Million Dollar Sanction Overturned as Unprecedented, Punitive
By Connor D. Jackson, Litigation News Contributing Editor – October 4, 2016

An appellate court has reversed a trial court's levy of nearly a million dollars in sanctions against an attorney whose expert witness inadvertently violated a preclusion order. In Sutch v. Roxborough Memorial Hospital, the Superior Court of Pennsylvania rejected the sanctions imposed after a defense expert witness violated the ban because of an absence of any proof of willful conduct by defense counsel. Attorneys can reduce the risk of potentially similar court violations and sanctions by explaining to your expert before she testifies the meaning of any relevant preclusion orders, say leaders of the ABA Section of Litigation.

The Underlying Case
The case arose as a medical malpractice claim, initially brought by the decedent, and prosecuted by her estate after her death. The decedent presented to the emergency room for chest pain, and the plaintiff alleged the hospital negligently failed to inform the decedent that a scan revealed a lump on her lung. The emergency room personnel ruled out the lump as a contributor to the decedent's pain and discharged her from the hospital. She was later diagnosed with lung cancer and died. Prior to trial, the court granted the plaintiff's motion to ban references to the decedent's smoking history. Defense counsel, in the course of trial preparation, reminded the defense experts of this ban.

However, when defense counsel asked one of the experts on the stand if the decedent had any cardiac risk factors, the expert mentioned the smoking history. The plaintiff's counsel did not object immediately, but soon requested a sidebar. When questioned, the expert stated he could not remember if defense counsel had informed him of the ban on testimony regarding smoking.

The court provided a curative instruction to the jury and denied the plaintiff's request for a mistrial. However, the jury awarded the plaintiff just $190,000. Post-trial, the plaintiff moved for both a new trial and sanctions against the defense attorney. Observing that the curative instruction had not served "to ensure that Plaintiff was given a fair trial[,]" the court ordered a new trial, but deferred ruling on the motion for sanctions. The defendant unsuccessfully appealed the court's granting of a new trial, and the trial judge heard the plaintiff's motion for sanctions. While the court ultimately held defense counsel in contempt and imposed sanctions, it held that the amount was "to be determined" at a future date.

A different judge adjudicated the second trial and permitted evidence of decedent's smoking during the damages phase of the trial. Even after hearing the smoking history, the second jury awarded the plaintiff nearly $2 million. The second jury verdict was delivered just two days after the first trial judge's entry of monetary sanctions against defense counsel.

The Finding of Contempt
Six months after finding counsel in contempt, without a hearing, and over defense objection, the original trial judge entered a judgment of nearly $1 million in sanctions against defense counsel. Defense counsel immediately appealed. The sanctions included nearly $800,000 in attorney fees to the plaintiff's counsel, and $170,000 in "actual expenses" directly to the decedent's family, saying it was "a very emotional case for Plaintiff's family." The court found defense counsel's conduct warranted such a sanction because: (1) she had presented evidence about smoking contrary to the preclusion order; and (2) she failed to remind the expert about the smoking ban immediately preceding his testimony. The trial court's decision was based, in part, upon a finding that defense counsel could not prove she reminded her expert of the smoking ban immediately prior to the testimony.

No Willful Violation of an Order
The appellate court reversed the contempt finding and the sanctions, opining the expert, not the attorney, violated the smoking ban. There was no evidence the breach was willful, and the trial court never entered an order requiring counsel to instruct her witnesses on the ban immediately before they testified.

Contrary to the plaintiff's arguments, the appellate court also noted defense counsel's question about the decedent's cardiac risk factors had been "a wholly legitimate inquiry." The plaintiff never established that defense counsel willfully elicited a smoking comment from her witness, and other witnesses corroborated they had been prepped about the smoking ban.

Improper Burden-Shifting and Punitive Purpose
The plaintiff's contempt case relied solely on the trial transcript, which the appellate court ruled insufficient to carry the plaintiff's burden of proof. Specifically, the plaintiff could not prove counsel: had notice of a specific order; freely violated that order; or acted with wrongful intent. The appellate court held the trial court improperly placed the burden on defense counsel to prove her innocence.

The appellate court also regarded the trial court's use of contempt proceedings and sanctions to punish defense counsel as "gratuitous and imposed in an amount that was both unprecedented and punitive." Civil contempt sanctions are intended to be coercive and compensatory but not punitive.

In light of the second jury's large verdict for the plaintiff, the appellate court noted the plaintiff's allegation that it suffered harm from the expert's accidental smoking comment was "purely speculative." The appellate court stated the two verdicts could not be used as "yardsticks" for determining a sanctions award. Further, because the plaintiff's attorneys worked on a contingent basis, an attorney fees computation of their unbilled time was an improper basis for calculating sanctions. The court observed this type of fee arrangement "assumed the risk that they would not get paid at all."

"The trial court's ruling is problematic because it suggests that counsel should protect herself by documenting communication with her experts," observes Matthew F. Prewitt, Chicago, IL, vice chair of the ABA Section of Litigation's  Expert Witness Committee. "This potentially creates an adverse dynamic between the two, which could result in less effective communication and potential harm to the case and client."

It Happened to Me! Now What?
What are counsel's obligations when a witness violates a preclusion order at trial? "Defense counsel's duty of candor likely does not require affirmative conduct in such situations. Rather, the onus is on the plaintiff's counsel, who has an obligation to object immediately if he thinks the preclusion order is violated," says Scott E. Reiser, Roseland, NJ, cochair of the ABA Section of Litigation's Ethics & Professionalism Committee.

Nevertheless, "be sure your expert is fully apprised of these orders," cautions Reiser.

Keywords: sanctions, contempt, smoking evidence, expert witness

 
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