Sutch, R. v. Roxborough Memorial

J-A17045-15
2016 Pa. Super. 126
ROSALIND W. SUTCH, AS EXECUTRIX OF IN THE SUPERIOR COURT OF
THE ESTATE OF ROSALIND WILSON, PENNSYLVANIA
DECEASED
v.
ROXBOROUGH MEMORIAL HOSPITAL,
SOLIS HEALTHCARE, LP, ANDORRA
RADIOLOGY ASSOC., TENET
HEALTHSYSTEM ROXBOROUGH, LLC,
TENET, INC., TENET GROUP, LLC,
ROXBOROUGH EMERGENCY PHYSICIAN
ASSOCIATES, LLC, BARBARA GOLDMAN
ROBINS, M.D., ROBERT DOMANSKI,
M.D., MICHAEL DEANGELIS, M.D., ERIN
O’MALLEY, M.D., JEFFREY GELLER, M.D.,
AND MELANIO AGUIRRE, M.D.
APPEAL OF: NANCY RAYNOR, ESQUIRE
No. 3494 EDA 2014
AND RAYNOR & ASSOCIATES, P.C.
Appeal from the Order Dated November 4, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 0907-0901
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.
OPINION BY GANTMAN, P.J.: FILED JUNE 15, 2016
Appellants, Nancy Raynor, Esquire and Raynor & Associates, P.C.,
(collectively “Ms. Raynor”) appeal from the order entered in the Philadelphia
County Court of Common Pleas, which found Ms. Raynor in civil contempt
and imposed monetary sanctions in the amount of $946,197.16. We reverse
the contempt order and vacate all judgment on the sanctions imposed.
J-A17045-15
The relevant facts and procedural history of this case are as follows.
Around noon, on May 3, 2007, sixty-eight year-old Rosalind Wilson came to
the emergency room at Roxborough Memorial Hospital with complaints of
chest pain, shortness of breath on exertion, cough, profuse sweating,
nausea, and frontal headache. Her medical history included osteoporosis,
vascular disease, hypothyroidism, and hypertension. The immediate
treatment plan was to rule out a heart attack. Around 4:00 p.m., Ms. Wilson
also underwent a chest x-ray and later lung scans. Ms. Wilson was admitted
to the hospital as an inpatient for observation. Although the tests ruled out
a cardiac event, the lung studies revealed in relevant part a node in her left
lung, with a recommendation for a computed tomography (CT) scan of the
thorax for further evaluation. The CT scan was not performed. Ms. Wilson
was discharged from the hospital the next day. No one informed Ms. Wilson
of her lung node. Ms. Wilson experienced a change in mental status. In
January 2009, Ms. Wilson underwent a chest x-ray at Jeanes Hospital. The
x-ray revealed a large mass in her left lung. Further testing revealed
metastatic brain disease. Ms. Wilson was diagnosed with Stage IV, non-
small cell lung cancer with metastases.
On July 9, 2009, Ms. Wilson commenced a malpractice action against
numerous medical defendants for negligent medical care and treatment that
deviated from the accepted standards of care, increased her risk of harm,
directly and proximately contributed to her suffering, and caused
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enumerated damages. Ms. Wilson died on July 21, 2009. After her death,
her daughter Rosalind Sutch, Executrix of the Estate of Rosalind Wilson, was
substituted as plaintiff (“Plaintiff”). Ms. Raynor served as defense counsel
on behalf of two of the defendants, Dr. Jeffrey Geller and Roxborough
Emergency Physician Associates, LLC (“REPA”). Pleadings and discovery
were followed by an amended complaint filed in January 2011.
The parties filed various motions in limine (“MIL”) in 2011. On
November 21, 2011, Plaintiff filed a motion to preclude at trial any reference
to decedent’s smoking history, primarily on the grounds of unfair prejudice,
confusion of the issues, and danger of misleading the jury. By order dated
December 5, 2011, and docketed December 6, 2011, the trial court entered
a pretrial order that granted Plaintiff’s MIL, in part, to preclude evidence,
testimony and/or argument by the defendants regarding decedent’s smoking
history as irrelevant and unfairly prejudicial on the issue of liability. The
court determined, however, that decedent’s smoking history was relevant on
the issue of damages. The court ordered the trial bifurcated into two phases
with the same jury; if the jury found liability then decedent’s smoking
history would be admissible in the second phase, to follow immediately, in
which damages would be assessed. If Plaintiff chose to withdraw the
motion, the trial would not be bifurcated; and decedent’s smoking history
would be admissible with a cautionary instruction on its limited relevance.
Due to subsequent changes in the witness list, Plaintiff’s counsel
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renewed their pre-trial motion to preclude evidence at trial of decedent’s
smoking history and asked the trial court to grant the motion in its entirety,
not just in part, because now there was no defense expert testimony
supporting any issue for which smoking was relevant, even for life
expectancy. (See N.T. MIL, 5/16/12, at 8; R.R. at 311a.) The trial court
(another jurist) entered a new order that precluded defendants from
“presenting any evidence, testimony, and/or argument regarding decedent’s
smoking history” either before or after her cancer diagnosis. (See Trial
Court Order, dated May 16, 2012, filed May 21, 2012, at 1; R.R. at 372a.)
This order was entered by agreement of all parties and superseded the
earlier December 2011 order on the admission/preclusion of decedent’s
smoking history. The first jury trial began on May 21, 2012.
When the defense case was about to begin, on May 30, 2012,
Plaintiff’s counsel asked the court to enter an order directing defense counsel
to speak with their defense witnesses about the smoking preclusion
immediately before those witnesses took the stand. That exchange was as
follows:
[Plaintiff’s Counsel] MR. MESSA: I just wanted to
make sure we have, you know, we’re clear on the record
that the defendants’ counsel each speak to their expert
witnesses before they get on the stand and make it clear
that they’re not to raise that issue, blurt it out, volunteer
it, et cetera, and the defendants as well.
[COURT]: Okay. Well, I don’t
have a response. They know the rules. So I assume—did
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you talk with them? Maybe you didn’t bring that up this
morning.
[Plaintiff’s Counsel] MR. MESSA: No, Your Honor.
[COURT]: All right. Well the
defendants are on notice of that request which is part of
what we’re doing, so…
(N.T. Trial #1, 5/30/12, A.M. Session, at 5-6; R.R. at 732a-733a). Following
this exchange, the court issued no order or directive specifically requiring
defense counsel to speak to their expert witnesses or the defendants about
the smoking ban or warn them immediately before each expert witness
testified.
During the defense case on May 31, 2012, Ms. Raynor called John J.
Kelly, D.O. as her emergency medicine expert to testify. About twenty
transcript pages of voir dire questions concerning Dr. Kelly’s qualifications
followed smoothly, and he was accepted as an expert on emergency room
medicine and practice. After voir dire concluded, the court said:
COURT: All right. I think it’s a little hot.
We’re going to turn the air conditioners on and take a
break, and then we’ll come back with the direct
examination. I think that’s the best way to do this.
Doctor, during the break, you may relax, but don’t
discuss your testimony during the break.
DR. KELLY: Thank you, Your Honor.
COURT: All right. The jury is excused,
about 10 minutes or so, 10 or 15 minutes. Air
conditioners can go on.
(N.T. Trial #1, 5/31/12 P.M. Session, at 83; R.R. at 933a) (emphasis
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added). After the break, Ms. Raynor began her direct examination of Dr.
Kelly. Dr. Kelly explained to the jury generally how emergency rooms work
as a practical matter in real time, regarding patients who are treated and
then released versus patients who are preliminarily treated in the emergency
room and then admitted to the hospital for further medical care and
management, including communications among the various health care
providers about patient case history and test results under either scenario.
(Id. at 84-103; R.R. at 933a-938a). For purposes of relevant, proper
context, we quote from the trial transcript as follows:
MS. RAYNOR: Can you tell the jury, give the
jury some idea of what Dr. Geller’s thought process is as
gleaned from the records when this patient came in with
the complaints that she had. Can you tell what ·Dr. Geller
was evaluating her for?
DR. KELLY: I read the ER record. And from
the emergency department record of Dr. Geller, the
patient came in with chest pain. It seemed to be right-
sided. There was some associated shortness of breath and
sweating with it.
He did the usual thing that an emergency
physician would do: go to the bedside, get the vital signs,
do a proper physical exam and a history to find out exactly
how this happened, what did it feel like, to be able to
process exactly what it could be.
MS. RAYNOR: And are those all appropriate
things to do?
DR. KELLY: Yes.
MS. RAYNOR: Okay.
DR. KELLY: And then, you know, EKG, chest
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x-ray, some lab tests, cardiac enzymes, and then offer
treatment, too. Offer nitroglycerin, morphine, things like
that, to be able to see if this would help the patient.
MS. RAYNOR: And were all of those things that
you just specified appropriate things to do; in other words,
the EKG, the cardiac−
DR. KELLY: Yes.
MS. RAYNOR: −enzymes, and so forth?
DR. KELLY: Yes.
MS. RAYNOR: Okay. So if Dr. Geller was
thinking that she had a cardiac issue, those are the things
that would be appropriate to do?
DR. KELLY: Yes.
MS. RAYNOR: Okay. Now, you’ve seen also
that a portable chest x-ray was done?
DR. KELLY: Yes.
MS. RAYNOR: Was that an appropriate thing to
do?
DR. KELLY: Yes. A chest x-ray is an
essential part of helping to add some insight into what
could be causing a patient’s chest pain.
MS. RAYNOR: Did you see any indication in Dr.
Geller’s records that he was thinking this patient had a
pulmonary embolism or PE?
DR. KELLY: I saw no evidence of that in the
chart, no.
MS. RAYNOR: Okay. And what type of
evidence would you look for if you were looking for that?
DR. KELLY: Well, I mean, patients who have
a blood clot in their lungs are usually in a lot of distress.
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They have pain. They’re having trouble breathing. Their
oxygen level is low. Sometimes they’re blue.
And then they also have risk factors, like
they might have a blood clot in their leg or a tenderness in
their calf, because what happens is the blood clot begins in
the calf and then it actually migrates up the vein and then
up into the great veins and up into the lung. So we
usually−you know, we usually have scores to ask about a
person’s risk factors for blood clots.
MS. RAYNOR: Aside from what you saw in the
records which you’ve just described, did you find anything
in Dr. Geller’s deposition transcript that educated you as to
what his thought process was?
DR. KELLY: From the patient’s ER record
and from deposition testimony, it appeared as if the
patient had some sort of chest pain that was unclear as to
exactly what the cause was.
There was nothing in the ER that he found
that pointed towards anything.
So−and sometimes−most chest-pain cases
happen that way, where you check everything and you
don’t find a heart attack or a blood clot or anything; but
you admit the patient just to play it safe so that they can
have cardiac enzymes drawn over 24 hours to make sure
this is not a silent heart attack or something like that.
MS. RAYNOR: Did she have any cardiac risk
factors?
DR. KELLY: The patient was a smoker.
The patient was hypertensive. So, yes, I mean, those are
big risk factors. And the patient had vascular disease, too.
So, I mean, this is somebody who is a high
risk for a problem with the heart. And I think that it was a
safe move to admit the patient to a monitored bed,
cardiac-monitored bed, to make sure that that gets sorted
out over 24 hours, yes.
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MS. RAYNOR: Did you find anything in the
deposition testimony that led you to believe that Dr. Geller
was considering she had a pulmonary embolism versus a
cardiac event?
DR. KELLY: No. I mean, the only thing I
saw in the deposition testimony of the emergency
physician was that when he called the doctor who accepted
the case, Dr. Aguirre, that, according to the deposition
testimony, Dr. Aguirre, the accepting attending, said,
“Hey, could you please do a lung scan just so that we can
be sure that there’s no blood clot.” And so he did that
favor. He wrote the order as a favor to say, “Yeah, okay,
I’ll do it for you.”
But I think that his−his pretest
probability−in other words, if he were to calculate what the
risk was that this person had a blood clot, from the record
and from the deposition testimony, the pretest probability
was near zero.
MS. RAYNOR: Now, as an ED physician, if he
wanted to−if he was considering a pulmonary embolism
for this patient, did he have to do a VQ scan before
initiating treatment?
DR. KELLY: If I think the patient has a
major blood clot in their lung, then I would probably order
blood thinner right then and there, because you have to
thin the blood so that there [are] no more clots that would
get trapped in the lung.
MS. RAYNOR: So he could have done that
without the benefit of a VQ scan?
DR. KELLY: Could have done that; correct.
MS. RAYNOR: And did you see any evidence
that Dr. Geller did order heparin or any other blood
thinners?
DR. KELLY: No, he did not.
MS. RAYNOR: Based on what you’ve told us,
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that she had various cardiac−
[Plaintiff’s Counsel] MR. D’ANNUNZIO: Objection, Your
Honor. May we see you at sidebar?
(Id. at 103-108; R.R. at 938a-939a) (emphasis added). The sidebar
discussion was off the record. Afterwards, the court dismissed the jury for a
break, and the jury left the courtroom. Then on the record Plaintiff’s counsel
registered a hearsay objection to Dr. Kelly’s testimony regarding a document
containing the American College of Emergency Physicians (“ACEP”)
guidelines for physician experts in emergency medicine. Plaintiff’s second
objection involved Dr. Kelly’s testimony on decedent’s smoking as a cardiac
risk factor. The following exchange occurred:
[Plaintiff’s Counsel] MR. MESSA: The other issue is
a more significant one.
COURT: Well, obviously, but I want to
make sure everyone puts everything they want on the
record. So we can talk about the other issue.
[Plaintiff’s Counsel] MR. D’ANNUNZIO: The other issue,
Your Honor−
COURT: Well, I was going to ask the
witness a couple questions.
[Plaintiff’s Counsel] MR. D’ANNUNZIO: Right. Was he
prepped about the order that the [c]ourt had made? I
mean, I would ask−
COURT: Well, you may stand or be
seated, and then you can talk after I get done. How’s
that?
[Plaintiff’s Counsel] MR. D’ANNUNZIO: Right. That’s all
right.
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COURT: Doctor, just a couple of
questions I have.
DR. KELLY: Sure.
COURT: We had a lot of concerns in this
case, and for legal reasons and other reasons I made
specific orders that they call like Motions in Limine, pretrial
orders. And one of the orders was that we don’t mention
anything about tobacco or smoking or that the decedent
was a smoker, et cetera.
