Present: All the Justices
MACKIE TURNER
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 002839 November 2, 2001
MARTIN A. THIEL, M.D., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND COUNTY OF JAMES CITY
Samuel T. Powell, Judge
In this appeal, we consider whether the circuit court
abused its discretion by permitting the defendants to call as
an expert witness an individual who plaintiff's counsel had
previously retained to consult and review plaintiff's medical
records.
The plaintiff, Mackie Turner, filed a motion for judgment
against Martin A. Thiel, M.D., Surgical Specialists, Inc., and
Williamsburg Community Hospital, Inc., in the Circuit Court of
the City of Norfolk. The plaintiff alleged that Dr. Thiel,
who was engaged in the practice of general medicine and
surgery, breached the standard of care owed to him when Thiel
performed a procedure on the plaintiff known as a
transaxillary first rib resection. The plaintiff also alleged
that defendant Surgical Specialists is a professional
corporation organized under the laws of Virginia and that
Thiel was an employee, agent, or servant of Surgical
Specialists, acting within the scope of his employment when he
treated the plaintiff. The plaintiff further alleged that
Williamsburg Community Hospital breached certain duties owed
to him.
The defendants filed responsive pleadings and a motion to
transfer venue to the Circuit Court of the City of
Williamsburg and the County of James City. The defendants'
motion to change venue was granted and later, the plaintiff
took a voluntary nonsuit of his action against Williamsburg
Community Hospital.
In accordance with a pretrial motion, the remaining
parties designated their respective expert witnesses. The
defendants designated Dr. Richard J. Sanders as one of their
expert witnesses. The plaintiff filed a motion to disqualify
Sanders. The following facts were considered by the circuit
court during a hearing to resolve the motion.
Sanders is widely recognized as an expert in the medical
community on the subject of thoracic outlet first rib
resection surgery, the procedure that Thiel performed on the
plaintiff. Sanders has performed approximately 1,500 of these
procedures and has written two books and 24 articles about
this procedure.
In December 1998, prior to filing a motion for judgment,
plaintiff's counsel had a telephone conversation with Sanders
and asked him to review the plaintiff's potential medical
malpractice claim against Thiel. Plaintiff's counsel provided
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Sanders with a verbal synopsis of the facts relating to the
plaintiff's care and treatment. Sanders determined he had no
conflict of interest and agreed to review any material that
plaintiff's counsel would provide to him. Plaintiff's counsel
and Sanders also discussed fee arrangements, and Sanders
forwarded by facsimile his curriculum vitae to plaintiff's
counsel.
Plaintiff's counsel forwarded to Sanders a letter dated
December 16, 1998. The letter, which consisted of two pages,
summarized the plaintiff's potential claim against Thiel.
Plaintiff's counsel specifically asked Sanders to "focus" on
certain acts of possible medical negligence and issues
relating to proximate causation. Plaintiff's counsel enclosed
plaintiff's medical records with the letter.
Sanders reviewed the medical records as requested by
plaintiff's counsel. Sanders and plaintiff's counsel had a
telephone conference on January 4, 1999, and Sanders discussed
the care and treatment that Thiel had provided to the
plaintiff. Plaintiff's counsel discussed additional
information with Sanders about the plaintiff's case, and
plaintiff's counsel generated 12 pages of notes relating to
the conversation. At the conclusion of the conversation,
Sanders informed plaintiff's counsel that he was not
interested in serving as the plaintiff's expert witness.
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Subsequently, Sanders mailed plaintiff's counsel a bill in the
amount of $840.00 for two hours and 20 minutes for reviewing
the medical records and participating in the telephone
conference.
Defendants' counsel contacted Sanders in August 1999 and
was unaware that Sanders had previously consulted with
plaintiff's counsel. Sanders stated the following in a sworn
affidavit which was submitted, without objection, to the
circuit court. Sanders was retained by the defendants in
August 1999 to review medical records relating to the
plaintiff's medical malpractice claim. Sanders reviewed the
records and agreed to serve as an expert witness on behalf of
the defendants.
Sanders had "no independent recollection of having
reviewed this case for [plaintiff's counsel], nor [did he]
recall the specifics of any [telephone] conversation with
[plaintiff's counsel]. Based upon the recitations in the bill
[that he submitted to plaintiff's counsel] showing a limited
record review of 2 hours and the short duration of the billed
phone call (20 minutes) it is [Sanders'] best supposition that
the short phone call was simply a conversation where [he]
declined to serve [as] an expert witness. [He] destroyed the
medical records provided by [plaintiff's counsel]."
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Sanders also stated that he recorded two pages of notes
contemporaneously with his review of the plaintiff's medical
records, but his notes do not reflect any discussions with
plaintiff's counsel regarding trial strategy or confidential
communications. Sanders did not prepare a written report, nor
did he send any correspondence other than his bill to
plaintiff's counsel.
