In re Deepwater Horizon Belo Cases
| Decision Date | 02 February 2022 |
| Docket Number | 3:19-cv-963-MCR-GRJ |
| Parties | IN RE DEEPWATER HORIZON BELO CASES This Document Relates to: Harley Allen, 419-cv-08 Larry Blount, 519-cv-227 Fabrice Bowdry, 519-cv-539 Jonah Brackens, 519-cv-147 Christopher William Brown, 319-cv-423 Timothy A. Brown, Jr., 519-cv-369 Thomas Coleman, 519-cv-259 Shaunette Cook, 319-cv-3352 Tristin Crowder, 519-cv-390 Dallas Finch, 419-cv-123 Travis R. Gerkin, 519-cv-273 Devon Holley, 519-cv-343 Zebulun Johnson, 519-cv-391 Luther Kirkland, 519-cv-462 Daniel Lowery, 320-cv-3646 Jose Marengo, 319-cv-07 Michael Moulder, 519-cv-12 Hector Sostre, 319-cv-3608 Jason Woods, 519-cv-200 |
| Court | U.S. District Court — Northern District of Florida |
M Casey Rodgers Judge
REPORT AND RECOMMENDATION
Pending before the Court is Plaintiffs' Motion for Sanctions Due to Ex Parte Communications with Dr. Ron Lippman in these Back-End Litigation Option (“BELO”) cases. ECF. No 395.[1] Plaintiffs ask the Court to impose sanctions against Defendants BP Exploration & Production, Inc. and BP America Production Company (collectively, “BP”) under the Court's inherent authority to sanction attorney misconduct, or in the alternative, to disqualify BP counsel who engaged in the alleged misconduct. Id.
The focus of the alleged misconduct is counsel's alleged violations of state and federal laws as well as the ethics rules. Specifically, Plaintiffs contend that counsel for BP engaged in ex parte communications with Plaintiffs' treating physician and/or expert witness, Dr Ron Lippmann in violation of Florida state law and counsel's general ethical obligations. Plaintiffs say that counsel's conduct violated the Florida Rules of Professional Conduct by (1) improperly influencing Dr. Lippmann's sworn testimony in his affidavit used to support BP's motion for summary judgement, and (2) failing to disclose to Dr. Lippmann counsel's role during discussions BP had with Dr. Lippmann about his affidavit during the drafting stages. Finally, Plaintiffs say that counsel's ex parte communications with Dr. Lippmann violated The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), 42 U.S.C. § 1320d-5, and HIPAA's privacy rules, 45 C.F.R. §§ 160 and 164, because BP's counsel communicated with Dr. Lippmann beyond what Plaintiffs had authorized for these cases.
As a sanction Plaintiffs request that the Court award them costs and fees[2] associated with their need to respond to BP's use of Dr. Lippmann's affidavit in these cases, as well as striking Dr. Lippmann's affidavit from future use.
BP filed a response in opposition, ECF No. 405. The District Judge referred the motion to the undersigned for a report and recommendation under Federal Rule of Civil Procedure 72(b), ECF No. 406.
After careful consideration, and for the reasons discussed below, the Plaintiffs' motion for sanctions is due to be denied.
Plaintiffs' request for sanctions concerns the circumstances surrounding an affidavit executed by Dr. Lippmann that BP relied upon in support of its motion for summary judgment based upon no admissible proof of injury.[3] To understand the context in which the motion for sanctions was filed a brief chronology of the material events leading to Plaintiffs' request is necessary.
Dr. Lippmann is involved in two key phases of the BELO process outlined in the court-approved Medical Benefits Class Action Settlement (“MSA”).[4] The BELO process is the exclusive means by which Plaintiffs may seek compensation from BP for oil spill related injuries suffered during their oil spill clean-up work.[5] Dr. Lippmann's first involvement is during the Notice of Intent to Sue (“NOIS”) stage where Plaintiffs were required to file a medical claim with the Claims Administrator.[6] At the NOIS stage, counsel for Plaintiffs paid Dr. Lippmann to conduct an initial screening of a number of BELO Plaintiffs to document their ocular, sinus or dermal conditions allegedly caused by exposure to toxins during the oil spill clean-up.
Plaintiffs then used Dr. Lippmann's medical screening information to support claims submitted to the NOIS Claims Administrator-a mandatory first step in the BELO process. Plaintiffs who complete the NOIS process, and who do not settle with BP during the mediation phase, are authorized to bring a BELO lawsuit. That is where Dr. Lippmann appears next.
