ROBERT H. JACOBVITZ, United States Bankruptcy Judge.
THIS MATTER is before the Court on four motions for reconsideration and/or to reopen the evidence (sometimes, the "Four Motions") brought by the United Tort Claimants
In 2011, the UTC commenced individual actions against Dr. Schlicht, Dr. Bryant, Otero County Hospital Association, Inc., d/b/a Gerald Champion Regional Medical Center ("GCRMC" or the "Hospital"), QHR, and other defendants in state court alleging medical malpractice and other acts of negligence relating to an alleged experimental lower back procedure (the "PDA procedure") performed on the plaintiffs. See, e.g., Docket No. 1 in Adversary Proceeding No. 12-01276. As a result of these state court actions, GCRMC filed a voluntary petition for relief under chapter 11 of the United States Bankruptcy Code in this Court. See Docket No. 1 in Case No. 11-13686-j11. The UTC removed forty-seven pending state court actions to this Court during GCRMC's bankruptcy case thereby commencing the adversary proceedings referenced in the above caption (the "Adversary Proceedings"). See, e.g., Notice of Removal of State Civil Action under 28 U.S.C. §§ 1367(A) and 1452(A) and Rule 9027(A) of the Federal Rules of Bankruptcy Procedure at Docket No. 573 in Case No. 11-13686. Prior to confirmation of a chapter 11 plan in the bankruptcy case, GCRMC, the physicians, and others
The Court has completed two phases of trial in the Adversary Proceedings and a third phase in four of the Adversary Proceedings. In phase one, the Court held an 11-day trial on the duty and breach of duty elements of the UTC's negligence claims against QHR ("Phase I"). See In re Otero 527 B.R. at 726 (hereinafter, "In re Otero Phase I"). The Court determined QHR owed the members of the UTC a duty of care that included: "(1) the duty to appropriately involve medical staff in evaluating medical issues; and (2) the duty to inform the board and the medical staff about issues relating to patient safety known or that should be known by the hospital management company." In re Otero Phase I, 527 B.R. at 767.
The Court concluded that QHR's breach of the duty of care arose out of GCRMC's interim Chief Executive Officer's actions in response to a letter he received from Dr. Schlicht sent to Hospital Administration "responding to a letter in which Dr. Masel asserted that Dr. Schlicht was not a Spine Specialist and was improperly performing `experimental surgery' on patients of the Hospital" (the "Masel Letter"). Id. at 771.
Id. at 773-774.
In addition, during Phase I, the Court determined that comparative fault, and not joint and several liability, would apply to QHR because the UTC had failed to prove any of the statutory exceptions to comparative fault.
Id. at 779. The Court, having determined that the public policy exception to applying comparative fault did not apply, held that comparative fault and not joint and several liability would apply if damages were awarded. See id. at 778-779.
In Phase II, after a 4-day trial on the merits, the Court determined causation and allocated QHR's comparative fault. In re Otero Cty. Hosp. Ass'n, Inc., No. 11-11-13686 JL, 2016 WL 7985365, at *1 (Bankr. D.N.M. Dec. 23, 2016)(hereinafter "In re Otero Phase II"). The Court allocated QHR's fault at 16.5%. Id.
In determining causation, the Court found that had the QHR CEO requested the GCRMC Medical Executive Committee ("MEC" or "GCRMC MEC") and the Board to conduct a focused review after receiving the Masel Letter: (1) the MEC would have acted on the CEO's formal request; (2) the MEC would have sought a physician outside of the Hospital to perform the review; (3) the reviewer would have told the MEC that the PDA procedure was dangerous; and (4) the MEC would have acted on that information and stopped the PDA procedure. See In re Otero Phase II, at *7-8. As such, the Court found that the CEO's failure to request the focused review caused the UTC to suffer harm by (1) having the experimental PDA procedure; or (2) undergoing a procedure where Dr. Schlicht as the lead physician committed medical negligence by performing procedures beyond the scope of his credentials. Id. at *9. The Court limited causation to "the UTC's injuries resulting from (1) PDA procedures Dr. Schlicht or Dr. Bryant performed after September 21, 2007; and (2) non-PDA procedures Dr. Schlicht performed as lead physician after September 21, 2007 that breached the applicable standard of care." In re Otero Phase II at *22. The Court reasoned and inferred based on the evidence presented in Phase II that an outside focused review of the PDA procedure "would have taken two months." Id. at *8.
Phase III of the trials will determine damages for individual members of the UTC ("Phase III"). The parties agreed to
The Four Motions consist of: (1) Motion for Reconsideration and/or Relief from Judgment and Motion to Reopen Evidence ("UTC Motion to Reconsider and Reopen Evidence") at Docket No. 629; (2) Motion to Amend and/or for Reconsideration of Order and Memorandum Opinion Regarding Comparative Fault and Causation ("UTC Zuniga Evidence Motion") at Docket No. 720; (3) Quorum Health Resources, LLC's Cross-Motion to Amend and/or for Reconsideration of Memorandum Opinion Regarding Comparative Fault and Causation (the "QHR Zuniga Evidence Motion") at Docket No. 743;
In the UTC Motion to Reconsider and Reopen Evidence, the UTC ask the Court to admit new evidence with respect to three members of the UTC who underwent surgeries not involving PDA to show that Dr. Schlicht was the lead physician performing surgery and to reopen the evidence to show that a fourth UTC member underwent the PDA procedure. The UTC also ask the Court to reconsider its ruling affecting eight members of the UTC that the PDA procedure would not have been stopped until September 21, 2007. Those eight members of the UTC underwent procedures prior to September 21, 2007. QHR opposes the UTC Motion to Reconsider and Reopen Evidence. See Quorum Health Resources, LLC's Response to UTC Motion for Reconsideration and/or Relief from Judgment and Motion to Reopen Evidence at Docket No. 637. The Court heard oral argument on the UTC Motion to Reconsider and Reopen Evidence on June 19, 2017 and took the matter under advisement. For reasons explained below, the Court will grant the UTC Motion to Reconsider and Reopen Evidence only with respect to Thomas T. Sullivan and his spouse and otherwise deny motion.
After the UTC filed the UTC Motion to Reconsider and Reopen Evidence, the parties filed cross-motions for reconsideration based on newly discovered evidence from Dr. Zuniga. See Scheduling Order at Docket No. 733. In its cross-motion the UTC ask the Court to reconsider three issues in light of this newly discovered evidence. See UTC Zuniga Evidence Motion at Docket No. 720. First, the UTC ask the Court to change the date by which the Schlicht surgeries would have stopped following the CEO's receipt of the Masel Letter. Second, the UTC ask the Court to apply joint and several liability instead of comparative
The QHR Zuniga Evidence Motion also asks the Court to reconsider its rulings on causation and apportionment of fault. See at Docket No. 743. QHR asks the Court to apply a subjective standard in determining causation and to dismiss the claims against QHR for a lack of causation. In the alternative, QHR asks the Court to reduce the apportionment of fault to QHR.
The Court held an evidentiary hearing on the Zuniga Evidence Cross-Motions on December 6, 2017 and took the matter under advisement. The evidence admitted at that hearing is admitted for all purposes in the Adversary Proceedings. For reasons explained below, the Court will grant in part the UTC Zuniga Evidence Motion with respect to admitting new evidence and with respect to the time by which Dr. Schlicht's procedures would have been stopped and otherwise will deny the UTC Zuniga Evidence Motion. The Court will deny the QHR Zuniga Evidence Motion, except for admitting new evidence.