Sanders did "not recall having any conversations with
[plaintiff's counsel] at any time concerning trial strategies
or potential offensive or defensive positions." Sanders
stated that he "never agreed to serve as an expert" witness
for the plaintiff and "to the best of [his] recollection [his]
involvement with [plaintiff's counsel] was limited to a record
review and advising him that I was not in a position to serve
as an expert for his case." Sanders also stated that he did
"not recall any specifics of a limited 20 minute conversation
over two years ago, [and he did] not possess any confidential
information from this phone call that would inure to the
benefit of either party."
When defendants' counsel informed plaintiff's counsel
that they intended to designate Sanders as their expert
witness and that special travel arrangements had to be made to
take his deposition de bene esse in Denver, Colorado prior to
trial, plaintiff's counsel did not recognize Sanders' name.
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Plaintiff's counsel did not recognize Sanders' name as someone
with whom he may have spoken until after plaintiff's counsel
checked his billing records.
The circuit court denied the plaintiff's motion to
disqualify Sanders, and the case proceeded to trial before a
jury. The jury returned a verdict in favor of the defendants,
and the circuit court entered a judgment confirming the
verdict. We awarded the plaintiff an appeal from that
judgment, and the sole issue that we consider on appeal is
whether the circuit court abused its discretion when it denied
the motion to disqualify Sanders.
Generally, the decision whether to disqualify an expert
witness rests within the discretion of the circuit court. We
have not, however, considered the test that a circuit court
must apply when determining whether to disqualify an expert
witness who has previously been retained to consult with
another party. The majority of jurisdictions that have
considered this issue have applied the following test: Was it
objectively reasonable for the first party who claims to have
retained the expert witness to conclude that a confidential
relationship existed between that party and the expert; and
did the first party disclose any confidential or privileged
information to the expert witness? Koch Refining Co. v.
Jennifer L. Boudreaux MV, 85 F.3d 1178, 1181-82 (5th Cir.
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1996); Mitchell v. Wilmore, 981 P.2d 172, 175-76 (Colo. 1999);
Nelson v. McCreary, 694 A.2d 897, 903-04 (D.C. 1997).
Additionally, the party seeking disqualification bears the
burden of proving both elements of this test. Id.
The plaintiff contends that we should adopt this test and
that the application of this test would compel
disqualification of Sanders. Responding, the defendants also
urge this Court to adopt the same test, but they assert that
the plaintiff failed to establish that a confidential
relationship existed between his counsel and Sanders.
Additionally, the defendants argue that even if a confidential
relationship existed, the plaintiff failed to establish that
his counsel provided confidential information to Sanders. The
defendants state that "[t]here was no formal retainer
agreement. There [were] no work product memoranda, reports,
or confidential correspondence exchanged between [plaintiff's
counsel and Sanders]."
We agree with the plaintiff and the defendants that this
test is the appropriate test to be applied in this
Commonwealth, and the circuit court used this test. Applying
this test, we hold that based upon the evidence of record, it
was objectively reasonable for plaintiff's counsel to conclude
that he had established a confidential relationship with
Sanders. As we have already stated, Sanders agreed with
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plaintiff's counsel that Sanders would review the plaintiff's
medical records for the express purpose of assisting the
plaintiff with his medical malpractice claim against the
defendants. Sanders reviewed the plaintiff's medical records
and forwarded plaintiff's counsel a bill and charged the
plaintiff for "review and evaluation of records." Sanders
also had a telephone conversation with plaintiff's counsel and
included in the bill a fee for "phone consult with attorney."
Simply stated, Sanders reached an agreement with plaintiff's
counsel whereby plaintiff's counsel provided information to
Sanders, Sanders evaluated that information, and Sanders
discussed his evaluation with plaintiff's counsel.
We recognize that Sanders stated in his affidavit that he
had "no independent recollection of having reviewed this case"
and that he did not recall "the specifics of any [telephone]
conversation" with the plaintiff's lawyer. However, Sanders'
lack of recollection is not relevant to the inquiry whether it
was objectively reasonable for plaintiff's counsel to conclude
that a confidential relationship existed.
Next, we must consider whether plaintiff's counsel
disclosed confidential or privileged information to Sanders.
In this context, courts have concluded that the phrase
"confidential information" includes discussion of: a party's
strategies in litigation, the kinds of experts that the
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retaining party expected to employ, a party's views of the
strengths and weaknesses of each side's case, the role of each
of the litigant's expert witnesses to be hired, anticipated
defenses, counsel's theory of the case, and counsel's mental
impressions. Koch Refining Co., 85 F.3d at 1182; Mitchell,
981 P.2d at 176-77.
Upon our in camera review of the letter dated December
16, 1998 that plaintiff's counsel forwarded to Sanders, we
conclude that the letter contained confidential information
because plaintiff's counsel revealed his mental impressions
and trial strategies to Sanders. While we recognize that the
value of the information that plaintiff's counsel disclosed to
Sanders may be debatable, that fact does not negate our
conclusion that the letter contains the work product of
plaintiff's counsel. Thus, we conclude that plaintiff's
counsel disclosed confidential information to Sanders.
We hold that the trial court abused its discretion in
refusing to disqualify Sanders as an expert witness.
Accordingly, we will reverse the judgment of the circuit
court, and we will remand this case for a new trial in which
Sanders will not be permitted to testify as an expert witness.
Reversed and remanded.
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