Cause No CI PLAINTIFFS' MOTION FOR SANCTIONS. ROBERT DINSMORE and JESSICA DINSMORE, Individually and as Next Friends of

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1 IIII m:rzmlllll 2008CIl3591 -P00:...::..15=6_~/ Cause No CI ROBERT DINSMORE and JESSICA DINSMORE, Individually and as Next Friends of CHELSEA DINSMORE, a Minor VS. SAMIR VINODKUMAR JOSHI, M.D., EMERGENCY PEDIATRIC PHYSICIAN MANAGEMENT, L.L.C., THOMAS JOHN GOWAN, JR., M.D., TEXAS INPATIENT PEDIATRICS, P.A., and THOMAS JOHN GOWAN, JR., M.D. MEDICAL ASSOCIATION, P.A. IN THE DISTRICT COURT 37TH JUDICIAL DISTRICT BEXAR COUNTY, TEXAS PLAINTIFFS' MOTION FOR SANCTIONS TO THE HONORABLE JUDGE OF SAID COURT: ROBERT DINSMORE and JESSICA DINSMORE, Individually and as Next Friends of CHELSEA DINSMORE, a Minor, Plaintiffs, file this Motion for Sanctions Against Attorney Celeste Lira and Defendants Thomas Gowan, Jr., Thomas Gowan, Jr., M.D., Medical Association, P.A. and Texas Inpatient Pediatrics, P.A. I. INTRODUCTION On the evening of August 22, 2006, Plaintiff Chelsea Dinsmore, a fourteen-year-old soccer player, went to North Central Baptist Hospital Emergency Room because of excruciating pain in both lower legs. Ice was applied to both legs, and then later, heat was applied. Her x-rays were nonnal. She was given morphine for pain and ultimately discharged early the next morning, with instructions to take 400 milligrams of Motrin every fouf to six hours as needed fof pain. Than night, Chelsea returned to the North Central Baptist Hospital Emergency Room complaining, again, of

2 extreme pain in her lower legs. She remained in the Emergency Room, receiving pain medication, until an MRI, ordered the next morning, revealed the presence of Compartment Syndrome.' Shortly thereafter, Chelsea underwent bilateral compartment release surgery, and two days later, Chelsea underwent a second surgery to excise necrotic muscle in the bilateral anterior compartments of her legs. Since then, Chelsea has undergone multiple surgeries and, due to the loss of significant muscle tissue, suffered permanent physical impairment. Before the improper conduct discussed below, Plaintiffs had retained and expended resources developing the expert testimony of Dr. Richard Schram, an expert in orthopedic surgery. II. IMPROPER CONDUCT BY DEFENDANT'S COUNSEL On August 18, 2009, defense counsel arrived at approximately 2: 15p.m. to take the deposition of Dr. Schram. Unbeknownst to Plaintiffs' counsel, Defendant Thomas John Gowan, Jr., M.D. and all of the other Defendants are insured for medical malpractice by the same insurance company insuring Dr. Schram, Texas Medical Liability Trust ("TMLT"). Thus, the counsel representing Dr. Gowan and all other Defendants at the deposition were hired and compensated by TMLT. On the day of the deposition, all counsel and Dr. Schram were present in the conference room preparing to begin the deposition. Plaintiffs' counsel, R. Andrew Rodriguez, stepped out of the room to get a glass of water and use the restroom. When Rodriguez returned, Dr. Schram and Celeste Lira, counsel for Dr. Gowan,2 were missing from the room. Upon inquiry, Rodriguez learned that, while he was gone, Lira asked Dr. Schram to step outside to speak in private. After learning this, 1 Compartment Syndrome is a limb-threatening and life-threatening condition observed when perfusion pressure falls below tissue pressure in a closed anatomic space. The current :body of medical literature unequivocally reflects that untreated Compartment Syndrome leads to tissue necrosis, permjment functional impainnent, and, if severe, renal failure and death. 2 Lira also appeared that day on behalf of Defendants Medical Association, P.A. and Texas Inpatient Pediatrics, P.A. 2

