MICHAEL BRADLEY SOWDERS, MICHAEL GLEN SOWDERS, AND PAMELA SOWDERS V. HON. THOMAS R. LEWIS, SPECIAL JUDGE, WHITLEY CIRCUIT COURT
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RENDERED : DECEMBER 20, 2007
TO BE PUBLISHED
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2007-SC-000043-MR
MICHAEL BRADLEY SOWDERS,
MICHAEL GLEN SOWDERS, AND
PAMELA SOWDERS
V
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
CASE NUMBER 2006-CA-001456-OA
WHITLEY CIRCUIT COURT NO. 03-CI-000467
HON . THOMAS R. LEWIS,
SPECIAL JUDGE, WHITLEY CIRCUIT COURT
APPELLEE
OPINION OF THE COURT BY JUSTICE SCOTT
AFFIRMING IN PART, REVERSING IN PART
Appellants, Michael Bradley Sowders, Michael Glen Sowders, and Pamela
Sowders, appeal as a matter of right from the Court of Appeals' denial of their
petition for a writ of mandamus. In their petition, Appellants sought to compel the
Whitley Circuit Court to: (1) disqualify Dr. Frank Bonnarens as an expert witness
for the defendants below; (2) disqualify the defendants' counsel who had hired
Dr. Bonnarens ; and (3) strike the defendants' answer. The Court of Appeals
denied the petition on grounds that Appellants failed to satisfy their burden of
proof, and this appeal followed . For the reasons set forth herein, we affirm the
Court of Appeals in part and reverse in part.
I. FACTS
Michael Glen Sowders and Pamela Sowders filed a medical malpractice
action on behalf of their son, Michael Bradley Sowders, against a doctor and his
practice . In this suit, Appellants alleged that the doctor failed to properly
diagnose and treat Michael Bradley's septic hip.
Lee Turner represented Appellants in the case. Before filing suit, Turner
obtained and reviewed medical records, performed legal research, consulted with
experts, and prepared work product--including a memorandum summarizing the
records, his research, and his mental impressions .
Turner asked Paul A. Casi to act as co-counsel; and there is no dispute
that Turner provided Casi with his work product. Before making a decision, Casi
contacted Dr. Bonnarens, an orthopedic surgeon, to review the case. Casi swore
that he asked Dr. Bonnarens to review Turner's work product .' Dr. Bonnarens
gave an opinion that there was no violation of the standard of care and, based on
this opinion, Casi declined to serve as co-counsel .
Thereafter, Joe Lynn Travis, counsel for the defendant doctor, contacted
Dr . Bonnarens, asking him to review the case . Travis and Dr. Bonnarens met to
discuss the case and, during this meeting, Dr. Bonnarens informed Travis that he
had previously reviewed the case for Casi.
Prior to trial, Travis disclosed pursuant to CR 26.02 that the defense would
call Dr. Bonnarens as an expert witness at trial . Upon learning that the defense
had consulted with and hired Dr. Bonnarens, Appellants moved the circuit court
' In his May 10, 2006 deposition and June 14, 2006 affidavit, Dr.
Bonnarens stated that he reviewed medical records. In his November 3, 2006
affidavit, Dr. Bonnarens swore that he actually received no documents at all .
2
to: (1) disqualify Dr. Bonnarens from testifying; (2) disqualify Travis ; and (3) strike
the defendants' answer. The circuit court denied the motion .
11. ANALYSIS
A writ of mandamus is an "extraordinary remedy which compels the
performance of a ministerial act or mandatory duty where there is a clear legal
right or no adequate remedy at law." County of Harlan v. Appalachian Reg'I
Healthcare, lnc. , 85 S.W.3d 607, 613 (Ky. 2002) . A writ of mandamus is granted
for only two purposes: (1) when the lower court is acting beyond its jurisdiction ;
and (2) when the lower court is acting or is about to act erroneously, and there
exists no adequate remedy by appeal or otherwise and great injustice and
irreparable injury will result if the petition is not granted . Newell Enterprises, Inc.
v. Bowling , 158 S.W.3d 750, 754 (Ky. 2005) . We review a decision to deny the
writ for abuse of discretion . Id .
The only issue here with merit--whether Dr. Bonnarens should be allowed
to testify at trial--falls within the second class of writ cases. The Court of
Appeals denied the writ, finding that Appellants failed to satisfy their burden of
proof that Dr. Bonnarens received work product .2 Upon review of the matter, we
find that the Court of Appeals abused its discretion in refusing to compel the
circuit court to disqualify Dr. Bonnarens. Accordingly, we reverse the part of the
Court of Appeals' denial of the writ of mandamus concerning the disqualification
of Dr. Bonnarens .
