Parker v. Wyeth et al, No. 3:2006cv00518 - Document 85 (D. Nev. 2009)
Court Description: ORDER granting 73 Motion for Sanctions. Pursuant to the court's inherent power and LR IA 4-1, plaintiff's counsel, not the plaintiff, are sanctioned the sum of $4,000.00, payable to the Attorney Admission Fund within thirty (30) days of the date of this order. Signed by Magistrate Judge Valerie P. Cooke on 2/18/09. (Copies have been distributed pursuant to the NEF - DN)
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Parker v. Wyeth et al Doc. 85 1 2 3 4 5 6 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 7 8 9 10 11 12 IRIS PARKER, ) ) Plaintiff, ) ) vs. ) ) UPSHER-SMITH LABORATORIES, INC., ) ) Defendants. ) ____________________________________) 3:06-CV-0518-ECR (VPC) ORDER 13 Before the court is the emergency motion of defendant Upsher-Smith Laboratories, Inc. 14 (“defendant”) for sanctions for plaintiff’s interference with the court’s discovery order authorizing ex 15 parte communications with treating physicians (#73). Plaintiff, Iris Parker (“plaintiff”) opposed (#80), 16 defendant replied (#83), and this court held a hearing on the motion on February 12, 2009. 17 I. Procedural History 18 Plaintiff brings this products liability action against defendant alleging that her husband, Arthur 19 L. Parker, died as a result of injuries sustained from ingesting amiodarone, an anti-arrhythmic drug 20 manufactured by defendant (#34). The court established monthly case management conferences in this 21 action, given that it has been pending since September 2006, and the parties anticipated extensive 22 discovery. Fact discovery is closed, the close of expert witness discovery is March 16, 2009, and 23 dispositive motions are due April 15, 2009 (#65). The court advised that no further extensions of this 24 most recent scheduling order would be granted (#66). 25 On February 3, 2008, this court held the monthly case management hearing, and in anticipation 26 of that hearing, the parties filed case management reports (#s 71 & 72). Present on behalf of plaintiff 27 were Mr. South and Mr. Whitehead, and Mr. South presented argument for the plaintiff. The parties 28 Dockets.Justia.com 1 advised that an issue had arisen concerning whether defendant is entitled to interview certain treating 2 physicians identified in plaintiff’s disclosures to discuss their opinions and their care and treatment of 3 the decedent. Plaintiff’s position is that Nevada law prohibits defense counsel from having ex parte 4 communications with a plaintiff’s treating physician, and that Nev. Rev. Stat. § 49.245(3) only waives 5 the privilege as to written medical or hospital records (#72). Defendant’s view is that ex parte 6 interviews of non-retained treating physicians are a proper part of the discovery process, and that 7 plaintiff expressly waived the physician-patient privilege by bringing this action and authorizing release 8 of the decedent’s medical records (#71). 9 A second issue concerned whether the Health Insurance Portability and Accountability Act of 10 1996 (HIPAA) permits a physician to engage in ex parte interviews with defendant’s counsel where the 11 plaintiff has authorized disclosure under HIPAA regulations. It was undisputed that plaintiff executed 12 a HIPAA authorization to allow physicians to disclose plaintiff’s medical information. Defendant 13 contends that once a HIPAA authorization is executed, ex parte interviews between plaintiff’s treatment 14 providers and defense counsel are permitted, and plaintiff takes a contrary review. Plaintiff disagrees 15 and asserts that HIPAA does not pre-empt Nevada’s physician-patient privilege, which only provides 16 for a written waiver of medical records. 17 At the February 3, 2009 case management conference, the court heard oral argument from 18 counsel on these issues and ruled in favor of defendant, as more fully set forth in its minute order (#75). 19 In summary, the court held that defendant may engage in ex parte interviews of those treating physicians 20 not designated as expert witnesses, and specifically authorized defendant’s counsel to interview six 21 physicians. Id. The court further directed counsel to meet and confer as to the scope of interviews, and 22 if they could not resolve this issue, they were directed to file notices with the court, and a hearing would 23 be scheduled to decide this matter. Id. 24 The court also found that HIPAA permits a physician to disclose a patient’s medical information 25 once a patient has executed a valid authorization. Id. Counsel reported that plaintiff executed the 26 HIPAA authorizations in this proceeding, but they had expired, and plaintiff’s counsel indicated he 27 would not advise his client execute new authorizations; therefore, the court ordered that notwithstanding 28 2 1 this refusal, the court’s order authorized the defendant’s ex parte interviews of the physicians identified 2 in the order. Id. 3 On February 5, 2009, plaintiff filed a document styled, “plaintiff’s position regarding scope of 4 defendant’s ex parte communications with physicians” (#74). In it, plaintiff renewed her argument that 5 ex parte interviews of the treating physicians are improper. Id. Plaintiff concluded by requesting that 6 defendant’s physician interviews “be limited only to the decedent’s treatment for atrial fibrillation and 7 his subsequent development of pulmonary difficulties.” Id. Plaintiff was silent concerning any 8 communications she had with decedent’s treating physicians concerning the February 3, 2009 order. 