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Simons v. Freeport Memorial Hospital

December 4, 2008


The opinion of the court was delivered by: Frederick J. Kapala District Judge




On May 4, 2007, plaintiff, Stephanie Simons, filed her three-count, second-amended complaint against defendants, Freeport Memorial Hospital and Freeport Health Network, alleging medical malpractice and breach of contract. In her complaint, plaintiff alleges, in part, that while undergoing physical therapy rendered by the defendants through their agent, Kirby Price, her left arm and shoulder were overextended causing severe and permanent damage to her left shoulder. Defendants have filed a motion to disqualify plaintiff's expert witness, Leah Crull, and to disqualify plaintiff's attorney and his firm.

According to the affidavit of defense counsel, Lisa Munch, in August 2007, defense counsel began discussions with Leah Crull, an occupational therapist, about serving as a consultant for defendants on this case. On September 18, 2007, counsel confirmed this relationship in a letter to Crull, thanking her for agreeing to act as a consultant on behalf of the defendants. In that letter, Munch also noted that she was sending Crull several medical records to review. According to Munch, she spoke with Crull over the phone on three separate occasions, and at some point decided that the defendants would not use Crull as an expert witness. During their conversations, Munch disclosed to Crull the opinions of her other consultant, and discussed in detail "how those opinions would strategically fit within the defense of the occupational therapy care as well as the defense of the case globally." Munch and Crull also discussed "strategic viewpoints as to the specifics of care," and in doing so, Munch disclosed to Crull "some of the information" that Munch received from defendants. Munch avers that she and Crull discussed "how the defense would benefit from specific strengths from defense perspective and weaknesses of the plaintiff's case in great detail." In addition to their phone conversations, Munch and Crull also sent several e-mails back and forth about scheduling times to speak, and Munch sent Crull more medical records on September 24, 2007. As a result of her consultation, Crull was paid over $4000 by defense counsel for over twenty hours of service. According to the invoices submitted, Crull was last paid by defense counsel for a phone consultation with Munch that occurred on November 19, 2007.

In April 2008, plaintiff filed her Federal Rule of Civil Procedure 26(a)(2) disclosures, and therein disclosed that she intended to use Crull as an expert witness in her case, and included a two-page report by Crull, dated February 28, 2008. The report contained Crull's opinion that the treatment plaintiff received did not meet the standard of care. According to the affidavit of plaintiff's counsel, Kevin J. Frost, Frost contacted David Black of Orthopedic Rehab Specialists on February 15, 2008 and was referred to Crull. On February 18, 2008, Frost contacted Crull by phone to see if she would be interested in serving as an expert witness in the case. On February 20, 2008, Frost delivered the records to Crull. Only then did Crull tell Frost that she already had reviewed medical records and spoke with an attorney at Hinshaw & Culbertson about this matter. Crull also informed Frost that she was no longer doing any further consulting for the attorney at Hinshaw & Culbertson on this matter or any other matter. Frost attests that after February 20, 2008, he had no further conversations with Crull. On February 28, 2008, Crull provided Frost with her written report. According to Frost, no other attorney at his office has had any communications with Crull regarding this litigation. Frost states that Crull never discussed with him any of the aspects of the defense of this suit contained in Munch's affidavit.*fn1

The facts asserted by Munch and Frost in their affidavits are largely undisputed.*fn2 However, the parties greatly disagree as to the effect of Crull's involvement with both parties. Defendants argue that both Crull, and the entire firm of Clark, Justen & Zucchi must be disqualified because Crull maintained a confidential consultative relationship with defendants, and received confidential and privileged attorney work product information from defense counsel. Plaintiff responds that neither Crull, nor the firm of Clark, Justen & Zucchi should be disqualified because defendants have not shown, beyond vague and conclusory assertions, that confidential information was shared with Crull or Frost.