Last, the Court will consider the UTC Defense Counsel Misconduct Motion. See Docket No. 783. The UTC ask the Court to reconsider applying joint and several liability or to increase QHR's apportionment of fault based on their allegation of misconduct on the part of QHR's defense counsel. QHR opposes the UTC Defense Counsel Misconduct Motion. See Quorum Health Resources, LLC's Brief in Response to the UTC's Motion to Reopen Evidence Regarding Apportionment of Liability and the Application of Joint and Several Liability, Based on QHR's Alleged Collusion and Joint Defense with GCRMC at Docket No. 797. The Court held an evidentiary hearing on the UTC Defense Counsel Misconduct Motion on January 5, 2018 and took the matter under advisement. For reasons explained below, the Court will deny the UTC Defense Counsel Misconduct Motion.
The Court will first discuss the legal standard it will apply in considering the Four Motions and then separately consider each motion.
Rule 54(b) applies to the Court revising non-final judgments and orders.
Fed. R. Civ. P. 54(b)(emphasis added).
The Court's rulings in Phase I or Phase II of the trial are not final orders because they did not adjudicate the damages element of the UTC's negligence claims. See Servants of Paraclete v. Does, 204 F.3d 1005, 1011 (10th Cir. 2000) (acknowledging "the well-settled and established rule that `an order that determines liability but leaves damages to be calculated is not final.'") (quoting Albright v. UNUM Life Ins. Co. of America, 59 F.3d 1089, 1092 (10th Cir. 1995) (quoting 16 Charles A. Wright, Arthur R. Miller, Edward H. Cooper & Eugene Gressman, Federal Practice and Procedure § 4009, at 576 (1977) (additional internal quotation marks omitted)). "District courts generally remain free to reconsider their earlier interlocutory orders." Been v. O.K. Indus., 495 F.3d 1217, 1225 (10th Cir. 2007). Because the Court's decisions following Phase I and Phase II were not final judgments or orders, Rule 54(b) applies to the Four Motions.
When determining whether to reopen the evidence under Rule 54(b), "A district court has broad discretion to reopen a case to accept additional evidence and that decision will not be overturned on appeal absent an abuse of that discretion." Smith v. Rogers Galvanizing Co., 148 F.3d 1196, 1197-98 (10th Cir. 1998) (citing Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 331, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971) (remaining citation omitted)); see also Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) ("[E]very order short of a final decree is subject to reopening at the discretion of the district judge."). The same standard applies to trials before the bankruptcy court.
Courts often consider the following factors in reviewing a request to reopen the evidence: (1) the timing of the request; (2) the nature and character of the additional evidence; and (3) the potential prejudice to the opposing party. Rogers Galvanizing Co., 148 F.3d at 1198; see also Skier's Edge Co. v. Ladapa Die & Tool, Inc., 99 Fed.Appx. 848 (10th Cir. 2004) ("In making its decision to reopen, the court should consider the following factors: (1) the timing of the motion, (2) the nature of the additional evidence, and (3) the potential for prejudice to the nonmoving party.")(citing Smith, 148 F.3d at 1198). "[F]airness is the key criterion" to the Court's decision. Smith, 148 F.3d at 1198 (quoting Blinzler v. Marriott Int'l, Inc., 81 F.3d 1148, 1160 (1st Cir. 1996)). Fairness includes consideration of whether the new evidence was reasonably discoverable despite diligence prior to conclusion of the trial.
The Court now turns to the legal standard for reconsideration under Rule 54(b) apart from the issue of reopening the evidence.
Rule 54(b) does not curtail or provide the Court with any standards by which to exercise its broad discretion to reconsider its non-final judgments or orders. Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1251 (10th Cir. 2011). Courts have applied different
The Tenth Circuit suggests that when considering a Rule 54(b) motion for reconsideration, a "court may look to the standard used to review a motion made pursuant to Federal Rule of Civil Procedure 59(e)." Ankeney v. Zavaras, 524 Fed.Appx. 454, 458 (10th Cir. 2013)(unpublished). Under the Rule 59(e) standard, a court can grant a motion to reconsider when there is "(1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice." Id.; see also CalMat Co. v. Oldcastle Precast, Inc., 2017 WL 6016465, at *2 (D.N.M. Dec. 4, 2017)(stating, "The Tenth Circuit has analyzed motions to reconsider interlocutory orders under Rule 54(b) and looked to Fed. R. Civ. P. 59(e) for guidance in addressing those motions to reconsider.").
In addition to the Rule 59(e) standard, some courts use other factors to guide the analysis of a Rule 54(b) motion for reconsideration. These additional factors "restrict the review" the Court undertakes by "reducing (i) the depth of the Court's analysis the second time around — thus conserving judicial resources" and by considering, "(ii) the impositions that relitigation of the prior ruling will impose on the party opposing the motion for reconsideration." Anderson Living Tr. v. WPX Energy Prod., LLC, 308 F.R.D. 410, 435 (D.N.M. 2015). Courts consider "how thoroughly the earlier ruling addressed the specific findings or conclusions that the motion to reconsider challenges." Id. at 434. To determine thoroughness, the Court looks to the development of the evidence, the "time and energy" of the Court and the parties and whether the Court previously "addressed the exact point or points that the motion to reconsider challenges." Id.
Courts also look to the development of the case in terms of its "progress and posture." Id. As such, it is necessary to consider stability or "the degree of reasonable reliance the opposing party has placed in the Court's prior ruling." Id. (citing, 18B Charles Alan Wright, Arthur R. Miller, Edward H. Cooper, Vikram David Amar, Richard D. Freer, Helen Hershkoff, Joan E. Steinman & Catherine T. Struve, Federal Practice & Procedure § 4478.1 (2d ed.)).
Other courts rely on the court's plenary power "to revisit and amend interlocutory orders when justice so requires." Adetomiwa v. Redstone College, 2015 WL 9259964, *1 (D. Colo. 2015); see also Friedman v. Dollar Thrifty Automotive Group, Inc., 2015 WL 8479746, *2 (D. Colo. 2015) ("In deciding a motion to reconsider an interlocutory order, the court is not bound by the stricter standards for considering a Rule 59(e) or 60(b) motion. ... Instead, a court has plenary power to revisit and amend interlocutory orders as justice requires.").
Generally, a motion for reconsideration under Rule 54(b) does not allow the movant to "get a second bite of the apple using the same arguments that were raised or could have been raised in prior briefing." Thomas v. Kaven, No. CV 12-381-JCH-LAM, 2017 WL 3098266, at *1 (D.N.M. June 14, 2017); see Fortier v. New Mexico Human Servs. Dep't, No. CV 16-482 SCY/WPL, 2017 WL 3017168, at *1 (D.N.M. July 13, 2017)("[A] motion to reconsider should do more than simply restate the position that was unsuccessfully advanced by the party in the initial motion, and should not present new arguments that could have been raised in the initial motion."); Anderson Living, 308 F.R.D. at
Ultimately, whether to grant a motion to reconsider an interlocutory order under Rule 54(b) falls within the Court's sound discretion. Trujillo v. Bd. of Educ. of Albuquerque Public Schools, 212 Fed. Appx. 760, 765 (10th Cir. 2007) (unpublished) ("A district court has discretion to revise interlocutory orders prior to entry of final judgment.") (citing Price v. Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir. 2005)); see also Fed. R. Civ. P. 60(b), Advisory Committee Notes accompanying the 1945 Amendment ("[i]nterlocutory judgments ... are left subject to the complete power of the court rendering them to afford such relief from them as justice requires.").
In lengthy, complex litigation such as the Adversary Proceedings before this Court involving trial of the issues common to numerous lawsuits in multiple phases, and application of rulings in one phase of the ligation in subsequent phases, the movant faces a high bar to convince the Court to reconsider it prior rulings. In Anderson Living, the Court described that high bar as follows:
308 F.R.D. at 435.
This Court will consider the Four Motions with the above standards in mind.
