Buttacavoli v. Owen, Gleaton, Egan, Jones & Sweeney LLP

• Decision Date: 11 March 2015
• Docket Number: No. A14A2039.,A14A2039.
• Citation: 331 Ga.App. 88,769 S.E.2d 794
• Parties: BUTTACAVOLI et al. v. OWEN, GLEATON, EGAN, JONES & SWEENEY LLP et al.
• Court: Georgia Court of Appeals

331 Ga.App. 88

769 S.E.2d 794

BUTTACAVOLI et al.

v.OWEN, GLEATON, EGAN, JONES & SWEENEY LLP et al.

No. A14A2039.

Court of Appeals of Georgia.

March 11, 2015.

Certiorari Denied June 1, 2015.

Robert C. Koski, for Appellant.

Hawkins Parnell Thackston & Young, M. Elizabeth O'Neill, Kathryn S. Whitlock, Atlanta, for Appellees.

Opinion

MILLER, Judge.

Michelle Buttacavoli filed suit individually and on behalf of her minor daughter against the law firm of Owen, Gleaton, Egan, Jones & Sweeney LLP (“Owen Gleaton”) and one of the firm's attorneys, Amy J. Kolczak, for actions taken in an underlying medical malpractice lawsuit that Buttacavoli settled. The trial court granted summary judgment to Owen Gleaton and Kolczak, and Buttacavoli appeals. Buttacavoli contends that the trial court erred by holding that (1) this case constituted a collateral attack on the prior litigation; (2) Georgia's RICO (Racketeer Influenced and Corrupt Organizations) Act does not apply to obstruction of justice and conspiracy to commit perjury claims; and (3) she cannot proceed with her state law invasion of privacy claim based on violations of the Health Insurance Portability and Accountability Act (“HIPAA”) because there is no private cause of action under HIPAA. For reasons that follow, we affirm.

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9–11–56(c). On appeal from a grant of summary judgment, we apply a de novo standard of review and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Walter R. Thomas Assoc., Inc. v. Media Dynamite, Inc., 284 Ga.App. 413, 413–414, 643 S.E.2d 883 (2007).

So viewed, the evidence shows that Buttacavoli filed a medical malpractice lawsuit in Bartow County for treatment related to the premature birth of her daughter.¹ The lawsuit named the hospital, the obstetrical group, and a nurse/midwife as defendants. Owen Gleaton and Kolczak represented the non-hospital defendants in that lawsuit, and they identified Dr. Gilbert Webb as one of the expert witnesses they intended to call at trial. Dr. Webb had provided pre-delivery medical services to Buttacavoli and her daughter.

During the Bartow County litigation, the trial court issued a protective order that placed conditions on the defendants' ability to interview Dr. Webb. Specifically, the defendants were required to send written notice to Buttacavoli's attorney prior to interviewing Dr. Webb; Buttacavoli and her attorney were permitted to attend all interviews; and the defendants were required to keep all health care information obtained in such interviews private. Despite this order, Kolczak met privately with Dr. Webb prior to the doctor's scheduled deposition.

According to Buttacavoli's attorney, he arrived for Dr. Webb's deposition approximately 20 minutes early and was told that Kolczak was meeting privately with Dr. Webb. Buttacavoli's attorney had not been informed of the meeting or invited to attend. During the deposition, Dr. Webb testified that he met with Kolczak for 10 or 15 minutes before the deposition started and that they discussed the case for about half of that time. Dr. Webb said that Kolczak had set up the meeting. Buttacavoli subsequently contended that Kolczak's private meeting with Dr. Webb violated the trial court's protective order and sought sanctions.

During the hearing on Buttacavoli's motion for sanctions, Kolczak testified that she arrived approximately 20 minutes early for Dr. Webb's deposition and was escorted back to inspect the space where the deposition was to be held. Kolczak testified that she ran into Dr. Webb in the hallway and told him that she could not discuss his care and treatment of Buttacavoli, but did inform him of the trial date and that she would need to call him as a witness. She also told him that the allegations of the complaint remained the same. According to Kolczak, the encounter lasted less than 15 minutes. Kolczak testified that she did not invite counsel for Buttacavoli or the hospital to attend because it was not a meeting.

The Bartow County trial court granted Buttacavoli's motion for sanctions, concluding that Kolczak had violated the protective order and that she had provided testimony that was not credible when she said that only two of the fifteen minutes spent with Dr. Webb prior to his deposition involved any discussion of the case. Because Dr. Webb had been a treating physician, providing approximately 30 days of medical care and treatment to Buttacavoli and her daughter, the trial court determined that it could not merely exclude his testimony as a sanction without penalizing Buttacavoli. Instead, after finding that Kolczak had wilfully violated the protective order and done so in bad faith, the trial court struck the answer of the non-hospital defendants, entering a default judgment against those defendants as if no answer had been filed. As a result, the non-hospital defendants would be allowed to participate at trial on the issue of damages, but could not contest any issues of liability.

While that decision was on appeal, Buttacavoli made a settlement demand of $2,000,000 to the non-hospital defendants. That offer was accepted, and the parties negotiated and signed a settlement agreement.

Two years later, Buttacavoli filed the instant suit against Owen Gleaton and Kolczak in Fulton County, asserting claims for fraud and deceit, conspiracy to defraud, invasion of privacy, and violations of Georgia RICO. The allegations involve communications that Owen Gleaton and Kolczak had with Dr. Webb prior to his deposition in the Bartow County litigation and false testimony given by Dr. Webb during that deposition. Specifically, the complaint alleges that Dr. Webb testified that he had not been asked to serve as an expert witness, that he had not provided any services to Owen Gleaton, and that his communications with Owen Gleaton were limited to three telephone calls. The complaint further alleges that Kolczak failed to correct any of these false statements on the record; that Owen Gleaton and Kolczak created false facts and...