9 Defendant did not immediately file a status report concerning counsels’ efforts to resolve their 10 dispute concerning the scope of the anticipated ex parte interviews with treating physicians; rather, 11 defendant filed the pending motion for sanctions because plaintiff’s counsel sent twenty letters to the 12 decedent’s treating physicians, including Mr. Parker’s cardiologists, pulmonologists, family care 13 physician, surgeon, and other physicians who treated Mr. Parker in the hospital prior to his death (#73). 14 The letters, dated February 4, 2009, are identical and state: 15 I represent Iris Parker and the estate of her deceased husband, Arthur Parker, in connection with litigation brought against Upsher-Smith Laboratories. It is our contention in the lawsuit that Mr. Parker developed interstitial lung disease and died as a result of his taking amiodarone for treatment of an atrial fibrillation. 16 17 18 19 Notwithstanding the requirements of HIPAA and the fact that the authorization previously provided to you has expired, Upsher-Smith, through its attorney, has requested that the court allow its attorney to contact Mr. Parker’s treating physicians to discuss his case and treatment as it relates to his development of interstitial lung disease and ultimate death. 20 21 22 23 I am writing this letter to inform you of the court’s decision and also to advise you that even though the court has permitted counsel for Upsher-Smith to speak with you outside our presence, you are free to decide whether or not you wish to meet privately with defense counsel. There is legal authority which provides that neither HIPAAcompliant authorizations nor a court order can force a healthcare professional to communicate with the attorneys. See, Arons v. Jutkowitz, 9 N.Y.3d 393, 880 N.E.2d 831 (N.Y. 2007); Moreland v. Austin, 284 Ga. 730, 670 S.E.2d 68 (2008). 24 25 If you decide to meet privately with counsel for Upsher-Smith, we would appreciate your advising us of your decision so that we may have an opportunity to meet privately with you as well. 26 27 28 3 1 2 If you have any questions regarding this matter, or wish to discuss the matter with me further, you may contact me. Sincerely, 3 RANDS, SOUTH & GARDNER 4 Brett K. South 5 Mr. Whitehead, co-counsel for plaintiff, spoke with defendant’s counsel on February 4, 2009, 6 and they mutually agreed to continue their discussions on February 5, 2009. Although Mr. Whitehead 7 knew that his co-counsel, Mr. South, had sent the twenty letters, he did not disclose this to defendant’s 8 counsel during their discussions. In the interim, defendant’s counsel received copies of Mr. South’s 9 letters and then contacted Mr. Whitehead to advise he viewed the letters as an improper usurpation of 10 the court’s order to meet and confer (#81). Thereafter, defendant moved for sanctions.1 11 II. 12 Prior to hearing arguments of counsel, the court canvassed counsel for the parties, Mr. South and 13 Mr. Moore, concerning their understanding of the court’s February 3, 2009 order. The court asked the 14 following questions: 15 The February 12, 2009 Hearing 1. Was it your understanding on February 3, 2009, that the court’s order allowed defendant to conduct ex parte interview of treating physicians not designated as expert witnesses? 2. Was it your understanding on February 3, 2009, that the court ordered counsel for the parties to meet and confer concerning reasonable limitations about the scope of the ex parte physician interviews and report back to the court if the dispute remained unresolved? 3. Was it your understanding on February 3, 2009, that based on the directive to meet and confer on this issue, that any physician interviews would be deferred until this issue was resolved? 4. Was it your understanding on February 3, 2009, that with respect to HIPAA authorizations, the court determined that because plaintiff executed HIPAA-required 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Defendant also contends that plaintiff’s counsel’s interview with a Reno Gazette-Journal reporter who attended the February 3, 2009, hearing followed by a newspaper article could be characterized as an attempt to communicate indirectly with treating physicians who might read the article and decide not to participate in the ex parte interviews this court approved. Newspaper reporters frequently attend court hearings and report the news on cases. The court finds that Mr. South’s interview was not improper. 