Pace v. Swerdlow

• Decision Date: 04 March 2008
• Docket Number: No. 06-4157.,06-4157.
• Citation: 519 F.3d 1067
• Parties: Thomas A. PACE and Karol Pace, Heirs of Angie Putnam, Deceased, Plaintiffs-Appellants, v. Barry N. SWERDLOW, M.D., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

519 F.3d 1067

Thomas A. PACE and Karol Pace, Heirs of Angie Putnam, Deceased, Plaintiffs-Appellants, v. Barry N. SWERDLOW, M.D., Defendant-Appellee.

No. 06-4157.

United States Court of Appeals, Tenth Circuit.

March 4, 2008.

Kenneth R. Ivory, Ivory Law, P.C., Sandy, Utah (C. Michael Lawrence, C. Michael Lawrence, P.C., Taylorsville, Utah, with him on the briefs), for Plaintiffs-Appellants.

J. Anthony Eyre (J. Kevin Murphy, with him on the brief), Kipp and Christian, P.C., Salt Lake City, Utah, for Defendant-Appellee.

Before BRISCOE, GORSUCH, and HOLMES, Circuit Judges.

BRISCOE, Circuit Judge.

This is a diversity action which was dismissed under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Plaintiffs Thomas A. Pace and Karol Pace ("Plaintiffs"), the parents and heirs of the deceased, Angie Putnam, brought this action against Defendant Barry N. Swerdlow ("Defendant"). Plaintiffs originally hired Defendant, a licensed physician, to serve as their expert witness in a medical malpractice case Plaintiffs had filed in Utah state court. In the medical malpractice case, Plaintiffs had sued the surgical center and the doctors who treated their daughter and released her from their care shortly before she died. After the state court dismissed the medical malpractice case, Plaintiffs filed the present action against Defendant in Utah state court. Defendant removed the case to federal court based upon diversity jurisdiction. Plaintiffs claim that Defendant's abrupt change of position, on the eve of trial, caused the state court to dismiss their medical malpractice case. Specifically, Plaintiffs allege that Defendant committed (1) professional malpractice, (2) fraud, (3) negligent misrepresentation, (4) breach of fiduciary duty, (5) breach of contract, (6) breach of the implied covenant of good faith and fair dealing, and (7) negligent infliction of emotional distress. Defendant filed a motion to dismiss under Fed. R.Civ.P. 12(b)(6), and the district court granted the motion, holding that Defendant's change of position was not the proximate cause of the state court's decision to dismiss the medical malpractice case. We have jurisdiction pursuant to 28 U.S.C. § 1291 and reverse and remand.

I.

Plaintiffs are residents of Utah, and they are bringing this action pursuant to Utah Code Ann. § 78-11-6.5 (2007), as the parents and heirs of their daughter, Angie Putnam. Ms. Putnam died after her release from the hospital after having breast augmentation surgery. Prior to her release, it is alleged that she complained to doctors that she was having difficulty breathing and was experiencing pain of nine on a scale of ten. Following her death the night of her surgery, Plaintiffs filed a medical malpractice action against the doctors who treated her. Pace v. Shuput, Case No. 0030906272 (Utah, Third Dist. Ct.).

Defendant is a licensed physician and a resident of California who approached Plaintiffs' counsel, Michael Lawrence, to offer his services as an expert witness in the medical malpractice case. Plaintiffs retained Defendant as their expert witness and supplied him with the medical records pertaining to Ms. Putnam's surgery and subsequent death. After reviewing the records, Defendant documented his opinion in an affidavit dated September 8, 2003. In the affidavit, Defendant stated his belief, "based upon a reasonable degree of medical certainty, that Dr. Shuput and IHC Surgical Center did breach the appropriate standard of care when releasing Angela Putnam under the circumstances...." Aplt. Br., Ex. A, at 2, ¶ 5.¹ Defendant also stated, "Given my expertise, training, education, experience, and pursuant to a reasonable degree of medical certainty, it is my opinion that Putnam should not have been released but should have been monitored overnight. If she had been monitored overnight, it is very likely that she would be alive today." Id. at 3, ¶ 15. Originally, this last sentence read, "If she had been monitored overnight, she would be alive today," but Defendant added the phrase, "it is very likely that," in his own handwriting. See id. In addition, Defendant's affidavit opined,

It is further my opinion that it is a breach of the standard of care for both the anesthesiologist and/or Surgical Center, whoever made that decision, to have released Putnam with her symptoms of difficulty breathing and the level of chest pain she was experiencing. Again, she should have been admitted to the hospital and monitored through the night.

Id. at 4, ¶ 17. Finally, Defendant stated his ultimate conclusion that, "[a]s a direct and proximate result of her premature discharge, Putnam died." Id. at 4, ¶ 18. Defendant did not alter this last sentence from its original wording. See id.