In April 2021, well past the NOIS process and well into the discovery phase of the BELO lawsuits, BP issued a series of subpoenas to Dr. Lippmann seeking Plaintiffs' medical records. See ECF No. 396-7. In response to the subpoenas, Dr. Lippmann stated that “[a]fter a review of both physical medical records and electronic medical records, there is no medical record for [Plaintiffs].” See e.g., Id. at 4. On June 21, 2021, Dr. Lippmann supplied BP with an affidavit to that effect. ECF No. 396-1 at 2. Beyond attesting to having no medical records for Plaintiffs, Dr. Lippmann also represented that he was retained by Plaintiffs' counsel to “evaluate some of its clients and provide reports for their use in assessing claims against BP.” Notably, Dr. Lippmann represented that he “d[id] not have a physician-patient relationship with the …[Plaintiffs] [he] evaluated.” ECF No. 396-1 ¶ 2.
This affidavit from Dr. Lippmann, declaring he had no physician-patient relationship with Plaintiffs, was heavily relied upon by BP in its Motion for Summary Judgment in which BP contended that if no physician-patient relationship existed Plaintiffs could not establish the fact of correct diagnosis-one of the few issues to be decided at the BELO trials. See ECF Nos. 328, 329.
As part of Plaintiffs' investigation of the circumstances surrounding the execution of Dr. Lippman's affidavit Plaintiffs say that Dr. Lippman executed the affidavit at BP counsel's suggestion during conversations with Dr. Lippmann about his response to BP's subpoenas. ECF No. 396-9 ¶ 8. Dr. Lippmann says he briefly spoke with counsel for BP on two occasions by telephone. Id. ¶ 6. After the first conversation, Dr. Lippmann executed an affidavit so that “this whole mess would be over.” Id. ¶ 8. Afterwards, BP's counsel contacted Dr. Lippmann again and supplied him with a second affidavit (dated August 18, 2021), which he also executed so that “everyone would leave [him] alone.” Id. ¶ 10. The August 18, 2021, Lippman affidavit expanded upon Dr. Lippmann's prior statements. Dr. Lippman said in pertinent part:
The medical practice where I was employed was contacted by a representative of the Downs Law Group to screen some of its clients… and provide reports for their use in asserting claims against BP. I do not have a physician-patient relationship with the Downs Law Group clients I evaluated, nor do I ever intend to proffer an opinion with respect to the underlying cause of their alleged symptoms, injuries, or illnesses….
ECF No. 396-2 ¶ 2 (emphasis added).[7] BP then used the expanded August 18, 2021, Lippman affidavit to support BP's argument that it was entitled to judgment as a matter of law against these BELO Plaintiffs. ECF No. 329-4.
In Plaintiffs' reply memoranda opposing BP's motion for summary judgment, Plaintiffs argue that “a screening diagnosis from the office of Dr. Lippmann” is not the only evidence that Plaintiffs may rely upon in proving “fact of first diagnosis” at trial, ECF No. 370 at 20. The Court agreed. See ECF No. 403. Notably, however, Plaintiffs did not argue that Dr. Lippmann treated their conditions. Rather, Plaintiffs maintained that Dr. Lippmann screened them and diagnosed which condition they had (for Plaintiffs' and their counsel's use in the NOIS phase). ECF No. 370 at 20. It was also evident that Plaintiffs, at that time, did not regard Dr. Lippmann as an expert witness. See ECF No. 370. In Plaintiffs' motion for sanctions, however, Plaintiffs describe Dr. Lippmann as both a treating physician and as an expert witness.
After the filing of the motion for sanctions, the parties deposed Dr. Lippmann. In his November 16, 2021, deposition, Dr. Lippmann confirmed that he had no physician-patient relationship with these Plaintiffs. Dr. Lippmann Deposition (“Lippmann Depo.”), ECF No. 396-8 at 71-72. When pressed about the statements made in his affidavits, Dr. Lippmann testified that he does not retract the statements made in his affidavits. Lippmann Depo., Id. at 130 ¶¶ 19-20 (“There's no retraction.”) Thus, Dr. Lippman maintains that he did not have a physician-patient relationship with these Plaintiffs and that he does not intend to proffer an expert opinion with respect to the underlying causes of Plaintiffs' conditions.
Courts have the discretion to sanction conduct that abuses the judicial process even if procedural rules exist that govern the same conduct. Chambers v. NASCO, Inc., 501 U.S. 32, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). In fashioning appropriate sanctions, courts have the inherent power to impose sanctions on parties, lawyers, or both. In re Sunshine Jr. Stores, Inc., 456 F.3d 1291, 1304 (11th Cir. 2006). This power is derived from the court's need “to manage [its] own affairs so as to achieve the orderly and expeditious disposition of cases.” Id. (citations and internal quotation marks omitted).
A finding of bad faith is required to impose sanctions under the court's inherent power. Byrne v. Nezhat, 261 F.3d 1075, 1121 (11th Cir. 2001) (citations omitted). “[F]alse...
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