Opinion
Civil No.: CL16-10577 Civil No.: CL16-10054
05-17-2017
Re: Warren & Associates, PLC v. John C. Schaefer, M.D. John C. Schaefer, M.D. v. Warren & Associates, PLC
Judith M. Cofield, Esq. 1349 Sycamore Road Virginia Beach, Virginia 23452 Gordon D. Fraser, Esq. Warren & Associates, PLC 409 Duke Street, Suite 100 Norfolk, Virginia 23510
EVERETT A. MARTIN JR. JUDGE Judith M. Cofield, Esq.
1349 Sycamore Road
Virginia Beach, Virginia 23452 Gordon D. Fraser, Esq.
Warren & Associates, PLC
409 Duke Street, Suite 100
Norfolk, Virginia 23510 Dear Ms. Cofield and Mr. Fraser:
These cases are afterclaps of a nonsuited medical malpractice action. Gary Williams first consulted Ms. Cofield about some medical treatment she had received in 2013. Ms. Cofield had the case reviewed by Dr. Douglas Gibson, a radiologist she had used on previous occasions. For unknown reasons, Williams terminated her relationship with Ms. Cofield and retained Warren and Associates (the "Firm"). The Firm filed a complaint for medical malpractice for Williams against four doctors and three medical practices. About a month before trial, Williams suffered a nonsuit as to two doctors and their practices. Two radiologists and their practice remained in the case.
Williams's case was governed by a scheduling order that set a trial date of May 16, 2016. The scheduling order required Williams to designate her experts at least ninety days before trial, and Williams filed her designation on February 16. She designated Dr. Gibson as her standard of care expert and Dr. John C. Schaefer as an expert on causation. The Firm had engaged Schaefer in September of 2015. Schaefer's "Fee Schedule," which was delivered to the Firm, is set out in its entirety.
It is agreed that the following fee schedule shall apply.
Initial review:
$550.00 per hour for reviewing the case research, phone consultation, travel time locally within a 75-mile radius, and other time spent concerning the above case. Depositions and trial testimony are billed at the rate of $650.00 per hour. I realize Dr. Schaefer is not on contingency and will be paid for the work done.
I agree to review the case with $1,750.00 retainer. If the case can be supported, the retainer will go applied at $550.00 per hr. time spent. If Dr. Schaefer can't support the case, the retainer will cover the full cost of the review and verbal report. A written report, if needed, will be billed additionally at the $550.00/hr.
All travel expenses to depositions or court testimony for a greater than a seventy-five mile radius from Dr. Schaefer's office will be billed and paid at a per diem of $5,000.00 plus travel expenses including hotel meals and airfare. The $5,000.00 will cover time done for waiting and testimony on each day. Any scheduled testimony that is cancelled fewer than three business days before trial, $5,000.00 will be paid to cover lost revenues from time scheduled away from the practice. In the event of late payment, you agree to pay a billing charge of $35.00/bill and interest charges at 1.5%/month for delinquent amounts beyond 30 days unless prior arrangements are made.
(sic)s omitted.
The fee schedule had signature lines for "attorney" and "client," but apparently neither Williams nor a member of the Firm signed it. Nonetheless, the Firm made several payments to Schaefer and admits this was the contract with him.
Schaefer originally told the Firm the case had merit. The case then proceeded, as many malpractice cases do, with depositions of experts being taken in the ninety days before trial. Schaefer was deposed on March 2 and Gibson on March 11. Schaefer ultimately changed his opinion, and the Firm suffered a nonsuit of the remaining defendants on May 12, 2016.
On June 13, 2016, the Firm filed a warrant in debt in the General District Court ("GDC") against Schaefer alleging breach of contract and seeking $25,000 in damages for costs and expenses advanced in Williams's case, with interest from March 31, 2016.
On June 14, 2016, Schaefer filed a warrant in debt in the GDC against the Firm alleging breach of contract and seeking $5,561.78 in damages for his unpaid fee, with interest from January 4, 2016.