3 Rodriguez left the deposition conference room to look for Dr. Schram. Rodriguez heard a conversation occurring behind the closed door of another room. Rodriguez then knocked and entered to discover Lira and Dr. Schram engaged in conversation. This conversation took place without the consent of Plaintiffs' counsel. When Rodriguez asked what Lira was speaking to his witness about, Lira would only say that her conversation with Dr. Schram "had nothing to do with the case." Rodriguez, followed by Lira and Dr. Schram, then left the room to begin the deposition. During the closed door conversation with Dr. Schram, Lira told Dr. Schram she and TMLT were surprised to learn he, who is also a TML T insured, agreed to serve as an expert for Plaintiffs in a case against a TML T insured, and that his doing so could have adverse consequences. A few days after the deposition and the surreptitious conversation between Dr. Schram and Lira, Dr. Schram informed Plaintiffs' counsel it was unlikely he would continue to serve as an expert. in the case. Plaintiffs' counsel attempted to reach Dr. Schram after this notification on numerous occasions to no avail. On September 9, 2009, Dr. Schram informed Rodriguez he was unavailable to testify at trial and could no longer serve as a testifying expert in Chelsea's case. Plaintiffs' are now faced with proceeding to trial without an orthopedic surgeon expert. III. THIS COURT'S STATUTORY AND INHERENT AUTHORITY TO SANCTION Several statutes and Rules of Civil Procedure authorize this Court to impose sanctions. See, e.g., TEx. R. CIV. P. 13,215; TEX. CIY. PRAC. & REM. CODE ANN. to.oo1. In the absence of an applicable rule or statute, a trial court also possesses the inherent power to sanction a party for bad faith abuse of the judicial process. In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997) (orig. proceeding); Howell v. Tex. Workers' Compo Com'n, 143 S.W.3d.416, (Tex. App. - Austin 2004, pet. denied); see also Arndt v. Farris, 633 S.W.2d 497, (Tex. 1982) (sanctions for bad faith abuse of judicial process); Eichelberger v. Eiche/berg~r, 582 S. W.2d 395, 398 (Tex. 1979) (inherent 3

4 power sanction "to aid in the exercise of [a court's] jurisdiction, in the administration of justice, and in the preservation of its independence and integrity"). The power to sanction is one uniquely within the sound discretion of the trial court, which has an opportunity to examine the complained-of conduct and its effect on the fairness of the proceedings and the integrity of the court. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). Sanctions are used to assure compliance with discovery and deter those who might be tempted to abuse discovery in the absence of a deterrent. Cire, 134 S.W.3d at 838. The Texas Supreme Court has consistently recognized deterrence and punishment are among the legitimate purposes of discovery sanctions. Chrysler Corp. v. Blackmon, 841 S. W.2d 844,849 (Tex. 1992). As noted by Chief Justice Catherine Stone of the Fourth Court of Appeals: Each year more than one million lawsuits are filed in Texas. Unfortunately, accompanying this large number oflawsuits is uncivil behavior by attorneys and judges alike. Our legal system depends upon the integrity of individual members of the barto follow the rules and codes of the legal profession.... Of those judges imposing sanctions, more than 75% indicated tblat the sanction imposed had a positive effect on curbing the attorney's negative behavior. Catherine M. Stone, et ai., Civility in the Legal Profes.'lion: A Survey of the Judiciary, 36 ST. MARY' S L. J. 115, 116, 129 (2004). IV. ATTORNEY LIRA'S CONPUCTVIOLATES THE TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT The Texas Disciplinary Rules of Professional Conduct govern the conduct of all members of the Bar. Two rules are implicated by Attorney Lira's conduct: Rule 4.02 and Rule First, Rule 4.02(b) outlines the parameters of whom an opposing attorney can contact or communicate with absent prior authorization by the opposing party or counsel: 4

5 In representing a client a lawyer shall not communicate or cause another to communicate about the subject of representation with a person or organization a lawyer knows to be employed or retained for the purpose of conferring with or advising another lawyer about the subject of the representation, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. TEX. DISCIPLINARY R. PROF. CONDUCT 4.02 (b). Comment 3 of Rule 4.02 expressly addresses the forbidden communication with opposing experts: Id. cmt. 3. Paragraph (b) of this Rule provides that unless authorized by law, experts employed or retained by a lawyer for a particular matter should not be contacted by opposing counsel regarding that matter without the consent of the lawyer who retained them. However, certain governmental agents or employees such as police may be contacted due to their obligations to the public at large. When comparing Texas's Rule 4.02 with the Model Rule's recommended by the American Bar Association, it is clear that Texas intended to hold its attorneys to a higher standard: Currently the [Model Rule's] no-contact rule only applies to communication with a represented person or with specified constituents of a represented organization. The no-contact rule is silent about communication with agents, employees, or other persons associated with the lawyer who is representing the person or organization... Texas is the only state to address this issue in its nocontact rule. Texas has added a paragraph that provides that "in representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a person or organization a lawyer knows to be employed or retained for the purpose of conferring with or advising another lawyer about the subject of the representation, unless the lawyer has the consent ofthe other lawyer or is authorized by law 10 do so." The Comment then amplifies the prohibition by stating that "experts employed orretained by a lawyer for a particular matter should not be contacted by opposing counsel regarding that matter without the consent of the lawyer who retained them." Carl A. Pierce, Variations on a Basic Theme: Revisiting the ABA's Revision of Model Rule 4.2 (Part III), 70 TENN. L. REv. 643, (2003). The legal scholar quoted above championed 5