In your answer to a question elicited by
counsel, Ms. Raynor, you mentioned the word, “She was a
smoker.” I wrote it in my notes, but I didn’t say anything.
And there was no loud objection. But when we went
sidebar, we didn’t want to make it an issue in front of the
jury when it came out.
My real question to you is, we asked
counsel to instruct every witness not to make mention of
this.
Were you advised of such orders or−
DR. KELLY: Well, I mean, I−
COURT: Did you have a discussion with
Ms. Raynor about this issue?
DR. KELLY: I don’t remember any
discussion about that at all.
But, you know, this was in a different
context. This was in a context of cardiac risk factors.
COURT: Yes. That may be−
DR. KELLY: And–
COURT: −your explanation. But my
question more directly is: Did counsel advise you about
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tobacco, smoking or not smoking or bringing up the idea of
the patient being a smoker?
DR. KELLY: I can’t remember.
COURT: You can’t remember?
DR. KELLY: No.
COURT: Did you have a discussion today
with her at all?
DR. KELLY: I did have some brief
discussions with Ms. Raynor today, but not regarding
smoking, no.
COURT: Okay.
DR. KELLY: No. And, I mean, honestly,
Your Honor, it’s a very innocent comment for me because
of the context. The context was, you know: Did she have
cardiac risk factors?
COURT: Well, we’re not saying that you
intended anything other than what’s innocent. But in a
legal proceeding, there are certain things that are
admissible and certain things that are not for various
reasons. One is prejudicial versus probative of the issues
at trial.
And that’s one of the issues that’s sort of
not to be raised.
So, number one, under no
circumstances−and I realize, you know, you assess a
patient for certain things−
DR. KELLY: Sure.
COURT: −respiratory and whatever.
DR. KELLY: Sure.
COURT: But those issues are not to be
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brought up or discussed. You’re going to testify further
today possibly−
DR. KELLY: Okay.
COURT: −and I don’t want that
mentioned.
DR. KELLY: Okay.
COURT: There won’t be a question. Ms.
Raynor didn’t ask you a question to directly elicit it, I
don’t think. But I’ll let the record stand the way it is, and
maybe we can talk with counsel later about her side of the
story.
MS. RAYNOR: We can certainly do that, Your
Honor. I know that we did talk about referring to social
habits. I mean, and I said that the judge−you were
redacting certain records and certain things, including−my
recollection is that we talked about it when we prepped a
couple of days ago. Granted, I threw a lot of information
at the doctor. We were prepping about a lot of things.
But I said that, you know, the only way we
can talk about these cardiac risk factors or social habits is
by using the word “social habits,” that smoking’s out of the
case.
I thought I had made myself clear. I
certainly would never violate a [c]ourt order or instruct a
witness to do so.
COURT: Do you have anything to say?
MS. RAYNOR: We looked at−if I could just say,
we looked at records with redactions, so clearly there’s two
sets of records. There’s one that has smoking in it and
one that doesn’t. And−
[Plaintiff’s Counsel] MR. D’ANNUNZIO: Your Honor, we
have really grave concerns about what just happened. We
were worried that somebody would use this perhaps as a
tactic or inadvertently to get as far into our case where we
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were all in and then put us in a position of a mistrial.
And Your Honor was−we brought that to
your attention specifically, and Your Honor directed
defense counsel to have specific instructions with their
experts that this word was not to be mentioned.[1]
The rulings went not just to the confusion
on the liability issue; but there was no basis for that to
come into the case and that it would be prejudicial, which
was the basis for our Motions in Limine.
We noticed a number of jurors pick up their
pads and make a note when that word was mentioned
today, and my tech witnessed it.[2]
So this is really serious what’s happened
here today, and Ms. Raynor is directly responsible. She’s
evidenced other conduct for which judges in this
courthouse in this case have sanctioned her−held that she
engaged in sanctionable conduct.[3]
We’re in a dilemma now, which I think is a
tentative−where we were intentionally put in that
dilemma.[4]
MS. RAYNOR: I think that−
[Plaintiff’s Counsel] MR. D’ANNUNZIO: I ask that we have
a chance to discuss it, reflect on it this evening, discuss it
with our clients. At a minimum we're going to ask to be
____________________________________________
1
In fact, there was no specific direction to defense counsel to instruct their
witnesses.
2
This statement was not confirmed or verified.
3
This statement was wholly gratuitous, without confirmation or verification
at that time.
4
This statement on intent is unfounded and purely the opinion of Plaintiff’s
counsel.
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able to voir dire the jury on the record about any impact it
had on their decision and hold Ms. Raynor and her client
and the expert liable for it for the contempt of court.
MS. RAYNOR: I think that’s a fairly serious
thing to say. Dr. Kelly and I have had a number of
discussions. And I certainly did advise that we had this
issue in the case, that we’re not to refer to smoking. And I
think to blame me for it and say that I intentionally did this
is totally without basis.
Your Honor could see I was shocked when it
came out because I immediately looked at you, and I was
waiting for counsel to get up and say something. But I
kept going because no one said anything. And I figured
gloss over it and keep moving.
So I certainly did not−in fact, when I talked
about cardiac risk factors, Your Honor, I wasn’t even going
towards the smoking. Where I was going was the PVD and
the other carotid issues.
COURT: Well, I’m more concerned about
the fact that each counsel should have and was
responsible to at least bring up directly before each of their
witnesses takes the stand to mention that this particular
aspect of the case, regarding tobacco and smoking, should
not be mentioned in their answers.[5]
It certainly was an order of the [c]ourt, and
we spent so much time going over this. It’s just not
reasonable that you don’t take that extra minute to do
that. Now, I’m not −
MS. RAYNOR: I believe, Your Honor−
COURT: I’m not talking about
intentional. I don’t know what’s intentional, what isn’t.
____________________________________________
5
The court’s statement about the timing of warnings is inaccurate, in terms
of what counsel was obligated to do versus what the court hoped counsel
would do.
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It’s very hard sometimes to get that far into it. But how it
affects one side or the other is a big problem, and I don’t
always know the answer.
I thought I had a solution in a case one
time. And this is so funny, because I thought I had a
great solution. I had the same problem with cocaine. The
word wasn’t supposed to be mentioned. It didn’t have
anything to do with the case, and it came out in the case.
So plaintiff’s counsel asked me for a
mistrial, and I had a nice conversation with everybody.
And I tried to work it out and go through the case, and, I
don’t know. Whatever I did, I got reversed. I don’t think
the appellate court was−
MR. McCANN: I don’t know about that, Judge.
COURT: I don’t think the appellate court
was right, but I respect their decision accordingly. But I
don’t think there’s winning and losing in these things. We
want a fair trial for both sides. So I do what I think is
right.
As far as sanctions, that’s something I have
to consider.
MS. RAYNOR: And, Judge, I know that I
discussed it just before Dr. Harris went on, and certainly
he was aware of it because he goes, “I’m not supposed to
say anything,” and I said, “Right.” So I’m sure I would
have covered it, and I never−I’m sure I covered it.
(Id. at 111-120; R.R. at 940a-942a) (emphasis added). The court resumed
the trial, and Dr. Kelly continued his direct testimony, he was cross-
examined, and his testimony concluded.
The next morning, June 1, 2012, the court held an in camera
conference to obtain counsels’ thoughts on how to advance the case.
Plaintiff’s counsel proceeded to excoriate Ms. Raynor, claiming her question
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to Dr. Kelly about “cardiac risk factors” was at least reckless, if not
intentional, as it posed an open-ended question. Plaintiff’s counsel took the
position that the statements of Dr. Kelly and Ms. Raynor “directly conflicted”
so Ms. Raynor “lied to the [c]ourt.” (N.T. Trial #1, 6/1/12 A.M. Session, at
14; R.R. at 998a). Following this comment, Plaintiff’s counsel repeated he
had heard secondhand “that a number of jurors perked up, wrote things
immediately, and perhaps were whispering to each other about it.” 6 (Id. at
16; R.R. at 998a). Counsel then asked for a mistrial. Short of a mistrial,
Plaintiff’s counsel suggested other sanctions such as (1) striking Dr. Kelly as
a witness and telling the jury why he was stricken; (2) striking Dr. Geller’s
entire defense and articulating to the jury why the defense was stricken; (3)
disqualifying Ms. Raynor as counsel pending further hearing on sanctions
and her conduct in the case and telling the jury why she was disqualified;
(4) costs and fees levied against Ms. Raynor and her client for the conduct;
and (5) some curative instruction to the jury indicating what happened and
how it was inappropriate, a violation of the court’s order, and the jury should
not consider the testimony and the evidence. (Id. at 17-18; R.R. at 999a).
Plaintiff’s counsel also requested a separate hearing on sanctions, based on
the “pretty clear record of what happened yesterday and what Ms. Raynor
did or didn’t do and what her witness says he was or wasn’t told.” (Id. at
____________________________________________
6
This statement was not confirmed or verified.
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23; R.R. at 1000a).
Ms. Raynor responded essentially that her question to Dr. Kelly about
cardiac risk factors was completely in the context of decedent’s emergency
room treatment, and Dr. Kelly’s response was totally unexpected. Ms.
Raynor insisted she had covered the smoking ban extensively with each of
her witnesses. She tried to explain how Dr. Kelly does not testify every day
and under the stress of trial, it just came out. The court said:
COURT: I mean he didn’t say to me,
“Oh, she told me that, but I didn’t mean it.” I−you know,
I was looking for him to say, “Uh-oh, I made a mistake,
Judge. That was me.” That’s what I was kind of looking
for when I heard him and asked him that. And I don’t
know−
MS. RAYNOR: And that’s−
COURT: I’ll tell you the truth. I was
hoping that’s what he would have said versus, “No, she
didn’t tell me anything.” Because it’s the responsibility of
the attorney to follow orders.
And I said this before: I don’t know if it’s
intentional because I have no reason to believe you
intentionally told him to bring it up or planned it like a plot,
God forbid.
MS. RAYNOR: Of course not.
COURT: But, you know, omission and
failure to do what you’re supposed to do is wrong also. I
mean, I don’t say any of these doctors in the case, I hope,
you know, deliberately didn’t notify [Ms.] Wilson about
what they knew or should have known or could have
known. It’s negligent. I mean, it is a problem if that’s
what happened.
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MS. RAYNOR: No. And I even know the
language that I used. I said the judge isn’t allowing us to
talk about smoking. We have to use the word “social
habits” or the judge−“we’re not allowed to.” “Allowed” is
the word that I used. And I said, “We’re not allowed to
refer to it. We’re not allowed to put records in. We’ve had
to redact from the records things that indicate smoking.”
Did I show him the [c]ourt order and say,
“Here is what the Judge said”? No, and I wouldn’t
routinely do that.
But I said to him, “You are not allowed to
talk about smoking.” I thought that was clear. And, in
fact, that’s what he told me afterwards, at the end of the
day. He said, “I just slipped up,” I think, were his words.
And I invite you to call him if you want to talk to him. And
apparently−
COURT: Listen, I have no doubt we can
do more of an in-depth whatever, but I’m not getting to
that point.
MS. RAYNOR: And Dr. Geller actually ran into
him on a street corner as they were leaving the courthouse
yesterday. And Dr. Kelly made the same comments to
him, which is why he wanted to−Dr. Geller has offered, he
wants to tell you−
COURT: Well, if we get to that point and
I choose to ask Dr. Geller, I will do that. I’m sure he
would be honest about it, I hope. But I’m not at that
point.
Let’s move on.
MS. RAYNOR: Your Honor to be assured that it
was not−first of all, it wasn’t intentional. Second of all, it
was not an omission. I thought that I expressed myself
very clearly by using the language, “You’re not allowed to
use the word ‘smoking.’ You’re not allowed to talk about
it.”
* * *
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Mr. Messa has made a very inflammatory
allegation that I lied to this [c]ourt. I absolutely did not lie
to this [c]ourt.
(Id. at 32-36; R.R. at 1003a-1004a). Defense counsel asked the court to
rule immediately and not take Plaintiff’s request for a mistrial under
advisement until after the verdict, as Plaintiff’s counsel requested, because
that would invite mischief.
On June 4, 2012, the court resumed its conference with counsel
outside the jury’s presence. Plaintiff’s counsel renewed their request for a
mistrial on the grounds that Dr. Kelly’s testimony violated the smoking
preclusion order and irreparably prejudiced Plaintiff’s case. Counsel also
renewed their request for alternative sanctions in lieu of a mistrial. Counsel
asked for additional sanctions against Ms. Raynor under the ethical rules
governing candor to the court citing the record of May 31, 2012, which
counsel characterized as demonstrating a clear conflict between Ms. Raynor
and Dr. Kelly on whether Ms. Raynor had instructed him about the smoking
ban. After a short recess, the court said:
The court has reflected upon the arguments of counsel, the
applicable cases that were submitted to the extent that
they’re applicable, and it’s probably a difficult decision for
me in many ways, you know, but I said this before. You
do the best you can and you rely upon your best judgment
and experience as well as what you’re to be guided by in
knowing what’s happened in this trial and what has
transpired in this trial, and all that’s before the court. And
I think in a sense, even though I’m guided so much by
your arguments and your feelings in it, I as the trial judge
believe that I am in the best position to make the final
decision, and it is my job to make the final decision.
- 20 -
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So based upon all that’s before me, I am going to deny the
plaintiff’s motion for a mistrial.
(N.T. Trial #1, 6/4/12 Morning Session, at 14; R.R. at 1034a). With all
counsels’ input, the court then reviewed a proposed curative instruction to
give to the jury as trial resumed.
When the jury was brought back into the courtroom, the court issued
the curative instruction as follows:
Lung cancer can be caused by many things. This case is
not about its causes. The cause of Ms. Wilson’s specific
type of lung cancer is not known. Further, smoking should
not be considered in this case. Whatever may have
caused the lung cancer has nothing to do with the issues of
whether the defendants breached their standard of care
and caused the harm suffered by Rosalind Wilson. It has
nothing to do with the issues you are considering in this
case.
For that reason before I started this trial I ordered and the
parties agreed that no party was allowed to discuss any
potential reason for the cause of [Ms.] Wilson’s lung
cancer. I instructed all counsel to advise their witnesses of
the [c]ourt’s order before taking the stand.[7] Last
Thursday afternoon Dr. Geller and REPA violated the
[c]ourt’s order through testimony introduced from Dr.
