Sisk v. Transylvania Cmty. Hosp. Inc
| Decision Date | 17 June 2010 |
| Docket Number | No. 67PA09.,67PA09. |
| Citation | 695 S.E.2d 429,364 N.C. 172 |
| Parties | Kimberly S. SISK, Individually and as Guardian ad Litem of Slade Axel Sisk, a minorv.TRANSYLVANIA COMMUNITY HOSPITAL, INC.; Abbott Laboratories; and Abbott Laboratories, Inc. |
| Court | North Carolina Supreme Court |
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals Sisk v. Transylvania Community Hosp., Inc., 194 N.C.App. 811, 670 S.E.2d 352 (2009), reversing an order entered 4 December 2007 by Judge Richard L. Doughton in Superior Court, Transylvania County. Heard in the Supreme Court 17 November 2009.
N.C.G.S. § 84-4.1 gives the trial court discretionary authority to grant pro hac vice status to an appropriately qualified attorney, while N.C.G.S. § 84-4.2 gives the court the authority to summarily revoke that status on its own motion and in its discretion. Even before the statutes were enacted, pro hac vice admission was treated by the Supreme Court as a privilege that the trial court has the discretion to grant, deny, or revoke.
Where the trial court had revoked the pro hac vice admission of two attorneys for ex parte contact with an expert in actions in another state, the court's findings about contact with the witness and prejudice to defendant Abbott were supported by the evidence.
The trial court's conclusion that it had the discretionary authority to summarily revoke the pro hac vice admission of two attorneys was supported by statutes.
Where the trial court revoked the pro hac vice admission of two attorneys, its conclusion that ex parte contact with a defense expert in actions in another state was inappropriate and constitutes the appearance of impropriety was a reasoned decision supported by the findings.
The trial court's inherent authority to discipline attorneys is not limited by the rules of the State Bar, but the trial court may consider the Rules of Professional Conduct when deciding whether to revoke pro hac vice status. The trial court's invocation of Rule 4.3 of the Rules of Professional Conduct for guidance in this case does not indicate either a misapprehension of the rule or an inappropriate reliance on it, and the conclusion that the ex parte contact with the defense witness constituted an appearance of impropriety and was inconsistent with the fair dealings reflected in Rule 4.3 was supported by the findings.
Where the trial court revoked the pro hac vice admission of two attorneys, the conclusion that the attorneys' conduct outweighed the plaintiff's right to select counsel was fully supported by the findings.
6. Attorneys-pro hac vice admission-revoked for two attorneys for conduct of one
The trial court's discretionary decision to revoke the pro hac vice admission of two attorneys was justified, even though only one attorney had ex parte contact with a defense witness, where both attorneys had knowledge of and approved the contact, and both intended to keep the defense expert ignorant of the possible conflict of interest.
Law Office of Michael W. Patrick, by Michael W. Patrick, Chapel Hill, for plaintiff-appellee/appellant.
Roberts & Stevens, P.A., by James W. Williams and Ann-Patton Hornthal, Asheville, for defendant-appellants/appellees Abbott Laboratories and Abbott Laboratories, Inc.
Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Roy W. Davis, Jr., Asheville, for defendant-appellee Transylvania Community Hospital, Inc.
In this case we consider whether the trial court abused its discretion when it revoked the pro hac vice status of two out-of-state attorneys pursuant to N.C.G.S. § 84-4.2. Recognizing the inherent power of the courts to control trials and discipline attorneys, as well as the important public interest in regulating out-of-state attorneys who practice law in this state, we hold that the North Carolina Rules of Professional Conduct do not limit the trial court's discretion to revoke pro hac vice status. Because we find that the trial court did not abuse its discretion, we reverse the Court of Appeals.
Shortly after his birth on 19 October 2004, Slade Axel Sisk (Slade) contracted a rare form of meningitis caused by the bacteria Enterobacter sakazakii (also known as E. Sak ) and suffered permanent brain damage. On 15 February 2007, Slade's mother, plaintiff Kimberly S. Sisk, individually and in her capacity as guardian ad litem, filed a complaint in Superior Court, Transylvania County, against defendants Abbott Laboratories, Abbott Laboratories, Inc. (collectively, Abbott), and Transylvania Community Hospital, Inc. (the Hospital).
In her complaint plaintiff makes the following allegations. Slade's condition was caused by his ingestion of powdered Similac, an infant formula manufactured and sold by Abbott and provided to Slade by the Hospital. Powdered Similac is not sterile and should not have been given to Slade who, as a neonate, had an immature and compromised immune system. Although the Hospital knew or should have known the risks powdered infant formula poses to newborns, Abbott nevertheless failed to warn the Hospital that Similac could cause the type of meningitis contracted by Slade, and no defendant either informed plaintiff of the potential risks or advised plaintiff of the safe alternative of sterile liquid Similac. Plaintiff seeks compensatory and punitive damages against Abbott based on negligence, strict liability, and breach of warranty, and compensatory damages against the Hospital based on negligence.
On 9 May 2007, pursuant to N.C.G.S. § 84-4.1, out-of-state attorneys Stephen H. Meyer and Nicolas F. Stein were admitted pro hac vice to practice law in North Carolina for the limited purpose of representing plaintiff in her action against Abbott and the Hospital. On 17 October 2007, Abbott moved to disqualify plaintiff's out-of-state counsel because of their allegedly improper contact with one of Abbott's consulting experts.
Plaintiff responded with a copy of an 18 October 2007 opinion and order signed by the circuit court judge presiding over Froman v. University Medical Center, No. 04-CI-10681 (Jefferson Cir. Ct., Ky.), a factually similar Kentucky case involving allegations of E. Sak contamination. In the opinion and order, the Kentucky judge denied Abbott's motion to disqualify attorneys Meyer and Stein for communicating with Abbott's consulting expert in Froman. According to the Kentucky court's order, the two attorneys first became aware of the identity of Abbott's expert during the course of an E. Sak contamination case against Abbott Laboratories captioned Hill v. University Medical Center, Inc., No. 04-CI-08866 (Jefferson Cir. Ct., Ky.). At that time, Abbott had entered into an agreement with its expert to provide consulting services in E. Sak cases. After the Hill case settled, but before the order of dismissal was entered, attorney Meyer contacted Abbott's expert in reference to the Froman case. At the time of the initial contact, Abbott was not yet a party in Froman, and Meyer was unaware of the agreement between Abbott and its expert. Nevertheless, the plaintiff was contemplating adding Abbott as a defendant and Meyer deliberately failed to advise the expert that Abbott was a potential defendant. After discussing the possibility of the expert providing services for the plaintiff in Froman, Meyer retained the expert. As a consequence, the expert found himself on both sides in Froman. Despite Abbott's claim that it had lost the services of its expert as a result of Meyer's action, in its opinion and order the Kentucky trial court denied Abbott's motion for sanctions, concluding that Abbott had failed to prove that the “plaintiffs' counsel committed any knowing violation of ethical rules,” nor did Abbott “demonstrate prejudice as a result of counsel's actions.”
On 4 December 2007, Judge Richard L. Doughton granted Abbott's motion in the case at bar and entered an order “revok[ing] the permission to practice of Nicholas F. Stein and Stephen H. Meyer previously granted.” In accordance with plaintiff's request, the trial court made findings of fact and conclusions of law. The findings of fact included the following:
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