6 Texas's inclusion of a more broad no-contact rule, stating: I think this is appropriate because the purpose of the no-contact rule is to protect the client-lawyer relation~hip, not just to prevent the uncounselled disclosure of privileg~d infonnation. Given this purpose, the Rule should apply to communication with any person whose involvement in the client-lawyer relationship - either as a member of the client's team or the lawy.er's team - is such that there is a substantial likelihood that the person could materially and adversely affect the client-lawyer relationship if the person succumbed to improper overtures by an opposing counsel. [d. at 696 (highlighting Texas's inclusion of experts within the no-contact rule and recommending an even broader rule to ensure inclusion oflegal assistants and other agents of the attorneys hired by the parties). Two recent companion cases have addressed the conduct prohibited by Texas's Rule Aguilar v. Trujul/o, 162 S.W.3d 839, (Tex. App. - EI Paso 2005, pet. denied) (holding that Rule 215 discovery sanctions were appropriate for opposing counsel's improper contact with opponent's consulting expert in violation of Rule 4.02); Aguilar v. Morales, 162 S. W.3d 825, (Tex. App. - EI Paso 2005, pet. denied) (same). In Aguilar v. Morales, the appellate court upheld sanctions, including the striking of expert testimony: based on evidence that an attorney violated Rule 4.02(b) by contacting the opponent's expert witness during a dispute involving groundwater contamination without the consent of the opposing party's attorney. Morales, 162 S.W.3d at 831. The evidence revealed the lawyer knew the expert had been retained only as a consulting expert by the opposing party and that the lawyer's client later hired the consulting expert as a testifying expert later in the trial.ld. The trial court imposed the sanction against the party by striking the testimony of the "poached" expert, and the appellate court affinned this sanctions ruling.ld. at ; see also Trujillo, 162 S.W.3d

7 Second, Rule 3.04(a) provides: A lawyer shall not unlawfully obstruct another party's access to evidence; in anticipation of a dispute unlawfully alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counselor assist another person to do any such act. TEX. DISCIPLINARYR. PROF. CONDUCT3.04(a). Rule 3.04(d) provides: A lawyer shall not knowingly disobey, or advise the client to disobey, an obligation under the standing rules of or a ruling by a tribunal except for an open refusal based either on an assertion that no valid obligation exists or on the client's willingness to accept any sanctions arising from such disobedience. 3 In this case, when Attorney Lira called Dr. Schram out of the conference room before his deposition, Dr. Schram was Plaintiffs' retained expert. There was no question that Dr. Schram was in the employment of Plaintiffs at this time - all persons were present to take his expert deposition testimony. Attorney Lira neither sought nor received consent from Plaintiffs' counsel to make contact with Dr. Schram, much less to discuss with Dr. Schram any aspect of the case or Dr. Schram's commonalities, if any, with Dr. Gowan and the other Defendants. See id Rule 4.02(b). Shortly after this improper contact, Dr. Schram all bul withdrew from the case as an expert witness, despite the resources expended by Plaintiffs to develop and procure his expert testimony. See id Rule Id. Rule 3.04(d). Rule 3.04(e) also prohibits an attorney from requesting someone other than the client refrain from voluntarily giving relevant infonnation to another party abseot special circumstances. Id. Rule 3.04(e). It is also noteworthy to mention that, in Texas, it is a state jail felony to offer, confer, or agree to confer any benefit or to coerce a witness or prospective witness in an official proceeding to 0) to testify falsely; (2) to withhold any testimony, infonnation, document, or thing; (3) to elude legal process sumlnoning him to testify or supply evidence; (4) to absent himself from an official proceeding to which he has been legally summoned; or (5) to abstain from, discontinue, ordelay the prosecution of another. TEX. PEN. CODE ANN (a). 7

