Turner v. Thiel

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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