A Philadelphia judge has ordered that defense attorney Nancy Raynor be sanctioned for allowing a defense expert to make a prohibited reference to smoking in a lung cancer-related medical malpractice case.

In an order issued Monday, Philadelphia Court of Common Pleas Judge Paul Panepinto ordered that the Raynor & Associates founder be sanctioned for an amount to be determined for failing to instruct medical expert Dr. John J. Kelly to not mention deceased plaintiff Rosalind Wilson’s smoking history.

The Legal previously reported that Raynor had been sanctioned in the case by Judge Jacqueline F. Allen because Raynor wrote a letter to the employer of a plaintiff’s expert witness. Allen ordered that Raynor be disqualified from representing her client and that Raynor pay the plaintiff’s costs and attorney fees of $44,693 in litigating the motion. Raynor represented defendant Dr. Jeffrey Geller in the case.

Panepinto’s order Monday was in response to a motion for post-trial relief filed by the executrix of Wilson’s estate, Rosalind Sutch. Panepinto said in his order that prior to witnesses taking the stand in Sutch v. Roxborough Memorial Hospital, all lawyers were told to remind their witnesses of an order barring them from talking about smoking during the trial.

“Nancy Raynor violated this court’s order in that she failed to so advise Dr. Kelly of this court’s preclusion order and/or failed to follow this court’s clear instructions by failing to remind Dr. Kelly just prior to his taking the stand as to this court’s order precluding any reference to decedent’s smoking history,” Panepinto said.

By violating the court’s instructions, Panepinto said, Sutch and her counsel were forced to waste time and money preparing for a case that ultimately resulted in a mistrial based on the prohibited reference.

According to Panepinto’s order, Raynor has 20 days to file a response challenging the sanctions amount requested by the plaintiff. Sutch’s attorney, Matthew D’Annunzio of Klehr Harrison Harvey Branzburg, said the plaintiff is seeking roughly $1 million for expenses including attorney fees, the hiring of medical experts, the utilization of trial technology and other costs.

Raynor told The Legal that she properly instructed Kelly to avoid making references to smoking. She added that there was ample evidence that she complied with the court’s order as multiple parties on the defense side testified that they heard Raynor instruct Kelly not to mention smoking.

As for the proposed sanctions amount, Raynor said, “They have a whole staff of people working on this relatively simple case. They overspent the entire time. … I think that the amount is absolutely outrageous.”

Raynor added that she intends to appeal Panepinto’s order.

D’Annunzio said, “It’s a very gratifying order and we’ve worked for it for a while. We really had felt the trial was going very well and we had great confidence in the liability case and this violation of the court order had a dramatic impact on the jury, as the Superior Court found in granting the new trial.”

The state Superior Court affirmed Panepinto’s decision to grant a new trial Nov. 18, 2013.

Panepinto determined that his instruction to the jury to ignore remarks about Wilson’s smoking history could not remedy the possibility that jurors could believe that smoking caused her lung cancer.

Senior Judge John L. Musmanno said in the Superior Court’s memorandum opinion, “As the trial court properly reasoned, [Sutch] would suffer unfair prejudice if the jury discovered that [Wilson] was a smoker for approximately 50 years, in that this information might lead the jury to hold [Wilson] accountable, to some extent, for contributing to the cause of her death.”

In addition to the ability of the prejudicial information to affect the jury’s impartiality, Musmanno said Wilson’s smoking was deemed irrelevant to the issue of lung cancer causation in the case.

The case stems from Sutch’s allegations that the defendants failed to inform her mother that a chest X-ray performed at Roxborough Memorial Hospital on May 3, 2007, showed a suspicious nodule that would have required further examination, including a follow-up CT scan, Musmanno said.

During Wilson’s overnight hospitalization, no doctors informed her of the nodule in her lung, nor did they advise her to seek follow-up care, according to Musmanno. Wilson did not discover the existence of the nodule until 20 months later, when she was diagnosed with stage IV lung cancer.

According to Musmanno, Wilson died July 21, 2009, over two years after the nodule was first discovered.

P.J. D’Annunzio can be contacted at 215-557-2315 or Follow him on Twitter @PJDAnnunzioTLI. •