181 F.R.D. 185 (D.N.H. 1998), Civ. 97-45-JD, Phinney v. Paulshock

Docket NºCivil 97-45-JD.
Citation181 F.R.D. 185
Opinion JudgeMUIRHEAD, United States Magistrate Judge.
Party NameLinda S. PHINNEY, et al. v. Craig L. PAULSHOCK, et al.
Case DateJune 04, 1998
CourtUnited States District Courts, 1st Circuit, District of New Hampshire

Page 185

181 F.R.D. 185 (D.N.H. 1998)

Linda S. PHINNEY, et al.

v.

Craig L. PAULSHOCK, et al.

Civil No. 97-45-JD.

United States District Court, D. New Hampshire.

June 4, 1998

Page 186

In medical malpractice action, patient's survivors moved for sanctions against physician, his medical partnership, and their attorney for various discovery violations and defendants' moved to strike survivors' allegations of discovery misconduct. The District Court, Muirhead, United States Magistrate Judge, held that: (1) survivors failed to sustain their burden of proof to demonstrate sanctionable conduct in connection with alleged fabrication of memorandum by physician's partner; (2) survivors failed to show by clear and convincing evidence that partner's changing his testimony was intended to commit a fraud on the court; (3) discovery violations of physician, partnership, and attorney warranted order requiring partnership to pay one half of survivors' costs and attorneys' fees incurred in obtaining withheld documents, in connection with sanctions motion, and hearing on motion, requiring physician personally to pay remaining cost and attorneys' fees, and requiring attorney to pay survivors $250.00 for attorneys' fees for his misleading certification of discovery responses; (4) survivors failed to establish by clear and convincing evidence allegation that physician's attorney " coached" nurse to change her deposition testimony; (5) conduct of physician's attorney during nurse's deposition warranted order requiring him to reimburse survivors for stenographic cost of nurse's deposition and to write a letter of apology to opposing counsel; and (6) court rule governing orders to strike pleadings did not apply to survivors' allegations of wrongdoing made in motion for sanctions.

Plaintiffs' motions for sanctions granted in part and denied in part; defendants' motion to strike denied.

Page 187

ORDER

MUIRHEAD, United States Magistrate Judge.

Plaintiffs' motion for sanctions (document no. 51) and defendants' motion to strike (document no. 59) arise out of a medical malpractice action concerning the death of Kenneth J. Phinney on March 19, 1996 during surgery for a brain aneurism. Plaintiffs assert that Kenneth Bouchard, who is the attorney for

Page 188

both Atlantic Anesthesia (" AA" ) and Dr. Craig Paulshock (collectively " defendants" 1), impermissibly coached a deponent during her deposition. Plaintiffs also assert that defendants and/or their attorney wrongly failed to comply with legitimate discovery requests, and that defendants and/or their attorney fabricated evidence. Defendants seek to strike these allegations from the record and seek Rule 11 sanctions. The court conducted a hearing into the matter on March 20, and from March 31 to April 3, 1998.

I. Background

A. Undisputed Facts in the Underlying Case

Kenneth Phinney was a 38 year old married father of two minor children. He and his family lived in Eliot, Maine. He worked at the Portsmouth Naval Shipyard.

On the evening of Saturday, March 16, 1996, Mr. Phinney complained of a very severe headache. Feeling no better the next day, he went to the emergency room of Wentworth-Douglass Hospital in Dover, N.H. He was admitted and a brain aneurism was diagnosed.

Mr. Phinney went into surgery for a craniotomy to repair the aneurism at approximately 11:00 a.m. on Tuesday, March 19, 1996. The lead neurosurgeon was Dr. Clinton Miller, assisted by Dr. Carlos Palacio. The anesthesiologist was Dr. Craig Paulshock, an employee and shareholder of AA. He was assisted by nurse anesthetist Elise Jackson, an employee of AA. After the operation was underway, Dr. Paulshock left the operating room (" OR" ) leaving Nurse Jackson responsible for the anesthesia. Shortly before 1:50 p.m., nurse anesthetist Patricia Daley, another AA employee, entered the OR to assist with the procedure. At 1:50 p.m., Nurse Jackson intravenously administered Nimodipine, an oral medication, in a dosage suitable for oral administration. 2 At 2:03 p.m. Mr. Phinney experienced a precipitous drop in blood pressure accompanied by electro-mechanical disassociation. At 2:10 p.m. a " code" was called, indicating that the patient was in cardiac arrest and setting into motion a concerted resuscitation effort.

