DiCristoforo v. Fertility Sols.

• Decision Date: 11 January 2023
• Docket Number: C. A. 20-456-JJM-PAS
• Parties: DANIELLE DICRISTOFORO and ROBERT DICRISTOFORO, Plaintiffs, v. FERTILITY SOLUTIONS, P.C.; ANIA KOWALIK, M.D.; CAROL ANANIA, M.D.; JOHN and/or JANE DOE, M.D.; And JOHN DOE CORPORATION, Defendants.
• Court: U.S. District Court — District of Rhode Island

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DANIELLE DICRISTOFORO and ROBERT DICRISTOFORO, Plaintiffs, v. FERTILITY SOLUTIONS, P.C.; ANIA KOWALIK, M.D.; CAROL ANANIA, M.D.; JOHN and/or JANE DOE, M.D.; And JOHN DOE CORPORATION, Defendants.

C. A. No. 20-456-JJM-PAS

United States District Court, D. Rhode Island

January 11, 2023

MEMORANDUM AND ORDER

Patricia A. Sullivan United States Magistrate Judge

Now pending before the Court are two motions. First is the motion of Defendants, Fertility Solutions, P.C. (“Fertility”), Dr. Ania Kowalik, and Dr. Carol Anania, to disqualify an obstetric radiologist, Dr. Peter Doubilet, who recently was disclosed as a testifying expert by Plaintiffs, Danielle and Robert DiCristoforo. ECF No. 39. Second is the motion of Defendant Dr. Anania to strike Dr Doubilet's affidavit (ECF No. 47) from the docket. ECF No. 48.^[1] Both motions have been referred to me for determination.

I. Procedural and Factual Background

Plaintiffs (the DiCristoforos) are husband and wife. This case arises from the allegedly tragic outcome of Plaintiff Danielle DiCristoforo's treatment at Fertility. The DiCristoforos claim that, in 2018, Ms. DiCristoforo's ultrasound imaging and other signs and symptoms were negligently misinterpreted as an ectopic pregnancy and negligently treated by the administration of a toxic medication, causing Ms. DiCristoforo to lose what was actually a potentially viable intrauterine pregnancy; she has since become infertile. The DiCristoforos filed this case on October 21, 2020. Procedurally, the parties have completed fact discovery; the case is now in the expert discovery phase, which is presently set to close soon, on January 27, 2023. Text Order of Nov. 29, 2022. But for the pending motion to disqualify, the case is close to being ready to proceed in an orderly way through the dispositive motion phase to trial.

Approximately eight months before the case was filed, two Defendants (Fertility and Dr. Kowalik) - but not the third Defendant, Dr. Anania - engaged an obstetric radiologist, Dr. Carol Benson, to review the case on their behalf. ECF No. 40 at 4. Dr. Benson met with counsel, reviewed documents and provided an opinion for which she was compensated. Id. After receipt of this opinion, Fertility and Dr. Kowalik opted not to rely on Dr. Benson as a testifying expert at trial. Id.; ECF No. 40-3. Dr. Benson's invoice is dated February 10, 2020. ECF No. 40-2 at 1.

A year later, on February 23, 2021, counsel for Dr. Anania, unaware of her coDefendants' engagement of Dr. Benson, sent an unsolicited email to Dr. Benson's husband, Dr. Peter Doubilet, also an obstetric radiologist, asking him to review the case. See ECF Nos. 40 at 4; 47 ¶ 3. The parties agree that Dr. Benson and Dr. Doubilet not only are husband and wife, but also are close professional colleagues, with affiliations that include not just working at the same place but also numerous (more than one hundred according to Dr. Doubilet's lengthy and impressive curriculum vitae) joint projects, including co-authored books, chapters, articles and abstracts, many dealing with the topic of ultrasound and pregnancy. See ECF No. 40-5. The Court has reviewed the February 23, 2021, email, and those that followed, in camera.^[2] As summarized by Defendants in their unsealed brief, the initial email asks Dr. Doubilet if he would review the case on behalf of the inquiring attorney's client (who is not named). ECF No. 40 at 8. The email is captioned with the name of this case and contains a sentence that briefly and neutrally summarizes the publicly filed complaint's allegations against Dr. Anania; it also succinctly sets out the precise scope of the review that Dr. Doubilet was being asked to perform. The email is not labeled as confidential or as containing attorney work product. It does not ask Dr. Doubilet to keep any aspect of its content confidential. Beyond the foregoing, it contains no analysis, interpretation, strategy or facts related to the case; no documents are attached to it.

Dr. Doubilet responded with a brief email the same day. He informed the inquiring attorney that, in February 2020, his wife, Dr. Benson, had been contacted about the case on behalf of Dr. Kowalik and had met with an attorney. See ECF No. 40 at 4-5, 8. On the following day, February 24, 2021, counsel for Dr. Anania advised Dr. Doubilet by email that she was electing not to proceed in light of his relationship with Dr. Benson. Id. Dr. Doubilet responded by email that he had expected that to be the case. Id. There is no evidence that Dr. Doubilet had any other communications with counsel for Defendants regarding this case. Dr. Doubilet and Dr. Benson had no discussions regarding any aspect of this case beyond her advising him (in response to his inquiry triggered by the February 23, 2021, email from Dr. Anania's attorney) that she had been contacted by and met with counsel for Dr. Kowalik about the case. ECF No. 47 ¶¶ 4, 8.

