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"Law & Order" is chock full of situations where a lawyer elicits some damning testimony from a witness, the other side objects, and Sam Waterston cheerfully says, "Withdrawn." And what's been heard, while "disregarded," can't really be unheard.
That's TV. In the real world, of course, there's no cheeky "withdrawn." A Philadelphia lawyer learned that the hard way, when she got hit with nearly $1 million in sanctions last fall. (Read that in your best Dr. Evil voice.)
As defense attorney Nancy Raynor pursues an appeal, here's what led up to the sanctions -- along with a potential lesson about malpractice insurance:
What Was Said Can't Be Unsaid
It began as a medical malpractice case dealing with a deceased woman. Her heirs sued the woman's doctors and the hospital for medical malpractice. The woman died of lung cancer, and the heirs insisted that doctors hadn't advised her of X-ray results showing a "suspicious nodule." What the plaintiffs obviously didn't want the jury to hear was that the woman was a smoker. That could be, you know, a little prejudicial.
Both parties agreed that the defense's expert witness wouldn't discuss smoking.
Got that? Both parties -- including Raynor, the defense attorney -- agreed.
So color the courtroom surprised when defense expert witness Dr. John Kelly casually mentioned that the woman was a smoker. There was a motion for a new trial, which Judge Paul Panepinto granted, followed by a motion for $946,197 in sanctions. Panepinto didn't think the slip was an innocent mistake: "It is glaringly apparent that Raynor's conduct was orchestrated to improperly influence the outcome of this trial," he said. The $1 million sanction was the cost to the plaintiffs to retry the case.
Here's your Strategist angle: Nancy Raynor had malpractice insurance, but it didn't have indemnity coverage. Sanctions were ordered back in November, and the efforts to collect began several weeks ago, reported the Philadelphia Inquirer. Raynor's bank accounts were frozen and a lien placed on her house. The story is back in the news thanks to a hearing set for February 19, when Raynor will try to have the collection paused while she appeals the sanctions.
Not only does this story emphasize the importance of comprehensive malpractice insurance (which isn't useful only when a client sues you), but also not playing fast and loose with the rules. We're not sure if Raynor's actions were intentional or negligent, but this isn't the first time she's been hit with sanctions.
In 2012 -- in the same case, no less -- Raynor was sanctioned to the tune of $45,000 for writing a letter to the employer of an expert witness for the plaintiffs, letting the employer know that the doctor was testifying, that his opinion was "untenable," and that the testimony could expose the hospital to liability.