concurring in part and dissenting in part.
Today the majority holds that appellant is entitled to a new trial based on allegedly improper communications between Dr. Se-guin and her attorney, Phil Malcom. I cannot agree with the reasoning used by the majority in reaching this conclusion, nor do I believe that appellant demonstrated prejudice from any of these allegedly improper communications; therefore, I dissent in the decision to reverse and remand for a new trial. I concur, however, in the majority’s disposition of the motion to dismiss and motion to set aside.
As explained by the majority, both Dr. Watkins and Dr. Seguin contacted Malcom almost immediately after the incident and retained him as counsel for themselves and Arkansas Women’s Center in the event that litigation ensued. This was perfectly within their rights to protect themselves and the Center as potential defendants. See Courteau v. St. Paul Fire & Marine Ins. Co., 307 Ark. 513, 821 S.W.2d 45 (1991). In preparing for the possibility of future litigation against either the doctors or the Center, it was imperative that Mal-com obtain information from both treating physicians about the incident, as both physicians actively participated in the treatment provided to Mrs. Bulsara on the night in question. And, as recognized in Baylaender, in exercising their right to seek counsel the doctors “would be mandated by [their] fiducial duties to [their] patient to strictly enjoin [their] attorney and his carrier from any cross-communication or information sharing with anyone else pursuant to the control which [they] may assert under the attorney-client privilege.” 594 N.E.2d at 1326.
However, the majority concludes that when the lawsuit was filed and the possibility of litigation became a reality, because only Dr. Watkins, and later the Center, were named defendants, Malcom was automatically disqualified from any further representation of Dr. Watkins or the Center, and they were required to start trial preparations anew with different counsel. I fail to see how such an inefficient result is warranted in this case.
First, it should be noted that there could be no violation of Ark. R. Civ. P. 35(c)(2) or Ark. R. Evid. 503(d)(3)(B) at the time the doctors contacted Malcom to represent them and the Center, because at that time no lawsuit had been filed, thus neither physician could be classified as “party” or “nonparty.” Likewise, there is no authority suggested by the majority that would retroactively convert Malcom’s communications with his clients to violations of these rules upon the filing of a lawsuit. Thus, the only way these rules could be violated would be through communications that occurred between Dr. Seguin and Malcom after the filing of the lawsuit.
However, appellant has failed to cite with specificity any communications between Dr. Seguin and Malcom, either before or after the lawsuit was filed, that imparted confidential information not otherwise known to Malcom through his representation of Dr. Watkins and the Center and thus violated appellant’s physician-patient privilege. Instead, appellant makes the conclusory assertion that Malcom enjoyed “improper access to confidential information,” “poisoned the well” with respect to Dr. Seguin, and restricted appellant’s access to Dr. Seguin. A review of the record reveals, however, that appellant had |a3the opportunity to depose Dr. Seguin on at least three separate occasions; that Dr. Seguin was subpoenaed by appellant to testify at the trial; and that appellant’s counsel referred to Dr. Seguin’s expected testimony during her opening statement to the jury. The question of why Dr. Seguin was ultimately not called to testify by appellant is left unanswered, but clearly appellant was not restricted in his access to Dr. Seguin.
Second, even assuming that confidential information was improperly communicated to Malcom by Dr. Seguin in violation of appellant’s physician-patient privilege, the sanction mandated by Baylaender is the barring of Dr. Seguin as a witness for the defense, which has limited applicability in this case because Dr. Seguin was never called as a witness for the defense. In contrast, the result mandated by the majority, namely the disqualification of Malcom as Dr. Watkins’s attorney, is not supported by Baylaender. The disqualification of an attorney is a drastic measure to be imposed only where clearly required by the circumstances to protect and preserve the integrity of the attorney-client relationship. Whitmer v. Sullivent, 373 Ark. 327, 284 S.W.3d 6 (2008). The majority’s position, that Malcom should have disqualified himself to maintain the physician-patient privilege between appellant and Dr. Seguin, is simply unsupported by the case law, and furthermore, as explained above, appellant has failed to demonstrate how this privilege was violated in the instant case. Finally, I also note the important factual distinctions between Baylaender and the present case: Baylaender presented a situation in which the defendant-physician and the nonparty treating physician did not jointly retain counsel or both participate in the care at issue. Conversely, in the present case, Dr. Watkins and Dr. Seguin were doctors who jointly participated in the care at issue, who had a common interest as partners and employees of Arkansas Women’s Center, and who jointly retained their attorney prior to any lawsuit being filed.
It is well settled that a motion for new trial is addressed to the sound discretion of the circuit court, and the circuit court’s refusal to grant it will not be reversed on appeal unless an abuse of discretion is shown. See Jones v. Double “D” Props., Inc., 352 Ark. 39, 98 S.W.3d 405 (2003). The party moving for a new trial must show that his or her rights have been materially affected by demonstrating a reasonable possibility of prejudice. Winkler v. Bethell, 362 Ark. 614, 210 S.W.3d 117 (2005). This court does not presume that prejudice has resulted from a trial court’s error, and we will not reverse for error unless prejudice is demonstrated. Caplener v. Bluebonnet Mill. Co., 322 Ark. 751, 911 S.W.2d 586 (1995). Keeping this standard of review in mind, I would hold that appellant has failed to show that his rights were materially affected by a reasonable possibility of prejudice and would, therefore, find no abuse of discretion in the circuit court’s denial of a new trial.
HANNAH, C.J., and BAKER, J., join.