4 1 authorizations releasing the decedent’s medical records, HIPAA was not an obstacle to the ex parte interviews that defendant requested? 2 5. Was it your understanding on February 3, 2009, that when the court was advised that the HIPAA authorizations had expired, and plaintiff’s counsel declined to have plaintiff execute new authorizations, the court ordered that notwithstanding that refusal, this court’s order would serve as authorization? 6. 6 Is it correct that at the February 3, 2009, hearing, there was no discussion concerning whether physicians solicited for defendant’s ex parte interviews could be compelled to participate? 7 Counsel acknowledged they understood what the court ordered, as set for above, with the exception of 8 Item 3. Although defendant’s counsel, Mr. Moore, understood that the interviews would be deferred 9 until the scope of the interviews was established, Mr. South told the court that he did not have that 10 understanding. Both counsel also agreed that there was no discussion at the hearing concerning whether 11 treating physicians could be compelled to attend interviews with defendant’s counsel. 3 4 5 12 The court asked Mr. South to explain why he sent the twenty letters to treating physicians, and 13 he replied that he felt it necessary to inform them that based on his further legal research after the 14 February 3, 2009 hearing, he determined that they were entitled to notice that they were not compelled 15 to attend any ex parte interviews. Mr. South told the court that he did not believe his letter violated the 16 terms or the intent of the court’s order, and that it was not a pre-emptive attempt to insure that physicians 17 who received his letter would refuse to engage in ex parte interviews with defendant’s counsel. As 18 stated in plaintiff’s opposition to the motion for sanctions, “Plaintiff had a right to inform the physicians 19 about the purpose of the interviews and that they were not obligated to meet privately with Upsher- 20 Smith’s counsel,” (#80, page 12, lines 3-4). Mr. South took the position that despite the court’s order, 21 he had an independent right to notify the treating physicians immediately that they were not compelled 22 to submit to interviews with counsel. 23 24 III. Discussion A. Sanctions Pursuant to the Court’s Inherent Authority 25 The federal court has inherent power to levy sanctions, including attorney’s fees, for “willful 26 disobedience of a court order . . . or when the losing party has acted in bad faith, vexatiously, wantonly, 27 or for oppressive reasons. . . .” Roadway Express, Inc. v. Piper, 447 U.S. 752, 766 (1980). In Chambers 28 5 1 v. NASCO, Inc., 501 U.S. 32, 46 (1991), the Court reaffirmed the Roadway principles and “left no 2 question that a court may levy fee-based sanctions when a party has acted in bad faith, vexatiously, 3 wantonly, or for oppressive reasons, delaying or disrupting litigation, or has taken actions in the 4 litigation for an improper purpose.” Fink v. Gomez, 239 F.3d 989, 992 (9th Cir. 2001) (citing Chambers, 5 501 U.S. at 45-46, n.10). In Fink, the Ninth Circuit made clear that imposition of sanctions under a 6 court’s inherent power requires a finding of bad faith or “conduct tantamount to bad faith:” 7 10 Sanctions are available for a variety of types of willful actions, including recklessness when combined with an additional factor such as frivolousness, harassment, or an improper purpose. . . .An attorney’s reckless misstatements of law or fact, when coupled with an improper purpose, such as an attempt to influence or manipulate proceedings in a case in order to gain tactical advantage in another case, are sanctionable under a court’s inherent power. 11 Id. at 994. The burden of proof is “clear and convincing evidence” (Roadway Express, 447 U.S. at 764); 12 however, a finding of bad faith may not be required when an “attorney acts recklessly with an improper 13 intent.” Fink, 239 F.3d at 993. The types of sanctions that may be imposed under the court’s inherent 14 powers include “fines, awards of attorney’s fee and expenses, contempt citations, entries of dismissal 15 or default, suspensions or disbarment, preclusion orders, disqualification of counsel, permission of 16 adverse inferences and injunctions. Id. 8 9 17 B. Sanctions under Fed.R.Civ.P. 37(b)(2) 18 Fed.R.Civ.P. 37(b)(2) governs failures to comply with discovery orders and provides: 19 If a party or a party’s officer, director, or managing agent – or a witness designated under Rule 30(b)(6) or 31 (a)(4) – fails to obey an order to provide or permit discovery, includes an order under Rules 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. 