Kelly. You are instructed to disregard that portion of Dr.
Kelly’s testimony because it is irrelevant and misleading.
I am instructing you that you are to consider in your
deliberations only: one, whether the defendants breached
the standard of care by failing to advise [Ms.]. Wilson, her
family, or her family physician about the nodule on her
lung; two, whether any such failure increased the harm to
____________________________________________
7
The court’s statement is not exactly accurate, in terms of what counsel was
obligated to do versus what the court hoped counsel would do.
- 21 -
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[Ms.] Wilson, or decreased her chance of survival; and
three, the amount of damages caused by any such failure.
And I am asking you to follow these instructions as I am
giving them to you, and that’s your sworn duty as jurors in
this case. So thank you up to now for your time and
attention, and you have to hear all the evidence, however,
and that’s going to continue now with the next witness for
the defense.
(Id. at 29-30; R.R. at 1049a-1050a). The trial resumed.
On June 8, 2012, the jury found in favor of Plaintiff and awarded her
$190,000.00. The jury found Tenet HealthSystem Roxborough, LLC d/b/a
Roxborough Memorial Hospital 50% liable and Melanio Aguirre, M.D. 50%
liable for the negligent care of Plaintiff. The damages were apportioned
$100,000.00 for the survival action and $90,000.00 for the wrongful death
action. The jury found no liability with regard to any other defendant. 8
(Verdict Sheet, 6/8/12; R.R. at 1120a-1125a). This verdict was initially
entered on the docket on June 14, 2012.
Plaintiff timely filed a motion for post-trial relief on June 18, 2012, and
requested a new trial because (1) the court erred in denying Plaintiff’s
motion for a mistrial based on Dr. Kelly’s violation of the smoking preclusion
order and/or (2) the “grossly inadequate” verdict. Plaintiff further moved for
“an award of sanctions jointly and severally against Dr. Geller and his
counsel, Ms. Raynor and her firm, for Plaintiff’s costs including attorneys’
____________________________________________
8
The jury was not polled regarding what effect, if any, the decedent’s
smoking history had on the verdict.
- 22 -
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fees incurred in preparing for and attending trial, in light of the need for a
new trial caused by their introduction of evidence of smoking in violation of
the [c]ourt’s orders.” Alternatively, Plaintiff asked the court to enter the
sanctions award jointly and severally as well against Dr. Geller’s expert, Dr.
Kelly, for his role in the introduction of the precluded testimony. (See
Plaintiff’s Motion for Post-Trial Relief, 6/18/12, at 1-38; R.R. at 1126a-
1163a.)
Ms. Raynor filed an answer in opposition to the post-trial motion on
June 28, 2012. On October 22, 2012, the court granted Plaintiff’s motion for
a new trial but deferred ruling on the companion contempt/sanctions motion.
Defendants timely filed their notices of appeal. The trial court later molded
the verdict on January 8, 2013, to include delay damages for a total verdict
of $205,353.56.
In its opinion, the court stated that its decision to grant Plaintiff a new
trial was not based on the inadequacy of the jury verdict. Instead, the trial
court insisted it had ordered the new trial “solely for reason that its Pre-Trial
Order precluding the mentioning of decedent’s smoking history was violated,
resulting in unfair prejudice to the plaintiff and therefore failed to allow her
to have a fair trial on the merits.” (See Trial Court Opinion, filed May 28,
2013, at 4; R.R. at 1633a.) After acknowledging Plaintiff’s counsels’ failure
to object or request a mistrial immediately upon the errant testimony, the
court recognized their bid for a sidebar, in which they raised the issue of a
- 23 -
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mistrial, as the essential contemporaneous objection and call for relief. (Id.
at 6; R.R. at 1635a). The trial court continued:
Upon reflection, this [c]ourt does not agree with
Appellant/Defendants that the…curative instruction was
enough to cure the prejudice resulting from defendant’s
violation of this [c]ourt’s preclusion Order. This [c]ourt at
the time it rendered its decision not to grant a mistrial
determined that only a strongly worded instruction to the
jury could cure the violation of this [c]ourt’s Pre-[Trial]
Order banning the mentioning of decedent’s smoking
history. However, as will be discussed below, this [c]ourt,
after reflection and due consideration, does not believe
that even a strongly worded curative instruction such as
the one given to the jury in the instant matter could have
cured the prejudicial effect that was created when they
were told that Plaintiff’s decedent was in fact a smoker. As
some legal minds have proffered, a curative instruction
may unfortunately sometimes serve to highlight to the jury
a fact (decedent was a smoker) that the [c]ourt was
attempting to eradicate from their collective memory and
thought process. In addition, as will be discussed below, it
is this [c]ourt’s determination that in a failure to warn
medical malpractice matter involving a death from lung
cancer, advising the jury that decedent was a smoker,
when all parties agreed prior to trial to ban decedent’s
smoking history, is so egregious that there can be no cure
to the resulting prejudice, other than a New Trial. …
* * *
[T]his response was to a question posed concerning
cardiac risk factors not lung cancer risk factors. However,
this does not change the prejudicial effect on [P]laintiff’s
case. The jurors now had knowledge that despite the
overwhelming evidence that smoking causes cancer,
[P]laintiff’s decedent decided to smoke and died from lung
cancer.
This [c]ourt entered an Order with the agreement of all
counsel (Defendants included) that [decedent’s] smoking
habits were prohibited from being mentioned during the
trial due to the reality that jurors may hold [decedent]
- 24 -
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accountable to some extent for her developing her own
lung cancer. As all counsel agreed, none of the defendants
that remained in the case when trial commenced had any
meaningful or relevant interest in advising the jury that
Plaintiff was a smoker. Therefore, the fact that [decedent]
was a smoker had absolutely no probative value and could
serve only to severely prejudice Plaintiff’s claims before
the jury. As such, for Defendants to now argue that a
single utterance of the word smoking was not so
prejudicial so as to prevent Plaintiff from a fair trial is not
meritorious. The jurors did not simply hear the word
“smoking,” but were told that decedent herself smoked
and that it was a big risk factor, albeit in the context of
cardiac issues.
* * *
In the instant matter, this [c]ourt’s Pre-Trial Order
precluding the mentioning of decedent’s smoking history
was based upon its potential to seriously prejudice and
undermine Plaintiff’s case. Further, and just as
importantly, advising the jury that [decedent] smoked had
absolutely no probative value. This trial was in its eighth
(8th) day when the violation occurred, this [c]ourt in
addressing the mistrial issue, gave great weight to the fact
that all parties, but in particular Plaintiff, had already
expended a great amount of time and expense. In
addition, this [c]ourt was acutely aware of the toll the trial
was taking on Plaintiff’s family, many of whom were at trial
every day, as well as its toll on the Defendants
themselves. As such, this [c]ourt, with heavy hesitation,
decided to give the jury a strongly worded curative
instruction.
Upon great reflection, it is this [c]ourt’s determination that
in the case at bar, a curative instruction would not serve to
insure that Plaintiff was given a fair trial, unblemished by
the prejudice that resulted from Defendant Dr. Geller’s
violation of this [c]ourt’s Pre-Trial Order. The PA Rules of
Civil Procedure require the filing of Post-Trial motions so as
to help formulate any issues for possible appeal, but also
to permit the trial court to reflect upon what occurred
during trial, and if necessary, enter an Order that will in
effect clear up any errors that occurred during trial. It is
- 25 -
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upon this reflection that this [c]ourt entered its Order
Granting [Plaintiff’s] Post-trial Motion for a New Trial.
(Id. at 10-14; R.R. at 1639a-1643a). On November 4, 2013, this Court
affirmed the trial court’s decision to grant a new trial. See Sutch v.
Roxborough Memorial Hospital, 91 A.3d 1273 (Pa.Super. 2013)
(unpublished memorandum).
Subsequently, on March 11, 2014, the trial court ordered a hearing on
Plaintiff’s motion for contempt/sanctions, limited to issues concerning
whether sanctions should be imposed. The order stated, “Any evidence with
regard to the type of sanctions to be imposed, monetary or otherwise will be
held under advisement pending the scheduling of a subsequent hearing if
necessary.” (See Trial Court Order, filed March 11, 2014, at 1; R.R. at
1766a.) On March 14, 2014, Ms. Raynor filed a motion to determine the
nature of the sanctions sought by Plaintiff. Plaintiff’s counsel responded and
specified costs and fees under 42 Pa.C.S.A. § 2503(7) for dilatory, obdurate,
or vexatious conduct; civil contempt; and direct criminal contempt.
The first contempt hearing began on March 27, 2014, with a review by
the court of the procedural history that led to the current proceedings,
followed by the introduction of all counsel, followed by the court’s
announcement that the contempt/sanctions hearing would be bifurcated,
with the initial hearing intended to settle whether sanctions were even
warranted. Plaintiff’s counsel, Mr. Messa, under the auspices of “candor,”
first addressed the court concerning a document he had in his possession.
- 26 -
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The paper purportedly contained a “note” Dr. Kelly had made when
documenting a telephone conversation with Dr. Geller’s current counsel,
Judy Packett, Esquire. Plaintiff’s counsel represented the note to suggest
there was some collusion between the court and Plaintiff’s counsel. Mr.
Messa displayed his outrage over what he had interpreted to be the note’s
suggestion and insisted this matter should be brought to the court’s
attention before Dr. Kelly took the stand and was cross-examined about his
note. The trial court wisely observed that it did not consider the notation
relevant to the present proceedings, stating: “I don’t know that that’s
relevant at all because in terms of it if someone’s handwritten notes about
whatever they feel they want to write on a piece of paper[;] that’s on them.”
(N.T. Hearing, 3/27/12, at 15; R.R. at 1785a). The court also astutely
remarked that it was a little confused by Mr. Messa’s approach and did not
want to set a bad tone on the hearing. (Id.) The court said: “I mean the
question is and the issues now are did [Ms. Raynor] inform [Dr. Kelly] of the
pretrial order. Was the pretrial order discussed in the preparation of his
testimony, was he warned not to bring that up, etc. As far as any other
things I’m not looking at them. I mean anybody has any issues, anyone
makes any accusations, whatever, let them make it because there’s nothing
else in this case at all. The issue of sanctions would only come up if this
court decided that there was an appropriate discussion with the witness prior
to and in violation of pretrial orders which caused the mistrial in this case.”
- 27 -
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(Id. at 16; R.R. at 1785a).9 The court recollected there had been efforts to
settle the matter, which involved talks with Plaintiff’s counsel and defense
counsel, but the court noted nothing inappropriate from the standpoint of
the court or Plaintiff’s counsel. (Id. at 17; R.R. at 1786a). The court
assured counsel that the court was not personally offended and could rule
fairly. The court also clarified that Plaintiff’s counsel was proceeding against
Ms. Raynor in civil contempt for compensatory damages and under 42
Pa.C.S.A. § 2503(7) (counsel fees as a sanction for dilatory, vexatious, and
obdurate behavior). Finally, the court announced it had no intention of
taking up the matter as a criminal proceeding for criminal contempt.
Following these introductory remarks by the court and Plaintiff’s
counsel, Plaintiff’s counsel stated they would rely solely on the notes of
testimony from the first trial and would not be presenting any additional
evidence to support their motion for contempt/sanctions, arguing that the
transcripts speak for their case. Defense counsel objected to the use of Dr.
Kelly’s testimony as hearsay on several grounds: (1) Ms. Raynor was not a
party in the trial and (2) she had no opportunity to cross-examine Dr. Kelly.
Therefore, defense counsel submitted that Dr. Kelly’s responses to the
court’s inquiries during the first trial could not be used against Ms. Raynor in
the present contempt/sanctions proceeding.
____________________________________________
9
There actually was no mistrial; instead, the court granted Plaintiff’s post-
verdict motion for a new trial.
- 28 -
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Plaintiff’s counsel repeated their position that the transcripts from the
first trial were all they had and all they needed to prove contempt against
Ms. Raynor, her firm, the hospital, Dr. Geller, and Dr. Kelly. Plaintiff’s
counsel insisted the current hearing was just for defendants to come in and
have an opportunity to present testimony:
[Plaintiff’s Counsel] MR. D’ANNUNZIO: … In terms of the
record Dr. Kelly’s conduct occurred in front of the court.
This hearing is just for them to come in and have an
opportunity to present any testimony they would like. Ms.
Raynor is an officer of the court and is subject to the
powers of the court. Dr. Kelly [is] a [participant], Dr.
Geller is a participant[; they] are all subject to the court’s
inherent power to enforce its orders. It occurred in front
of the court. Dr. Kelly’s comments are not hearsay.
They’re obdurate acts. They’re also when he says I was
not told that’s not a hearsay statement. It’s a fact. …
(Id. at 27-37; R.R. at 1788a-1791a).10
Ms. Raynor’s counsel argued that the transcript from the first trial was
insufficient to carry Plaintiff’s initial burden on contempt, because Dr. Kelly’s
responses to the court’s impromptu inquiries at the first trial were wholly
neutral and did not prove or disprove anything other than Dr. Kelly’s lack of
memory. In addition, defense counsel continued:
DEFENSE COUNSEL: … Let [me] point out to the
court that one of the things about this record and even if
the court were to accept or admit the statement by Dr.
Kelly and statements by Dr. Kelly in response to the
court’s questions, which is really inadmissible…because of
the hearsay, what you have is a record which is conflicting
____________________________________________
10
This description is characteristically used for criminal contempt.
- 29 -
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and the plaintiff [has] presented that evidence and it
conflicts. That is, that Dr. Kelly says he doesn’t remember
being told and Nancy Raynor says in her statements that
she told him. So at this point the court has no ability to
find that [P]laintiff has sustained her burden with respect
to these issues on either [Section] 2503 or the civil
contempt.
Let me point out to the court there’s a
number of things. First of all, this court order, in order to
find civil contempt the court has to find that in fact my
client actually violated a court order. [There is ] no order
of the court which says that Ms. Raynor is to specifically
tell any witness anything at all. All it says or what it says
is that there’s no evidence that’s admissible relating to
smoking or that [decedent] has smoking history, I believe
it used the term smoking history, the order does not
compel Nancy Raynor to do anything with respect to the
evidence except obviously she couldn’t intentionally elicit
that evidence or ask a question did [decedent] have a
smoking history. As the court realize[s] the question
posed by Ms. Raynor did not use the term smoking, did not
use the phrase smoking history and there was no objection
to the question which [she] posed during the trial. The
objection came only after with respect to the response that
was given. So that there is no basis on which to find
[contempt]…that Ms. Raynor violated the terms of that
court order and that is necessary in order for the court to
proceed with a civil contempt proceeding for the plaintiff to
sustain [her] burden with respect to the issue.