The UTC Motion to Reconsider and Reopen Evidence came about in a somewhat
Table 1: Claims of the UTC Members
QHR Sought to Dismiss based on no
proof of a PDA procedure or no proof
Dr. Schlicht was the lead physician performing
surgery.
Name QHR's Reason for Dismissal
Frank Guerrero No PDA procedure
Lavine Durden No PDA procedure; lead physician unclear
Thomas L. Sullivan and Pat Sullivan No PDA procedure; no proof of lead physician
Theresa Crawford and Clarence Crawford No proof of lead physician
Kent Gwynne and Elizabeth Gwynne8 No PDA procedure; no proof of lead physician
Estate of James Silva No PDA procedure
Table 2: Claims of the UTC Members
QHR sought to dismiss because the procedure
occurred before September 21
2007.
Name Date of Procedure
Annabelle Lindley and Jearl Lindley, M.D. 09/12/2007
Gayle Lunceford and Cecil Lunceford 08/01/2007
Shirley Hubert 08/29/2007
Kent Gwynne and Elizabeth Gwynne 07/23/2007
Kathy J. Swope and Jimmy L. Swope 08/13/2007
Estate of James Silva 08/02/2007
William Rogers 08/09/2007
Barbara Olson 08/08/2007
The UTC attached to its response to QHR's proposed findings of fact and conclusions of law additional exhibits not proffered at trial and in the response asked the Court to revisit its prior rulings. See Docket Nos. 567 and 587. QHR then filed a reply. The Court heard oral argument on March 1, 2017. At oral argument and in its reply brief, QHR agreed that Thomas Sullivan had a PDA procedure within the timeframe the Court found QHR to have been at fault. See Docket No. 580 at p. 7.
The UTC thereafter filed the UTC Motion to Reconsider and Reopen Evidence on May 30, 2017. See Docket No. 629. The motion included both a request for reconsideration and a request to reopen the evidence. QHR filed its response on June 9, 2017. See Docket No. 637. The Court heard oral argument on June 19, 2017 and took the matter under advisement. Damages trials in the four individual UTC members' adversary proceedings began on July 24, 2017.
In Phase II of the trial, the UTC had the burden to demonstrate that QHR's breach of duty caused the individual members of the UTC harm by undergoing a PDA procedure or other procedure in which Dr. Schlicht was the lead physician practicing outside his scope of training. The only evidence presented during Phase II specific to individual UTC members is the report of Dr. Keith W. Harvie, one of the UTC's expert witnesses. See Causation and Comparative Fault Trial Rule 26 Report and Addendum of Dr. K.W. Harvie at Ex. 179. Dr. Harvie's report examines the procedures performed on members of the UTC on a patient-by-patient basis and identifies the treating physician(s).
Under the Court's ruling, the UTC members who underwent a non-PDA procedure after September 21, 2007 can recover only if Dr. Schlicht acted as lead physician and committed medical negligence by practicing outside of the scope of his credentials. Dr. Harvie's report does not specify whether Mr. Sullivan had a PDA procedure. See Ex. 179, p. 82.
For example, for Ms. Crawford, Dr. Harvie reports:
Ex. 179, p. 30 (emphasis added). For Mr. Durden, Dr. Harvie's report states:
Ex. 179, p. 36 (emphasis added). Finally, for Mr. Guerrero, Dr. Harvie's report states:
Ex. 179, p. 40.
The UTC seek to reopen the evidence with respect to Mr. Sullivan
Alternatively, the UTC assert that Dr. Ralph Rashbaum's Phase I trial testimony is sufficient to establish causation with respect to all members of the UTC, including Mr. Sullivan, Ms. Crawford, Mr. Durden, and Mr. Guerrero. The UTC directed the Court to the following portions of Dr. Rashbaum's testimony:
Phase I, Testimony of Dr. Rashbaum, p. 22, lines 8-23
Phase I, Testimony of Dr. Rashbaum, p. 40, lines 1-10.
Phase I, Testimony of Dr. Rashbaum, p. 43, line 20 thru p. 44, line 2.
Phase I, Testimony of Dr. Rashbaum, p. 59, line 16 through page 61, line 3.
Dr. Rashbaum's testimony supports a finding that Dr. Schlicht performed procedures on members of the UTC that he was not qualified to do, and that the PDA procedure he performed was not appropriate. From this the UTC would have the Court conclude that any time Dr. Schlicht participated in a surgical procedure for which he was not qualified, the UTC have established causation. And because Dr. Harvie's report indicates that Dr. Schlicht participated in the non-PDA procedures performed on Mr. Durden, Ms. Crawford, and Mr. Guerrero, the UTC assert that they have established causation for those UTC members. The Court is not persuaded that it should change its ruling based on this testimony.
The UTC had the burden to prove that QHR's breach of duty in failing to request a focused review of Dr. Schlicht caused each member of the UTC harm. Dr. Rashbaum's testimony is insufficient evidence to establish causation with respect to individual members of the UTC who had a non-PDA procedure. Dr. Bryant was a trained surgeon. Dr. Rashbaum did not testify that Dr. Schlicht performed surgery outside the scope of his qualification in any of the non-PDA procedures in which Dr. Bryant was lead surgeon and Dr. Schlicht assisted Dr. Bryant. Instead, Dr. Rashbaum gave generalized testimony regarding Dr. Schlicht's qualifications and the inappropriateness of his performing any type of surgery. As explained below, the evidence the UTC have offered to demonstrate that Dr. Schlicht acted as the lead physician for the non-PDA procedures performed on Ms. Crawford, Mr. Durden, and Mr. Guerrero is inconclusive. Thus, the UTC's alternative argument that seeks to establish causation as to Ms. Crawford, Mr. Durden, and Mr. Guerrero based on Dr. Rushbaum's testimony fails.
The UTC ask the Court to reopen the evidence to offer the following additional exhibits in support of the claim of Mr. Sullivan that he underwent a procedure involving PDA and the claims of Mr. Guerrero, Mr. Durden, and Ms. Crawford that Dr. Schlicht was the lead surgeon for the procedures they underwent:
Table 3: The UTC's proffered evidence for the UTC Members QHR sought to dismiss for lack of evidence Name The UTC's Proffered Evidence Thomas Sullivan - Operative/Procedure Report — January 23, 2008 listing procedure as "percutaneous disk height restoration arthroplasty" (Docket No. 629 at Ex. A) Frank Guerrero - Patient consent form dated 9/16/08, authorizing Dr. Schlicht to perform a "bilateral cervical three/four facet fusion" (Docket No. 629 at Ex. B) - Surgical Services report dated 9/16/08 reflecting Dr. Schlicht DO as "Primary Surgeon" (Docket No. 629 at Ex. C) - Patient Ledger for services performed 9/16/08 (Docket No. 629 at Ex. D) - Operative Procedure Report dated 9/16/08 for "posterior instrumentation C3-4 with lateral mass, screws and rod, i.e. posterior fusion C3-4 reflecting Dr. Bryant as "surgeon" and Dr. Schlicht as "assistant" (Docket No. 629 at Ex. E) Lavine Durden - Operative/Procedure Report dated 6/26/08 showing Dr. Schlicht as "Surgeon" and "None" for assistant (Docket No. 629 at Ex. F) - Surgical Services report reflecting Dr. Schlicht as "primary surgeon" and Dr. Bryant as "Surgeon — Other") for surgery on 6/26/08 (Docket No. 629 at Ex. G) - Patient Ledger for services performed on 6/26/08 (Docket No. 629 at Ex. H) Theresa Crawford - Patient consent form darted 6/6/08, authorizing Dr. Schlicht to perform a cervical four/five, cervical five/six anterior cervical discectomy and fusion (Docket No. 629 at Ex. I) - Billing statement dated 8/26/08 from Spine Pain Institute/Christian R. Schlicht, D.O (Docket No. 629 at Ex. J) - Patient Ledger for services performed on 6/19/08 (Docket No. 629 at Ex. K)
The Court finds that the evidence should be reopened with respect to Mr. Sullivan to admit the January 23, 2008 Operative/Procedure Report attached to Docket No. 629 at Exhibit A. The timing of the request to reopen, made shortly after the completion of Phase II but before the entry of a final order, is reasonable and weighs in favor of reopening the evidence. The additional evidence the UTC seek to offer with respect to Mr. Sullivan conclusively establishes that he underwent a PDA procedure that the Court determined in Phase II caused harm. Allowing the UTC to reopen the evidence for this limited purpose will not unduly prejudice QHR. Indeed QHR concedes that this additional evidence demonstrates that Mr. Sullivan had a PDA procedure. In fairness, the Court will allow the UTC to reopen the evidence to offer a single exhibit to establish that Mr. Sullivan underwent a PDA procedure.
