Citing defense counsel’s lack of credibility, a trial court sanctioned an attorney nearly $1 million for deliberately violating a pretrial order by eliciting prohibited testimony regarding the plaintiff’s smoking history that led to a mistrial. Sutch v. Roxborough Memorial Hospital. The case is currently pending on appeal.

The lawsuit brought in Pennsylvania state court involved allegations of medical malpractice for failure to timely diagnose lung cancer. Before trial, the court ordered that evidence regarding the decedent’s smoking history was inadmissible.

After the plaintiff rested her case, defense counsel asked a defense expert if the decedent “had any cardiac risk factors.” Among other reasons, the expert responded that “[t]he patient was a smoker.” The plaintiff objected, and the court held a sidebar, dismissing the jurors for a break.

The court then asked the expert whether he was advised about the preclusion order regarding the decedent’s smoking history. He did not recall being told not to discuss smoking. Shortly thereafter, and in subsequent hearings, defense counsel told the court that she had spoken with the expert about the court’s order, and had mentioned the issue the night before the expert’s testimony and shortly before he took the stand. The expert later testified that he was certain the issue was not discussed the night before or the day of his testimony.

The jury returned a plaintiff’s verdict of approximately $200,000. Post-trial, the plaintiff filed a motion for a new trial and for sanctions and the trial court granted the new trial motion. An appellate court affirmed on the grounds that discussing the plaintiff’s smoking history was prejudicial.

Approximately two years after the resolving the new trial issue, the court sanctioned defense counsel for failing to properly advise the expert about the in limine order. The court found defense counsel’s conduct was “dilatory, vexatious, and obdurate,” and imposed monetary sanctions of $946,197.16 for attorney fees and expenses incurred by the plaintiff.

The court explained that counsel had been repeatedly admonished to instruct witnesses regarding the court’s order, yet apparently did not do so with the particular expert. The court also found that defense counsel’s testimony “was not credible,” and that her actions “lacked justification and could only be intended to harass opposing counsel,” displayed counsel’s “inflexibility and unyielding position towards” the court, and “displayed a lack of diligence.”

The court concluded the plaintiff and her counsel were harmed due to the increased amount of work resulting from the mistrial and because their “case-in-chief was sabotaged by the defense.” The court emphasized, “it is glaringly apparent that [defense counsel’s] conduct was orchestrated to improperly influence the outcome of this trial.”

The court justified the monetary sanction by noting that the plaintiff’s costs and fees were reasonable and in line with industry standards based on actual expenses and attorney fees incurred during the first trial, along with post-trial work required after the mistrial.

“Given that those were the plaintiff’s fees and costs for trying the case, the sanction does seem appropriate,” suggests Fisher. “The fact that it’s a large number is not really the issue, because the court found that was the actual harm to the plaintiff,” continues Fisher. “While it is an extremely large sanction, I cannot say it is unwarranted,” he adds.

Avoiding Similar Results
“This decision is a cautionary tale not to take any chances,” explains Felter. “To be safe, actually show all potential trial witnesses the preclusion order, and explain very carefully what it means each witness can and cannot say,” he continues. “Just as you would tell your witness when to show up in court and what topics you plan to cover in your direct, you should tell your witness about motions in limine that may affect her,” advises Fisher. “If you want to go to an extra length to be careful, transmit a copy of the order with a letter or an email or something and get each witness to confirm that he or she has received and understands the order,” adds Felter.

“Attorneys should also phrase their questioning in such a way that avoids, as much as possible, information that’s been precluded from coming in inadvertently,” advises James A. King, Columbus, OH, cochair of the Section’s Trial Evidence Committee. “In the event that it is inadvertent, you were careful and you asked the right question, but the witness just blurted it out, then the attorney should ask for a side bar and work with the judge to try to cure it,” he adds. “Problems happen when courts either suspect the attorney has been sloppy or duplicitous,” notes Fisher. “This case is a great lesson for all litigators,” adds Fisher.


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