20 21 The court has broad discretion to impose one or more of the listed sanctions or any other sanction it 22 deems appropriate. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1105-1106 (9th Cir. 23 2001). The court may deem facts established (Insurance Corp of Ireland, Ltd. v. Compagnie des 24 Bauxites de Guinee, 456 U.S. 694 (1982); Navallier v. Sletten, 262 F.3d 923, 947-48 (9th Cir. 2001), cert. 25 denied, 536 U.S. 941 (2002)), prohibit evidence (Hoffman v. Construction Protective Serv, Inc., 541 26 F.3d 1175, 1179 (9th Cir. 2008)), strike pleadings (U.S. v. Sumitomo Marine & Fire Ins. Co., Ltd., 617 27 28 6 1 F.2d 1365, 1369 (9th Cir. 1980)), enter a dispositive ruling (G-K Properties v. Redevelopment Agency 2 of the City of San Jose, 577 F.2d 645, 647 (9th Cir. 1978)), or it may treat the failure to obey its order as 3 a contempt of the court (Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468 (9th Cir. 1992). 4 The court is not limited to the sanctions listed in Rules 37(b)(2), and may make an order that it deems 5 “just.” Valley Engineers, Inc. v. Electric Enginerring Co., cert. denied, 526 U.S. 1064 (1999) (justice 6 is the central factor in a sanctions order under Rule 37(b)). 7 8 9 C. Sanctions under 28 U.S.C. § 1927 28 U.S.C. § 1927 states: 11 Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct. 12 Although Section 1927 has a clear compensatory purpose because it permits an award of attorney’s fees 13 and costs, “it is in reality a penal statute designed to discourage unnecessary delay in litigation by 14 requiring attorneys ‘or other persons’ to compensate personally other litigant who incur excess costs due 15 to their misconduct.” GEORGENE M. VAIRO , RULE 11 SANCTIONS 765 (3d ed. 2003), citing Roadway 16 Express, 447 U.S. at 759-62 (Noting the importance of Section 1927 sanctions in that “lawyers who 17 multiply legal proceedings [are] taxed with the extra ‘costs’ they generate.”). 10 18 To warrant sanctions pursuant to Section 1927, a court must find the attorney acted with 19 recklessness or subjective bad faith. United States v. Blodgett, 709 F.2d 608, 610 (9th Cir. 1983). 20 Section 1927 sanctions may only be imposed on attorneys and pro se litigants. Wages v. Internal 21 Revenue Serv., 915 F.2d 1230, 1235-36 (9th Cir. 1989). Because imposition of Section 1927 sanctions 22 are penal in nature, it requires the court to make specific findings of fact. Trulis v. Barton, 107 F.3d 685, 23 692 (9th Cir. 1995). 24 D. Sanctions pursuant to Local Rule IA 4-1 25 The court’s Local Rules of Practice also provide for a mechanism for imposition of sanctions. 26 Rule IA 4-1(d) provides, “A court may, after notice and opportunity to be heard, impose any and all 27 28 7 1 appropriate sanctions on an attorney or party appearing in pro se who, without just cause, [f]ails to 2 comply with any order of this court.” 3 IV. 4 Based upon the papers filed herein and oral argument at the February 12, 2009 hearing, the court 5 6 Findings makes the following findings of fact: 1. At the conclusion of the February 3, 2009, hearing, Mr. South understood that this 7 court’s order allowed defendant’s counsel to conduct ex parte interviews of the 8 decedent’s treating physicians not designated as expert witnesses. 9 2. At the conclusion of that hearing, Mr. South understood that counsel for the parties were 10 to meet and confer concerning reasonable limitations about the scope of the ex parte 11 physician interviews and report back to the court if issues remained in dispute. 12 3. Mr. Moore, defendant’s counsel, understood that based on the directive to meet and 13 confer on this issue, any physician interviews would be deferred until this issue was 14 resolved. 15 4. Mr. South represented to the court on February 12, 2009, that this was not his 16 understanding; therefore, he felt compelled to send twenty letters to the decedent’s 17 treating physicians on February 4, 2009, to advise them about the court order and to tell 18 them that they were not required to meet with defendant’s counsel. 19 5. The court does not find credible Mr. South’s understanding that the physician interviews 20 were not deferred until the scope of the interviews was resolved between the parties or 21 by the court. 22 6. Mr. South, with Mr. Whitehead’s knowledge, sent the twenty letters to treating 23 physicians on February 4, 2009, yet on February 5, 2009, Mr. Whitehead, was ostensibly 24 engaged in the meet-and-confer process this court ordered. Even though he knew Mr. 25 South had already sent the letters on February 5, 2009, he disclosed nothing to 26 defendant’s counsel during these discussions. 