8 V. SANCTIONS SOUGHT BY PLAINTIFFS The Texas Rules of Civil Procedure provide that discovery abuse, including a violations of the Rules of Disciplinary Conduct, subjects the violator to the following sanctions: (1) disallowing any further discovery of any kind; (2) charging all or 11 portion of the expenses of discovery against the disobedient party; (3) designating disputed facts as established; (4) refusing to allow the disobedient party to support or oppose designated dlaims or defenses or prohibiting designated evidence from being introduced into evidence; (5) striking pleadings or parts thereof, dismissing the action with or without prejudice, or rendering judgment by default; (6) entering a contempt order; (7) requiring the disobedient party to pay reasonable expenses, including attorney fees, caused by the failure; (8) and any other sanction a court determines is just. TEX. R. CIv, p, (CITING TEX. R. CIv. P (b»; Aguilar, 162 S.W.3d at Attorney Lira's contact with Dr. Schram without the consent of Plaintiffs' counsel is a violation of Rule 4.02(b). See TEX. DISCIPLlNARyR. PROF. CONDUCT 4.02 (b), comment 3; Aguilar, 162 S.W.3d at Upon an evidentiary hearing, it may also be discovered that Attorney Lira's conduct violated Rule 3,04, Plaintiffs ask this Court to impose sanctions against Attorney Lira to "(1) secure compliance with the discovery rules; (2) to deter other litigants from similar misconduct; and (3) to punish violators," Paradigm Oil, Inc. v. Retamco Operating, Inc., 161 S. W.3d 531,536 (Tex. App. - San Antonio 2004, pet. denied). Additionally, at this point, it is undetermined whether Attorney Lira's improper contact with Dr. Schram was the product of independent attorney misconduct or a joint effort between attorney and client. Thus, Plaintiffs request an evidentiary hearing to discover these and other facts relevant to the improper conduct discussed above. See Aguilar, 162S.W.3dat ; Paradigm Oil, 161 S.W.3dat 537;Robertsv. Rose, 37S.W.3d31, 8

9 33-34 (Tex. App. - San Antonio 2000, pet. denied). Sanctions should be imposed to punish and deter the improper conduct, as well as to compensate Plaintiffs for the damages resulting from said improper conduct. In Kugle v. DaimlerChrysler Corp., 88 S.W.3d 355, (Tex. App. - San Antonio 2002, pet. denied), the Fourth Court of Appeals, sitting en bane, upheld a sanctions award 0($865,000 for discovery abuse. The trial court found the plaintiff's counsel knew, based on an investigative report, the product liability theory of recovery was frivolous. ld. Yet, tbe plaintiff's attorney failed to turn over the investigative report to the defendant, causing the defendants to incur substantial attorney's fees and expenses to defend against the product liability claim. ld On review, the Fourth Court held the award of attorney's fees was directly tied to the wrongful conduct and not excessive.ld; see Onstadt v. Wright, 54 S.W.3d 799, (Tex. App. - Texarkana 2001, pet. denied) (upholding sanction of $32, for attorney's fees incurred when plaintiff s counsel's elicitation of testimony in violation of limine motion caused mistrial, causing defendant to incur attorney's fees to retry case). In this case, Plaintiffs seek monetary sanctions to deter such improper conduct and compensate Plaintiffs for the attorney's fees and expenses incurred,4 as well as' other sanctions warranted by the evidence. In this case, Plaintiffs have incurred over $6, in expenses procuring and developing the expert testimony of Dr. Schram. Additionally, Plaintiffs have incurred attorney's fees in the procurement and development of such expert testimony. Plaintiffs have also incurred attorney's fees for preparing and presenting this Motion to the Court and expect to incur additional attorney's fees to attend a hearing on this Motion. Based on the information available to Plaintiffs at this time, 4 TEX. CIV. PRAC. & REM. CODE ANN ; In the Matter of the Estate ofkidd. 812 S.W.2d 356, 359 (Tex. App. Amarillo 1991, writ denied) ("Because the trial court's imposition of sanctions was presumptively based on judicial notice of reasonable attorney's fees, the sanctions were supported by sufficient evidence and no abuse of discretion has been shown"); see also Laredo Indep. Sch. Dist. v. Trevino. 25 S. W.3d 263,266 (Tex. App. - San Antonio 2000, pet. denied) (holding "a trial court may take judicial notice of the usual and customary attorney's fees, as well as the contents of the case file, and, in the absence of evidence supporting its award, is presumed to have done so"). 9