A. Disqualification of Crull

Neither the Supreme Court nor the Seventh Circuit have adopted a standard for determining whether an expert should be disqualified on the basis of conflict. However, many federal courts have recognized that they have inherent power to disqualify experts on the basis of the expert's past relationship with an adversary in the litigation. See Am. Empire Surplus Lines Ins. Co. v. Care Ctrs., Inc., 484 F. Supp. 2d 855, 856-57 (N.D. Ill. 2007) (citing Koch Refining Co. v. Jennifer L. Boudreaux M/V, 85 F.3d 1178, 1181 (5th Cir. 1996)); Chamberlain Group, Inc. v. Interlogix, Inc., No. 01 C 6157, 2002 WL 653893, at *2 (N.D. Ill. Apr. 19, 2002); Paul v. Rawlings Sporting Goods Co., 123 F.R.D. 271, 277-78 (S.D. Ohio 1988). Using this power, district courts in this Circuit have applied a two-part test to determine whether an expert should be disqualified. See Rosenthal Collins Group, LLC v. Trading Techs. Int'l, Inc., No. 05 C 4088, 2008 WL 4542948, at *1 (N.D. Ill. Aug. 15, 2008); BP Amoco Chem. Co. v. Flint Hills Res., LLC, 500 F. Supp. 2d 957, 960 (N.D. Ill. 2007); Am. Empire, 484 F. Supp. 2d at 857; Chamberlain, 2002 WL 653893, at *2; Great Lakes Dredge & Dock Co. v. Harnischfeger Corp., 734 F. Supp. 334, 337 (N.D. Ill. 1990). First, the party seeking disqualification must show it acted reasonably in assuming that a confidential relationship with the expert existed. BP Amoco, 500 F. Supp. 2d at 960. Next, the movant must show it exchanged confidential information with the expert. Id. Generally, if the movant fails to prove either of these factors, disqualification is not warranted. Id. However, some courts have also considered, as a third factor, the court's interest in protecting and preserving the integrity and fairness of the judicial proceedings. Am. Empire, 484 F. Supp. 2d at 857; Great Lakes, 734 F. Supp. at 337; see also Koch, 85 F.3d at 1181. This factor has been used to override the other two where necessary. See Am. Empire, 484 F. Supp. 2d at 857 (holding that although confidential information was not exchanged, public confidence in the integrity and fairness of the judicial process merits disqualification of the expert).

Disqualification is a "drastic measure" that should not be used except when it is absolutely necessary. BP Amoco, 500 F. Supp. 2d at 960 (quotation marks omitted). As a result, the party seeking disqualification has the "heavy burden" of showing the existence of a confidential relationship and the transmission of confidential information. Id. Furthermore, the party requesting disqualification may not meet its burden with conclusory assertions. Id. (citing Green, Tweed of Del., Inc. v. DuPont Dow Elastomers, L.L.C., 202 F.R.D. 426, 429 (E.D. Pa. 2001)).

1. Confidential Relationship

The first inquiry is whether defendants' attorneys acted reasonably in assuming that a confidential relationship with Crull existed. In contrast to plaintiff's suggestions otherwise, a written contract is not the only way a party can reasonably assume a confidential relationship with an expert. Great Lakes, 734 F. Supp. at 336. Rather, "[i]n certain circumstances it might be reasonable for an attorney or party to communicate confidential or privileged information to an expert in the absence of a formal contract." Id. Thus, instead of focusing on a contract between the party and the expert, courts consider several other factors to determine if the party's expectation of a confidential relationship with a consulted expert is reasonable, these include: whether either party or the expert acknowledged that the expert was retained, the amount and nature of the documents that the party sent the expert, how much time the expert provided to the party, whether payment was made to the expert, and whether the expert rendered an opinion to the party. See Larson v. Rourick, 284 F. Supp. 2d 1155, 1158 (N.D. Iowa 2003); Cordy v. Sherwin-Williams Co., 156 F.R.D. 575, 581 (D.N.J. 1994); Mayer v. Dell, 139 F.R.D. 1, 3 (D.D.C. 1991); Wang Labs., Inc. v. Toshiba Corp., 762 F. Supp. 1246, 1249 (E.D. Va. 1991). If these factors indicate that the parties had a "longstanding series of interactions, which have more likely than not coalesced to create a basic understanding of the retaining party's modus operandi, patterns of operations, decision-making process, and the like," then a ...

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