Ms. Raynor is not the person who
mentioned smoking. So accordingly she’s not the person
who can be in violation of this order.
COURT: I’m not arguing with you on this
point. What I’m saying is he’s resting on the record. Now
it’s your chance to argue that point.
DEFENSE COUNSEL: I am arguing that point. I’m
arguing the point before I have to put on evidence because
he has to sustain his burden first.
COURT: I understand that. I’m just
- 30 -
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going to read through this then maybe you won’t have to
put on evidence but maybe you will.
* * *
… I want to hear from Dr. Kelly if he has
any other testimony to give.
(Id. at 39-42; R.R. at 1791a-1792a). Counsel noted to the court that
Plaintiff had already rested, which the court affirmed. A brief recess ensued
and then this exchange occurred:
COURT: We always try to give everybody
their chance to say what they need to say. I need to look
over the trial testimony and plaintiff rested and all the
other motions by the defense. I did review it. I’m going
to accept it as it is on the record. Nobody is changing it,
that’s what it is. I’m going to give the defense a chance
now to present testimony or not present testimony with
regards to sanctions in this case.
* * *
DEFENSE COUNSEL: I need to obtain a ruling from
the court about whether Dr. Kelly’s testimony is
admissible.
COURT: That record is admissible.
DEFENSE COUNSEL: I’m asking specifically about the
reference.
COURT: That is admissible. The whole
trial transcript.
DEFENSE COUNSEL: What I need to learn from the
court is my objection to Dr. Kelly’s testimony.
COURT: I noted your objection. Let’s
go.
DEFENSE COUNSEL: Because it’s absolutely hearsay.
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We did not have an opportunity to cross-examine the
testimony. My client was not a party to the action and so
therefore─
COURT: You may appeal that ruling at
the appropriate time and you may win on that regard or
not but we’re here to hear from your client or not.
DEFENSE COUNSEL: No, we’re not here to hear from
my client, Your Honor.
COURT: You’re asked not to put on
testimony or not.
DEFENSE COUNSEL: I have to finish, if I may, Your
Honor. I have a motion that [P]laintiff has not sustained
[her] burden, cannot sustain [her] burden with respect to
either [] source of sanction as she is pursuing, [Section]
2503,[she] hasn’t proven my client did anything wrong as
well with respect to that. And also civil contempt. Civil
contempt requires that she has violated a court order.
There’s no proof of that. What you have is this transcript
which establishes, because of Ms. Raynor’s statement
found on page 117, Dr. Kelly and I have had a number of
discussions and I certainly did advise that we had this
issue in the case that we’re not to refer to smoking. So
that establishes Ms. Raynor’s [compliance] with the order.
This is evidence [P]laintiff presented and not otherwise.
MR. D’ANNUNZIO: Now he’s asking for
reconsideration.
DEFENSE COUNSEL: You’re not going to talk to me.
COURT: Don’t talk to him Mr.
D’Annunzio, he’s right. But I don’t know what else to tell
him. I made a ruling. Your request is denied. Your
motion, whatever motions you’re making, whatever
request is denied. We're moving on to whatever you have.
DEFENSE COUNSEL: Can I put the grounds, the
balance of the grounds for the motion on so we have a
complete record[?]
- 32 -
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COURT: Sure.
DEFENSE COUNSEL: Your Honor, that the civil
contempt is not appropriate because two things. First of
all, the argument of the order which we’re dealing with I
understand to be the order of May 16, 2012 is that─
COURT: I don’t have the date. I’ll
accept it.
* * *
DEFENSE COUNSEL: I just want to make sure that
this is the order that we’re addressing. The order does not
include any order by the court for Ms. Raynor to take any
action with respect to that order. So that in order to have
contempt she must not have followed the order or
complied with the order. Ms. Raynor is not required by
this order to do anything so therefore, and she’s not the
person who mentioned smoking. She did not [use]
smoking in her question and she did not provide argument
about smoking. She did not use that term so for that
reason [she] is not in violation of any order.
In addition she cannot be found liable for the statement
I’m talking about criminal contempt for─
COURT: No criminal case. We’re not
talking about a criminal case.
DEFENSE COUNSEL: I understand, civil for the
statement for the testimony provided by Dr. Kelly because
there’s no vicarious liability for civil contempt or any form
of contempt. Also there is not a basis for vicarious liability
for [S]ection 2503 liability. So the statement by the
witness is not attributable, cannot be attributable to Ms.
Raynor and her law firm cannot be liable for a statement
by Dr. Kelly or testimony by Dr. Kelly.
In addition [P]laintiff’s evidence does not
establish obdurate or vexatious behavior as the court
realizes that information that is─ that there’s no conduct
by Ms. Raynor which is established by the trial transcript
which would suggest that she was in any way acting in
- 33 -
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some obdurate or vexatious [manner] or for purposes to
vex [P]laintiff. So for that reason, Your Honor, the 2503
section sanctions should be dismissed.
And then with respect to… civil contempt is
for the purpose of compelling actual compliance of a then
existing order. … So the civil contempt sanction request
should be denied also and at this point should be
dismissed because of the failure to sustain their burden.
COURT: At this stage I’m not dismissing
anything other than the criminal proceeding. The court is
not proceeding in any way [with] the criminal proceedings
of contempt. We’re moving on. You have any other
testimony or evidence?
DEFENSE COUNSEL: I do. Does the court credit my
client’s statement in the record?
COURT: The record is accepted as given.
It’s in the evidence for [P]laintiff.
* * *
DEFENSE COUNSEL: …what I’m asking is does the
court credit that Ms. Raynor told Dr. Kelly that she had a
number of discussions and advised him about that he was
not to refer to smoking?
COURT: Is that in the record?
DEFENSE COUNSEL: Yes.
COURT: Then that’s her statement.
DEFENSE COUNSEL: What I’m asking is whether the
court credits that as a valid statement.
COURT: It’s credited. I’m taking that
into consideration. Everything that is in the record is
taken into consideration. And now I’m here to hear any
further testimony. They rested, and from the defendant if
you would like to add anything else then I'm going to try
to make a very fair decision based on everything that I
- 34 -
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have before me. If l’m taking into consideration something
that you feel I should not be doing you may want to appeal
this later if it’s adverse to you, the decision may not be
adverse to you.
(Id. at 43-50; R.R. at 1792a-1794a).
Upon the court’s decision to overrule defense counsel’s objections
based on the content of the order at issue, the inadmissibility of Dr. Kelly’s
May 31, 2012 limited testimony regarding the smoking ban, and the
insufficiency of Plaintiff’s offer of proof, testimony for the defense began.
The defense initially presented testimony from Ronald Stu Moore, Dr. Geller,
and Dr. Harris (by stipulation). Mr. Moore swore that Ms. Raynor had told
Dr. Kelly about the smoking ban and was surprised when Dr. Kelly did not
recall, which had to have been a mistake. Mr. Moore understood how Ms.
Raynor did not argue that with the judge at the time. Dr. Kelly appeared
completely rattled by his error. The testimony of Dr. Geller related to the
same conversation they had all participated in with Dr. Kelly before his
testimony on May 31, 2012. Both Mr. Moore and Dr. Geller specifically
recalled Ms. Raynor reminding Dr. Kelly during the conversation that he was
not to discuss decedent’s smoking history during the trial testimony. Dr.
Geller further testified he had “commiserated” with Dr. Kelly on the
unfairness of the preclusion in the courtroom hallway before Dr. Kelly
testified. Dr. Geller also stated he was aghast when he heard Dr. Kelly
mention at trial that decedent was a smoker. According to Dr. Geller, Dr.
Kelly appeared flustered and upset with himself over his testimonial misstep,
- 35 -
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when he apologized to Dr. Geller and Ms. Raynor. Dr. Geller’s overall
impression was that Dr. Kelly mentioned smoking accidentally in the context
of cardiac risk factors as if he had mentally slipped into a routine lecture to
medical students. Dr. Geller made clear his treatment of decedent was
primarily centered on heart issues, given her presenting complaints, which
was how the issue of “cardiac risk factors” came into focus at trial.
Dr. Harris’ testimony was presented to the court by stipulation of all
parties. Dr. Harris confirmed that, on several occasions throughout the
pretrial preparation: (1) Ms. Raynor had informed him of the existence of a
court order prohibiting any reference to smoking at trial; (2) she had
discussed with Dr. Harris the reason the medical records were being
redacted; (3) in the days leading up to Dr. Harris’ trial testimony, Ms.
Raynor made it clear to him the order prohibiting any reference to smoking
was a serious and important ruling in the case; and (4) on the morning he
testified, Ms. Raynor once again reminded him of the court order and the
fact that he could not use the word “smoking” in his testimony.
The contempt hearing resumed on March 31, 2014, with Ms. Raynor’s
testimony, in which she repeated her previous position to the court about
the multiple pretrial conversations she had had with Dr. Kelly, which
included warnings regarding the smoking preclusion. Her testimony
emphasized the “interactive” quality of these discussions, by which she
confirmed Dr. Kelly knew and understood the discussions. She also outlined
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her usual and customary practice with regard to preparing her witnesses in
medical malpractice cases. Ms. Raynor referred to other instances where Dr.
Kelly demonstrated in his testimony at trial how he did not recall something
she had just discussed with him, for example, the preliminary and final x-ray
reports. Ms. Raynor denied she had ever told or suggested to Dr. Kelly to
mention smoking or had any intention to cause a mistrial. She also gave her
rationale for questioning Dr. Kelly on “cardiac risk factors.” Ms. Raynor said
she truly believed Dr. Kelly simply made an honest mistake; he failed to
remember that she had warned him, which does not automatically mean she
failed to warn him. In fact, she gave Dr. Kelly the warning against the
mention of decedent’s smoking history as a global, across-the-board,
blanket prohibition on any use of the word “smoking.”
Dr. Kelly also testified at the sanctions hearing on March 31, 2014. He
stated he did not remember if Ms. Raynor had informed him of the
smoking preclusion order. Dr. Kelly said he believed Ms. Raynor was truthful
in her statement to the court that she had previously discussed the smoking
ban with him. Additionally, Dr. Kelly testified he had discarded all of his
notes from trial. Importantly, at this time, Dr. Kelly was also a defendant in
Plaintiff’s motion for sanctions.
Following the parties’ submission of proposed findings of fact and
conclusions of law, the court issued an order dated May 2, 2014, and filed on
May 5, 2014, that imposed sanctions against only Ms. Raynor in an amount
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“to be determined.” The court’s order is as follows:
ORDER
AND NOW, this [2nd] day of [May] 2014, upon
consideration of Plaintiff’s Motion for Post-Trial Relief in the
nature of Sanctions against non-parties John J. Kelly, D.O.,
Nancy Raynor, Esquire, and Raynor & Associates, LLC, and
against Defendants Jeffrey Geller, M.D. and Roxborough
Emergency Physician Associates, LLC, and after hearings
on March 27, 2014 and March 31, 2014 and upon
consideration of the submissions by the parties and non-
party representatives of Findings of Fact and Conclusions
of Law, it is hereby ORDERED and DECREED that this
[c]ourt makes the following findings :
1) That this [c]ourt entered a Pre-Trial Order dated
May 16, 2012 which precluded the Defendants from
presenting any evidence, testimony, and/or argument
regarding decedent’s smoking history.
2) That this [c]ourt, during trial and prior to
witnesses taking the stand, admonished all Counsel to
remind their witnesses of this [c]ourt’s Order,
precluding any reference to the decedent’s smoking
history.
3) That during trial, Defendant, Jeffrey Geller, M.D.
called John J. Kelly, D.O. as an expert witness to testify
on his behalf.
4) That Dr. Kelly, in response to a question posited
to him by Defendant Geller’s attorney, Nancy Raynor,
Esquire, testified in front of the jury that decedent had
been a smoker.
5) That Dr. Kelly testified credibly before this [c]ourt
during both his colloquy with this [c]ourt immediately
following his testimony in the underlying case and
during the sanctions hearing of March 31, 2014,
regarding the content of conversations that took place
between him and Nancy Raynor, Esquire.
6) That Nancy Raynor, Esquire violated this [c]ourt’s
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Order in that she failed to so advise Dr. Kelly of this
[c]ourt’s preclusion Order and/or failed to follow this
[c]ourt’s clear instructions by failing to remind Dr. Kelly
just prior to his taking the stand as to this [c]ourt’s
Order precluding any reference to decedent's smoking
history.
7) That Nancy Raynor, Esquire violated this [c]ourt’s
Order precluding the presentation of any evidence of
decedent's smoking history.
8) That as a result of Ms. Raynor’s violation of this
[c]ourt’s preclusion Order, this [c]ourt entered an Order
dated October 19, 2012, granting [P]laintiff’s Post-Trial
Motion for a New Trial.
9) That Plaintiff and her counsel were caused to
expend time and money preparing and trying this case
which resulted in the granting of a mistrial all to their
detriment in that they will have to now retry this case.
10) That due to Ms. Raynor’s violation of this [c]ourt’s
preclusion Order, Plaintiff and her [c]ounsel have
suffered monetary losses in the nature of counsel fees,
costs and expenses.
It is therefore ORDERED and DECREED that Sanctions shall
be imposed upon Nancy Raynor, Esquire, only, in an
amount to be determined by this [c]ourt. Nancy Raynor,
Esquire is given twenty (20) days leave of court to file a
response challenging the amounts set forth in the
Plaintiff’s brief and supporting documentation regarding
Plaintiff’s claim for attorney fees, costs and expenses.
(Contempt/Sanctions Order, filed May 5, 2014, at 1-2; R.R. at 2039a-
2040a). In Plaintiff’s supporting brief, Plaintiff had requested payment for all
of Plaintiff’s attorneys’ hourly fees associated with the first trial, totaling
$1,349,063.67 in proposed sanctions. On May 27, 2014, Ms. Raynor filed a
brief disputing the amount of proposed sanctions and requested an
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evidentiary hearing.