However, the evidence should be not reopened with respect to the claims of Mr. Guerrero, Mr. Durden, and Ms. Crawford to admit the newly proffered documentary evidence that purports to show that Dr. Schlicht was the lead physician for the procedures they underwent. Although the documentary evidence UTC proffers suggests that Dr. Schlicht was the lead physician, QHR points to other documentary evidence that suggests Dr. Schlicht was not the lead physician. If the Court reopened the evidence to admit UTC's proffered documentary evidence, the Court would also reopen the evidence to admit the documentary evidence QHR proffered in response to UTC's motion. The Court would then find the evidence to
QHR points to several documents that contradict the UTC's proffered evidence of who acted as lead physician in performing a non-PDA procedure on Mr. Guerrero, Ms. Crawford, and Mr. Durden. For example, QHR attached a copy of the Operative/Procedure Report dated September 16, 2008 for a procedure performed on Frank Guerrero reflecting Dr. Bryant as "surgeon" and Dr. Schlicht as "assistant." See Docket No. 637 at Ex. C. As to Ms. Crawford, QHR attached a copy of the Operative/Procedure Report dated June 19, 2008 reflecting Dr. Bryant as "surgeon" and Dr. Schlicht as "assistant." See Docket No. 637 at Ex. G.
Mr. Durden is the most problematic. The UTC proffer an Operative/Procedure Report that identifies Dr. Schlicht as the primary surgeon with no assistant. See Docket No. 629 at Ex. G. The UTC also proffer a Surgical Services Report that identifies Dr. Bryant as "Surgeon — Other." Id. The surgical procedure identified in the Operative/Procedures Report is "Left L5-S1 hemilaminectomy, discectomy." See Docket No. 629 at Ex. F. The Surgical Services Report similarly identifies the "actual procedure" as "Lumbar Discectomy L5/S1 Lt. Side." Docket No. 629 at Ex. G. QHR offers contradictory evidence in the form of a patient consent form dated 6/26/08 authorizing Dr. Bryant to perform a "lumbar discectomy lumbar five — sacral one left side" and a discharge summary for the procedure performed on 6/26/08 showing only Dr. Bryant as the treating physician. See Docket No. 637 at Ex. D.
From the conflicting evidence, it is possible to infer that Dr. Bryant performed the procedure even though the Operative Report identifies Dr. Schlicht as the primary surgeon, because the consent form authorized Dr. Bryant to perform the procedure described in the Surgical Services Report as the "actual procedure." QHR also direct the Court's attention to testimony from Dr. Bryant which suggests that he was present and participated in the procedure. See Docket No. 637 at Ex. G.
Because the newly proffered documentary evidence is inconclusive regarding whether Dr. Schlicht or Dr. Bryant was the lead physician who performed surgery on Mr. Guerrero, Ms. Crawford and Mr. Durden, and UTC bears the burden of proof on that issue, admitting the new evidence would not change the Court's decision with respect to the claims of these UTC members. The Court will therefore deny the UTC Motion to Reconsider and Reopen Evidence insofar as it asks the Court to reopen the evidence with respect to the claims of Mr. Guerrero, Ms. Crawford, and Mr. Durden.
The UTC ask the Court to reconsider the finding that a focused review would have been completed by September 21, 2007 based on testimony from Dr. Pollard and Mr. Heckert admitted during the Phase II trial. The UTC argue that this testimony shows the PDA procedure would have been suspended on July 21, 2007 pending the outcome of the focused review.
The UTC point to no new evidence on this issue as their basis for the Court to reconsider its finding. Instead, the UTC rely on the testimony from Dr. Pollard and Mr. Jim Heckert about what happened
Dr. Pollard and Mr. Heckart testified regarding the need for immediate suspension of the PDA procedure after patients were complaining of complications in 2008. Dr. Pollard recalled stating, "Hey, you guys need to put a hold on this until we figure out what is going on." William Pollard, M.D. Dep. 13:4-5, Jan. 22, 2015 ("Pollard Dep."). Dr. Pollard also determined along with Mr. Heckert, the GCRMC CEO in 2008, that "this has to stop until we get an outside evaluation of what the hell is going on." Pollard Dep. 13:23-25. As CEO, Mr. Heckert immediately suspended the PDA procedure in 2008.
In July 2007, no patients were complaining and the complications from the PDA procedure had not yet surfaced. The Court is not persuaded by evidence of what Dr. Pollard and Mr. Heckert believed and did once complications from the PDA became known to establish what would have occurred in July 2007.
The UTC also argue that because the Hospital's medical staff bylaws allow a non-physician CEO to immediately suspend privileges and because Dr. Masel's assertions against Dr. Schlicht were so serious, an immediate suspension pending the outcome of a focused review would have occurred. The UTC again point to Dr. Pollard's and Mr. Heckert's testimony to establish that it was more likely than not that the Hospital would have put an immediate stop to the PDA procedure pending completion of the focused review. The Court disagrees.
Article VI, Section 6.6.A of the Medical Staff Bylaws of Gerald Champion Regional Medical Center ("Medical Staff Bylaws") effective as of July 2007 provides:
The Court already weighed the evidence presented in Phase II and expressly found that there was insufficient evidence from which the Court would infer that the MEC would have suspended Dr. Schlicht's or Dr. Bryant's privileges to perform the PDA procedure or any other procedure pending the outcome of a focused review. See In re Otero Phase II at *17. The UTC did not call a single member of the MEC to testify about what it would have done had Mr. Richardson requested a focused review. The Court found further that "[t]he CEO could not summarily suspend Dr. Schlicht's privileges pending the outcome of the focused review" because "doing so would require a medical judgment the CEO could not make." Id.
The UTC urge that immediate suspension does not require medical judgment
During Phase II, the Court heard how the then CEO of the hospital, Mr. Richardson, met with senior medical staff at the Hospital other than Dr. Bryant and Dr. Schlicht following his review of Dr. Schlicht's letter to discuss the matter contained in the letter. Mr. Richardson met with Dr. Jones, Chair of the Credentials Committee and Dr. Austin, Vice-President of Medical Affairs. Mr. Richardson spoke with Dr. Bryant, who was the Chief of Staff and performing the PDA procedure alongside Dr. Schlicht. Mr. Richardson also reviewed Dr. Schlicht's privileging and credentials file. Mr. Richardson was convinced that the matters addressed in the letter reflected a business dispute between doctors and did not pose a threat to patients. At that time, there were no patient complaints about the PDA procedure or Dr. Schlicht, and patients undergoing the procedure were generally pleased. Mr. Richardson was a highly experienced, competent hospital CEO. Under the circumstances existing on July 21, 2007 only a qualified physician could make a judgment that Dr. Schlicht's "conduct require[d] that immediate action be taken to protect the life of any patient or to reduce the likelihood of imminent danger to the health or safety of any individual" as required by the Medical Bylaw to summarily suspend the PDA procedure at the Hospital.