Dr. Paulshock returned to the OR as the crisis ensued.3 Upon his entry into the OR, Nurse Jackson informed him that she had administered Nimodipine to the patient.4 Dr. Paulshock's partners, Dr. Nathan Jorgensen and Dr. James Tobin, responding to the code, entered the OR shortly thereafter. Dr. Jorgensen inserted a subclavian triple lumen central venous pressure (" CVP" ) catheter into the patient, in part to search for an air embolism that could be causing the arrest.5 He subsequently inserted a " Swan-Gantz" catheter for the same purpose. Mr. Phinney was pronounced dead at 2:40 PM.

B. Evidence Relevant to the Allegations of Sanctionable Conduct 6

1. The Presence or Absence of a Finding of Aerated Blood

One allegation of defendants' sanctionable conduct concerns a written statement by Dr.

Page 189

Jorgensen that he aspirated six or seven syringes of frothy blood from Mr. Phinney via the CVP catheter. A finding of true aerated blood could indicate the existence of a venous air embolism, which could explain Mr. Phinney's cardiac arrest.7 Plaintiffs allege that Jorgensen's statement that he withdrew aerated blood consistent with a venous air embolism was fabricated by defendants either with or without the assistance of Attorney Bouchard.

Attorney Bouchard testified that he was engaged to defend AA within days of Mr. Phinney's death. He learned from Dr. Paulshock soon after his engagement about the potential defense of an air embolism. He asked Dr. Paulshock to record his recollections of the circumstances surrounding Mr. Phinney's death, and asked him to relay that request to his partners as well. Dr. Paulshock testified that he made that request by note to his partner, Dr. Jorgensen.

In a memorandum dated April 1, 1996, Dr. Jorgensen purported to record his role in the events surrounding Mr. Phinney's death (" Jorgensen memorandum" ). The memorandum states that:

[b]ecause venous air embolism is a potential cause of arrest in a patient undergoing a craniotomy, I placed a subclavian triple lumen CVP into the right superior vena cava/ atrium. I began to aspirate from the port to the distal lumen using a 20 cc syringe. I was able to aspirate frothy blood. There was air noted in the clear portion of the distal port lumen continuously as I aspirated. This seemed to confirm the likely diagnosis of venous air embolism. The central line was aspirated until no more air returned-six to seven 20cc syringes with a 50 /50 blood air mix.

Plaintiff's Exhibit No. 1 (hereinafter " Notebook" ) 8, tab 1.

At the top of the memorandum, written in a manner to suggest that Jorgensen's memorandum was responsive, is a handwritten note stating " Nathan-please report your observations involving the events in the case of K. Phinney on 3-19-96. Your statement will be filed in anticipation of litigation involving me, Atlantic Anesthesia, etc. Thanks. CP." Id. At the hearing, Dr. Paulshock admitted that he wrote this note onto the Jorgensen memorandum after Jorgensen prepared it but claimed that it was the same as the note he had previously written to Dr. Jorgensen.

Plaintiffs became aware of the contents of the Jorgensen memorandum during the deposition of Dr. Paulshock on September 30, 1997 and requested its production at that time. The Jorgensen memorandum had been listed on defendants' privilege log provided to plaintiffs on June 23, 1997. See Notebook, tab 3. Defendants decided to waive the previously asserted privilege and produced the memorandum to plaintiffs on October 3, 1997.

Prior to Dr. Paulshock's September 30 deposition, and the production of the Jorgensen memorandum, there had been no evidence advanced to support the theory that an air embolism contributed to the death of Kenneth Phinney. None of the documents produced or deposition testimony taken prior to September 30, 1997 mentioned a finding of aerated blood. None of the medical records indicated that air was aspirated from the patient.9

Page 190

Dr. Miller, the neurosurgeon, testified that Dr. Jorgensen did not withdraw aerated blood of the type indicative of a venous air embolism from Mr. Phinney. Every effort by Dr. Jorgensen to aspirate air from Mr. Phinney was observed by Dr. Miller. Dr. Miller stood no more than eighteen inches from Dr. Jorgensen as the latter inserted the catheter into Mr. Phinney's neck, had an unobstructed view of what Dr. Jorgensen was doing, and was watching Dr. Jorgensen intently throughout the entire attempt to aspirate air. Dr. Miller stated that Dr. Jorgensen had great difficulty inserting the CVP line due to a lack of blood in the vein.

Eventually Dr. Jorgensen placed the line, threaded the catheter and attached the " Luer-Lok" (the type of syringe used). He attempted to pull back the plunger of the syringe but could not, despite the use of some force. The syringe had some blood in it, which Dr. Jorgensen squirted out. He then reattached the syringe to the catheter and pulled back very, very hard on the plunger. This time he got blood and some air, amounting to a half a syringe of foam. Dr. Miller testified that the air probably leaked into the syringe from one of the connections due to the extreme force used by Dr. Jorgensen. Dr. Miller further testified that the blood and air withdrawn by Dr. Jorgensen did not resemble aerated blood caused by a venous air embolism.10 Dr. Jorgensen emptied the syringe, reattached it and pulled a third time. This time he aspirated only blood. Dr. Miller...