Without any hearing on the reasonableness of the sanctions, the court
awarded Plaintiff’s counsel a total of $946,195.16 in attorneys’ fees and
expenses on November 4, 2014. The court awarded $615,349.50 to
Plaintiff’s lawyers from Klehr Harrison and $160,612.50 to her lawyers from
Messa and Associates. The court also awarded $170,235.16 to Plaintiff
herself for “actual expenses.” The court did not explain in its November 4,
2014 order how these fees/expenses were appropriate or correct. Ms.
Raynor timely appealed the November 4, 2014 order for contempt and
sanctions.
Meanwhile, on November 6, 2014, the second trial in Plaintiff’s medical
malpractice case concluded with the entry of a new jury verdict in favor of
Plaintiff; this time the verdict was against defendants Roxborough Memorial
Hospital, Jeffrey Geller, M.D., and Melanio Aguirre, M.D. The second verdict
was in the amount of $1,975,713.00. Significantly, a different jurist
presided over the second trial, and the parties were permitted to refer to
decedent’s smoking history during the damages portion of the case.
On November 26, 2014, the court ordered Ms. Raynor to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Ms. Raynor timely complied on December 17, 2014. On January 5, 2015,
Ms. Raynor filed a motion to stay Plaintiff’s execution on the sanctions
pending appeal. Plaintiff filed a praecipe for entry of judgment on January 8,
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2015, and the court entered judgment against Ms. Raynor on that date. On
January 15, 2015, the trial court granted Ms. Raynor a temporary stay of
execution pending a hearing scheduled for February 19, 2015. This order,
however, did not dissolve the attachments entered against Ms. Raynor’s
assets. Ms. Raynor filed an emergency motion to dissolve the attachments
on January 22, 2015, stating the attachments essentially froze all of her
assets, which prevented her from paying the firm’s operating expenses or
her personal expenses. The trial court denied Ms. Raynor’s motion to
dissolve the attachments in an order issued on January 23, 2015. On
February 3, 2015, the court filed its opinion pursuant to Pa.R.A.P. 1925(a).
In its opinion, the court justified its rationale for the sanctions award in the
form of counsel fees associated with the first trial based on (a) the
complexity of the medical malpractice issue; (b) the “industry standard”
rates for the fourteen attorneys and two paralegals claimed to have worked
on the case; and (c) the necessity for extensive post-trial work. The court
gave no explanation for the “actual losses” it awarded directly to Plaintiff
except to state it was “a very emotional case for Plaintiff’s family.” (See
Trial Court Opinion, filed February 3, 2015, at 24.)
On February 10, 2015, Ms. Raynor filed an emergency application for
supersedeas with this Court to vacate the trial court’s orders and remand for
a hearing on newly discovered evidence from a critical fact witness. Plaintiff
answered on February 12, 2015, and Ms. Raynor filed a reply on February
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13, 2015. On February 18, 2015, this Court granted Ms. Raynor’s request to
remand for a hearing on her proposed newly discovered evidence in the
nature of testimony by a new witness, Joseph Chapman. This Court also
stayed all existing execution and garnishment actions stemming from the
trial court’s sanctions. This Court stayed all other proceedings in the trial
court, pending that court’s decision following the hearing on Ms. Raynor’s
proposed newly discovered evidence.
On March 4 and March 10, 2015, the trial court held hearings on Ms.
Raynor’s proposed newly discovered evidence. At the hearings, Ms. Raynor
presented the testimony of Mr. Chapman, a trial technician for the defense
during the 2012 medical malpractice trial. Mr. Chapman testified he was
present in the hallway during the lunch break on the day Dr. Kelly testified
and heard Ms. Raynor tell Dr. Kelly that smoking was out of the case. Mr.
Chapman also testified that he approached Ms. Raynor at the end of the day,
on May 31, 2012, after Dr. Kelly’s testimony, and told her he would be
willing to tell the court he had heard Ms. Raynor remind Dr. Kelly not to
mention smoking. Mr. Chapman, however, believed Ms. Raynor did not hear
him. More recently, after he had read about her case in the newspaper, Mr.
Chapman contacted Ms. Raynor on January 28, 2015, to inform her again
that he had heard her tell Dr. Kelly before his testimony on May 31, 2012,
that any mention of smoking was precluded at the 2012 trial.
On April 24, 2015, the court issued an order and opinion, denying Ms.
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Raynor’s application for reconsideration of the sanctions order. The court
stated it found Mr. Chapman’s testimony incredible and suspicious, due to
the timing of his disclosure and what the court believed were inconsistencies
in Mr. Chapman’s testimony. The court concluded the testimony did not
qualify as “newly discovered” evidence because Mr. Chapman said he had
told Ms. Raynor, after Dr. Kelly testified on May 31, 2012, that Mr. Chapman
had overheard the earlier conversation between Ms. Raynor and Dr. Kelly
about the smoking preclusion. The court determined Ms. Raynor had access
to Mr. Chapman’s testimony well in advance of the imposition of sanctions,
so the evidence was not “newly discovered.” Further, the court held that
Ms. Raynor had failed to act with responsible diligence to question Mr.
Chapman at any time after May 31, 2012. The court reaffirmed its finding
that Dr. Kelly’s testimony was credible, whereas Mr. Chapman’s testimony
was contradictory and suspiciously timed to provide an “alibi” for Ms.
Raynor. The court refused to reconsider the sanctions, based on Mr.
Chapman’s testimony.
On May 22, 2015, Ms. Raynor filed a motion for clarification of this
Court’s February 18, 2015 order. By order entered May 27, 2015, this Court
granted her motion and stated the February 19, 2015 emergency
supersedeas order remained in effect until all of Ms. Raynor’s appeals are
exhausted.
Ms. Raynor raises the following issues for our review:
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WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
IMPOSING SANCTIONS AGAINST [MS.] RAYNOR FOR
CONTEMPT AND VIOLATION OF 42 PA.C.S.A. § 2503(7) IN
THE ABSENCE OF EVIDENCE ESTABLISHING THAT [MS.]
RAYNOR ENGAGED IN WILLFUL VIOLATION OF A COURT
ORDER OR ANY VEXATIOUS, OBDURATE OR DILATORY
CONDUCT?
WHETHER THE TRIAL COURT COMMITTED NUMEROUS
PROCEDURAL ERRORS, DEPRIVED [MS.] RAYNOR OF HER
RIGHT TO DUE PROCESS UNDER THE LAW AND
ABANDONED ITS ROLE AS NEUTRAL ARBITER BY:
i. IMPOSING CRIMINAL CONTEMPT SANCTIONS ON
[MS.] RAYNOR WITHOUT AFFORDING HER THE
REQUISITE DUE PROCESS PROTECTIONS
GUARANTEED BY THE UNITED STATES AND
PENNSYLVANIA CONSTITUTIONS?
ii. IMPROPERLY PLACING THE BURDEN OF PROOF ON
[MS.] RAYNOR TO ESTABLISH THAT SHE COMPLIED
WITH THE PRECLUSION ORDER, RATHER THAN
REQUIRING PLAINTIFF TO ESTABLISH THAT [MS.]
RAYNOR VIOLATED THE ORDER?
iii. BY ACCEPTING—AS THE SOLE SUBSTANTIVE
EVIDENCE SUPPORTING ITS CONCLUSION—
INADMISSIBLE HEARSAY STATEMENTS FROM [DR.]
KELLY ELICITED BY THE COURT ITSELF DURING A
PROCEEDING IN WHICH [MS.] RAYNOR HAD NO
NOTICE THAT SHE WAS CHARGED WITH CONTEMPT,
WAS NOT A PARTY TO THE ACTION AND WAS
AFFORDED NO RIGHT TO CROSS-EXAMINATION?
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
WHEN IT IMPOSED SANCTIONS IN THE TOTAL AMOUNT OF
$946,197.16 WITHOUT A HEARING, AND WITHOUT
COMPETENT EVIDENCE TO ESTABLISH THE
REASONABLENESS OF THE AMOUNT IN CIRCUMSTANCES
WHERE THE AMOUNT IMPOSED BORE NO REASONABLE
RELATIONSHIP TO ANY LOSS INCURRED AND HENCE WAS
PUNITIVE IN NATURE?
(Ms. Raynor’s Brief at 3-4).
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In her issues combined, Ms. Raynor initially argues the law assigned to
Plaintiff the burden of proof regarding her motion for civil contempt and
sanctions against Ms. Raynor. Ms. Raynor asserts Plaintiff’s burden explicitly
required Plaintiff to prove Ms. Raynor had notice of a specific order, freely
violated the order, and acted with wrongful intent. Ms. Raynor contends
Plaintiff failed to point to any order that expressly required defense counsel
to warn their expert witnesses about precluded topics at any time, but
particularly just before the expert witnesses took the stand; and there was
none. Ms. Raynor avers Plaintiff relied solely on Dr. Kelly’s May 31, 2012
trial testimony as proof that Ms. Raynor had intentionally violated the
smoking preclusion order. Ms. Raynor maintains to the contrary that Dr.
Kelly’s equivocal testimony on that date failed to demonstrate Ms. Raynor
had violated the smoking preclusion order or that Ms. Raynor had not
informed him of the smoking ban. Ms. Raynor asserts the court used this
scant testimony to shift Plaintiff’s burden improperly to Ms. Raynor to prove
she had warned Dr. Kelly of the ban on decedent’s smoking history.
Ms. Raynor directs our attention to earlier in the 2012 trial transcript,
where the court purposely declined to enter an order directing defense
counsel to remind their expert witnesses about the smoking ban immediately
before the witnesses took the stand. Ms. Raynor submits nothing in the
existing pretrial smoking preclusion order required defense attorneys to
inform their witnesses that the smoking ban had been reduced to an order
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or to warn their expert witnesses about the smoking ban immediately before
the witnesses took the stand. In any event, Ms. Raynor declares she did tell
Dr. Kelly about the smoking ban before the trial began. Ms. Raynor claims
the court rebuffed her efforts to introduce testimony, immediately following
Dr. Kelly’s violation, to show Ms. Raynor had told Dr. Kelly about the
smoking ban. Ms. Raynor asserts the testimony of her witnesses offered at
the later sanctions hearings confirmed she had warned Dr. Kelly not to
mention decedent’s smoking habit in his trial testimony. Ms. Raynor
contends the testimony of Mr. Moore and Dr. Geller at the subsequent
sanctions hearings was materially consistent and corroborated her own
statements to the court that she had warned Dr. Kelly several times about
the smoking ban. Ms. Raynor avers the court likewise erroneously
disregarded Mr. Chapman’s later testimony on remand, despite its
substantial consistency with the testimony of her other witnesses.
Ms. Raynor further insists Dr. Kelly’s own testimony both on May 31,
2102, and later at the contempt hearing, at best demonstrates that he
“could not remember” what Ms. Raynor had told him concerning the smoking
ban. Ms. Raynor asserts Dr. Kelly’s “inability to recall” did not directly
contradict the testimony of her witnesses, who all testified Ms. Raynor had in
fact warned Dr. Kelly not to mention at trial the topic of decedent’s smoking
habit. Ms. Raynor contends the court simply rejected the testimony of her
witnesses at the contempt hearings as suspicious and/or untimely, without
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any record support for those conclusions. Ms. Raynor avers the court had no
basis to discredit her witnesses’ testimony in favor of Dr. Kelly’s equivocal
and evasive testimony. On this record, Ms. Raynor maintains the court
improperly shifted the burden of proof to her in the contempt proceedings
and erred in finding she had willfully violated the smoking preclusion order.
Ms. Raynor also suggests the court ultimately held her in “criminal”
contempt, given the nature of the sanctions imposed. Ms. Raynor contends
civil contempt sanctions are for the purpose of inducing compliance with
court proceedings; and, despite her full compliance with the court’s order,
the court still sanctioned her. Ms. Raynor asserts the court only casually
questioned Dr. Kelly about his trial preparation immediately after he had
violated the smoking ban during the first trial, but the court gave Ms. Raynor
no opportunity to cross-examine Dr. Kelly. Ms. Raynor alleges the court
abandoned neutrality by interrupting Dr. Kelly and shaping his responses.
Ms. Raynor also avers the court erred in admitting Dr. Kelly’s earlier
trial statements in the later sanctions hearing, where the earlier statements
constituted inadmissible hearsay on two grounds: (1) Ms. Raynor was not a
party in the first trial and (2) she had no opportunity to cross-examine Dr.
Kelly. Her opportunity to cross-examine Dr. Kelly at the later sanctions
hearing did not cure the hearsay nature of his earlier statements and was, in
any event, too late to be effective.
Additionally, Ms. Raynor asserts she was entitled to a separate hearing
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on the reasonableness of the sanctions imposed. Ms. Raynor claims an
evidentiary hearing was essential to establish key facts which the court
should have considered in making its sanctions assessment. For example,
Ms. Raynor states Plaintiff failed to prove actual harm to the value of her
case, because Plaintiff’s award was significantly higher in the second trial,
where evidence of decedent’s smoking habit was actually permitted.
Likewise, Ms. Raynor claims the sanctions evidence of counsel’s unbilled
hourly time charges offered by Plaintiff did not represent actual loss to
Plaintiff. Ms. Raynor insists the award of attorneys’ fees associated with the
first trial was improper primarily because Plaintiff’s attorneys worked on a
contingent-fee basis, and Plaintiff was not responsible for the attorneys’
unbilled time charges. Ms. Raynor contends the court deprived her of the
opportunity to challenge the appropriateness and reasonableness of the
counsel fees/sanctions by refusing to hold a hearing on the amount of
sanctions imposed. Further, Ms. Raynor maintains Plaintiff and her
attorneys could not have avoided the cost of the first trial, even if Dr. Kelly
had honored the smoking ban. Ms. Raynor alleges the court’s excessive
sanctions were punitive both in amount and intent, which was to punish her
for Dr. Kelly’s errant comment. Ms. Raynor concludes the trial court abused
its discretion by finding her liable for contempt based on this record and
imposing excessive sanctions.
