Friday, February 2, 2007
C.A.: Counsel Not Disqualified by Talk With Adversary’s Expert
Burden Was on Movant to Show Disclosure of Confidential Information, Panel Says
By TINA BAY, Staff Writer
An unauthorized phone conversation between the plaintiff’s attorney and a defense expert did not trigger a presumption that confidential information had been disclosed to the attorney, the Fourth District Court of Appeal ruled yesterday.
The burden of proof is not shifted to the party opposing attorney disqualification, Div. One said, where the moving party could have contacted the expert to determine whether confidential information was disclosed to the attorney, but failed to do so.
The decision reverses an order by San Diego Superior Judge Charles R. Hayes in a medical malpractice case.
The defendant, physician Tania Homonchuck, had retained pulmonary medicine specialist “Dr. Landers,” as the court identified him, to serve as a confidential medical consultant in the defense of a 2004 malpractice suit brought by a minor identified as “Shandralina G.” The minor was the surviving daughter of one of Homonchuck’s former patients who died from a pulmonary embolism.
One of the plaintiff’s attorneys, Brian R. Riley—allegedly unaware at that point that Landers had been retained by Homonchuck’s counsel—called Landers shortly before the deadline for designating expert witnesses to ask whether he would serve as an expert witness for his client.
Riley declared that their conversation lasted only two to three minutes, with Riley doing most of the talking. Landers’ only comments to the lawyer allegedly were that he was at an airport about to board a plane, that he did not recognize Homonchuck’s name and thus did not believe there was a conflict of interest, and that he would review the medical records once they were forwarded to his office.
The lawyer said he would send the records and asked Landers to contact him after he reviewed the information and formulated opinions or conclusions about the case, Riley claimed.
According to declarations by Riley and Landers, Landers did not reveal any confidential information he obtained from Homonchuk ’s lawyers during the phone conversation.
Landers was identified in the plaintiff’s first expert witness list as an expert who was expected to testify regarding the medical records at issue, and to offer his opinion as to Homonchuk ’s responsibility for the patient’s death.
Moving to disqualify Riley, Homonchuk asserted the court was required under caselaw to presume that Riley had obtained confidential information from Landers. She argued that Riley would not have placed Landers on the expert witness list unless the specialist had discussed the merits of the case and his opinions about it with Riley.
Landers allegedly did not return Homonchuk ’s calls or contact her throughout the period necessary to prepare briefs on the disqualification motion—conduct the defense attorneys interpreted as meaning Riley had told Landers not to contact their client. Landers called Homonchuk only after the court had tentatively ruled in favor of disqualifying Riley, defense counsel pointed out, in order to place Riley within an exception to the caselaw presumption.
Hayes agreed with the defendant and ruled the plaintiff failed to carry her burden of proving that Riley did not obtain confidential information.
Writing for Div. One, Justice Alex C. McDonald said that the normal burden of proof in this type of disqualification motion—which requires the moving party to show that its expert witness transmitted confidential information to the opposing party—should not have been shifted to the plaintiff.
“[T]here was no legal impediment to [Homonchuk ’s] ability to obtain evidence from Landers on the content of the conversation to satisfy the burden of proof,” the justice explained, noting the doctor could have obtained either a declaration or, if necessary, a deposition from Landers.
Homonchuk ’s motion fails under the proper burden of proof, the court concluded, because she submitted no direct evidence impeaching the claims of Riley or Landers.
Presiding Justice Judith McConnell and Justice Terry B. O’Rourke concurred in the opinion.
The case is Shandralina G. v. Homonchuk, 07 S.O.S. 613.
Copyright 2007, Metropolitan News Company