Monday, July 19, 2010
Removal of Expert Due to Attorney’s Conflict Was Error—C.A.
Justices Say Witness Can Be Cross-Examined by Former Counsel if Waiver of Attorney-Client Privilege Is Unequivocal
By STEVEN M. ELLIS, Staff Writer
A trial court erred in removing plaintiffs’ expert witness in a medical malpractice trial on the basis that defense counsel’s representation of the doctor 10 years earlier created an irreconcilable conflict of interest, the Fourth District Court of Appeal ruled Friday.
Div. Three said prophylactic removal was unnecessary where the expert waived any conflict arising out of the previous representation, so long as that waiver was unequivocal.
Orange Superior Court Commissioner Janet C. Pesak disqualified board-certified plastic surgeon John M. Shamoun from testifying against physician Mark Knight in a suit over a liposuction he performed on Laura Montgomery. Montgomery sued Knight in 2007, alleging she was injured by the procedure, and her husband, Douglas, brought a claim for loss of consortium.
In 2009, the Montgomerys filed an expert designation, listing as experts Laura Montgomery’s treating physicians and Shamoun, who was expected to be the sole witness to give testimony on “the applicable standard of care, causation of damages and damages.”
Before trial, Knight moved to prevent Shamoun from testifying because Knight’s counsel, Costa Mesa attorney Terrence Schafer, represented Shamoun in a 1999 medical malpractice case against Shamoun.
Schafer told the Montgomerys’ counsel, Tustin attorney Jerry Gans, about the conflict and offered to give them more time to find another expert if they voluntarily withdrew Shamoun. He noted that he had opposed Shamoun as an expert in another case one year earlier, and alleged that Shamoun’s agreement to be an expert against another of Schafer’s clients “suggests that he is now seeking to create this conflict of interest.”
Gans told Schafer that Shamoun would waive the conflict, and the Montgomerys opposed Knight’s motion. They argued that there was no evidence Schafer represented Shamoun in the prior 10 years or that he had acquired any confidential information giving rise to a conflict.
They also submitted a declaration from Shamoun stating that he understood he might be subject to cross-examination in the proceeding, and that he—as the holder of the attorney-client privilege—waived it “as it applies to any relevant information to be presented in this matter.”
Pesak granted Knight’s motion to disqualify Shamoun. She said her decision was based in part on a client’s right to “vigorous representation,” adding that Shamoun was under an obligation to inform Gans about the conflict as soon as Gans contacted him about the case.
The Montgomerys then sought a writ of mandate, and the Court of Appeal vacated the order in an opinion by Presiding Justice David G. Sills.
Addressing the difference between conflicts arising from simultaneous representation of two parties—in which he said an attorney’s duty of loyalty was the primary value at stake, requiring “an almost per se rule of disqualification”—and those arising from successive representation, which impact the duty of confidentiality, Sills wrote that disqualification was only required as to the latter when the two representations bore a substantial relationship to one another.
The presiding justice questioned whether Knight met that threshold, but opined that Shamoun’s written, informed consent to waive the conflict mooted the issue.
However, he did agree with Knight that the waiver was inadequate in that it was limited to “any relevant information to be presented in this matter,” and remanded to allow the Montgomerys the chance to present an unqualified waiver by Shamoun.
“Knight has a legitimate interest in Schafer’s vigorous representation, which in this context means that Schafer must feel free to conduct a thorough and comprehensive cross-examination of Shamoun without trying ‘to steer clear of the danger zone’ of confidentiality,” he wrote.
Justices William F. Rylaarsdam and Eileen C. Moore joined Sills in his opinion.
The case is Montgomery v. Superior Court (Knight), G042602.
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