Plaintiff counters Dr. Kelly’s testimony and responses to the court’s
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inquiries, taken from the May 31, 2012 trial transcript, were alone sufficient
to support the finding of contempt and the sanctions imposed. Plaintiff
asserts the court properly admitted the Dr. Kelly’s testimony from May 31,
2012, at the later contempt hearing, as party admissions. Plaintiff contends
Dr. Kelly’s mere statement that he “did not remember” having discussed the
order constituted sufficient grounds for sanctions, because Ms. Raynor had a
duty to prepare Dr. Kelly properly by cautioning him immediately before he
took the stand, even if no order expressly required her to do so. Plaintiff
insists the necessity for cautioning Dr. Kelly just before he took the stand
was “inherent” in the smoking preclusion order, because Ms. Raynor knew
Dr. Kelly was a “very busy emergency room physician with important
administrative duties” who might not remember her prior instructions.
Plaintiff also contends Ms. Raynor intentionally framed and asked a question
designed to prompt Dr. Kelly to mention decedent’s smoking habit in his
response.
Plaintiff avers the court had discretion to impose sanctions from the
bench during the first trial; instead, the court gave Ms. Raynor an additional
opportunity to explain her trial conduct at the separate contempt hearings.
Plaintiff maintains Ms. Raynor had the initial burden of proof only in her
capacity as the proponent of new witness testimony, when she introduced
Mr. Chapman’s testimony. The court, however, concluded she failed to meet
her burden to deserve reconsideration of the sanctions award.
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Plaintiff further argues Dr. Geller and Mr. Moore were both “interested
parties” in the later contempt proceedings, and their testimony was
therefore innately untrustworthy. Plaintiff asserts their testimony was also
inconsistent, which further demonstrated the unreliability of their
statements. Plaintiff indicates Ms. Raynor’s later testimony was likewise
suspicious, because Ms. Raynor failed to accuse Dr. Kelly promptly of lying
when he first said he did not remember discussing the smoking preclusion
order with her. Plaintiff contends Ms. Raynor’s evolving story and her post-
trial “change in attitude” toward Dr. Kelly demonstrate her unreliability as a
witness. Plaintiff concludes the extent and amount of the court’s sanctions
was appropriate and necessary, given the complexities of the trial and the
unfairness that would result if the court did not compensate Plaintiff for all of
the damages Ms. Raynor caused, including all counsel fees and costs
associated with the 2012 trial. For the following reasons, we reject Plaintiff’s
contentions and agree with Ms. Raynor’s position.
This Court reviews contempt orders subject to the following principles:
[A]n appellate court has the authority to determine
whether the findings of the trial court support its legal
conclusions, but may only interfere with those conclusions
if they are unreasonable in light of the trial court’s factual
findings. This Court will not reverse or modify a final
decree unless there has been an error of law or an abuse
of discretion, or if the findings are not supported by
the record, or there has been a capricious disbelief
of the credible evidence. Furthermore [e]ach court is
the exclusive judge of contempt against its process, and
on appeal its actions will be reversed only when a plain
abuse of discretion occurs.
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Mrozek v. James, 780 A.2d 670, 673 (Pa.Super. 2001) (internal citations
and quotation marks omitted) (emphasis added). As well, the amount of
monetary sanctions is subject to an abuse of discretion standard; however,
sanctions deemed excessive under the circumstances might compel reversal
or remand for modification. Commonwealth v. Bowden, 576 Pa. 151,
186, 838 A.2d 740, 761 (2003) (reiterating ability to comply is key
consideration in determining propriety of civil contempt sanctions; court
must consider defendant’s financial resources before entering monetary
contempt sanction).
The distinction between criminal and civil contempt lies in the court’s
dominant purpose for using its contempt power. Diamond v. Diamond,
792 A.2d 597, 600 (Pa.Super. 2002).
The factors generally said to point to a civil contempt are
these: (1) [w]here the complainant is a private person as
opposed to the government or a governmental agency; (2)
where the proceeding is entitled [captioned] in the
original…action and filed as a continuation thereof as
opposed to a separate and independent action; (3) where
holding the [respondent] in contempt affords relief to a
private party; (4) where the relief requested is primarily
for the benefit of the complainant; and (5) where the acts
of contempt complained of are primarily civil in nature and
do not of themselves constitute crimes or conduct by the
[respondent] so contumelious that the court is impelled to
act on its own motion.
Stahl v. Redcay, 897 A.2d 478, 486 (Pa.Super. 2006), appeal denied, 591
Pa. 704, 918 A.2d 747 (2007) (citations omitted).
A judgment in a civil contempt proceeding for the benefit
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of a private [complainant] will, of course, incidentally
vindicate the authority of the court just as on the other
hand a criminal contempt judgment, which is punitive,
may often advance private interests. But the test is the
dominant purpose, not the incidental result.
Id. at 487 (internal citation omitted). Importantly,
To be punished for contempt, a party must not only have
violated a clear order, but that order must have been
definite, clear, and specific—leaving no doubt or
uncertainty in the mind of the contemnor of the prohibited
conduct. Because the order forming the basis for civil
contempt must be strictly construed, any ambiguities or
omissions in the order must be construed in favor of the
defendant. In such cases, a contradictory order or an
order whose specific terms have not been violated will not
serve as the basis for a finding of contempt. To sustain a
finding of civil contempt, the complainant must prove
certain distinct elements: (1) that the contemnor had
notice of the specific order or decree which he is alleged to
have disobeyed; (2) that the act constituting the
contemnor’s violation was volitional; and (3) that the
contemnor acted with wrongful intent. A person may not
be held in contempt of court for failing to obey an order
that is too vague or that cannot be enforced.
Id. at 489 (emphasis in original) (citation omitted). In other words, the
alleged contemnor must know of the prohibited conduct, with any
ambiguities, omissions, or uncertainties in the order construed in favor of
the alleged contemnor, the act constituting the violation must be deliberate,
and the act of the alleged contemnor must have been done with improper
intent. Id. See also In re Contempt of Cullen, 849 A.2d 1207, 1210
(Pa.Super. 2004), appeal denied, 582 Pa. 676, 868 A.2d 1201 (2005).
“In proceedings for civil contempt of court, the general rule is that the
burden of proof rests with the complaining party to demonstrate that the
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defendant is in noncompliance with a court order.” MacDougall v.
MacDougall, 49 A.3d 890, 892 (Pa.Super. 2012), appeal denied, 621 Pa.
679, 75 A.3d 1282 (2013). “However, a mere showing of noncompliance
with a court order, or even misconduct, is never sufficient alone to prove
civil contempt.” Habjan v. Habjan, 73 A.3d 630, 637 (Pa.Super. 2013).
See also In re Contempt of Cullen, supra. “[U]nless the evidence
establishes an intentional disobedience or an intentional [disregard] of the
lawful process of the court, no contempt has been proven.” Ricci v. Geary,
670 A.2d 190, 192 (Pa.Super. 1996).
Notably, “the holding of an individual in contempt for the actions of a
third party would appear inappropriate and, therefore, unsupportable unless
the individual con[s]ciously directed the third party to act as he did and
possessed such authority over the third party that [the directing individual]
could compel compliance with the directive.” Commonwealth v. Michel,
522 A.2d 90, 93 (Pa.Super. 1987). Only then can the third party’s act “be
imputed to the directing party. However, even then it would be necessary to
find wrongful intent.” Id. The proponent must prove and the court must
still find wrongful intent even if it determines the contemnor directed the
third party’s actions. Yeager v. Kavic, 765 A.2d 812, 815 (Pa.Super.
2000), appeal denied, 567 Pa. 745, 788 A.2d 378 (2001).
The imposition of counsel fees can serve as a sanction upon a finding
of civil contempt. Rhoades v. Pryce, 874 A.2d 148, 153 (Pa.Super. 2005)
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(en banc), appeal denied, 587 Pa. 724, 899 A.2d 1124 (2006).
[T]he court may, in a proceeding for civil contempt,
impose the remedial punishment of a fine payable to an
aggrieved [complainant] as compensation for the special
damages he may have sustained by reason of the
contumacious behavior of the offender.
* * *
Where compensation is intended, a fine is imposed,
payable to the complainant. Such fine must of course be
based upon evidence of complainant’s actual loss, and his
right, as a civil litigant, to the compensatory fine is
dependent upon the outcome of the basic controversy.
Stahl, supra at 487 (internal citation omitted). See also Jack Rees
Nursing and Rehabilitation Services v. Hersperger, 600 A.2d 207, 209
(Pa.Super. 1991) (stating contempt fine, meant to compensate complainant,
must be based on evidence of complainant’s actual loss). For example, “[A]
court may require the contemnor to compensate the opposing party for
losses incurred as a result of the violation or reimburse the party’s attorneys’
fees and costs.” Gunther v. Bolus, 853 A.2d 1014, 1016 (Pa.Super. 2004),
appeal denied, 578 Pa. 709, 853 A.2d 362 (2004).
Nevertheless, an award of counsel fees is intended to reimburse an
innocent litigant for the expenses the conduct of an opponent makes
necessary, such as the cost of the contempt hearing, so it can be coercive
and compensatory but it cannot be punitive. Mrozek, supra. Moreover,
“[T]he court may not convert a coercive [ruling] into a punitive one by
imposing conditions that a contemnor cannot perform and thereby purge
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[herself] of the contempt.” Schnabel Assoc., Inc. v. Building and
Constr. Trades Council of Philadelphia and Vicinity, AFL-CIO, 487 A.2d
1327, 1338 (Pa.Super. 1985). Importantly, when fixing the amount of
sanctions, the court must also consider the financial resources of the alleged
contemnor as well as the financial consequences of the burden imposed by
the sanctions. Id. See also Colbert v. Gunning, 533 A.2d 471, 472
(Pa.Super. 1987) (holding when court found appellant in civil contempt,
court did not have authority to impose sanctions for purpose of inflicting
punishment on appellant; unconditional authority in civil contempt means
court may exercise civil contempt power to compel performance but not to
inflict punishment).
We further observe: “Pennsylvania generally adheres to the American
Rule, under which a litigant cannot recover counsel fees from an adverse
party unless there is express statutory authorization, a clear agreement of
the parties, or some other established exception.” Samuel-Bassett v. Kia
Motors America, Inc., 613 Pa. 371, 464, 34 A.3d 1, 57 (2011).
Pennsylvania courts can award counsel fees to the prevailing party but only
“when authorized by statute or rule of court, upon agreement of the parties,
or pursuant to some other recognized case law exception.” Olympus Corp.
v. Canady, 962 A.2d 671, 677 (Pa.Super. 2008).
An award of counsel fees under 42 Pa.C.S.A. § 2503 is distinct from a
finding of contempt that might include sanctions in the form of counsel fees.
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Wood v. Geisenhemer-Shaulis, 827 A.2d 1204, 1207 (Pa.Super. 2003).
Section 2503 provides as follows:
§ 2503. Right of participants to receive counsel fees
The following participants shall be entitled to a
reasonable counsel fee as part of the taxable costs of
the matter:
* * *
(7) Any participant who is awarded counsel fees as a
sanction against another participant for dilatory,
obdurate or vexatious conduct during the pendency of
a matter.
42 Pa.C.S.A. § 2503. “Classically, in considering a motion to award counsel
fees under [S]ection 2503, an evidentiary hearing is generally required.”
Wood, supra. In this context as well, “The order that forms the basis for
the contempt process in civil proceedings must be definitely and strictly
construed. Any ambiguity or omission in the order forming the basis of the
civil contempt proceeding must be construed in favor of the [accused].
Where the order is contradictory or the specific terms of the order have not
been violated, there is no contempt.” Id. at 1207-08.
“[A]ny award of counsel fees pursuant to 42 Pa.C.S.A. § 2503(7) must
be supported by a trial court’s specific finding of dilatory, obdurate or
vexatious conduct.” Township of South Strabane v. Piecknick, 546 Pa.
551, 560, 686 A.2d 1297, 1301 (1996). The trial court does not have
discretion to award counsel fees to the prevailing party in any contempt case
absent record support for these specific findings. Id. at 559. For example,
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a court may find dilatory conduct where the record demonstrates counsel’s
lack of diligence delayed proceedings and caused additional legal work.
Gertz v. Temple University-Commonwealth System of Higher
Education, 661 A.2d 13, 17 n.2 (Pa.Super. 1995). A court may award
contempt sanctions for vexatious conduct under Section 2503(7) when
counsel’s behavior is wholly unreasonable. Kelley v. Thompson, 474 A.2d
44 (Pa.Super. 1984) (affirming imposition of modest sanction for plaintiff’s
counsel’s arbitrary and unfounded refusal to sign settlement order). “[T]he
essential due process requisites for a finding of civil contempt are notice and
an opportunity to be heard.” In re Contempt of Cullen, supra at 1211
(quoting Schnabel Assoc., Inc., supra at 1334). If contempt sanctions
are based on the violation of a court order, then due process requires notice
of the violations alleged and an opportunity for explanation and defense.
Diamond, supra at 601. See also Garr v. Peters, 773 A.2d 183, 191
(Pa.Super. 2001) (stating: “Procedural due process requires, at its core,
adequate notice, opportunity to be heard, and the chance to defend oneself
before a fair and impartial tribunal having jurisdiction over the case”).
This Court has previously evaluated the reasonableness of attorneys’
fees by examining the following factors:
[T]he amount of work performed; the character of the
services rendered; the difficulty of the problems involved;
the importance of the litigation; the amount of money or
value of the property in question; the degree of
responsibility incurred; whether the fund involved was
‘created’ by the attorney; the professional skill and
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standing of the attorney in his profession; the results he
was able to obtain; the ability of the client to pay a
reasonable fee for the services rendered; and, very
importantly, the amount of money or the value of the
property in question.
Holz v. Holz, 850 A.2d 751, 761 (Pa.Super. 2004), appeal denied, 582 Pa.
700, 871 A.2d 192 (2005) (quoting Gilmore by Gilmore v. Dondero, 582
A.2d 1106, 1109 (Pa.Super. 1990). “[I]n exercising its discretion, [the trial
court] must evaluate the reasonableness of time spent by counsel in relation
to the particular case.” Danks v. Government Employees Ins. Co., 453
A.2d 655, 656 (Pa.Super. 1982).
Although the responsibility for setting counsel fees lies primarily with
the trial court, this Court has the power to reverse that exercise when there
is plain error. Gilmore, supra at 1108. “Plain error is found where the
award is based either on factual findings for which there is no evidentiary
support or on legal factors other than those that are relevant to such an
award.” Id. Significantly, cases involving contingent fee arrangements
intrinsically involve some risk that counsel will recover no money for the
professional services rendered. Id. at 1110. In other words, by virtue of a
contingency fee arrangement, counsel takes on the risk that he will not get
paid as well as the risk that he will lose the money advanced for the costs of
his client’s suit. See id.