2 The Court of Appeals stated that there was "minimal and disputed
evidence placed before the trial court" that Casi provided Dr. Bonnarens with
Turner's work product to review.
3
The attorney-client privilege applies to a confidential communication
"made to facilitate the client in his/her legal dilemma and made between two of
the four parties listed in [KRE 503] : the client, the client's representatives, the
lawyer, or the lawyer's representatives ." Haney v. Yates , 40 S.W.3d 352, 354
(Ky. 2000). "Where the privilege applies its breach undermines confidence in the
judicial system and harms the administration of justice." St. Luke Hospitals, Inca
v. Kopowski, 160 S.W.3d 771, 775 (Ky. 2005) . In this matter, the attorney-client
privilege attached to any confidential communications between Casi and Dr.
Bonnarens . There is evidence that Casi, plaintiffs' prospective co-counsel,
provided Dr. Bonnarens, a consulting medical expert, with work product. In his
affidavit, Casi stated that he asked Dr. Bonnarens to review "confidential attorney
work product information, including information concerning the mental
impressions and conclusions of Attorney Turner including his work product
memoranda ." Casi further stated that he and Dr. Bonnarens "had confidential
attorney work product discussions ." Dr. Bonnarens may quibble about this now,
but if so, how did he ever give Casi a professional opinion, which he does not
deny. Thus, there is great risk that Dr. Bonnarens' testimony could violate the
attorney-client privilege. See FTC v. GlaxoSmithKline , 294 F.3d 141, 144 (D.C.
Cir. 2002) (documents given to consultants were protected by the attorney-client
privilege) .
In addition, any work product Casi provided to Dr. Bonnarens is protected
from discovery . See CR 26 .02(4)(b) . Although Dr. Bonnarens insists he was not
given work product, the circumstances suggest otherwise . In fact, Dr. Bonnarens
at first said that he reviewed medical records but later stated he actually received
no documents at all. Given the quandary presented by the contrasting evidence,
the trial court and Court of Appeals refused to act. We do not .
We have previously pointed out that there will rarely be an adequate
remedy on appeal if the alleged error is an order that allows discovery. Grange
Mut. Ins. Co . v. Trude, 151 S .W.3d 803, 810 (Ky. 2004) . Our predecessor Court
noted that:
The present petition states, and we believe it evident, that
petitioners are without an adequate remedy by appeal or otherwise .
. . . Once the information is furnished it cannot be recalled . It may or
may not be used at the trial. . . . The injury suffered by petitioners . . .
will be complete upon compliance with the order and such injury
could not thereafter be rectified in subsequent proceedings in the
case. Petitioners have no other adequate remedy.
Bender v. Eaton, 343 S.W .2d 799, 802 (Ky. 1961) . With regard to great injustice
and irreparable injury, "in a certain class of cases, . . . the showing of such
grievous injury is not an absolute necessity" and "if an erroneous order results in
a substantial miscarriage of justice and the orderly administration of our Civil
Rules necessitates an expression of our views, we may, and in the proper case
should, decide the issue presented ." Id . We find the reasoning of Bender to be
persuasive here, especially since the matters dealt with involve our attorneyclient and work product rules. See KRE 503; CR 26.02(4)(b) .
Moreover, under the unduly narrow interpretation of the work product
doctrine adopted by the Court of Appeals, attorneys will be reluctant to disclose
confidential information to non-testifying consulting experts, because of the risk
that they might testify on privileged matters for the opposing party. This will
surely result in a chilling effect on the use of pre-litigation consultative
evaluations . See Newsome v. Lowe, 699 S.W. 2d 748, 752 (Ky. App . 1985)
("Prelitigation consultative evaluations are encouraged; if there is no
confidentiality with them, the procedure will not be utilized .") .
But in any event, we decline to employ a rule of inclusion / exclusion for
expert witnesses in this instance that requires a finding of fact (which was never
made in this case) as to exactly what the expert reviewed for the opposing party.
A simple finding that the expert did review the case for the opposing party and
gave an opinion is sufficient. No one disputes that this occurred here. Litigation
experts understand this rule and it is not difficult to comply with. This resolution
protects the spirit of Newsome and facilitates continued pre-litigation
consultation .
