Debra Cassens Weiss at the ABA Journal has more on that curious sanctions order out of the Philadelphia Common Pleas Court in which attorney Nancy Raynor of Malvern, Pennsylvania, could lose everything because a judge found that she “allowed an expert witness to refer to a lung cancer patient’s history of smoking during a May 2012 medical malpractice trial.” Earlier here. More: Philadelphia Inquirer coverage here and here.
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Apparently that ABA journal site has comments from Nancy Raynor herself, the sanctioned attorney. If the comments are really hers, it definitely sheds more light on what was going on, and makes her seem a lot more sympathetic.
I am surprised at the judge’s ban on mentioning smoking and that the violation triggered a new trial. As I understand it, the purpose of the ban was to focus the jury on the question of whether the plaintiff received competent care and away from the cause of her illness, since whether or not she was responsible for her illness has no bearing on the obligation to provide competent care. But surely there are many parallel situations in which the jury is allowed to learn of the cause of the injury, in part because it is so difficult to talk around it. If an inexpert skier attempts a trail much too difficult for him, clearly marked as such, is injured, and receives inadequate care, the way in which he received his injuries is not, to my knowledge,, routinely concealed from the jury when he sues for malpractice. The jury is considered capable of understanding the judge’s explanation that it is only the quality of care that is at issue, not who is responsible for the initial injury, and that any damages awarded by the jury are to be for the marginal damage due to inadequate medical care, not for the underlying injury. What am I missing about this case?
I noticed Max Kennerly posted something about this matter on his website. I didn’t bother commenting there since Kennerly since he only approves comments with which he agrees, but the issue that seems to outrage Kennerly and the commenter whose comment he approved was that it is only fair that the plaintiff attorney be reimbursed the extra costs they incurred or will incur as a result of this action.
I would be more sympathetic if it also worked the other way around, but as a insurance claim adjuster of 30+ years duration, I can count on the fingers of one hand the number of times my employer has been reimbursed for additional expenses incurred as a result of the errant actions (whether deliberate or accidental) of plaintiff counsel.
Fee transfers and sanctions are rarely applied against plaintiff counsel, and if applied, not to the fullest extent that a judge could apply.