982 F.2d 1255 (8th Cir. 1993), 92-1428, Harlan v. Lewis

Docket Nº:92-1428, 92-1489.
Citation:982 F.2d 1255
Party Name:William HARLAN, individually and as parent and natural guardian of Danielle Harlan, a minor; Genice Harlan, individually and as parent and natural guardian of Danielle Harlan, a minor, Plaintiffs-Appellees, v. James S. LEWIS, M.D., Defendant-Appellant, Calvin J. Hall, Appellant, C.E. Ransom, Jr., M.D., Movant. William HARLAN, individually and as pa
Case Date:January 12, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1255

982 F.2d 1255 (8th Cir. 1993)

William HARLAN, individually and as parent and natural

guardian of Danielle Harlan, a minor; Genice Harlan,

individually and as parent and natural guardian of Danielle

Harlan, a minor, Plaintiffs-Appellees,

v.

James S. LEWIS, M.D., Defendant-Appellant,

Calvin J. Hall, Appellant,

C.E. Ransom, Jr., M.D., Movant.

William HARLAN, individually and as parent and natural

guardian of Danielle Harlan, a minor; Genice Harlan,

individually and as parent and natural guardian of Danielle

Harlan, a minor, Plaintiffs-Appellants,

v.

James S. LEWIS, M.D., Defendant-Appellee,

Calvin J. Hall, Appellee,

C.E. Ransom, Jr., Doctor, Movant.

Nos. 92-1428, 92-1489.

United States Court of Appeals, Eighth Circuit

January 12, 1993

Submitted Sept. 16, 1992.

Rehearing Denied Feb. 26, 1993.

Rehearing En Banc Denied in No. 92-1428 Feb. 26, 1993.

Page 1256

James M. Moody, Little Rock, AR, argued (Troy A. Price, Calvin J. Hall, and Laura Hensley Smith, on brief), for appellant.

Charles Phillip Boyd, Jr., Little Rock, AR, argued, for appellee.

Before JOHN R. GIBSON, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BEAM, Circuit Judge.

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JOHN R. GIBSON, Circuit Judge.

James S. Lewis, M.D., and his lawyer, Calvin J. Hall, appeal from an order of the district court imposing sanctions on Hall for improper and unethical conduct in ex parte conversations with two treating physician witnesses. The district court 1 sanctioned Hall $2,500 for each of the two conversations. 141 F.R.D. 107. On appeal, Hall argues that the district court erred in imposing sanctions without a finding of bad faith, in attempting to enforce the Model Rules of Professional Conduct outside of state disciplinary proceedings, and in depriving him of property without due process of law. Lewis argues that the district court erred in interpreting Arkansas Rule of Evidence 503 to prohibit witness interviews between defense counsel and treating physicians, and in using this interpretation to justify the sanctions against Hall. We affirm the order of the district court.

This controversy arises from a medical malpractice case brought against Dr. Lewis by the family of Danielle Harlan. Dr. Lewis was the pediatrician who treated Danielle Harlan during the first few months of her life. The Harlans sued Lewis for allegedly failing to check the results of a mandatory blood test for hypothyroidism. The Harlans allege that the delay in detecting and treating Danielle's hypothyroidism caused her significant injury. Danielle was later treated by several other physicians, none of whom are defendants here or are accused by the Harlans of being responsible for any harm to Danielle.

In the discovery process, the Harlans learned that Lewis' defense counsel, Hall, had talked to two of Danielle's treating physicians, Dr. Edward L. McAdams and Dr. James E. Golleher. The Harlans claimed that these conversations were unauthorized ex parte communications in violation of Federal Rule of Evidence 501 and Arkansas Rule of Evidence 503(d). The Harlans filed a motion requesting sanctions, recovery of costs, and prohibition of further ex parte contact between Hall and the treating physicians.

The district court issued a memorandum opinion and order granting the Harlans' motion on January 29, 1992. The order began:

The Court is troubled by the lack of civility among attorneys which has become all too common. The erosion of cooperation and courtesy within the legal community accounts, in large part, for the negative image attorneys suffer in the community at large.

The district court then analyzed two specific instances of misconduct by Hall.