In sum, in the UTC Motion to Reconsider and Reopen Evidence, the UTC have presented no new evidence in support of their request that the Court reconsider the September 21, 2007 cutoff date. The Court has already considered the evidence the UTC assert establishes that the PDA procedure would have (or should have) stopped pending the outcome of the focused review. The Court found to the contrary. Evidence of what Dr. Pollard and what Dr. Heckert did after serious complications from the PDA procedure became known fails to establish what a MEC, CEO, or hospital board, or even GCRMC's MEC or board without knowledge of any complications from the PDA procedure, would have done pending the outcome of a focused review.
When the Court has thoroughly analyzed the very points a party requests the Court to revisit, the Court need not engage in revising its earlier decision. Cf. Anderson Living, 308 F.R.D. at 433-434 (observing that a court can refuse to entertain a motion to reconsider, and suggesting that the court "should restrict its review of a motion to reconsider a prior ruling in proportion to how thoroughly the earlier ruling addressed the specific findings or conclusions that the motion to reconsider challenges."). In this motion the UTC ask the Court for a second bite at the apple, which the Court will not allow.
Phase II of this litigation determining causation and comparative fault addressed the timing of the two breaches of duty the Court found following Phase I of the trial. The UTCs' arguments in the UTC Motion to Reconsider and Reopen Evidence are the essentially same arguments the Court previously considered and rejected in determining that the PDA procedure would not have been suspended on July 21, 2007
The Court will now consider the cross-motions for reconsideration based on the new evidence from Dr. Zuniga and other related new evidence. At the evidentiary hearing on the cross-motions, the Court admitted Dr. Robert Zuniga's, Monica Arrowsmith's, and Pamela Kushmaul's testimony.
At the oral argument held June 19, 2017, the UTC stated that Dr. Zuniga, a treating physician for one or more of the UTC members in the damages trials, recently gave deposition testimony that could affect the Court's earlier decisions. Believing that Dr. Zuniga's testimony might be privileged under the Review Organization Immunity Act ("ROIA"), the parties suspended questioning Dr. Zuniga about those matters to give GCRMC the opportunity to assert the ROIA privilege. GCRMC asserted the privilege pending its investigation into the applicability of the privilege.
After further discovery the UTC and QHR filed the Zuniga Evidence Cross-Motions for reconsideration. The newly discovered evidence includes Dr. Zuniga's testimony regarding his review of patient records and his conversations with a female administrator at GCRMC in 2007 concerning Dr. Schlicht and the propriety of the PDA procedure. See Docket No. 720, & Docket No. 743. The newly discovered evidence also includes testimony by Senior Vice President, Quality, Legal and Regulatory Compliance, Monica Arrowsmith and by Pamela Kushmaul, counsel for GCRMC. The Court held an evidentiary hearing on the Zuniga Evidence Cross-Motions on December 6, 2017, admitted the testimony of Dr. Zuniga, Ms. Arrowsmith and Ms. Kushmaul, and took the matter under advisement.
In the UTC Zuniga Evidence Motion, the UTC ask the Court to reconsider the following: (1) the date by which the Schlicht procedures would or should have been stopped; (2) applying joint and several liability instead of comparative fault; and (3) the apportionment of fault attributed to QHR. The QHR Zuniga Evidence Motion asks the Court to apply a subjective standard in determining causation and dismiss the claims against QHR for a lack of causation. In the alternative, QHR asks the Court to reduce its apportionment of fault. As discussed below, the Court will not change its ruling based on the Zuniga Evidence Cross-Motions on the application of joint and several liability, the apportionment of fault, or causation, except with respect to the length of time needed to conduct a focused review.
The UTC ask the Court to find that Dr. Zuniga spoke with Sue Johnson-Phillippe,
Dr. Zuniga was deposed as a treating physician for one of the UTC members in preparation for the Phase III damages trials. See Zuniga Dep. 5:16-8:12, Jun. 8, 2017 ("First Zuniga Dep.").
First Zuniga Dep. 12:7-13:7.
After this Court determined that the ROIA (peer review) privilege did not apply to Dr. Zuniga's testimony, Dr. Zuniga executed an affidavit and was deposed again. See Order Determining that the Review Organization Immunity Act Privilege is Inapplicable at Docket No. 731. The affidavit and second deposition testimony were also admitted in evidence. In his affidavit Dr. Zuniga states "I was contacted by an administrator at Gerald Champion Regional Medical Center in 2007." See Zuniga Affidavit at ¶ 2. Dr. Zuniga testified that this conversation occurred in "2007 because I remember that was just before I moved to my new house. So it was probably mid to late 2007." See Zuniga Dep. 5:24-6:1, Aug. 21, 2017 ("Second Zuniga Dep."). When
See Second Zuniga Dep. 33:9-17.
Likewise Dr. Zuniga was not able to name the female administrator he spoke to.
See Second Zuniga Dep. 6:3-21.
Dr. Zuniga was then asked to describe the conversation he had with the female administrator.
See Second Zuniga Dep. 8:10-9:5. Dr. Zuniga had been sent 12-15 charts to review and was asked to report "whether this was an accepted procedure within the medical community and whether it was being done anywhere else." See Zuniga Affidavit at ¶ 3.
See Second Zuniga Dep. 9:23-10:5. In further questioning Dr. Zuniga outlined,
See Second Zuniga Dep. 53:1-7.
Dr. Zuniga did not submit a formal report to the female administrator based on his chart review.
See Second Zuniga Dep. 14:19-15:15. Dr. Zuniga later clarified,
See Second Zuniga Dep. 27:23-28:13.
Based on this testimony, it is unclear whether Dr. Zuniga spoke with Ms. Johnson-Phillippe or with a female administrator on the Hospital medical staff. Dr. Zuniga could not remember whether he spoke with the Hospital CEO or someone else, and his memory was vague regarding the time in 2007 when the conversations occurred. The conversation occurred nearly ten years before Dr. Zuniga was asked about it in the deposition. Dr. Zuniga did not keep any notes or other records of the conversation, any of the charts he reviewed, or any other records to refresh his recollection about with whom he spoke or when. Further discovery by the parties did not fill in these gaps.
The Court has evidence that the female administrators who then worked o on the Hospital medical staff, namely Monica Arrowsmith, Jodi Duprez, Diana Green Mary Harding, Monica Contreras, Sharon McCoy, Dianna Melendrez, and Ellen Skrak do not recall an informal review of the PDA procedure or sending any records to Dr. Zuniga. See Kushmaul Dep. 11:16-19:6, Nov. 9, 2017 ("First Kushmaul Dep.").
Neither party deposed Ms. Johnson-Phillippe or called her as a witness regarding the event about which Dr. Zuniga's testified. QHR sought to admit into evidence as Exhibit J the Affidavit of Sue Johnson-Phillippe dated November 4, 2017 ("SJP Affidavit").
"In general, an affidavit is not a form of evidence that is admissible at trial[.]" Mitchell v. Zia Park, LLC, 842 F.Supp.2d 1316, 1320 (D.N.M. 2012) (citing Johnson v. Weld Cnty., Colo., 594 F.3d 1202, 1210 (10th Cir. 2010)). The SJP Affidavit is hearsay: it is an out of court statement by Ms. Johnson-Phillippe offered by QHR to prove the truth of Ms. Johnson-Phillippe's statement that she never spoke to Dr. Zuniga and has no knowledge of a request by a "female administrator" for Dr. Zuniga to review some of Dr. Schlicht's operative reports. See SJP Affidavit, ¶ 5. Under the residual exception to the hearsay rule, a hearsay statement may nevertheless be admitted if:
Federal Rule of Evidence 807(a). Even if the requirements set forth in subsection (a) are met,
Federal Rules of Evidence 807(b).
