Court tosses $1M sanction against lawyer, criticizes 'transparent venom' of opposing counsel
A Pennsylvania appeals court has tossed a nearly $1 million sanction against a lawyer accused of eliciting banned testimony from a medical expert at trial.
The Pennsylvania Superior Court ruled on Wednesday in an appeal by lawyer Nancy Raynor, who represented the defense in a medical malpractice suit against emergency room doctors who failed to tell a patient that X-rays had detected a nodule on her lung. The patient later died of lung cancer. The Legal Intelligencer (sub. req.) and the Philadelphia Inquirer covered the decision.
Raynor was accused of eliciting banned testimony about the patient’s history of smoking when she asked her medical expert at the 2012 trial whether the woman had any risk factors for heart disease. The expert, a doctor, mentioned smoking. When the judge later asked the doctor whether Raynor had told him such testimony was not allowed, the doctor said he could not remember.
The plaintiff was awarded $190,000 before the trial judge declared a mistrial. In a second trial, jurors awarded $1.9 million, even though jurors heard evidence about the decedent’s smoking habit for consideration of damages.
The superior court said that Common Pleas Judge Paul Panepinto had improperly shifted the burden in the contempt hearing to Raynor. In addition, the superior court said, “there is absolutely no substantive proof” that Raynor intentionally framed her question to prompt the expert to mention the patient’s smoking habit. Raynor had asked the question while questioning the expert about emergency room doctors’ efforts to rule out a heart attack when the patient went to the emergency room for chest pain and shortness of breath.
“The trial record on which plaintiff’s counsel rested is devoid of any evidence of collusion, intrigue, or wrongful purpose on the part of Ms. Raynor,” the superior court said.
Because the plaintiff failed to prove Raynor was in civil contempt, she had no obligation to present witnesses in her defense, the court said. Yet she offered to present testimony the next day from witnesses who heard Raynor warn the expert witness about the ban on smoking testimony, and was finally allowed to do so at a contempt hearing in 2014. This record, the superior court said, does not support the trial judge’s declaration that testimony by two of the witnesses was unbelievable because of “untimely” disclosure.
The trial judge “swaddled its ultimate contempt decision in unnecessary ‘credibility determinations,’ which led it to a capricious distrust of reliable evidence and a plain abuse of discretion,” the superior court said.
In addition, the superior court said, Panepinto violated Raynor’s due process rights by admitting into evidence at the contempt hearing the defense expert’s comments to the judge about not remembering the ban. Raynor did not have a motive to cross-examine him at the time, the superior court said. If she had, she risked undermining the credibility of her own expert.
The superior court also said the plaintiff’s lawyers who sought the sanction to cover their fees had overstated their case. “The difficulties inherent in the underlying medical malpractice case and hourly fees associated with the high number of lawyers who allegedly touched the file were embellished without basis,” the superior court said.
“The contempt narrative took on a life of its own. Each time plaintiff’s counsel brought the contempt issue before the court, they presumed what they were initially required to prove and presented their conclusions with transparent venom, bloom, innuendo and increased outrage, refreshed periodically with personal attacks on Ms. Raynor. Counsel’s crusade caused their proclaimed injustice to gather potency over time.”
The sanctions imposed, the superior court said, “were gratuitious and imposed in an amount that was both unprecedented and punitive.”
