Lawyer’s Intimidation of Expert Warranted $45k Sanction

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By Samson Habte

Nov. 29 — A lawyer defending a medical malpractice case deserved to be disqualified and sanctioned nearly $45,000 for trying to intimidate a doctor who was expected to testify as an expert for the plaintiffs, the Pennsylvania Superior Court held Nov. 15 ( Sutch v. Roxborough Mem’l Hosp. , 2016 BL 380025, Pa. Super. Ct., No. 1836 EDA 2015, 11/15/16 ).

The ruling may bring an end to a high-profile medical malpractice case that was marked by accusations of attorney misconduct and prolonged by satellite litigation over two hefty sanction orders—including what one court described as an “unprecedented” $1 million sanction that defense lawyer Nancy Raynor was ordered to pay for eliciting prohibited testimony about a now-deceased cancer patient’s smoking history.

Raynor won a reversal of that $1 million award in June. But she failed to win the reversal of another order that booted her from the defense team in the medical malpractice case and fined her $44,693 for her purported efforts to intimidate an expert witness who was expected to testify against her client, Dr. Jeffrey Geller.

That sanction was based on a letter Raynor sent to the general counsel of the Hospital of the University of Pennsylvania (HUP), where the hostile expert, Dr. Stephanie Porges, worked as an emergency room physician.

The offending letter warned the general counsel that although HUP wasn’t a party to the lawsuit against Raynor’s client, it could suffer in future malpractice cases if Porges testified in support of the plaintiff’s theory of liability.

Raynor argued that her decision to reach out to Porges’s employer was “the type of thing that happens all the time,” and that her message was the sort of information that “could have [been] relayed at lunch or a cocktail party.”

The appellate panel disagreed. In an opinion by Judge Patricia H. Jenkins, it rejected Raynor’s argument that the trial court’s decision to disqualify her from the case violated Geller’s constitutional right to counsel of his choice.

Ethics and Disqualification

Jenkins said the trial judge “properly disqualified Raynor because her conduct threatened to impede the [plaintiff’s] due process right to a fair trial and the court’s authority to administer justice.”

The court found that Raynor violated three Pennsylvania Rules of Professional Conduct through her attempts “to tamper with Dr. Porges’ testimony,” which included instructing a subordinate to follow up with HUP to inquire about whether Porges still intended to testify for the plaintiff.

Those standards were Rule 3.4(a)(1), which prohibits obstructing another party’s access to evidence; Rule 4.4(a), which forbids means of representation that “have no substantial purpose than to embarrass, delay or burden a third person"; and Rule 8.4(a), which prohibits violating ethics rules through the acts of another.

Jenkins acknowledged that the mere fact that an attorney violates an ethics rule “does not warrant her disqualification from a case.” Quoting case law, she also noted that lower courts must be circumspect when disqualifying attorneys based on perceived ethics violations, because doing so could be viewed “as an impermissible meddling into the administrative and supervisory functions of [the Pennsylvania Supreme Court] over the entire judiciary.”

“But if an attorney’s conduct disrupts or threatens to disrupt the ‘fair trial which due process requires,’ the trial court should disqualify her,” Jenkins wrote.

That’s what happened here, the appeals court said.

“The clear intent of [Raynor’s letter] was to pressure HUP into coercing Dr. Porges to either change her opinion or to refrain from testifying,” Jenkins wrote.

Pay Up

The appellate panel also rejected the argument that the trial court abused its discretion in ordering Raynor to pay nearly $45,000 in sanctions.

It said Raynor’s disqualification, standing alone, “was not a sufficient remedy, because the [plaintiff] had to incur substantial expenses in order to obtain the disqualification order.”

Judges Alice Beck Dubow and Kate Ford Elliott concurred.

Lamb McErlane P.C. represented Raynor. The plaintiffs were represented by Offit Kurman P.A. and Klehr Harrison Harvey Branzburg LLP.

To contact the reporter on this story: Samson Habte in Washington, D.C. at shabte@bna.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bna.com

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