The SJP Affidavit, filed on the last day of the discovery period, fails to meet the requirements of FRE 807(b). Even though the UTC could have taken Ms. Johnson-Phillippe's deposition during discovery on their own behalf, the UTC did not receive
Other avenues to identify the female administrator were fruitless despite diligent efforts by counsel for GCRMC to track down any physical evidence. The Hospital's records from the audit system for copying or printing patient charts were damaged and cannot be accessed to identify who copied the records to send to Dr. Zuniga. See Jason Clay Judah Dep. 9:7-21:14, Nov. 21, 2017. The Hospital does not keep phone records that stretch back to 2007, nor does its vendor AT & T. See Ana Leticia Castro Dep. 6:14-7:9, Nov. 21, 2017; Ex. H at pp. 17-53. The Hospital does not keep shipping records that stretch back to 2007, nor do its vendors Federal Express or United Parcel Services. See John Hudson Dep. 5:5-11:6, Nov. 9, 2017; Paul Edward Martin Dep. 4:20-12:14, Nov. 9, 2017; & Ex. H at pp. 11-12.
The UTC argue the new evidence shows the QHR employed CEO, Sue Johnson-Phillippe was the only individual at the Hospital that had access to the medical records, an incentive to inquire about the procedure, and the means to bury any evidence of Dr. Zuniga's informal chart review. See Docket No. 720. They urge the Court to infer that Dr. Zuniga spoke with Sue Johnson-Phillippe before she was terminated on July 13, 2007 and ask the Court to hold that the PDA procedures should have been stopped by July 13, 2007. The evidence does not support these requested findings.
Because the new evidence fails to establish that Dr. Zuniga ever spoke with Sue Johnson-Phillippe, the Court declines to apply joint and several liability or increase the apportionment of fault to QHR. Likewise, because the new evidence fails to establish that Dr. Zuniga spoke with a female administrator on the Hospital medical staff, the Court will not grant QHR's request to reapportion a greater percentage of fault to the Hospital.
QHR argues that the new evidence from Dr. Zuniga shows the GCRMC MEC would not have acted to suspend the PDA procedure even if the interim CEO, Mr. Richardson, had requested a focused review. QHR reasons that because the PDA procedures were not stopped in 2007 when Dr. Zuniga told a female administrator at the Hospital that the PDA procedure was dangerous and should be stopped, such evidence of what in fact happened is the best evidence of what the MEC would have done had Mr. Richardson asked it to perform a focused review. The Court disagrees. The Court has declined to make a finding that Dr. Zuniga spoke with a female administrator on the Hospital medical staff because the new evidence is too inconclusive to make that inference. The Court further declines to find that the MEC was aware of Dr. Zuniga's conversations with a female administrator.
The testimony of Ms. Arrowsmith and Dr. Zuniga, admitted in evidence at the hearing on the Zuniga Evidence Cross-Motions, provides further support for the Court's findings that had Mr. Richardson made a formal request of the MEC to
Monica Arrowsmith, R.N., M.S.N., J.D. was employed by the Hospital during the relevant time period as the Hospital's Senior Vice President, Quality, Legal and Regulatory Compliance.
Arrowsmith Dep. 17:11-19:8, Nov. 15, 2017.
The Hospital had no specialist in-house with the qualifications to review the PDA procedure, other than Dr. Bryant and Dr. Schlicht who were performing the procedure. The nature of the assertion by Dr. Schlicht's outside proctor, charged with reviewing his performance, that Dr. Schlicht was performing experimental surgery certainly would have prompted the MEC to seek an outside opinion had the CEO of the Hospital made a formal written request of the MEC to conduct a focused review.
Robert Zuniga, M.D. specializes in anesthesiology and pain management. In 2007 he was an assistant professor and served as the Director of Pain Management Services at the University of New Mexico Hospital. See Ex. 358 at ¶ 2. In this capacity he was responsible for training the anesthesiology residents and the pain management fellows. See Second Zuniga Dep. 7:4-10. In his role, he received calls from attorneys, administrators, and companies regarding pain management. Second Zuniga Dep. 46:19-47:1. When Dr. Zuniga reviewed the PDA procedure taking place at GCRMC, Dr. Zuniga concluded after reviewing only a few of the 12 to 15 patient charts he was given that the procedure was dangerous and should be stopped immediately.
QHR argues in its cross-motion that the Court should have applied a subjective standard to evaluate whether the GCRMC MEC would have conducted a focused review upon the request of the CEO, and if it had done so, to determine whether the MEC would have stopped the PDA procedure. QHR argues that the best evidence of what the MEC would have done is what it actually did after Dr. Zuniga completed his review, which was to allow the PDA procedure to continue.
Regardless of whether the Court were to apply an objective or subjective standard, the Court's decision on this issue would be the same. The fact that GCRMC MEC did not act following the completion of Dr. Zuniga's review does not show what the MEC would have done had it been aware of Dr. Zuniga's conclusions. The Court has found the evidence too inconclusive to determine whether Dr. Zuniga reported his conclusions to Sue Johnson-Phillippe or to a female administrator on the Hospital medical staff. The evidence does not show that the MEC was aware of Dr. Zuniga's conclusions.
In addition, based on the testimony at trial and the additional testimony from Monica Arrowsmith and Dr. Zuniga described above, the Court finds (a) that the GCRMC MEC, as well as any medical executive committee acting responsibly, would have conducted a focused review had the CEO of the Hospital made a formal written request that it conduct the review based on the information contained in Dr. Schlicht's response to the Masel Letter;
Based on the new evidence from Dr. Zuniga and Ms. Arrowsmith, the Court will revise its previous ruling that the PDA procedure would have stopped by September 21, 2007 had Mr. Richardson requested the MEC to conduct a focused review and
In the Phase II trial, Mr. Michael Peterson testified that a medical executive committee's focused review process, where outside expertise is required, can be done in a matter of days, or it can take months particularly if more than one outside reviewer is engaged and literature searches are needed. Mr. Peterson's best estimate of how long it would have taken the GCRMC MEC to conduct a focused review of the PDA procedure was two months. The Court previously found that if the MEC had conducted a focused review of the PDA procedure at Mr. Richardson's request it would have taken 60 days.
Based on Dr. Zuniga's and Monica' Arrowsmith's testimony summarized above, the Court now finds that an outside reviewer engaged by the MEC would have come to the same conclusions as Dr. Zuniga after reviewing only a few patient charts and without conducting a literature search and would have promptly communicated those conclusions to the MEC. The Court also finds that upon receiving the report from the outside reviewer that the PDA procedure was dangerous and should be stopped immediately, the GCRMC MEC would have immediately put a stop to the PDA procedure pending the outcome of a further investigation. The Court finds that the MEC would have suspended the PDA no later than two weeks (fourteen days) after the request was made of the MEC to conduct a focused review: i.e. by August 4, 2007. The Court is making what it regards as a conservative estimate in the absence of more specific evidence on the timing.
During discovery relating to the new evidence from Dr. Zuniga, the parties deposed counsel for GCRMC, Pamela Kushmaul. See First Kushmaul Dep. After her deposition and upon reviewing the e-mails her firm produced, the UTC filed the UTC Defense Counsel Misconduct Motion. The Court held an evidentiary hearing on the motion on January 5, 2018 and took the matter under advisement.
The UTC assert that defense counsel engaged in serious misconduct in this litigation that tainted the evidence presented to the Court. The UTC argue that the misconduct and tainted evidence warrants the imposition of joint and several liability on QHR because the UTC was and is prejudiced in proving joint and several liability.