Both cases were tried in the GDC on September 7, 2016, and dismissed. Both plaintiffs appealed. Schaefer has moved for summary judgment in both cases.
The Firm vs. Schaefer
In the Firm's case against Schaefer, the issue, as I see it, is whether a retained expert breaches his contract by changing his opinion.
In papers filed in the GDC and here, the Firm has given different accounts of what it claims Schaefer did. In its Bill of Particulars and Amended Bill of Particulars filed in the GDC, the Firm alleged as follows:
9. On or about March 2, 2016 Dr. Schaefer testified in deposition regarding his opinions on Ms. Williams' misdiagnosis, treatments, conditions, etc. At this time, Dr. Schaefer's opinions were scrutinized by counsel for the medical providers alleged to be liable by Ms. Williams.
10. On or about April 1, 2016, counsel for the medical providers allegedly liable for Ms. Williams' claim forwarded their expert identification detailing the opinions and statements of their expert witnesses.
11. At this time, based on information and belief, Dr. Schaefer began to retract his previous opinions while continuing to bill Ms. Williams for his time and opinions supporting her alleged claim of medical malpractice.
12. On or about April 25, 2016, Plaintiff sent a letter, via e-mail and regular mail, to Dr. Schaefer requesting communication and confirmation of
availability to testify on the scheduled trial dates and specifically requested confirmation of Dr. Schaefer's availability to testify on May 17, 201[6].
13. Around the end of April, 2016, approximately two (2) weeks before Ms. Williams' scheduled trial, Dr. Schaefer informed Warren and Associates PLC that he did not support Ms. Williams' alleged claim and that he had reversed his opinions due to his personal decision not to testify rather than from any new facts that had been discussed.
Schaefer sent requests for admission to the Firm. Number 22 and its answer are:
Admit that as counsel for Ms. Williams Warren & Associates . . . chose not to proceed in the underlying malpractice case, notwithstanding expert testimony from Drs. Gibson and Schaefer that the primary infection was a contributing, proximate cause of her physical injuries. RESPONSE: Denied, as the case could not proceed to trial after Dr. Schaefer changed his opinions after all applicable deadlines had expired.
In explaining its denial of request for admission 22, the Firm argues:
In Request Number 22, Warren & Associates denied the request and stated that after Dr. Schaefer changed his opinions, the case could not proceed to trial, as Warren & Associates learned that Dr. Schaefer had withdrawn his support from the case. The fact that Warren & Associates denies requesting new opinions from Dr. Schaefer does not exclude the fact that Dr. Schaefer, unilaterally, without reason, and without explanation changed his opinions and withdrew his support for the case....
Warren & Associates properly denied Request for Admission Number 22. Dr. Schaefer repudiated his previous opinions, which had been timely dis-
closed pursuant to the applicable deadlines in the underlying medical malpractice case. Dr. Schaefer now argues that his honest opinion was that the case could proceed on a multi-factoral theory of causation. The unfortunate truth, however, is that Dr. Schaefer never communicated this to Warren & Associates and, instead, affirmatively stated that after March 31, 2016, he could no longer support the case. Simply put, Dr. Schaefer backed out."Opposition to Motion to Overrule Objections/Compel Answers to Request for Admission, Award Attorney's Fees, and Enter Summary Judgment," pp. 5, 7.
In denying requests for admission relating to Schaefer's requests to read the defense expert designations and Gibson's deposition, the Firm stated: "Dr. Schaefer's opinions had already been provided and no new opinions were requested (or later identified) from him."
In the "Facts" section of its "Opposition to Motion for Summary Judgment," the Firm states at pages 4-5:
On or about March 31, 2016, Dr. Schaefer spoke with attorney John Coston (an employee of Warren & Associates) by telephone concerning the Defense Expert Witness Designation and any Rebuttal for Gary Williams. During this telephone conference, Dr. Schaefer stated that he believed Dr. Gibson's testimony was problematic. At no time did Dr. Schaefer offer any rebuttal, new, or different opinions with regard to causation or damages. Dr. Schaefer previously admitted (and to this day admits) that his opinion must rely on Dr. Gibson's opinion, which never changed and always supported a breach of the standard of care in Gary Williams' medical malpractice case....
