Harrison v. Bd. of Regents of the Univ. of N.M.
| Decision Date | 28 August 2013 |
| Docket Number | Docket No. 32,215 |
| Parties | TRACI and KENNETH HARRISON, Individually and as Parents and Next Friends of BRILEY HARRISON, Plaintiffs-Appellees, v. BOARD OF REGENTS OF THE UNIVERSITY OF NEW MEXICO, Defendants-Appellants, and LOVELACE HEALTH SYSTEM, INC., a New Mexico Corporation, and ABQ HEALTH PARTNERS, LLC, Defendants. |
| Court | Court of Appeals of New Mexico |
Opinion Number: _
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Shapiro Bettinger & Chase LLP
Andrew D. Scholl
Carl J. Bettinger
Gregory W. Chase
Albuquerque, NM
for Appellee
Sutin, Thayer & Browne
Kerry Kiernan
Timothy J. Atler
Albuquerque, NM
Office of University Counsel
K. Lee Peifer
Kimberly N. Bell
Albuquerque, NM
for Appellants
{1} District courts have the inherent authority to "impose a variety of sanctions on both litigants and attorneys in order to regulate their docket, promote judicial efficiency, and deter frivolous filings." State ex rel. N.M. State Highway & Transp. Dep't v. Baca, 1995-NMSC-033, ¶ 11, 120 N.M. 1, 896 P.2d 1148 (internal quotation marks and citation omitted). The question raised in this appeal is whether a district court's inherent power to impose sanctions includes the authority to issue a non-compensatory monetary sanction against a public entity. We answer this question in the affirmative and therefore affirm the district court's imposition of a $100,000 sanction against Defendant-Appellant, the Board of Regents of the University of New Mexico (the Regents), for willful and improper interference with a disclosed witness in a matter pending before the district court.
{2} The facts underlying the imposition of sanctions in this case are not disputed by the Regents on appeal. We therefore rely extensively below on the factual background that was set forth in the district court's letter decision imposing sanctions.
{3} In August 2009, Plaintiffs filed suit in district court against the Regents, along with other parties, alleging medical malpractice in connection with a cesarean section/tubal ligation surgery performed by physicians employed by the University of New Mexico (UNM) Health Sciences Center. Plaintiffs subsequently retained Dr. Ian Paul to serve as an expert witness in their case. At the time, Dr. Paul was a pathologist employed by the New Mexico Office of the Medical Examiner (OMI) and was also a clinical assistant professor in the Department of Pathology at the UNM Health Sciences Center. The conduct that led the district court to impose sanctions against the Regents in this case occurred upon Plaintiffs' formal designation of Dr. Paul as one of their expert witnesses.
{4} Scot Sauder, an attorney employed as in-house counsel by UNM, learned of Dr. Paul's designation as one of Plaintiffs' medical expert witnesses. Sauder concluded that Dr. Paul's participation in the case was not in the best interests of the UNM Health Sciences Center and, by extension, the Regents. At the time, Sauder was the head of the health law section of the University Counsel's office and was also serving as the manager of litigation involving UNM Health Sciences Center, which included oversight of Plaintiffs' case.
Sauder initially communicated his concerns regarding Dr. Paul's expert testimony in the case with Dr. Paul Roth, the chancellor of UNM Health Sciences Center, and he received unquestioned approval from Dr. Roth to contact Dr. Paul's supervisors regarding the matter. Sauder then contacted Dr. Ross Zumwalt, who was Dr. Paul's immediate supervisor at OMI, to inform him of Dr. Paul's plan to testify against another UNM physician and to end Dr. Paul's participation in the case. Dr. Zumwalt responded that he was familiar with Plaintiffs' case as Dr. Paul had already informed him of his plan to testify as an expert witness for Plaintiffs in the case. Dr. Zumwalt further stated,
{5} Sauder also spoke with Dr. Paul's supervisor, Dr. Thomas Williams, the head of the UNM Department of Pathology; however, nothing further happened until the case neared the mediation deadline set by the district court approximately three months later. At that time, Sauder contacted both of Dr. Paul's supervisors, again suggesting that Dr. Paul's involvement in the case as Plaintiffs' expert created a conflict of interest with the UNM Health Sciences Center. He also informed them that Dr. Roth agreed with him and that he believed Dr. Paul should withdraw from the engagement. The next day, Sauder reached to outside counsel hired by the Regents to represent UNM in the litigation and informed her that Dr. Paul would not be testifying in the case. Sauder later testified that by the time he contacted outside counsel, he had already been assured by Dr. Williams that Dr. Paul would be withdrawing from the case. However, Dr. Williams testified that he offered no such assurance to Sauder. In fact, both of Dr. Paul's supervisors later testified that they did not believe it was appropriate or necessary for Dr. Paul to withdraw from the case.