More specifically, the UTC allege that counsel for QHR and GCRMC secretly colluded in: (a) foisting fault onto the Hospital (who had settled) by allowing QHR to point the finger at the Hospital medical staff; (b) conducting a coordinated collective trial strategy and undisclosed joint defense strategy; (c) manipulating witnesses; (d) acting together to fail to produce documents and evidence to the UTC while sharing that information between themselves; (e) acting together to give QHR greater access to witnesses than to the UTC; and (f) engaging in other misconduct. See Supplemental Motion to Amend and/or for Reconsideration, Docket No. 783 at pp. 2-3 and UTC's corrected Brief in support of the Misconduct Motion, filed December 1, 2017 and December 4, 2017, Docket No. 784 (hereinafter the "Brief in Support."). The UTC assert further that as part of a cover up counsel for QHR knowingly kept silent while counsel for the Hospital lied in a deposition on November 9, 2017 about the meetings she had with Mr. Klecan and the number of number of e-mails she exchanged with counsel for QHR. The UTC allege that QHR's collusion with GCRMC was willful
QHR counters that: (1) all communications between counsel for GCRMC and counsel for QHR were ethically sound; (2) QHR's litigation strategy to limit its liability by blaming the Hospital was apparent from the start of litigation; (3) the UTC had the same access to witnesses but did not take advantage of informal discovery opportunities; (4) all but two documents in question were produced by GCRMC to UTC and the documents the UTC did not receive were cumulative; (5) and to QHR's counsel's knowledge, Ms. Kushmaul testified truthfully at the deposition about the number of e-mails.
The UTC Defense Counsel Misconduct Motion is analytically distinct from the other motions to reconsider. The UTC complain of unfair litigation tactics and unethical conduct by defense counsel. The UTC ask the Court to consider new evidence relating to this alleged attorney misconduct and apply joint and several liability on the ground that because of the misconduct the UTC was unable to fully and fairly present their case and the evidence was tainted. The relief the UTC seek is akin to a motion seeking relief from a judgment under Rule 60(b)(3). Therefore, the Court will look to Rule 60(b)(3) to decide the motion.
Rule 60(b)(3) states:
Rule 60(b)(3) offers a party the opportunity to challenge "judgments which were unfairly obtained, not ... those which are factually incorrect." Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1290 (10th Cir. 2005). In the Tenth Circuit, the party asserting misconduct under Rule 60(b)(3) first "must show clear and convincing proof of fraud, misrepresentation, or misconduct. [Second], the challenged behavior must substantially have interfered with the aggrieved party's ability fully and fairly to prepare for and proceed at trial." Zurich, 426 F.3d at 1290 (internal quotations and citations omitted). As such, the party must show "evidence of intent or a deliberate plan or scheme to interfere with" its case. Id. at 1292. Although "a failure to disclose requested information during discovery may constitute misconduct under Rule 60(b)(3) ... this usually requires the violation of a specific discovery request or order." Id.
The Court will look to Rule 60(b)(3) for guidance and will apply the Tenth Circuit's two-part test. The Court will examine first, whether the UTC has shown that QHR engaged in misconduct; and second, if misconduct is proven, whether the UTC has shown that the misconduct interfered with the UTC's ability to fully and fairly present their case at trial.
For reasons discussed below the Court finds the UTC failed to meet its burden to show that counsel for QHR engaged in the misconduct the UTC allege. As the UTC did not prove misconduct, the Court will deny the UTC Defense Counsel Misconduct Motion without reaching the question of whether any actions by counsel for QHR interfered with the UTCs' ability to fully and fairly present their case.
The UTC's principal arguments in support of their Defense Counsel Misconduct Motion consist of: (a) QHR allegedly aiding and abetting false deposition testimony from Pamela Kushmaul; (b) GCRMC allegedly giving QHR greater access to fact witnesses; (c) QHR and GCRMC allegedly attempting to get Dr. Austin to falsify his testimony; (d) QHR and UTC allegedly conspiring to conceal important documentary evidence from the UTC; and (e) QHR and UTC allegedly colluding through an improper joint defense strategy after the Hospital had settled with the UTC. The Court will address each of these arguments.
After Dr. Zuniga testified on June 8, 2017 that he spoke with a female administrator at the Hospital sometime in 2007, Ms. Kushmaul, as counsel for GCRMC, worked extensively to determine whether the ROIA privilege applied and then to respond to discovery requests. She was subsequently deposed about to her efforts to investigate the applicability of the ROIA privilege to Dr. Zuniga's testimony. See First Kushmaul Dep.
The UTC contend that at the deposition Ms. Kushmaul intentionally — for the purpose of concealing the collusion between QHR and GCRMC — gave false testimony. The UTC contend Ms. Kushmaul lied when she testified: (1) that there were less than ten e-mails between counsel for QHR and counsel for the UTC, although, in fact, there were at least 547 e-mails; and (2) that she had no meetings with Mr. Klecan (counsel for QHR), whereas, in fact, there were many. The UTC contend further that Mr. Klecan's knowing failure to correct the false testimony is further evidence of the QHR and GCRMC's collusion. In their Brief in Support, the UTC characterize the import of this deposition testimony and Mr. Klecan's silence as follows:
See Docket No. 786 at pp. 4-5.
During the deposition at issue, Ms. Kushmaul was asked about whether she conducted an investigation into whether Dr. Zuniga's communications with Hospital personnel were protected by the ROIA privilege:
See First Kushmaul Dep. 9:8-12.
Ms. Kushmaul then testifies at length about that investigation. The investigation included (a) a review of the Hospital's records and systems to ascertain who pulled the patient charts sent to Dr. Zuniga; and (b) an effort to ascertain the identity of the female administrators working at GCRMC at the time and whether any of them sent patient charts to Dr. Zuniga or spoke with him about Dr. Schlicht or the PDA procedures. See First Kushmaul Dep. 9:12-30:15.
See First Kushmaul Dep. 39:2-40:6. Ms. Kushmaul was also asked about her e-mail communications with counsel for QHR.
See First Kushmaul Dep. 44:20-44:11. After this deposition, John D. Wheeler & Associates, P.C. produced at least 547 e-mails covering the entire span of this litigation. See Exhibit 337.
Reading Ms. Kushmaul's deposition testimony about meetings she had with Mr. Klecan and the number of e-mails she exchanged with anyone representing QHR, in context, it is obvious that Ms. Kushmaul and Mr. Klecan understood that Ms. Kushmaul was being asked about meetings and e-mails that relate to the investigation she conducted after Dr. Zuniga's first deposition taken June 8, 2017 and possibly also in preparation for her deposition.
Both lines of questioning of Ms. Kushmaul occurred following her lengthy testimony about the Hospital's investigation. Ms. Kushmaul's answer to the question posed to her about the number of meetings she had with Mr. Klecan was asked right after a question posed to her about the number of hours she spent with John Wheeler
The Court finds Ms. Kushmaul's deposition testimony, and Mr. Klecan not correcting that testimony, does not show any attorney misconduct.
The UTC complain that the e-mails show QHR was given greater access to fact witnesses for informal interviews and preparation for trial. See Docket No. 784. The bulk of the e-mails in evidence relate to scheduling informal interviews, depositions, or trial preparation for fact witnesses who are associated with the Hospital. The evidence suggests that counsel for GCRMC made the fact witnesses available to the UTC as well as to QHR. The following e-mail exchange between Mr. Klecan and Ms. Kushmaul addresses the UTC's and QHR's access to Hospital employed witnesses to conduct informal interviews:
Ex. 337 at p. 611. Neither party presented testimony from the Hospital's counsel, John Wheeler. There is no evidence that QHR directed or encouraged counsel for the Hospital to limit the UTC's informal discovery or impede its access to fact witnesses. There is also no evidence that the UTC ever took advantage of the Hospital's offer to make MEC members available for one interview each.