With respect to admission of evidence, “The basic requisite for the
admission of any evidence is that it be both competent and relevant.
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Evidence is competent if it is material to the issues to be determined at trial,
and relevant if it tends to prove or disprove a material fact in issue.”
Moroney v. General Motors Corp., 850 A.2d 629 (Pa.Super. 2004),
appeal denied, 580 Pa. 714, 862 A.2d 1256 (2004). The Pennsylvania Rules
of Evidence11 provide:
Rule 401. Test for Relevant Evidence”
Evidence is relevant if:
(a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
“Relevant evidence” means evidence having any tendency
to make the existence of any fact that is of consequence to
the determination of the action more probable or less
probable than it would be without the evidence.
Comment: This rule is identical to F.R.E. 401.
Whether evidence has a tendency to make a given fact
more or less probable is to be determined by the court
in the light of reason, experience, scientific principles
and the other testimony offered in the case.
The relevance of proposed evidence may be dependent
on evidence not yet of record. Under Pa.R.E. 104(b),
the court may admit the proposed evidence on the
condition that the evidence supporting its relevance be
introduced later.
____________________________________________
11
On January 17, 2013, the legislature rescinded the prior version of the
rules of evidence and replaced them with the current version of the rules
which went into effect on March 18, 2013. Here, the first trial occurred in
2012 but the contempt/sanctions proceedings extended into 2014.
Nevertheless, for our purposes the rules are essentially the same.
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Pa.R.E. 401. Rule 402 states:
Rule 402. General Admissibility of Relevant
Evidence
All relevant evidence is admissible, except as otherwise
provided by law. Evidence that is not relevant is not
admissible.
Comment: Pa.R.E. 402 differs from F.R.E. 402. The
Federal Rule specifically enumerates the various sources
of federal rule-making power. Pa.R.E. 402 substitutes
the phrase “by law.”
Pa.R.E. 402 states a fundamental concept of the law of
evidence. Relevant evidence is admissible; evidence
that is not relevant is not admissible. This concept is
modified by the exceptions clause of the rule, which
states another fundamental principle of evidentiary
law−relevant evidence may be excluded by operation of
constitutional law, by statute, by these rules, by other
rules promulgated by the Supreme Court or by rules of
evidence created by case law.
* * *
Pa.R.E. 402. In other words, evidence that might be relevant to an issue in
a particular case can still be incompetent and inadmissible because one or
more established rules of evidence preclude admission. Id. See also
Commonwealth v. Paddy, 569 Pa. 47, 70-71, 800 A.2d 294, 308 (2002)
(stating: “Evidence that is relevant may nevertheless be inadmissible if it
violates a rule of competency, such as the hearsay rule”). Pennsylvania Rule
of Evidence 801 defines hearsay as follows:
Rule 801. Definitions That Apply to This Article
(a) Statement. “Statement” means a person’s oral
assertion, written assertion, or nonverbal conduct, if the
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person intended it as an assertion.
(b) Declarant. “Declarant” means the person who
made statement.
(c) Hearsay. “Hearsay” means a statement that
(1) the declarant does not make while testifying at the
current trial or hearing; and
(2) a party offers in evidence to prove the truth of the
matter asserted in the statement.
* * *
Pa.R.E. 801. Generally, hearsay is inadmissible, except as provided by the
rules of evidence, other Pennsylvania Supreme Court rules, or by statute.
Pa.R.E. 802. Rule 803 lists various exceptions to the hearsay rule,
regardless of whether the declarant is available as a witness, and states in
part:
Rule 803. Exceptions to the Rule Against
Hearsay−Regardless of Whether the Declarant Is
Available as a Witness
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a
witness:
* * *
(25) An Opposing Party’s Statement. The statement
is offered against an opposing party and:
(A) was made by the party in an individual or
representative capacity;
(B) is one the party manifested that it adopted or
believed to be true;
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(C) was made by a person whom the party authorized to
make a statement on the subject;
(D) was made by the party’s agent or employee on a
matter within the scope of that relationship and while it
existed; or
(E) was made by the party’s coconspirator during and in
furtherance of the conspiracy.
The statement may be considered but does not by itself
establish the declarant’s authority under (C); the existence
or scope of the relationship under (D); or the existence of
the conspiracy or participation in it under (E).
Comment: Pa.R.E. 803(25) differs from F.R.E.
801(d)(2), in that the word “must” in the last paragraph
has been replaced with the word “may.”
The Federal Rules treat these statements as “not
hearsay” and places them in F.R.E 801(d)(2). The
traditional view was that these statements were
hearsay, but admissible as exceptions to the hearsay
rule. The Pennsylvania Rules of Evidence follow the
traditional view and place these statements in Pa.R.E.
803(25), as exceptions to the hearsay rule−regardless
of the availability of the declarant. This differing
placement is not intended to have substantive effect.
The statements in this exception were traditionally, and
in prior versions of both the Federal Rules of Evidence
and the Pennsylvania Rules of Evidence, called
admissions, although in many cases the statements
were not admissions as that term is employed in
common usage. The new phrase used in the federal
rules−an opposing party’s statement−more accurately
describes these statements and is adopted here.
Pa.R.E. 803(25) and Comment. Rule 804 provides exceptions to the rule
against hearsay, when the declarant is unavailable as a witness, and states
in pertinent part as follows:
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Rule 804. Exceptions to the Rule Against
Hearsay−When the Declarant is Unavailable as a
Witness
(a) Criteria for Being Unavailable. A declarant is
considered to be unavailable as a witness if the declarant:
* * *
(3) testifies to not remembering the subject
matter;
* * *
(b) The Exceptions. The following are not excluded by
the rule against hearsay if the declarant is unavailable as a
witness:
(1) Former testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or lawful
deposition, whether given during the current proceeding or
a different one; and
(B) is now offered against a party who had—or, in a
civil case, whose predecessor in interest had—an
opportunity and similar motive to develop it by
direct, cross-, or redirect examination.
* * *
Pa.R.E. 804 (some emphasis added). If former testimony is admitted under
the hearsay exception in Pa.R.E. 804(b)(1)(B), due process is satisfied only
if the statements are introduced against a party who has had an adequate
opportunity for cross-examination in the previous proceeding.
Commonwealth v. Stays, 70 A.3d 1256 (Pa.Super. 2013). If a party
attempts to introduce a declarant’s prior testimony, the court must have
granted the opposing party a full and fair opportunity to cross-examine the
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declarant at the earlier proceeding. Commonwealth v. Bazemore, 531
Pa. 582, 588, 614 A.2d 684, 687 (1992). Additionally, “the issues in the
prior proceeding and the purpose for which the testimony was there offered
must have been such that the present opponent had an adequate motive for
testing on cross-examination the credibility of the testimony now offered.”
Commonwealth v. Smith, 647 A.2d 907, 911 (Pa.Super. 1994) (quoting
Commonwealth v. Velasquez, 449 Pa. 599, 601 n.3, 296 A.2d 768, 770
n.3 (1972)). “It is always the right of a party against whom a witness is
called to show by cross-examination that he has an interest direct or
collateral in the result of the [proceeding]….” Commonwealth v.
Cheatham, 429 Pa. 198, 203, 239 A.2d 293, 296 (1968) (quoting Lenahan
v. Pittston Coal Mining Co., 221 Pa. 626, 629, 70 A. 884, 885 (1908)).
Where the credibility of the witness is crucial to the outcome, the court must
permit cross-examination on bias. Id.
In the instant case, Plaintiff first filed her MIL on November 21, 2011,
to preclude any evidence, testimony, and/or argument by Defendants
regarding the decedent’s smoking history on the grounds that Defendants
had “failed to offer any medical expert opinion” to support “a causal
connection between [decedent’s] smoking and either the negligent failure of
Defendants to diagnose [decedent’s] lung cancer in May 2007, or the
progression of her cancer between May 2007 and her death in July 2009,
and where Plaintiff has offered expert opinion that continued smoking by
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[decedent] after the time [Defendants] failed to diagnose the lung tumor,
had no effect on the progress of her cancer.” By order dated December 5,
and docketed December 6, 2011, the court originally entered a pretrial order
that granted Plaintiff’s MIL in part to preclude evidence, testimony and/or
argument by the defendants regarding decedent’s smoking history as
irrelevant and unfairly prejudicial on the issue of liability. The court
determined that decedent’s smoking history was relevant to the issue of
damages. The court ordered the trial bifurcated into two phases with the
same jury; if the jury found liability then decedent’s smoking history would
be admissible in the second phase, to follow immediately, in which damages
would be assessed. If Plaintiff chose to withdraw the MIL, the trial would not
be bifurcated and decedent’s smoking history would be admissible with a
cautionary instruction on its limited relevance.
Due to later changes in the witness list, Plaintiff renewed her pre-trial
motion to preclude evidence at trial of decedent’s smoking history and asked
the trial court to grant the motion in its entirety, not just in part, because
now there was no defense expert testimony supporting any issue for which
smoking was relevant, even for life expectancy. (See N.T. MIL, 5/16/12, at
8; R.R. at 311a.)
PRECLUSION ORDER
In response to Plaintiff’s renewed request, the trial court issued a
substituted pretrial order on May 21, 2012, which stated in relevant part as
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follows:
… Upon consideration of Plaintiff’s Motion In Limine to
Preclude Evidence, Testimony, and/or Argument by
Defendants Regarding Decedent’s Smoking History, and
any response thereto, it is hereby ORDERED and DECREED
1. Plaintiff’s Motion is GRANTED. [handwritten: “, by
AGREEMENT”]
2. Defendants are precluded from presenting any
evidence, testimony, and/or argument regarding
Decedent’s smoking history.
[handwritten]
3. This order will [supersede] Judge Rau’s order of 12-
5-2011 by agreement of the parties.
(Trial Court Order, dated May 16, 2012, filed May 21, 2012, at 1; R.R. at
372a). Plainly, the order precluded defendants from presenting any
evidence, testimony, or argument regarding decedent’s smoking history.
The order, however, did not expressly require defense counsel either to
inform their witnesses that the smoking ban had been reduced to an order
or to remind their defense witnesses about the smoking ban immediately
before the witnesses took the stand. When Plaintiff asked the court to issue
an explicit directive to defense counsel to remind their witnesses
immediately before they took the stand, the court intentionally refused.
(See N.T. Trial #1, 5/30/12, A.M. Session, at 5-6; R.R. at 732a-733a.)
Although the court’s May 16, 2012 order informs counsel for the parties of
the scope of inadmissible evidence on decedent’s smoking history, it cannot
serve as the order of record to support the court’s finding of civil contempt
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against Ms. Raynor. See Stahl, supra. Likewise, the court’s reference to
the parties’ “understanding,” or the parties’ being “on notice,” of Plaintiff’s
request for the additional order, which the court refused to enter, does not
constitute the kind of “definite, clear, and specific order” required for a
finding of civil contempt in this case. See id. We must strictly construe any
ambiguities, omissions, or uncertainties in the order at issue in favor of Ms.
Raynor as the alleged contemnor. Id.; In re Contempt of Cullen, supra.
Thus, we hold the record from the 2012 trial, on which Plaintiff rested, lacks
the requisite foundational order to support the contempt ruling. See Stahl,
supra; Mrozek, supra.
IMPROPER BURDEN SHIFTING
Additionally, we reiterate that Plaintiff had the burden to prove
contempt, i.e., to show more than just a violation of a court order. Contrary
to Plaintiff’s contention, Dr. Kelly’s May 31, 2012 statement on decedent’s
smoking habit, absent more, does not carry that burden. In Plaintiff’s
motion for contempt and at the contempt hearing, Plaintiff rested solely on
the Dr. Kelly’s May 31, 2012 testimony from the first trial, and his responses
to the court’s impromptu inquiries, to support the inference that Dr. Kelly
was completely unaware of the smoking ban. These transcripts, however,
are at best misleading because the court’s questions to Dr. Kelly and his
responses are capable of multiple reasonable interpretations, for example,
that (1) Dr. Kelly did not know the ban on smoking testimony had been
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reduced to an order; or (2) he did not know about the smoking ban at all; or
(3) he was not told or reminded about the smoking ban (order or generally)
on May 31, 2012; or (4) he was not told or reminded about the smoking ban
(order or generally) immediately before he took the stand; or (5) the
smoking ban did not affect the context of cardiac risk factors. None of these
interpretations can be either favored or excluded. After all, the court had
instructed Dr. Kelly not to discuss his trial testimony with counsel during the
short break between his credentials testimony and his substantive
testimony. Thus, the court’s questions and Dr. Kelly’s responses do not lead
to a definitive conclusion. Quite the opposite, Dr. Kelly’s May 31, 2012
testimony demonstrated only Dr. Kelly’s confusion about why he was being
questioned by the court and his professed inability to recall he knew about
the smoking ban.
Likewise, Dr. Kelly’s May 31, 2012 testimony on the issue of the
smoking ban was arguably hearsay and subject to exclusion, because his
testimony was offered later against Ms. Raynor, who had no adequate
opportunity to cross-examine Dr. Kelly during the earlier proceeding. See
Stays, supra. Similarly, Dr. Kelly was Ms. Raynor’s emergency medicine
expert, the medical malpractice trial was in progress, and as her defense
expert Dr. Kelly was mid-testimony. Believing Dr. Kelly’s statement was just
a mistake, Ms. Raynor likewise had no motive or incentive to get into a
conflict with her own expert and attack his credibility or even call his
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credibility into doubt on this collateral matter, create a trial within a trial,
and risk the exclusion of his entire testimony. See Smith, supra.
Nevertheless, without any substantiation, Plaintiff simply interprets Dr.