27 28 8 1 7. Neither Mr. South nor Mr. Whitehead ever asked defendant’s counsel to confirm that 2 there would be no attempt to arrange or conduct physician interviews until the meet-and- 3 confer process concluded, nor did they disclose the results of Mr. South’s legal research 4 concerning whether such interviews could be compelled. 5 8. Just as plaintiff’s counsel failed to disclose that Mr. South had sent the letters to 6 physicians, they also failed to disclose this fact to the court in their February 5, 2009 7 report to the court about the scope of the interviews (#74). 8 9. If Mr. South had a sincere concern that defendant’s counsel might attempt to contact 9 treating physicians before the scope of the interviews was resolved, he or Mr. Whitehead 10 could have easily communicated those concerns to defendant’s counsel, particularly since 11 Mr. Whitehead was already discussing the scope of the interview with defendant’s 12 counsel. Mr. Whitehead did not do so. 13 10. If Mr. South had a sincere concern that communications with defendant’s counsel would 14 somehow not resolve this issue, Mr. South had leave to file an emergency motion with 15 the court to address this issue and seek a stay of any interviews until further order of the 16 court. He did not do so. 17 11. The court finds that Mr. South, with Mr. Whitehead’s acquiescence, did not do so 18 because he intended to eviscerate the effect of this court’s order and discourage these 19 physicians from participating in the interviews with defendant’s counsel. 20 12. The timing of Mr. South’s letters – only one day after the February 3, 2009 hearing – as 21 well plaintiff’s counsels’ failure to discuss their concerns with opposing counsel or raise 22 them with the court, support the court’s finding that Messrs. South and Whitehead acted 23 in bad faith. 24 13. Mr. South’s letter to decedent’s treating physicians implicitly challenged this court’s 25 February 3, 2009, order permitting the ex parte physician interviews and implied that 26 the court’s order was inconsistent with HIPAA (“Notwithstanding the requirements of 27 HIPAA and the fact that the authorization previously provided to you has expired . . . .”). 28 9 1 14. 2 3 Mr. South made these representations in his letters, even though he knew the court had resolved this very issue at the February 3, 2009, hearing. 15. Mr. South knew or reasonably should have known that these physicians would have 4 serious concerns about speaking with defendant’s counsel if there were any question 5 whether HIPAA prohibited the interviews. 6 16. Mr. South stated in the letter that he, on behalf of the plaintiff, had objected to 7 defendant’s request as improper, and because his client holds the physician-plaintiff 8 privilege, the implicit message to the physicians was that they should not speak to 9 defendant’s counsel. 10 17. Mr. South further stated in his letter that pursuant to New York and Georgia case 11 authority, the physicians were free to refuse to speak with defendant’s counsel, even 12 though Mr. South knew this issue had never been raised with defendant’s counsel or the 13 court. 14 18. In doing so, Mr. South undertook to advise these physicians of their rights when he is not 15 retained as their counsel, and he also usurped the role of the court to fully consider this 16 issue after notice and hearing. Rather than raising this issue with the court, Mr. South 17 took it upon himself to unilaterally decide how the court’s ruling should be implemented. 18 19. The fact that Mr. South sent copies of the twenty letters to defendant’s counsel after they 19 were sent in no way excuses Mr. South’s misconduct. By the time defendant’s counsel 20 received the letters, so had the physicians. 21 20. Messrs. South and Whitehead were not without legal remedies in the face of the February 22 3, 2009, with which they disagreed. They could have objected to the order pursuant to 23 LR IB 3-1, they could have moved for reconsideration pursuant to Fed.R.Civ.P. 59(e), 24 and under either option, they could have also asked for a stay of the order until their 25 objection or motion for reconsideration was resolved. Although plaintiff subsequently 26 filed an objection to the February 3, 2009 order pursuant to LR IB 3-1 (#78), this does 27 not excuse plaintiff’s counsels’ prior misconduct. 28 10 1 21. Plaintiff’s counsel contend that the letters to the physicians were not as damaging as 2 defendant claims, since it is highly unlikely that most physicians would agree to such 3 interview under ordinary circumstances. The court finds this argument disingenuous 4 because, if true, why send the letter in the first place? 5 22. 6 7 Trial counsel owe an undivided allegiance to their clients, but they also owe important duties candor and honesty to the court and opposing counsel. 