Sabotage or Slip-Up? Judge To Reconsider $1M Sanction for Expert’s Error

By Ryan Thompson, Esq
“Obdurate, vexatious, and dilatory conduct” is what the judge called an attorney’s recent actions that allowed an expert witness to proffer forbidden testimony.
 
However, new eyewitness evidence is forcing the judge to reconsider his whopping million-dollar sanction against attorney Nancy K. Raynor, and last week’s hearing was anything but dilatory.
 
During the often-contentious court proceeding, defense lawyers accused Philadelphia Common Pleas Court Judge Paul P. Panepinto of being “red-faced” and “angry” while Panepinto, claiming that attorneys were being “obstinate,” rose from his bench and even threatened contempt.
 
The hearing, which an appellate court ordered last month, is the result of a courtroom technology consultant coming forward after trial to claim that he heard attorney Raynor attempt to stop her expert from offering the banned testimony, a situation which led to Panepinto’s issuing the massive sanction.
 
However, will this new testimony be enough to cause the judge – who has, so far, been unwilling to relinquish his initial ruling– to reduce or remove the massive fine?
 
In a scathing opinion last month, Judge Panepinto defended his decision to sanction Raynor for “eliciting testimony” that had been prohibited. Specifically, expert Dr. John J. Kelly testified in a 2012 medical-malpractice trial that the deceased plaintiff had a history of smoking, a fact which had been precluded pretrial.
 
“It is glaringly apparent that Raynor’s conduct was orchestrated to improperly influence the outcome of this trial,” Panepinto wrote in an opinion to oppose Raynor’s appeal of the sanction. “By eliciting testimony from Dr. Kelly that the decedent was a smoker, Raynor displayed her inflexibility and unyielding position toward this court and its preclusion order.”
 
The precise sanction amount was $946,167, which is the total computed cost of the trial for plaintiffs, and the legal fees Panepinto found to be “reasonable and based on industry standards.” Raynor had also been previously sanctioned in the case with a $44,693 penalty for writing a letter to the employer of a plaintiff’s expert witness.
 
Panepinto ultimately declared a mistrial after the jury awarded the plaintiffs just $190,000 in damages. At the second trial, the jury awarded the plaintiffs $2 million.
 
The original case was Rosalind Sutch etc. v. Roxborough Memorial Hospital et al. and involved the deceased plaintiff’s daughter suing the hospital for failing to inform the plaintiff of a suspicious nodule in her lungs until after being diagnosed with stage IV lung cancer, which ultimately killed plaintiff before trial.
 
“The first trial was wasted and had to be retried after a new trial was granted, and voluminous post-trial work was necessitated,” said the judge of 25 years.
 
To collect the money from Raynor, the judge ordered her bank accounts frozen, a lien placed on her home, and the garnishment of her payments from other clients. Raynor, who operates Raynor & Associates, P.C. outside of Philadelphia and who defends primarily doctors, hospitals, and insurance companies in med-mal cases, said that she would fight Panepinto’s sanction, calling for an investigation into the judge. Raynor said that she wasn’t just going to appeal the decision but that she was “going after everyone in this.”
 
A fight it has become indeed.
 
Raynor may just have the necessary evidence to successfully defend herself against the steadfast judge. Trial tech Joseph Chapman testified last week that while talking on his cell phone in the hallway outside the courtroom during the 2012 trial, he overheard Raynor tell Dr. Kelly that he couldn’t testify about plaintiff’s smoking habits.
 
“I am on my cellphone in a hallway outside the courtroom and she, Nancy, is standing there with the doctor. . . .I remember him rattling through these medical issues, and he said something about smoking, so my ears perked up simply because these attorneys had been on my back about the smoking issue the whole trial,” Chapman told the court. “And Nancy said, ‘Oh, no, smoking is out, smoking is out.’ He [Kelly] said, ‘I understand this,’ twice.”
 
In response to the question of why Chapman, who was working on the courtroom video displays during the trial, didn’t come forward earlier, he said he would “take the heat for not being as informed as maybe someone who is in the courtroom all the time should be, but the fact of the matter is that this is when I noticed it and this is when I said something,” he testified.
 
Chapman was actually in the courtroom when Dr. Kelly offered the forbidden testimony and later when plaintiffs’ attorneys and Judge Panepinto questioned Kelly as to why he had done so. Chapman said it was only after reading the story in The Philadelphia Inquirer that he realized the severity of the sanctions and decided to come forward with this information.
 
“I am not a lawyer, but I am in the courtroom all the time, and it just struck me as harsh," Chapman told the court. “When I saw the severity of it, I thought I should get this information out there because lives were in jeopardy.”
 
The revelation prompted Raynor’s lawyers to file an emergency appeal with the Pennsylvania Superior Court, which, several weeks ago, ruled that Chapman’s statements are “relevant to reconsideration of the decision on sanctions” and which ordered Panepinto to hold a new hearing to reevaluate whether Raynor had taken enough steps to prevent the prohibited testimony from being offered.
 
While the appellate court panel refused Raynor’s request to have Judge Panepinto removed from the case, the panel did instruct Panepinto to “immediately” notify the Superior Court of his decision on the matter.
 
Meanwhile, plaintiffs’ attorneys call Chapman’s testimony a little “too good to be true.”
 
“Have you ever heard the phrase, ‘Too good to be true?’” attorney Matthew D'Annunzio asked the court.
 
“Is this testimony too good to be true?”
 
D’Annunzio, of the Philadelphia law firm Klehr Harrison Harvey Branzburg & Ellers LLP, further inquired as to why neither Raynor nor Kelly mentioned this purported conversation to Panepinto when the judge directly asked about the violation.
 
The heated exchange last week began when D’Annunzio questioned Chapman over email exchanges with Raynor, professional connections between Chapman’s employer and the defendant hospital’s insurer, and tax liens against Chapman.  
 
While Kelly himself had testified that he cannot recollect whether Raynor told him not to mention smoking, others involved in the original trial, including an insurance adjuster and the defendant doctor, testified that Raynor did, in fact, tell Dr. Kelly to omit plaintiff’s smoking history from his testimony.
 
Nonetheless, Panepinto said that Raynor repeatedly changed her story when explaining how the violation of the preclusion order occurred.
“Raynor had an absolute duty to properly advise Dr. Kelly about the preclusion of any reference to smoking and failed to do so. Her failure to properly advise Dr. Kelly had no justification, and was intended to harass the presentation of opposing counsel's case,” Panepinto wrote.
 
Panepinto said that he would likely issue a decision this week on whether his sanction against Raynor would be reduced or rescinded.
 
What is your take?  Should the sanction stand?
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Ryan Thompson, Esq

Ryan’s experience in the legal industry coupled with his work in journalism brings a unique voice to his exclusive BullsEye articles. He is an assistant general counsel and writing professor at Niagara University. He has a degree in journalism from the University of Colorado and a law degree from Brooklyn Law School. Admitted to the New York bar in 2005, he previously worked at a Fifth Avenue law firm where he specialized in in-court litigation. Lured back to the dying newspaper industry in 2007, Thompson worked as legal editor of the historic Brooklyn Daily Eagle, where he remained for nearly five years. In 2012, Thompson returned to his hometown of Buffalo and lives there now.

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