The Court finds the evidence relating to access to witnesses does not show any attorney misconduct.
The UTC strenuously argues that QHR's entreaty to Ms. Kushmaul to refresh Dr. Austin's recollection regarding his testimony about the Masel Letter is evidence of attorney misconduct. See Exhibit 337 at pp. 673-684. The UTC contend that "refresh" was code for "manipulate." QHR asserts that it is not misconduct for it to go through GCRMC's counsel when trying to refresh a Hospital employed witness's recollection and that refreshing the recollection of a fact witness in preparation for trial is specifically contemplated in the Rules of Professional Responsibility. Because the Court does not find that counsel for QHR or counsel for GCRMC did anything to assist or encourage Dr. Austin to testify falsely, the Court finds and concludes that the evidence relating to refreshing
The Third Restatement of the Law Governing Lawyers § 116 states:
Restatement (Third) of the Law Governing Lawyers § 116 (2000).
The e-mails relating to refreshing Dr. Austin's recollection were sent because Dr. Austin had testified at the Phase I trial that he did not recall learning that Dr. Schlicht was performing experimental surgery, and QHR was hoping to refresh his recollection to the contrary. See In re Otero Phase I, at 750 ("Dr. Austin was aware that Dr. Masel had raised some concerns about Dr. Schlicht's medical judgment, but he was not aware that Dr. Masel had accused Dr. Schlicht of performing experimental surgery. No one at the hospital ever told Dr. Austin that Dr. Schlicht was performing experimental surgery."). QHR's counsel sought to refresh Dr. Austin's recollection by asking GCRMC's counsel to show him a credentialing file unavailable to QHR because of a ROIA privilege, making Dr. Austin aware of certain trial testimony, and finding out what Dianna Melenedrez recalled and perhaps asking her to talk to Dr. Austin. See Ex. 337 at pp. 673-684.
An attorney refreshing a witness's recollection in an effort to have a witness recall events more favorably to the attorney's client is not misconduct so long as counsel does not assist the witness to testify falsely as to a material fact. See Restatement (Third) of the Law Governing Lawyers § 116 (2000). The evidence does not establish that counsel for QHR or counsel for GCRMC by attempting to refresh Dr. Austin's recollection were attempting to assist or encourage him to testify falsely. Nor did QHR's counsel do anything wrong by asking Ms. Kushmaul, the Hospital's lawyer, to refresh the recollection of a Hospital employee rather than doing so himself in an informal interview or deposition. The efforts by counsel for QHR and counsel for GCRMC to attempt to refresh Dr. Austin's recollection did not constitute attorney misconduct
In regards to the documents produced, the UTC allege and argue at length in their Brief in Support that because of misconduct by QHR's counsel the UTC did not receive twenty-six important documents that GCRMC secretly provided to QHR, and that the concealment of the documents is further evidence of collusion between QHR and GCRMC. See Docket No. 786 at pp. 9-14. In its Response, QHR attaches e-mails showing that QHR sent
QHR has represented in open court that it did not receive four of the other seven documents and that another of the documents, contained in a locked file, had nothing to do with matters at issue in the Adversary Proceedings.
That leaves two of the twenty six documents not yet accounted for. The UTC did not receive the GCRMC Pain Management 3-year Plan from 2006 or the GCRMC Pain Management 3-year Plan REVISED from 2006 (together, the "Three Year Plans"). See Docket No. 784; and Exhibit No. 337 at pp. 270-273(referencing those documents). Although, a failure to provide documents in response to discovery requests can constitute misconduct under Rule 60(b)(3), Courts are reluctant to apply Rule 60(b)(3) when there is no specific discovery request or order compelling production of the document. See Zurich, 426 F.3d at 1290. The UTC had served GCRMC (but not QHR) with a request for production that was broad enough to cover the Three Year Plans. GCRMC produced the final version of the Three Year Plans, entitled "Pain Management Physician Economic Model 3 Year Plan" to the UTC but did not produce the underlying documents used in its creation. See Ex. 359. QHR did not send the Three Year Plans to the UTC.
There is no evidence that counsel for QHR encouraged the Hospital to withhold the documents or was aware that the UTC had not received the documents from GCRMC. Given the thousands of pages of exhibits before the Court, it is conceivable that GCRMC inadvertently failed to produce the Three Year Plans to the UTC. Certainly, QHR's failure to send these underlying documents to the UTC does not rise to the level of a deliberate plan or scheme to withhold evidence in this case, and the Court does not believe it was the result of attorney misconduct.
The UTC urge that QHR's misconduct also lay in a collusive effort between QHR and GCRMC to cast blame on the Hospital by manipulating witness testimony, concealing important documents from the UTC, and giving the QHR better access to interview Hospital employed witnesses informally. The Court does not believe QHR committed misconduct by advancing its litigation strategy to attribute liability to the Hospital or in connection with the cooperation GCRMC gave to QHR in QHR's preparation of its defense. As previously discussed, the Court has found no improper witness manipulation, concealment of documents, or unequal access to witnesses.
In a case in which a court is applying the doctrine of comparative fault, defendants tend to cast blame on others, particularly other defendants who have settled. QHR's litigation strategy to place liability and blame on the Hospital and Drs. Bryant and Schlicht has been apparent since the beginning of this litigation.
Overall, the UTC failed to meet its burden of showing that counsel for QHR engaged in any misconduct during the litigation. As the UTC did not prove misconduct, the Court will not reach the question of whether QHR's actions interfered with the UTC's ability to fully and fairly present their case.
The Court grants in part and denies in part the UTC Motion to Reconsider and Reopen Evidence. The Court will allow the UTC to reopen the evidence to offer one document that shows Mr. Sullivan had a PDA procedure and now finds that Mr. Sullivan underwent a PDA procedure. The Court will not allow the UTC to reopen the evidence in regards to the other plaintiffs whose claims are at issue in that motion. The Court will not revise its ruling to hold that the interim CEO should have summarily suspended the PDA procedure on July 21, 2007. The Court will enter a separate order consistent with this ruling.
The Court grants in part and denies in part the UTC Zuniga Evidence Motion. The Court reopens the evidence to admit the testimony of Dr. Zuniga, Monica Arrowsmith, and Pamela Kushmaul, and the other evidence admitted in evidence at the hearing. The Court does not admit the affidavit of Sue Johnson-Phillippe offered in evidence at the hearing. Based on Dr. Zuniga's testimony, the Court will revise the September 21, 2007 date by which the GCRMC would have stopped PDA procedure at the Hospital had Mr. Richardson asked the MEC to conduct a focused review of Dr. Schlicht performing the PDA procedure. The Court now holds the PDA
With respect to the QHR Zuniga Evidence Motion, the Court has admitted the new testimony from Dr. Zuniga, Monica Arrowsmith, and Pamela Kushmaul, and the other evidence admitted in evidence at the hearing. The Court does not admit the affidavit of Sue Johnson-Phillippe offered in evidence at the hearing. The Court has supplemented its findings and conclusions regarding what the GCRMC MEC would have done had Mr. Richardson requested a focused review. The Court will not otherwise revise its finding of causation and the Court will not revise its apportionment of fault to QHR. The Court will enter a separate order consistent with this ruling.
The Court denies the UTC Defense Counsel Misconduct Motion and will not revise its ruling regarding the applicability of the doctrine of comparative fault based on that motion. The Court will enter a separate order consistent with this ruling.
Gulf Ins. Co. v. Cottone, 2006-NMCA-150, ¶ 23, 140 N.M. 728, 735, 148 P.3d 814, 821.
Exhibit 179, p. 82.
Second Zuniga Dep. 53:1-7.