On or about May 2, 2016, Mr. Coston spoke with Dr. Schaefer by telephone. During this conversation, Dr. Schaefer stated to Mr. Coston that he no longer supported Gary Williams' medical malpractice case and that if called to
testify at trial, he would testify in defense of the defendant doctors.
A motion for summary judgment may be based upon the pleadings, answers to interrogatories, and admissions. Rules 3:20, 4:8(e). No answers to interrogatories have been submitted in support of the motions. As the Firm is representing itself, I consider the assertions of facts it has made in its Oppositions to be admissions.
A witness has an obligation to appear and testify truthfully. An expert witness in a medical malpractice case has a duty to give his honest opinions based on, inter alia, his education, training, and experience, the medical records, the medical literature, and the discovery materials he receives during the pendency of the action. Given the manner in which discovery is conducted in medical malpractice cases in Virginia, an expert witness, may receive much new material in the ninety days before trial: the designations of opposing experts and transcripts of the depositions of other experts and treating physicians. On occasion, an expert will change his opinion after reviewing materials produced in discovery.
It should not be this way. The scheduling order provides with respect to the designation of experts that "The foregoing deadlines shall not relieve a party of the obligation to respond to discovery requests within the time periods set forth in the Rules of Supreme Court of Virginia." See also Rules 4:8(d) (requiring answers to interrogatories within 21 days) and 4:1(e)(1) (requiring supplementation of answers to interrogatories about expert witnesses "when additional . . . information becomes available"). --------
The few courts to have considered cases such as this have held an expert witness does not breach his contract to the party retaining him merely by changing his opinion. These courts have also held that a contract binding an expert witness to testify in a certain manner would violate public policy. I agree. An expert witness may, however, be held liable for breach of contract by failing to appear for trial, refusing to testify, or capriciously changing his opinion, that is, doing so without a valid medical reason. Griffith v. Harris, 17 Wis. 2d 255, 116 N.W.2d 133 (1962); Curtis v. Wolfe, 160 Ill. App. 3d, 513 N.E.2d 1139 (1987); Schaffer v. Donegan, 66 Ohio App. 3d 528, 585 N.E.2d 854 (1990). Refusing to testify in accordance with a previously submitted designation because of a change of opinion for a valid medical reason is not a refusal to testify and is not a breach of contract.
Summary judgment may be awarded only if no material fact is genuinely in dispute, Rule 3:20, and I must "adopt those inferences from the facts that are most favorable to the [Firm], unless the inferences are forced, strained, or contrary to reason." Dickerson v. Fatehi, 253 Va. 324, 327, 484 S.E.2d 880, 882 (1997).
Schaefer was the Firm's causation expert. Schaefer's opinion depended on that of Gibson. Schaefer reviewed Gibson's deposition and found his testimony "problematic." The Firm's claim for damages depended on Schaefer's opinion. The Firm claims to have invested $25,000 in Williams's case. The Firm denies it requested or Schaefer offered any new opinion. Lawyers being an inquisitive lot, it is most difficult to believe Mr. Coston asked no questions (i.e., requested no new opinion) and received no answers (i.e., no new opinion was offered) on March 31, when Schaefer told him that Gibson's testimony was problematic, or on May 2, when Schaefer told him that he would testify in support of the defendants. But this would be drawing an inference against the non-moving party.
Did Schaefer simply refuse to testify for personal reasons or did he refuse to testify in accordance with his designation because he had changed his opinion? The pleadings and admissions do not answer this question, nor do they answer why Schaefer changed his opinion. I therefore overrule the motion for summary judgment in this case.
Schaefer vs. The Firm
If Schaefer simply refused to testify or changed his opinion capriciously, he committed a material breach of the contract, and the Firm would be excused from further performance. I also overrule the motion for summary judgment in this case.
Sincerely yours,
/s/
Everett A. Martin, Jr.
Judge