A witness testifying Wednesday for defense lawyer Nancy Raynor - hit with nearly $1 million in court-imposed sanctions last Oct. 31 because one of her experts offered banned testimony in a medical-malpractice trial - said Raynor had taken steps to ensure that the information was not heard by the jury.
The witness, a trial technician who had been working for the defense team, said he heard Raynor tell the expert witness, Dr. John Kelly, that Philadelphia Common Pleas Court Judge Paul Panepinto had banned any mention that a woman at the center of the trial was a smoker. Under questioning from Raynor, however, Kelly mentioned the woman's smoking habit within minutes of the start of his testimony.
"I am on my cellphone in a hallway outside the courtroom and she, Nancy, is standing there with the doctor . . . and he said something about smoking, and my ears perk up," testified Joseph Chapman, who manages courtroom video displays for both plaintiff and defense lawyers. "And Nancy said, 'Oh, no, smoking is out, smoking is out.' He said, 'I understand this,' twice."
Chapman's testimony Wednesday came in a hearing before Panepinto to determine whether his account of what took place on May 31, 2012, is sufficiently convincing to overturn the judge's sanctions order - that Raynor pay $946,196 in penalties to the plaintiff and her attorneys. In an opinion issued Feb. 5, Panepinto accused Raynor of eliciting the banned testimony as part of a trial strategy and said she had repeatedly changed her story.
Yet Panepinto's sanctions - Raynor said collection efforts had threatened to shut down her law firm and even put ownership of her home at risk - have been questioned by lawyers and judges, who say their magnitude is unprecedented in the Philadelphia court system.
In February, Superior Court, an appeals panel, halted the collection efforts and ordered Panepinto to hold a new hearing on the sanctions. The order suggested that Chapman's account could be cause to overturn the sanctions.
On Wednesday, however, plaintiff's lawyer Matthew D'Annunzio sought to poke holes in Chapman's testimony, questioning why it had taken him more than two years to come forward with the information.
D'Annunzio noted that Chapman was in the courtroom both when Kelly offered the precluded testimony and later, when both the plaintiff's team and Panepinto questioned why Kelly had mentioned smoking.
"Have you ever heard the phrase, 'Too good to be true?' " asked D'Annunzio. "Is this testimony too good to be true?"
Chapman said he decided to come forward after reading an article in The Inquirer that described the sanctions imposed on Raynor and the possibility that they might force the closure of her firm.
"I am not a lawyer, but I am in the courtroom all the time, and it just struck me as harsh," Chapman testified. "When I saw the severity of it, I thought I should get this information out there, because lives were in jeopardy."
The case began in May 2007, when Rosalind Wilson went to Roxborough Memorial Hospital complaining of chest pains and shortness of breath. Doctors there ordered a chest X-ray and performed other tests, but never told Wilson of a suspect and possibly cancerous nodule.
Twenty months later, Wilson was diagnosed with stage IV lung cancer; she died July 21, 2009. Daughter Rosalind Sutch, a Philadelphia accountant, sued the hospitals and the physicians involved in her care.
Panepinto issued the order precluding testimony on Wilson's smoking habit at the request of plaintiff's lawyers D'Annunzio and Joseph Messa, who were concerned such testimony would divert attention from the obligation of the hospital and Wilson's physicians to provide the best possible care.
Despite the banned testimony, the case proceeded to verdict, and the jury awarded the plaintiff $190,000. Panepinto overturned the verdict and ordered a new trial, finding that the introduction of the banned testimony had tainted the outcome.
The plaintiff won nearly $2 million in a subsequent trial, but is seeking the sanctions as reimbursement for the cost of the first trial.
In addition to Chapman, two other witnesses, an emergency room doctor who is a client of Raynor's and an insurance adjuster, have testified that they heard Raynor advising Kelly that smoking testimony was precluded.