Garland v. Peebles, 92-3899

• Decision Date: 01 September 1993
• Docket Number: No. 92-3899,92-3899
• Citation: 1 F.3d 683
• Parties: Michal K. GARLAND, Appellant, v. Samuel W. PEEBLES, M.D., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 683

1 F.3d 683

26 Fed.R.Serv.3d 992

Michal K. GARLAND, Appellant, v. Samuel W. PEEBLES, M.D., Appellee.

No. 92-3899.

United States Court of Appeals Eighth Circuit.

Submitted June 17, 1993.

Decided July 29, 1993.

Rehearing Denied Sept. 1, 1993.

Appeal from the United States District Court for the Western District of Arkansas. Hon. Jimm Larry Hendren, U.S.D.C., Judge.

George R. Wise, Jr., Little Rock, AR, argued, for appellant.

Calvin J. Hall, Little Rock, AR, argued (Laura Hensley Smith, on the brief), for appellee.

Before WOLLMAN and LOKEN, Circuit Judges, and HUNTER, ^* Senior District Judge.

WOLLMAN, Circuit Judge.

Michal Kay Garland appeals from the district court's ¹ dismissal under Federal Rule of Civil Procedure 41(b) of her medical malpractice suit against Samuel W. Peebles, M.D., for failure to prosecute. We affirm.

I.

Garland, represented by Charles Hicks and Charla Tindall, filed this diversity action on March 21, 1991, alleging that Dr. Peebles had negligently failed to diagnose and treat her breast cancer. Garland's complaint stated that she visited Dr. Peebles in Nashville, Arkansas, for a routine gynecological and breast examination in October 1985. At that time, Dr. Peebles detected a lump in Garland's left breast. In December 1985, Garland underwent a mammogram to determine the presence of cancerous tissue. Garland alleged that Dr. Peebles advised her that the mammogram indicated that she had fibrocystic disease of the breast, a non-cancerous condition. She further alleged that Dr. Peebles told her that the lump represented no real danger and could be reduced by her reducing her intake of caffeine. She stated that she continued to consult Dr. Peebles about the lump until April or May 1986 and that he continued to tell her not to be concerned.

Upon moving to Dallas, Texas, Garland consulted Dr. David Bookout in February 1987. Garland alleged that Dr. Bookout noticed the same lump that Dr. Peebles had detected. Dr. Bookout referred Garland to Linda Frame, R.N., director of the Griffiths Hale Breast Center at the Presbyterian Hospital in Dallas, for a mammogram. The mammogram indicated that the lump was cancerous. In April 1987, Garland underwent surgery to remove the cancer. In December 1990, however, Garland learned that her breast cancer had reoccurred, and in January 1991 she underwent a mastectomy. Following her mastectomy, Garland's physicians informed her that the cancer had spread and was incurable.

This case was initially set for trial on March 23, 1992. On February 7, 1992, Garland moved for a continuance. The court granted the motion and reset the trial for June 22, 1992. Upon request by both parties, the court once again continued the case and rescheduled the trial for August 17, 1992. Again upon the request of both parties, the court continued the case for a third time on August 14 and reset the trial for the week of November 2, 1992.

On September 28, 1992, Garland's attorney Hicks filed a motion to withdraw his firm from the case. On September 30, Hicks filed a supplemental motion to withdraw, which stated that his firm could not present Garland's case consistent with her desires or understanding of the underlying facts. Additionally, the motion stated that this conflict had created a dilemma, making it impossible for Hicks's firm to go forward without creating further conflicting circumstances.

On September 30, the district court initiated a telephone conference call with Hicks and counsel for Dr. Peebles. Hicks informed the court that he had been aware of the facts constituting his asserted conflict since June 1992. He further stated that discovery was far from complete and that if he was to continue as counsel, he could not be ready for trial by November 2.

In an order filed October 9, 1992, the court first refused to grant a continuance. The court noted that the case had been filed more than eighteen months earlier and already had been set for trial several times. The court also denied Hicks's motion to withdraw as counsel of record. Based on Hicks's comments, the court was unpersuaded that Hicks had an insurmountable conflict that would prevent him from proceeding with the trial on November 2. Nonetheless, the court stated that if and when Hicks or Garland secured new counsel who could assure the court that the case would be ready for trial within ninety days of the court's order, the court would reconsider Hicks's motion to withdraw and address a motion for continuance.

On October 27, 1992, Garland moved to add William Wilson and Gary Corum as additional counsel of record. The motion stated that Wilson and Corum had accepted representation knowing that the trial had been scheduled for the week of November 2. The court took no formal action on this motion, and Hicks did not renew his motion to withdraw.

The trial was ultimately scheduled to begin November 4, 1992. On the morning of November 4, Garland's attorneys Corum, Wilson, Tindall, and Wayne Dowd requested a hearing to present a motion to withdraw as counsel for Garland. At the hearing, they stated that certain evidence, discovered only the previous night, made it impossible for them, as a matter of professional ethics, to proceed with the case as counsel for Garland. Based on the attorney-client privilege, all counsel declined to divulge the precise reason for their motion. They further stated that Garland had objected to their decision and had requested that they ask the court to allow her to speak privately with the court. Dr. Peebles responded with a motion to dismiss for failure to prosecute.

The court granted the attorneys' motion to withdraw. Considering the peculiar circumstances of the case, the court also decided to honor Garland's request for an ex parte conference with the court. Dr. Peebles renewed his motion to dismiss for failure to prosecute. The court took the motion under advisement pending the interview with Garland.

Because Hicks was still an attorney of record for Garland, the court notified Hicks that it intended to confer with Garland. Hicks then renewed his motion to withdraw. The court denied the motion because its preconditions for consideration of such a motion had not been fulfilled.

The court met with Garland in the afternoon on November 4. The court began the conference by explaining certain ground rules. It informed Garland that she would be placed under oath, that the proceeding would be recorded by the court reporter, and that the court reserved the right to reveal the contents of the conference to Dr. Peebles, his attorneys, and all other attorneys involved in the case. Garland agreed to proceed under these rules.

During her conversation with the court, Garland disclosed the nature of the ethical conflict that had first developed with Hicks and then with her new attorneys. She explained that Hicks's motion to withdraw was prompted by her refusal to admit that she had lied to Dr. Bookout, whose office notes reflected that Garland told him that the lump in her breast had been present for two months when she visited him in February 1987. In Hicks' opinion,...