23. If a lawyer disagrees with an order of the court, that lawyer does not have leave to 8 disregard or circumvent that order; his or her recourse is to take appropriate steps to test 9 the validity of that ruling pursuant to Local Rules of Practice and the Federal Rules of 10 11 Civil Procedure. 24. Based upon the facts described herein, including the timing of the letters, their content, 12 Mr. South’s failure to meet and confer with counsel or seek relief from the court, Mr. 13 Whitehead’s failure to disclose to defendant’s counsel any concerns about attempts to 14 meet with physicians during his own meet-and-confer discussion with defendant’s 15 counsel, and all facts recited herein, the court finds there is clear and convincing 16 evidence that Mr. South and Mr Whitehead acted in bad faith or conduct tantamount to 17 bad faith with the intention to undermine the court’s order and insure, to the extent 18 possible, that no physician who received Mr. South’s letter would agree to an interview 19 with defendant’s counsel. Roadway Express, 501 U.S. at 766; Chambers, 501 U.S. at 20 36; Fink v. Gomez, 238 F.3d at 992. Mr. South’s conduct in sending the letters to 21 physicians, and Mr. Whitehead’s complicity in failing to disclose their intention to send 22 the letters, was done for the improper purpose of influencing these witnesses not to 23 cooperate with defendant’s counsel in ex parte interviews, and it was done to gain a 24 tactical advantage; that is, to subvert the court’s order and insure any physician inclined 25 to be interviewed would not do so. 26 27 28 25. Based upon the foregoing, the court further finds that Mr. South and Mr. Whitehead acted recklessly and with an improper intention. Fink v. Gomez, 238 F.3d at 993. 11 1 26. Based upon the foregoing, the court finds that Mr. South and Mr. Whitehead violated 2 Fed.R.Civ.P. 37(b)(2). The parties agreed to bring discovery disputes before the court 3 at case management conference and brief issues prior to the hearing as a means of 4 expediting discovery disputes and to save money in attorney’s fees for their clients. The 5 court deems the original dispute concerning the ex parte interviews as a motion for 6 protective order pursuant to Fed.R.Civ. P. 26(c); therefore, sanctions are available 7 pursuant to Rule 37(b)(2). 8 27. 9 recklessness and bad faith. 28 U.S.C. § 1927. The court finds Mr. South and Mr. 10 11 Based upon the foregoing, the court finds that Mr. South and Mr. Whitehead acted with Whitehead multiplied proceedings in this case unreasonably and vexatiously. 28. Based upon the foregoing, the court finds that Mr. South and Mr. Whitehead, without 12 just cause, failed to comply with this court’s February 3, 2009 order by their conduct in 13 violation of LR IA 4-1. 14 V. 15 As noted, plaintiff filed an objection to this court’s February 3, 2009 order that defendant’s 16 counsel may engage in ex parte interviews with the decedent’s treating physicians not designated as 17 expert witnesses (#78). If the District Court overrules this court’s order as clearly erroneous or contrary 18 law, there will be no ex parte interviews of the physicians. Nevertheless, plaintiff’s counsels’ 19 sanctionable conduct will not be excused, since it is a separate issue from the disputed order itself. On 20 the other hand, if the District Court affirms this court’s order, it will be left to this court to fashion 21 remedial measures to undo the harm plaintiff’s counsel caused. Therefore, this court will defer its order 22 concerning remedial steps it will order, including but not limited to, further sanctions under Rule 23 37(b)(2), until the District Court rules on plaintiff’s objection. Sanctions 24 That leaves the question of sanctions for plaintiff’s counsel’s violation of this court’s order. 25 Having reviewed the papers filed herein, having given notice and opportunity to be heard, and good 26 cause appearing, defendant’s motion for sanctions (#73) is GRANTED. 27 28 12 1 IT IS HEREBY ORDERED: 2 1. Pursuant to the court’s inherent power, 28 U.S.C. § 1927, and LR IA 4-1, 3 plaintiff’s counsel shall pay all defendant all attorney’s fees and costs incurred in 4 connection with the motion for sanctions (#73). Defendant’s counsel shall file 5 statement of attorney’s fees and costs pursuant to LR 54-16. 6 2. Pursuant to the court’s inherent power and LR IA 4-1, plaintiff’s counsel, not the 7 plaintiff, are sanctioned the sum of $4,000.00, payable to the Attorney Admission Fund 8 within thirty (30) days of the date of this order. 9 10 3. The court reserves imposition of additional sanctions until disposition of plaintiff’s objection (#78) to the District Court. 11 IT IS SO ORDERED. 12 DATED: February 18, 2009. 13 14 _________________________________________ UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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