Appellants are thus without an adequate remedy by appeal or otherwise
and allowing Dr. Bonnarens to testify would result in a substantial miscarriage of
justice . Additionally, this result removes any possibility of circumstances
occurring at trial where Dr. Bonnarens might inadvertently blurt out, "I reviewed
the case for the plaintiffs before it was filed and told them there was no claim ."
III. CONCLUSION
In sum, the trial court erred in denying the motion to disqualify Dr.
Bonnarens, and Appellants have no adequate remedy by appeal . Accordingly,
we reverse the Court of Appeals' denial of the writ of mandamus as to Dr.
Bonnarens, remand for entry of a writ of mandamus consistent with this opinion,
but affirm the Court of Appeals as to all other issues as no evidence was
presented to establish that the defendants' counsel, Joe L. Travis, became privy
to any information privileged under the attorney-client or work product rules; nor
do we believe that striking the defendants' answer is in any way relevant to the
case at hand.
All sitting . Lambert, CJ. ; Abramson, Minton, Noble and Schroder, JJ.,
concur. Cunningham, J ., dissents by separate opinion .
COUNSEL FOR APPELLANTS :
Larry F. Sword
SWORD & BROYLES
303 W . Columbia St.
P. 0 . Box 1222
Somerset, KY 42502-1222
COUNSEL FOR APPELLEE:
Hon . Thomas R. Lewis
111 Bent Creek Court
Bowling Green, KY 42103
COUNSEL FOR REAL PARTIES IN INTEREST :
Joe Lynn Travis
TRAVIS, PRUITT, POWERS & YEAST
207 East Mt. Vernon Street
P. 0. Drawer 30
Somerset, KY 42502
RENDERED : DECEMBER 20, 2007
TO BE PUBLISHED
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2007-SC-000043-MR
MICHAEL BRADLEY SOWDERS,
MICHAEL GLEN SOWDERS, AND
PAMELA SOWDERS
V
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
' CASE NUMBER 2006-CA-001456-OA
WHITLEY CIRCUIT COURT NO. 03-CI-000467
HON. THOMAS R. LEWIS,
SPECIAL JUDGE, WHITLEY CIRCUIT COURT
APPELLEE
DISSENTING OPINION BY JUSTICE CUNNINGHAM
I respectfully dissent .
This Court has long recognized that the party asserting a privilege such as the
one established by CR 26.02(4)(b) bears the heavy burden of proving its applicability .
Because "they contravene the fundamental principle that the public has a right to every
man's evidence", privileges should be strictly construed. Haney v . Yates, 40 S .W.3d
352, 355 (Ky. 2000) uotin Sisters of Charity Health Sys. v. Raikes , 984 S .W .2d 464,
468 (Ky. 1998). "Broad claims of `privilege' are disfavored when balanced against the
need for litigants to have access to relevant or material evidence ." Meenach v. General
Motors Corp., 891 S.W.2d 398, 402 (Ky. 1995) .
I do not believe the heavy burden of proof has been met in this case. The trial
court was presented with four affidavits and deposition testimony and conducted a
telephonic hearing on Appellants' motion to exclude . As recognized by the majority, the
evidence presented conflicted versions of what transpired between Dr. Bonnarens and
Mr. Casi. Appellants called no witnesses to resolve these issues . Furthermore, the trial
court was unable to determine with any level of certainty that the documents supposedly
furnished to Dr. Bonnarens actually constituted "work product", as Appellants never
presented these documents for the trial court's inspection . In short, the evidence
equally supported two conclusions : that Mr. I Casi provided work product documents to
Dr. Bonnarens, or that Mr. Casi and Dr. Bonnarens simply had a brief and general
discussion about septic hips in children . In light of the inconclusive nature of the
evidence presented, I find no abuse of discretion in the trial court's denial of Appellants'
motion to exclude .
Moreover, I do not believe that relief in the extraordinary form of a writ is
warranted in this case, as adequate remedy exists by way of direct appeal . Should Dr.
Bonnarens be called as a witness, Appellants would be entitled to elicit on cross
examination the fact that Dr. Bonnarens had previously been consulted by opposing
counsel. See Miller Ex. Rel. Mont. Banking v. Marymount, 125 S.W.3d 274, 284 (Ky.
2004) (in concluding that it was proper to allow cross-examination of expert witness
regarding her prior consultation with opposing counsel, "the jury was entitled to know
who retained and paid each expert witness . . .so as to be able to judge each witness's
overall credibility") .
For these reasons, I must respectfully dissent .
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