{6} Within days of Sauder's communications with Dr. Paul's supervisors, Dr. Paul withdrew from the case. In an email to Plaintiffs' trial counsel informing him of his decision, Dr. Paul stated that he had been under "a lot of pressure from the higher ups at UNM" to withdraw. The district court noted that at the time these events unfolded, Dr. Paul was under consideration for a significant job promotion. Dr. Paul later testified that he felt intimidated and feared that his career was in jeopardy. He stated that he would not have withdrawn from the case but for Sauder's actions.
{7} Upon Dr. Paul's withdrawal from the case, Plaintiffs filed a motion in district court seeking sanctions against the Regents and their attorney, Sauder. Plaintiffs argued that the manner in which Sauder caused Dr. Paul to withdraw from the case amounted to improper witness interference and tampering and was a violation of a number of the Rules of Professional Conduct governing attorneys. It also established that Sauder acted with the full support and encouragement of Dr. Roth. The district court held two hearings on Plaintiffs' motion for sanctions. However, by the time the second hearing was held on Plaintiffs' motion, the parties had already reached a settlement for the claims in the underlying case.
{8} Following the hearings, the district court issued a letter decision imposing sanctions against the Regents and Sauder. The court stated in the decision that it was not persuadedby Sauder's position at the sanctions hearings that Dr. Paul's involvement in the case constituted an impermissible conflict of interest. The court found that there were no applicable policies in effect at UNM under which Dr. Paul's decision to testify as an expert for Plaintiffs created an impermissible conflict of interest with the UNM Health Sciences Center. The court stated "[t]hat any public entity, let alone the flagship University of this State, believes it has such power to stifle comment is both terrifying and in violation of public policy[.]" In addition, the court pointed out that Sauder could have, but failed to, file a motion in open court in an attempt to prevent Dr. Paul from testifying, which would have allowed both parties to develop their arguments and would have provided the district court with an opportunity to determine whether Dr. Paul's testimony would have been unduly prejudicial to UNM or otherwise improper. The court found that Sauder instead acted "internally, quietly . . . willfully and improperly interfered with a disclosed witness in pending litigation before ourt" and that "[s]uch conduct was prejudicial to the interests of the witness, the other litigants, and the administration of justice itself." The court also pointed out that Sauder's " 'behind the scenes' interference with a witness is just the kind of conduct that fosters distrust and disdain for our profession and the [c]ourt system."
{9} In determining that it could exercise "its inherent powers to control its docket and, by extension, the behavior of litigants" to sanction Sauder and the Regents for their wrongful conduct, the court noted that monetary sanctions were appropriate in the matter since the underlying dispute between the parties had been settled. It further stated that the amount of monetary sanctions had to be "sufficiently significant in light of the misconduct at issue and the relative size and resources of the wrongdoers." Accordingly, the district court ordered the Regents to pay $32,000 to Plaintiffs for the attorney fees they had incurred in bringing the motion for sanctions, the costs associated with locating a replacement for Dr. Paul, and the fees that Plaintiffs incurred for Dr. Paul's services prior to his withdrawal. Sauder was personally sanctioned in the amount of $1500 to be paid to the Roadrunner Food Bank. Lastly, the court sanctioned the Regents in the amount of $100,000 to be paid to four charitable organizations.
{10} The Regents moved for reconsideration of the district court's order, challenging only the imposition of the $100,000 monetary sanction in their motion for reconsideration. The Regents argued that the district court lacked the authority under its inherent power to impose the $100,000 sanction because it was a punitive sanction in nature with no compensatory aspect. They based their argument that such a sanction is not permitted against a public entity such as the Regents under New Mexico law because such sanctions are punitive and governmental entities are immune from punitive damages in civil actions for tort and contract. The district court denied the Regents' motion, concluding that the Regents' argument that the court's inherent power does not include the authority to issue a non-compensatory monetary sanction...
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