The first instance arose from a conversation between Hall and Dr. McAdams. The Harlans submitted an affidavit containing the following statement by Dr. McAdams, which the district court quoted in its order:

C.J. Hall [Dr. Lewis' attorney] came up and met with me in Searcy, Arkansas. He told me that as a treating physician, I may be called as a witness at the trial of this matter or could also be sued by the Harlans.

Mr. Hall also told me that if I did not testify for the Harlans, that the suit would probably not be successful.

The district court held that by suggesting to Dr. McAdams that he not testify, Hall had violated the Model Rules of Professional Conduct, which prevent a lawyer from obstructing another party's access to evidence or from counseling a third party to conceal information having possible evidentiary value. See Model Rules of Professional Conduct Rule 3.4(a) (1983). The court went on to state that even if Arkansas law permitted such ex parte interviews, this conduct would be impermissible and unethical. The district court then sanctioned Hall $2,500 for this conduct.

The court next turned to a conversation between Hall and Dr. James Golleher, who supervised the laboratory in which Danielle's blood was tested. The district court

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quoted the following passage from Golleher's deposition:

Q (by plaintiffs' attorney): And during that conversation [with Mr. Hall], you told Mr. Hall that I had requested to speak to you informally and you had no objection to that. You told him that, didn't you?

A: Yes.

Q: And Mr. Hall at that time indicated that he did have an objection to you [sic] speaking to me informally, didn't he?

A: If I remember right.

The district court then referred to Model Rule 3.4(f), prohibiting a lawyer from requesting that "a person other than a client ... refrain from voluntarily giving relevant information to another party." Model Rules of Professional Conduct Rule 3.4(f) (1983). The district court concluded that Dr. Golleher was not Mr. Hall's client, and that Hall's suggestion that Dr. Golleher not speak to Harlan's counsel was unethical. The court sanctioned Hall $2,500 for this conduct.

The district court made clear that the sanctions were intended as a "shot across the bow," and that it considered the monetary sanctions "modest." It noted that Hall had recently designated the treating physicians as "defense experts." The district court seriously considered barring the testimony of these treating physician/defense experts in light of Hall's attempts to influence their testimony. The court, however, rejected this harsh step because it would have "effectively eviscerate[d] Dr. Lewis's ability to present a defense."

The district court ordered other remedial measures. The court prohibited defense counsel from meeting with treating physician experts outside the presence of plaintiffs' counsel, unless the plaintiffs so authorized. Plaintiffs' counsel was specifically permitted to cross-examine these doctors about Hall's attempts to improperly influence their opinions. Finally, if the physicians were to be used as witnesses, defense counsel would be required to turn over to plaintiffs' counsel all notes, record transcripts, and recordings of the ex parte interviews which occurred after the effective date of the 1991 amendments to Arkansas Rule of Evidence 503.

In deciding to impose sanctions and in creating remedial measures, the court discussed in some detail the physician-patient privilege under Arkansas law. In federal courts, state law governs questions involving privilege. See Fed.R.Evid. 501. Rule 503 of the Arkansas Rules of Evidence 2 and Rule 35 of the Arkansas Rules of Civil Procedure 3 have similar provisions stating that a party shall not be required to authorize any communication with his physician or psychotherapist other than the furnishing of medical records or communication in the context of formal discovery procedures.

The district court concluded that even though the privilege was partially waived

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through the filing of a lawsuit, the Harlans retained some control over the manner in which the information concerning their medical records and treatment might be released.

The district court's interpretation of Arkansas Rule of Evidence 503 is closely related both to its imposition of sanctions on Hall and to the other restraints placed on defense counsel in its order. On appeal, Hall and Lewis argue against the district court's reading of Rule 503. Hall also argues that the district judge erred in imposing sanctions.

I.

Hall first argues that the district court erred in imposing sanctions without making an explicit finding of bad faith. Hall further contends that there is no factual basis for either an explicit or implied finding of bad faith. We review all aspects of the imposition of sanctions under an abuse of discretion standard. See Chambers v. NASCO, Inc., --- U.S. ----, ----, 111 S.Ct. 2123, 2138, 115 L.Ed.2d 27 (1991) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 633, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962), and Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2460-61, 110 L.Ed.2d 359 (1...

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