Kelly’s “lack of memory” as conclusive proof that Ms. Raynor failed to warn
him at all about the smoking ban. Plaintiff explains this leap of reason by
claiming Dr. Kelly would have remembered the smoking ban if he had been
warned about it just before he went on the stand. The problem with this
rationale is twofold: (1) the smoking preclusion order did not direct counsel
to remind their witnesses of the smoking ban just before they took the
stand; and (2) Dr. Kelly’s blunder could still have occurred regardless of any
warning at whatever time, because witnesses often surprise counsel with
their answers despite preparation. In any event, no amount of speculation
can show that Dr. Kelly’s May 31, 2012 comment on decedent as a smoker
should be attributed to Ms. Raynor as proof that Ms. Raynor willingly or
intentionally violated the smoking preclusion order. Plaintiff may not impute
Dr. Kelly’s third-party act to Ms. Raynor without establishing that Ms. Raynor
consciously directed or possessed such authority over Dr. Kelly to make him
violate the smoking ban. See Michel, supra. The simple fact that Dr. Kelly
was Ms. Raynor’s expert witness, absent more, is not enough to impute that
kind of authority to Ms. Raynor. In any event, Plaintiff would still have to
prove Ms. Raynor’s wrongful intent. See Yeager, supra.
Further, there is absolutely no substantive proof that Ms. Raynor
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intentionally framed or asked her question in a manner designed to prompt
Dr. Kelly to mention decedent’s smoking habit spontaneously in his
response. Decedent presented in the emergency room with complaints of
chest pain, shortness of breath on exertion, cough, profuse sweating,
nausea, and frontal headache. Decedent’s medical history included
osteoporosis, vascular disease, hypothyroidism, and hypertension. Ms.
Raynor’s question to Dr. Kelly concerning decedent’s cardiac risk factors,
when read in context, was a wholly legitimate inquiry. Ms. Raynor was in
the midst of showing the reasonableness of Dr. Geller’s immediate and
primary treatment approach, i.e., to rule out a heart attack. Notably,
Plaintiff’s counsel posed no objection to Ms. Raynor’s question. Therefore,
we reject Appellees’ supposition that any question concerning decedent’s
cardiac risk factors was irrelevant and molded just to entice Dr. Kelly to
mention decedent’s smoking history.
Even if Ms. Raynor’s question about cardiac risk factors triggered Dr.
Kelly’s comment on decedent’s smoking habit, Plaintiff cannot show Ms.
Raynor acted with wrongful intent. Dr. Kelly’s statement that decedent was
a smoker violated the ban on decedent’s smoking habit. Absent evidence,
however, that Dr. Kelly’s answer was a deliberate violation and that he gave
it with a wrongful intent that could be attributed to Ms. Raynor, Plaintiff
failed to prove Ms. Raynor committed civil contempt. The trial record on
which Plaintiff’s counsel rested is devoid of any evidence of collusion,
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intrigue, or wrongful purpose on the part of Ms. Raynor. See Stahl, supra;
Yeager, supra; Ricci, supra; Michel, supra.
Plaintiff’s failure to prove Ms. Raynor was in civil contempt of the
court’s smoking preclusion order meant that Ms. Raynor had no obligation to
present witnesses in her defense. Yet, the court’s statement, that Ms.
Raynor’s witnesses failed to “come forward in a timely manner to explain,”
demonstrates how the court prematurely shifted the burden to Ms. Raynor to
present a defense. (See Trial Court Opinion, dated April 24, 2015, at 7.)
Plaintiff was the party initially obligated to establish Ms. Raynor was in civil
contempt, which Plaintiff failed to do. The court erred by shifting the legal
burden to Ms. Raynor to prove her innocence, based solely on Dr. Kelly’s
equivocal May 31, 2012 trial testimony. See MacDougall, supra; Stahl,
supra; Mrozek, supra.
CREDIBILITY DETERMINATIONS
On June 1, 2012, the day after Dr. Kelly’s violation of the smoking
ban, Ms. Raynor offered to present testimony from Dr. Geller, Mr. Moore, Dr.
Harris, and herself. Plaintiff echoed Ms. Raynor’s request to introduce Mr.
Moore’s testimony as to whether Mr. Moore observed Ms. Raynor warn Dr.
Kelly. The court denied the requests at that time. The next available
opportunity for Ms. Raynor to present any testimony was during the
contempt hearing in 2014, at which point all four witnesses testified. The
record simply does not support the court’s declaration that Ms. Raynor’s
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“untimely” disclosure of Dr. Geller and Mr. Moore’s evidence rendered their
testimony unbelievable.
Following remand from this Court for a hearing in 2015, on the
proposed newly discovered evidence in the form of Mr. Chapman’s
testimony, the court held Mr. Chapman’s testimony was not “newly
discovered,” because Ms. Raynor was aware of Mr. Chapman’s proposed
testimony since the 2012 trial. The court inferred Ms. Raynor was or should
have been aware of Mr. Chapman’s personal knowledge that she had warned
Dr. Kelly, based on Mr. Chapman’s 2015 testimony, although he expressly
stated his belief that Ms. Raynor had not heard him when he spoke to her at
the 2012 trial. The court assumed Ms. Raynor intentionally failed to call Mr.
Chapman as a witness earlier, at the 2014 contempt hearing, to her own
disadvantage.
The court’s other reasons to reject Mr. Chapman’s testimony are also
inconsistent with the established record. The court emphasized minor
discrepancies in the timing of events in Mr. Chapman’s testimony and the
testimony of the other defense witnesses. These alleged discrepancies were
insignificant and therefore immaterial, where Mr. Chapman’s testimony was
consistent on all key points with the testimony of Dr. Geller, Mr. Moore, Dr.
Harris, and Ms. Raynor. Dr. Kelly’s testimony on May 31, 2012, and later
during the 2014 contempt hearing, did nothing to contradict the testimony
of the other defense witnesses. The court overstated Dr. Kelly’s testimony
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and interpreted Dr. Kelly’s failure to recollect as an affirmation that Ms.
Raynor had not told him about the smoking ban. Assuming Dr. Kelly’s
testimony, as far as it went, was credible, his credibility did not require the
court to discredit automatically the testimony of the other defense
witnesses. Dr. Kelly’s inability to recall in 2014 what Ms. Raynor had told
him back in 2012, before the first trial, simply did not prove Ms. Raynor
failed to tell him anything about the smoking ban. The court erred when it
ruled that Dr. Kelly’s credibility obliged it to conclude that the other defense
witnesses must be incredible. Neither the timing of any of the testimony nor
the purported inconsistencies are dispositive. Here, the court controlled the
extent and limitations on the testimony it received in 2012. As well, the
later testimony in 2014 and 2015 contained no material conflict.
Nevertheless, the court swaddled its ultimate contempt decision in
unnecessary “credibility determinations,” which led it to a capricious distrust
of reliable evidence and a plain abuse of discretion under the circumstances
of this case. See Mrozek, supra. See also Stahl, supra; In re
Contempt of Cullen, supra.
DUE PROCESS
At the 2014 contempt hearing, Plaintiff offered Dr. Kelly’s prior
statements from the 2012 trial to prove Ms. Raynor had failed to warn Dr.
Kelly. Plaintiff offered Dr. Kelly’s 2012 testimony against Ms. Raynor, who
lacked opportunity and motive to cross-examine Dr. Kelly when he gave that
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testimony. At the first trial in 2012, Dr. Kelly was one of Ms. Raynor’s
expert witnesses. She risked undermining his credibility as a defense expert
witness by vigorously discrediting his statement that he could not remember
having been warned about the smoking ban in the context of cardiac risk
factors. By accepting the 2012 transcript into evidence at the 2014 contempt
hearing, the court fully credited Dr. Kelly’s statements although Ms. Raynor
had no opportunity for confrontation in 2012. This evidence was hearsay,
and did not fall under any hearsay exception, where the court denied Ms.
Raynor a full and fair opportunity to question Dr. Kelly or rebut his
statements after his testimony on May 31, 2012. Giving Ms. Raynor the
chance to question Dr. Kelly at the 2014 contempt hearing, over two years
later, did not constitute a “full and fair opportunity” to cross-examine Dr.
Kelly about his prior statements. Likewise, the court also violated Ms.
Raynor’s due process rights when the court admitted Dr. Kelly’s 2012
testimony at the 2014 contempt hearing, because Ms. Raynor had no chance
in 2012 to expose Dr. Kelly’s potential bias and reasons for his 2012 evasive
testimony. See Pa.R.E. 801, 804; Bazemore, supra; Cheatham, supra;
Stays, supra; Smith, supra.
The court’s refusal to hold a hearing on the amount of sanctions
awarded similarly deprived Ms. Raynor of her ability to contest the amount
of the award. The court announced without explanation that Ms. Raynor had
demonstrated the “dilatory, obdurate or vexatious conduct” required for an
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award of counsel fees under 42 Pa.C.S.A. § 2503(7), long after it actually
awarded the sanctions. The court claimed in its February 3, 2015 opinion
that it based the sanctions award on a finding of dilatory, obdurate, and
vexatious conduct. Even if the court found this conduct when it awarded the
sanctions on November 4, 2014, Ms. Raynor had no opportunity to contest
the finding. The court did not hold an evidentiary hearing concerning the
reasonableness or amount of sanctions imposed on Ms. Raynor or Ms.
Raynor’s ability to pay. See Schnabel Assoc., Inc., supra (stating that
when fixing amount of sanctions, court must also consider the financial
resources of alleged contemnor as well as financial consequences of burden
imposed by sanctions). See also Colbert, supra (holding when court found
appellant in civil contempt, court did not have authority to impose sanctions
for purpose of inflicting punishment on appellant; unconditional authority in
civil contempt means court may not exercise civil contempt power to inflict
punishment). The court’s refusal to hold an evidentiary hearing on the
amount and financial consequences of the sanctions, as Ms. Raynor had
requested, violated her due process rights. See 42 Pa.C.S.A. § 2503(7);
Piecknick, supra; Canady, supra; In re Contempt of Cullen, supra;
Wood, supra.
REASONABLENESS OF SANCTIONS
Instead, the court based its sanctions award on a brief Plaintiff’s
counsel submitted, in which counsel sought $1,349,063.67 in expenses and
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attorneys’ fees representing the full costs and hourly fees associated with
the 2012 medical malpractice trial as well as the costs and fees incurred in
pursuing Plaintiff’s motion for contempt/sanctions. To recover any award
associated with the 2012 trial, Plaintiff had to prove damage to her case as a
result of the smoking ban violation, which Plaintiff was unable to do. We are
not here to revisit the wisdom of awarding Plaintiff a second trial. We do
think, however, the fact that the verdict against the defense was in a
disappointing amount cannot necessarily be attributed to the mention of
decedent’s smoking habit, notwithstanding counsel’s unverified remarks
about the jury’s reaction to Dr. Kelly’s 2012 testimony. Plaintiff’s attorneys
worked on a contingency fee basis. Plaintiff was not responsible for paying
these alleged counsel fees. Plaintiff’s attorneys incurred the risk that the
case would result in an unfavorable verdict and/or a less-than-hoped-for
award. The court erred when it granted Plaintiffs’ attorneys recovery of their
alleged fees and costs, based essentially on a discounted version of quantum
meruit in a contingency fee case.
Moreover, Plaintiff actually prevailed at the first trial with an award of
$190,000.00. Plaintiff succeeded again at the second trial, with an award of
$1,975,713.00, where evidence of decedent’s smoking habit was admitted.
Plaintiff’s attempt to attribute the lower award in the first trial to Dr. Kelly’s
mention of smoking is therefore purely speculative. Critically, a different
jurist presided over the second trial with a different jury, and the judge
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permitted defendants to introduce decedent’s smoking habit in the second
trial as it pertained to damages. The variable circumstances between the
two trials means Plaintiff cannot reasonably use the difference between the
two verdicts as a yardstick for sanctions. Likewise, the court erred in
awarding Plaintiff any fees or costs based on Plaintiff’s counsel’s allegations
of loss. See Rhoades, supra; Gunther, supra; Hersperger, supra.
Moreover, having already prepared for the first trial, Plaintiff’s counsel
cannot honestly say they incurred the same costs and fees in the second
trial. Although the responsibility for setting counsel fees lies primarily with
the trial court, we have the power to reverse that exercise when there is
plain error. See Gilmore, supra at 1108 (stating: “Plain error is found
where the award is based either on factual findings for which there is no
evidentiary support or on legal factors other than those that are relevant to
such an award”). Significantly, this case was pursued on a contingency-fee
arrangement, which intrinsically involves some risk that counsel will recover
no money for the professional services rendered. See id. at 1110. In other
words, by virtue of a contingency-fee arrangement, Plaintiff’s counsel
assumed the risk that they would not get paid at all as well as the risk that
they would lose the money advanced for the costs of Plaintiff’s suit. Id.
Similarly, the court’s separate monetary award as a sanction in favor
of Plaintiff personally in the amount of $170,235.16 for “actual expenses”
cannot stand, where the award was completely arbitrary and without
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reasonable explanation except to comment that it was “a very emotional
case for Plaintiff’s family.” (See Trial Court Opinion, filed February 3, 2015,
at 24.) The record provides no evidentiary support at all for this particular
sanction. Therefore, we hold the sanctions the court imposed on Ms. Raynor
were unjustified.
The prejudice allegedly suffered as a result of Dr. Kelly’s errant
comment during the first trial was rectified with the grant of a new trial. The
difficulties inherent in the underlying medical malpractice case and the
hourly fees associated with the high number of lawyers who allegedly
touched the file were embellished without basis. Plaintiff’s case carried no
question of law or fact so novel as to support the extensive charges. Even if
the case had involved new questions, counsel took the matter to court on a
contingency-fee basis. Plaintiff’s lawyers are self-reported experienced
practitioners, who consequently had systems in place to deal with
malpractice cases.
Yet, the contempt narrative took on a life of its own. Each time
Plaintiff’s counsel brought the contempt issue before the court, they
presumed what they were initially required to prove and presented their
conclusions with transparent venom, bloom, innuendo and increased
outrage, refreshed periodically with personal attacks on Ms. Raynor.
Counsel’s crusade caused their proclaimed injustice to gather potency over
time. The court’s role in this regard was to engage in an even-handed
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assessment of what had happened at the 2012 trial, without subsequent
suggestion from counsel, particularly where the court was not inclined to
grant a mistrial when the error actually occurred and was convinced its
curative instruction would suffice. Only after the jury rendered its verdict in
the first trial did the court second-guess itself, with the ardent assistance of
Plaintiff’s counsel. On this record, therefore, we are bound to conclude that
the court erred in its assessment of contempt. Likewise, its sanctions were
gratuitous and imposed in an amount that was both unprecedented and
punitive. Accordingly, we reverse the order finding Ms. Raynor in contempt
and vacate all judgment related to the sanctions imposed on her.
Order reversed; sanctions vacated.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/15/2016
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