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October 24, 2000 05:35pm
Mistrial Possible in Former Playmate's Lawsuit
Source: Reuters/Variety
by: Jeff Franks

(HOUSTON, TX) -- A weightlifting injury suffered by former Playboy Playmate Anna Nicole Smith could force a mistrial in her lawsuit seeking half of her late 90-year-old husband's fortune, attorneys said Tuesday.

Physicians from both sides in the case examined Smith Tuesday and were scheduled to testify Wednesday in a hearing to determine whether the trial, now in its fourth week, should go forward or be reset for a later date.

Smith, who is suing for half of oil tycoon J. Howard Marshall's estimated $1.6 billion estate, dropped a dumbbell on her left hand two weeks ago and injured a nerve that extends up her arm, Houston surgeon Mark Henry said last week.

The 32-year-old model and actress has been out of court and in a local hospital for treatment that Henry said was necessary to prevent her from losing all use of the arm.

He told Reuters it would be four to six weeks before she could return to the trial, which is expected to last well into January.

Smith's attorney, Tom Cunningham, would not comment on the matter Tuesday, but court officials said he is asking Probate Judge Mike Wood to consider a mistrial because he fears Smith's prolonged absence could alienate the jury.

In the event of a mistrial, a new trial with a new jury would be held later.

Smith and Marshall married in 1994 when she was 26 and he was 89 after they met at a Houston topless bar where she was a stripper. She got no estate money when he died in August 1995, but said that he promised half his fortune if she would marry him.

Marshall's youngest son, Pierce Marshall, the keeper of the family fortune, said his father gave his young wife millions of dollars while he was alive and did not intend for her to get more because he did not include her in his will.

Marshall's oldest son, Howard Marshall III, is also suing for a piece of the estate. He has charged that Pierce Marshall convinced his father to exclude him from his will because of a 1980 business dispute.

Howard Marshall's attorney, Jim Hartnett, said in court on Tuesday that his client, who has generally marched in step with Smith in the lawsuit, had broken ranks on the mistrial motion.

``We don't have a dog in this fight,'' he told state Probate Judge Mike Wood. ``We don't really want a mistrial and would like this resolved.''

Also on Tuesday, attorneys for Pierce Marshall filed an appeal in California of a Los Angeles judge's decision in September to give Smith $450 million from her late husband's estate.

The ruling, which came out of a separate filing by Smith in federal bankruptcy court, was ``issued by a court of dubious jurisdiction, based on erroneous principles of law and nonexistent evidence,'' the motion for appeal said.

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