Jaime] Checkoff, who agreed with Dr. Read's findings," Ford Elliott said. "Counsel emphasized the point of his question by asking it not once but, over Steltz's counsel's objection, asking it a second time when he stated, 'Not one, couldn't find one?' These questions were an attempt to remove the issue of whether Dr. Read's testimony was credible from the jury."

Ford Elliott continued, "While counsel is generally free to present his or her case in the light most suited to advance the client's position, counsel is not free to take liberties with the evidence and misconstrue it for the jury."

In her dissenting memorandum, Bowes said, "While I recognize that this court's standard of review over a trial court's award of a new trial is deferential, this case presents that rare circumstance in which the trial court has abused its discretion. In particular, I believe that both the trial court and the majority have mischaracterized the context of the question posed by appellant's counsel and overstated the existence of prejudice. Accordingly, I would reverse the trial court's order granting a new trial, and permit the jury's verdict to stand."

Clifford Haines represents Steltz and said in an email: "We are always heartened by a successful outcome. Judge Tsai is a very diligent and conscientious Judge. We were confident that she got it right and the Superior Court now agrees. Mr. Steltz is delighted."

Gary Samms of Obermayer Rebmann Maxwell & Hippel represents the defendants and did not respond to a request for comment.