On April 23, 2004, Plaintiffs' counsel, Mr. Lawrence, wrote a letter to Defendant, in which he requested that Defendant review Dr. Shuput's written discovery responses. The discovery responses contained Dr. Shuput's reasons for discharging Ms. Putnam, rather than admitting her to a hospital and monitoring her condition. Defendant did not alter his affidavit after reviewing these discovery responses. In addition, Mr. Lawrence provided Defendant with a copy of Dr. Shuput's deposition transcript, and another of Plaintiffs' retained counsel, Gregory Hansen, again made Dr. Shuput's deposition transcript available to Defendant immediately before Defendant's own deposition was taken on January 4, 2005.²

When Defendant was deposed, he did not prove to be a strong advocate for Plaintiffs' claims. Opposing counsel asked Defendant if he "believe[d] it's consistent with ethical practices [for] expert witness[es] in the guidelines approved by the [American Society of Anesthesiologists ("ASA")] to testify against an anesthesiologist when you have not asked for his deposition transcript, if there is one, so that you can see his side of the story?" Id. at 57. Defendant responded, "I think it would have been good for me to have seen it, and I did not ask for it. I did not think to ask for it. And I wouldn't comment upon the ethics thereof." Id. Defendant also admitted that he had "never testified in trial," that he "was not aware that Dr. Shuput's deposition had been taken," and that he was "a relative novice at this whole thing." Id. at 55, 65.

As for the merits of Plaintiffs' claim, Defendant testified that his "ultimate opinion here is that discharging this patient with severity of pain, as documented in the PACU record, was not something that a prudent physician in Dr. Shuput's situation should have done." Id. at 64. As to causation, Defendant and opposing counsel had the following exchange:

Q: Are you of the opinion, Doctor, that if the patient had been admitted to the hospital, she would be alive today?

A: I'm of the opinion that if she had been admitted to the hospital, there's an increased probability that she would have been alive today.

Q: But you cannot state within a reasonable degree of medical probability, can you, Doctor, that she would have been alive today if she had been admitted to the hospital?

A: Correct.

Id. at 63. Defendant also agreed that "Dr. Shuput was not required under the standard of care to read [Ms. Putnam's] pain score," and that if Dr. Shuput "was reassured that this patient's pain was moderate, reasonable, then he doesn't need to look at [the pain score]." Id. at 58, 59. Further, Defendant testified that he did not know what Dr. Shuput knew about Ms. Putnam's pain complaints, id. at 61, and that Dr. Shuput "would not have breached the standard of care" if "he felt the patient was not [at] that level of severity," id. at 62.

At the end of the deposition, Defendant was asked if he had "any other opinions or criticisms that [he] intend[ed] to offer in this case," or had "any clarifications or retractions of any statements that [he had] given today that [he] would like to make." Id. at 66. To both questions, Defendant responded, "Not that I can think of." Id. Mr. Hansen then told Defendant that, once the deposition transcript was available, Defendant would have two weeks to review it and get the changes back to Mr. Lawrence, after which Mr. Lawrence would deliver them to opposing counsel. Id. at 67.

Following the deposition, Defendant called Mr. Lawrence by phone and complained that opposing counsel was "mean." Defendant also told Mr. Lawrence that he did not want problems with his license.³ Defendant requested a copy of Dr. Shuput's deposition transcript, and Mr. Lawrence sent him a copy, as well as copies of the deposition transcripts of the two surgical center nurses. After receiving these transcripts, as well as the transcript from his own deposition, Defendant made edits and drafted a two-page "Addendum" to his deposition. During this time, Defendant did not communicate with Plaintiffs or their counsel, Mr. Lawrence and Mr. Hansen.

The Addendum to Defendant's deposition directly opposed Plaintiffs' malpractice claims and supported Dr. Shuput's defense. Defendant stated that he had reviewed the deposition transcripts of Dr. Shuput and the nurses, and "on that basis, [he] wish[ed] to modify [his] opinions accordingly." Compl. Ex. F, Supp. ROA, at 70. He ultimately concluded:

As such, it is apparent that Dr. Shuput and the PACU nurses, on the basis of their appropriate assessment of Ms. Putnam's postanesthetic recovery course, felt that the pain level was "not as documented by the pain score and was much more moderate and mild." Therefore, it is now my opinion, that Dr. Shuput's care of Ms. Putnam — and specifically his decision to discharge her from the Intermountain Surgery Center on 2-20-01 — was within the standard of care.

Id. at 71-72 (citation omitted). On Friday, February 11, 2005, without contacting Mr. Lawrence or Mr. Hansen beforehand, Defendant simultaneously submitted this Addendum by facsimile to Mr. Lawrence and opposing counsel.⁴

Several days earlier, Dr. Shuput had filed a ...