10 Plaintiffs request monetary sanctions against Attorne:y Lira. Plaintiffs also request that this Court award them reasonable attorney's fees if Attorney Lira unsuccessfully appeals this Court's sanctions award. Plaintiffs further request that Defendants not be allowed to utilize Dr. Schram's deposition testimony in the case, that Plaintiffs be allowed to designate another orthopedic surgery expert, and for any further sanction the courts determines is appropriate under Rule 215 and as warranted by the evidence. Plaintiffs also request this Court sanction Defendants Thomas Gowan, Jr., Thomas Gowan, Jr., M.D., Medical Association, P.A. and Texas Inpatient Pediatrics, P.A. by imposing a monetary sanction, refusing to allow the Defendants to utilize Dr. Schram's deposition testimony in the case, allowing Plaintiffs to designate another orthopedic surgery expert, refusing to allow Defendants to oppose the opinions of Plaintiffs orthopedic surgery expert, and for any further sanction the courts determines is appropriate. See TEX. R. CIY. P (CITING TEX. R. CIY. P (b)). Plaintiffs also seek against Defendants any other sanction afforded by Rule 215 and warranted by the evidence. VI. CONCLUSION Plaintiffs request this matter be set for hearing, with notice to all other parties. Plaintiffs request this Court grant Plaintiffs' request for monetary sanctions. Plaintiffs also request this Court impose all appropriate Rule 215 discovery sanctions including but not limited to, striking the pleadings of Defendants Thomas Gowan, Jr., Thomas Gowan, Jr., M.D., Medical Association, P.A. and Texas Inpatient Pediatrics, P.A., requiring Attorney Lira to pay for Plaintiffs' expenses for Dr. Schram's services to date and any attorney's fees incurred to develop the expert testimony and to prosecute this sanctions motion, disallowing any of Dr. Schram's deposition testimony in the case, authorizing Plaintiff to designate another orthopedic surgery expert, and requiring the Gowan Defendants or Attorney Lira to reimburse Plaintiffs for any fees and costs associated with the retention, designation, and deposition or 10

11 other testimony of a new orthopedic expert, refusing to allow Defendants to oppose the opinions of Plaintiffs orthopedic surgery expert, and for any further relief for which Plaintiffs may be justly entitled. Respectfully submitted, THE CROSLEY LA W FIRM, P.C. McCombs Plaza, Suite E. Mulberry San Antonio, Texas Telephone: (210) Facsimile: (210) CZJl.e~ By: THOMAS A. CROSLEY L State Bar No R. ANDREW RODRIGUEZ State Bar No ATTORNEYS FOR PLAINTIFFS 11

12 VERIFICATION I hereby certify that I have read the above and foregoing Motion for Sanctions. The facts stated in it are within my personal knowledge and are true Signed before me on ~. d 0 J (lj, VIVIAN MARTINEZ MY COMMISSION EXPIRES August 12, 2013 No te of Texas

13 ~ FIAT /. '{:~~"" The Plaintiffs' Motion for Sanctions is hereby set for hearing on the 30th day of September, t:~:..) 2009, at 8:30 a.m. in the Presiding District Court, Bexar County, Texas. SIGNED this day of., 11-,2009. ~. 7.0 '. :. ' Judge Presiding CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document has been delivered by facsimile transmission on this 21 day of September, 2009, to: George G. Brin Celeste P. Lira Katie Croft-Walsh BRIN & BRIN, P.C West, Suite 800 San Antonio TX ATTORNEY FOR DEFENDANTS, THOMAS JOHN GOWAN, JR., M.D., THOMAS JOHN GOWAN, JR., M.D. MEDICAL ASSOCIATION and TEXAS INPATIENT PEDIATRlCS, P.A. George F. Evans, Jr. Blaine Holbrook EVANS & ROWE Reunion Place, Suite 900 San Antonio, Texas A TIORNEY FOR DEFENDANTS, SAMIR VINODKUMAR JOSHI, M.D. and EMERGENCY PEDlATRlC PHYSICIAN MANAGEMENT, L.L.C. '.'. ~4M~. - -;:-rnas A Crosley c. ". I... " 13

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