One year later, in March 2022, with no suggestion that he was aware either of the engagement of Dr. Benson by Dr. Kowalik or of the approach to Dr. Doubilet by Dr. Anania, counsel for Plaintiffs asked Dr. Doubilet to perform a “blind” review of the ultrasound images in issue. ECF Nos. 45 at 6; 47 ¶ 6. This initial request for review was “blind”^[3] to the extent that Dr. Doubilet was not told the identity of the patient or the treating providers or any of the underlying facts or the caption of the case or even that the review was in connection with treatment that was the subject of litigation. As Dr. Doubilet has averred in his affidavit, this “blind” inquiry from Plaintiffs triggered no recollection of the email solicitation by Defendant Dr. Anania just over a year prior. ECF No. 47 ¶ 6. He agreed to take on the matter. Id.

Following his “blind” review, on October 31, 2022, Dr. Doubilet signed his expert report, expressing his opinion that Dr. Kowalik and Fertility's Dr. Huang (but not Dr. Anania) violated the pertinent standard of care. ECF No. 40-1 at 6. Plaintiffs provided Dr. Doubilet's report to Defendants as part of their timely Fed.R.Civ.P. 26(a)(2) expert disclosures. Two weeks later, Defendants filed the instant motion to disqualify Dr. Doubilet as an expert for Plaintiffs.

Defendants have presented nothing to overcome Plaintiffs' contention (supported by Dr. Doubilet's affidavit) that, because of the “blind” approach that Plaintiffs used to present the case to Dr. Doubilet, whatever information he then possessed as a result of Defendants' contacts with himself and his wife has caused no prejudice in that it could not have been used by or influenced Dr. Doubilet as he was forming his opinions. See ECF No. 47 ¶ 8. The Court further finds that this is not a circumstance where any of the pertinent actors engaged in any wrongful conduct or sharp practice. To the contrary, it appears that the attorneys, Dr. Doubilet and Dr. Benson all conducted themselves with appropriate professionalism.

Defendants nevertheless ask the Court to focus on the mere fact that Dr. Doubilet has possession of the following work product: (1) he knows the identity of at least one non-testifying expert in that he was aware that counsel for Dr. Kowalik contacted Dr. Benson, an obstetric radiologist, about this case and met with her, and he now knows (because of the content of Defendants' unsealed motion to disqualify him) that Dr. Benson performed a review and formed an opinion but Dr. Kowalik did not engage her as a testifying expert; and (2) he knows of Dr. Anania's overture to himself as set out in the February 23, 2021, email, including the task he was being asked to perform as an obstetric radiologist. Defendants contend that Dr. Doubilet's awareness of this protected information compels a blanket Order disqualifying him from testifying on behalf of Plaintiffs to any of the opinions in his expert report. Defendants rely on the two-part test in the seminal decision on expert disqualification, Koch Ref, Co. v. Jennifer L. Boudreaux, M/V, 85 F.3d 1178, 1181 (5th Cir. 1996), as well as on considerations of fairness and judicial integrity. Defendants acknowledge that the granting of this motion would seriously disrupt the case in that it would require the Court to reset the schedule to allow Plaintiffs time to find a new testifying expert, procure an opinion and a report, as well as to allow Defendants time to respond to the new opinion.

II. Applicable Law

“[F]ederal courts have inherent authority to disqualify experts ‘if necessary to preserve public confidence in the fairness and integrity of the judicial system.'” Lacroix v. BIC Corp., 339 F.Supp.2d 196, 199-200 (D. Mass. 2004) (quoting Koch Ref. Co., 85 F.3d at 1181); see Campbell Industries v. M/V Gemini, 619 F.2d 24, 27 (9th Cir. 1980) (“A district court is vested with broad discretion to make discovery and evidentiary rulings conducive to the conduct of a fair and orderly trial” including disqualifying expert testimony.). Nevertheless, courts are generally reluctant to disqualify expert witnesses particularly where there has been no improper or troubling conduct by counsel or the expert, or when the expert is a physician with specialized knowledge. Koch Ref. Co., 85 F.3d at 1183 (noting “troubling]” conduct and finding disqualification was not abuse of discretion “under this very limited and specific scenario”); Palmer v. Ozbek, 144 F.R.D. 66, 67 (D. Md. 1992) (“courts are generally reluctant to disqualify expert witnesses, especially those . . . who possess useful specialized knowledge”).

Disqualification of an expert is appropriate when a party retains an expert who previously worked for an adversary and received confidential information from the first client, so-called side-switching. Koch Ref, Co., 85 F.3d at 1181. In cases other...