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22 practice notes
  • Elmo v. Callahan, 082412 NHDC, 10-cv-286-JL
    • United States
    • Federal Cases United States District Courts 1st Circuit District of New Hampshire
    • 24 Agosto 2012
    ...of these propositions as to the second drive. The burden of proof lies with the party seeking the sanction, see Phinney v. Paulshock , 181 F.R.D. 185, 197 (D.N.H. 1998), and the court would have serious reservations concluding that plaintiffs carried their burden with respect to these propo......
  • 212 F.R.D. 178 (S.D.N.Y. 2003), 00 Civ. 3613(LAP), Metropolitan Opera Ass'n, Inc. v. Local 100, Hotel Employees and Restaurant Employees Intern. Union
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • 28 Enero 2003
    ...any discovery response made by counsel could have been based on a reasonable inquiry under the circumstances. See Phinney v. Paulshock, 181 F.R.D. at 204 (Rule 26(g) sanctions imposed where lawyer " could not have known whether his clients had made a ‘ significant search,’ but he nonet......
  • 201 F.R.D. 33 (D.Mass. 2001), Civ. A. 1999-12056-MLW, Calzaturficio S.C.A.R.P.A. s.p.a. v. Fabiano Shoe Co., Inc.
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • 14 Junio 2001
    ...counsel does not have the right to unilaterally decide...issues by instructing the witness not to answer." ); Phinney v. Paulshock, 181 F.R.D. 185, 207 (D.N.H., 1998), aff'd 199 F.3d 1 (1 Cir., 1999) (" If an attorney engages in a pattern of behavior that he either knows or should......
  • 244 F.R.D. 614 (D.Colo. 2007), C. A. 04-cv-00329-WYD-CBS, Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc.
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Colorado
    • 2 Marzo 2007
    ...of Rules 26 through 37." See Advisory Committee Notes to the 1983 Amendments to Fed.R.Civ.P. 26(g). See also Phinney v. Paulshock, 181 F.R.D. 185, 203 (D.N.H.1998) (holding that the duty under Rule 26(g) to make a reasonable inquiry " is satisfied if the investigation undertaken b......
  • Request a trial to view additional results
22 cases
  • Elmo v. Callahan, 082412 NHDC, 10-cv-286-JL
    • United States
    • Federal Cases United States District Courts 1st Circuit District of New Hampshire
    • 24 Agosto 2012
    ...of these propositions as to the second drive. The burden of proof lies with the party seeking the sanction, see Phinney v. Paulshock , 181 F.R.D. 185, 197 (D.N.H. 1998), and the court would have serious reservations concluding that plaintiffs carried their burden with respect to these propo......
  • 212 F.R.D. 178 (S.D.N.Y. 2003), 00 Civ. 3613(LAP), Metropolitan Opera Ass'n, Inc. v. Local 100, Hotel Employees and Restaurant Employees Intern. Union
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • 28 Enero 2003
    ...any discovery response made by counsel could have been based on a reasonable inquiry under the circumstances. See Phinney v. Paulshock, 181 F.R.D. at 204 (Rule 26(g) sanctions imposed where lawyer " could not have known whether his clients had made a ‘ significant search,’ but he nonet......
  • 201 F.R.D. 33 (D.Mass. 2001), Civ. A. 1999-12056-MLW, Calzaturficio S.C.A.R.P.A. s.p.a. v. Fabiano Shoe Co., Inc.
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • 14 Junio 2001
    ...counsel does not have the right to unilaterally decide...issues by instructing the witness not to answer." ); Phinney v. Paulshock, 181 F.R.D. 185, 207 (D.N.H., 1998), aff'd 199 F.3d 1 (1 Cir., 1999) (" If an attorney engages in a pattern of behavior that he either knows or should......
  • 244 F.R.D. 614 (D.Colo. 2007), C. A. 04-cv-00329-WYD-CBS, Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc.
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Colorado
    • 2 Marzo 2007
    ...of Rules 26 through 37." See Advisory Committee Notes to the 1983 Amendments to Fed.R.Civ.P. 26(g). See also Phinney v. Paulshock, 181 F.R.D. 185, 203 (D.N.H.1998) (holding that the duty under Rule 26(g) to make a reasonable inquiry " is satisfied if the investigation undertaken b......
  • Request a trial to view additional results