ERIC A. NORSWORTHY VS. THOMAS O. CASTLEN, SPECIAL (RENDERED AUGUST 12, 2010) JUDGE, OHIO CIRCUIT COURT AND COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 12, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-001117-OA
ERIC A. NORSWORTHY
v.
PETITIONER
AN ORIGINAL ACTION
ARISING FROM OHIO CIRCUIT COURT
ACTION NO. 09-CR-00002
THOMAS O. CASTLEN, SPECIAL JUDGE,
OHIO CIRCUIT COURT
RESPONDENT
AND
COMMONWEALTH OF KENTUCKY
BEFORE:
REAL PARTY IN INTEREST
OPINION AND ORDER
** ** ** ** ** ** ** **
TAYLOR, CHIEF JUDGE; ACREE AND KELLER, JUDGES.
An Ohio County Grand Jury returned an indictment against the petitioner,
Eric A. Norsworthy, a physician practicing medicine in Beaver Dam, Kentucky, charging
him with 13 counts of unauthorized disclosure of prescription records from the Kentucky
All-Schedule Prescription Records (KASPER) system and one count of intentional
disclosure of those prescription records. The indictment is based upon allegations from
an investigation by the Kentucky State Police and the Kentucky Board of Medical
Licensure that Norsworthy, or someone acting on his behalf, accessed the KASPER
system for the improper and unlawful purpose of using that information to defend himself
in a complaint filed before the Kentucky Board of Medical Licensure by a former patient.
The findings of the investigations allege that Norsworthy improperly obtained and shared
the patient’s KASPER records with Mr. David Lambertus, his counsel, during the
administrative hearing concerning the complaint filed before the Board of Medical
Licensure.
During the course of the underlying criminal proceeding in the Ohio Circuit
Court, the Commonwealth filed a motion for in camera review of certain attorney-client
communications between Mr. Lambertus and Norsworthy. Specifically, the motion for in
camera review alleged that Norsworthy and members of his staff illegally accessed
KASPER reports related to a former female patient and her family after the patient
reported alleged sexual misconduct by Norsworthy to the Kentucky State Police and the
Kentucky Board of Medical Licensure. According to the motion for in camera review,
Norsworthy’s alleged misuse of the KASPER system came to light when Mr. Lambertus,
responding to a motion to quash a subpoena during the administrative proceedings before
the Board of Licensure, referred to the patient’s purchase history and dosage of
alparzolam. On March 3, 2010, the Commonwealth issued a subpoena to Mr. Lambertus
requiring his appearance “to testify” and to bring the following documents:
Any and all filed and other documents pertaining to
Mr. Lambertus’s representation of Dr. Eric
Norsworthy before the Kentucky Board of Medical
Licensure in Administrative Action No. 07-KMBL0511, including, but not limited to, any and all
communications between Mr. Lambertus (and his
employees and representatives) and Dr. Norsworthy
(and his employees and representatives) regarding any
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copies of, references to, or information contained in
[C.F.]’s KASPER report, medical records and other
documents regarding medical treatment of [C.F.], and
the source of any patient-specific pharmaceutical
references in Mr. Lambertus’s file or pleadings before
the KBML.
Norsworthy filed a motion to quash this subpoena. In his motion to quash,
Norsworthy argued that the communications with his attorney are absolutely privileged
and directly related to the matter for which Norsworthy sought legal advice. In response
to the motion to quash, the Commonwealth asserted a crime/fraud exception to the
attorney-client privilege contained in KRE 503(d)(1).
On April 9, 2010, the respondent, Special Judge Thomas O. Castlen,
participated in a conference call1 with the parties and with Mr. Lambertus’s attorney.
Following this conference call, the Ohio Circuit Court entered an order on April 12,
2010, directing Mr. Lambertus to submit to the court under seal for in camera inspection
copies of all documents within his possession and control, including correspondence,
reports, memoranda, and notes, which reference the patient’s KASPER reports,
pharmaceutical use or history or the patient’s pharmacist. In response to the April 12,
2010, order, Mr. Lambertus only submitted documents that were already in the public
domain. On April 28, 2010, the Commonwealth issued another subpoena to Mr.
Lambertus that was identical to the subpoena previously issued on March 3, 2010. Upon
receipt of the April 28, 2010, subpoena, Norsworthy filed a second motion to quash the
subpoenas. On June 2, 2010, the Ohio Circuit Court entered an order which stated:
IT IS HEREBY ORDERED AND ADJUDGED that
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No record of this conference call was provided to this Court by the parties to this original action.
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Hon. David Lambertus shall produce to the Court for
in camera review any and all documents, notes,
computer files, and other records regarding
communications between Defendant Norsworthy
(and/or his agents) and Mr. Lambertus (and/or his
agents) which relate to C.F.’s medical treatment or
pharmaceutical history. The purpose of the Court’s in
camera review is to determine whether any such
evidence is protected by attorney-client privilege (KRS
503) or subject to the crime/fraud exception.
On June 14, 2010, Norsworthy filed this original action petitioning this
Court for a writ prohibiting the Ohio Circuit Court from enforcing the June 2, 2010,
order. In his petition for a writ of prohibition, Norsworthy argues that the records and
testimony sought by the subpoena are absolutely privileged under the Sixth Amendment
to the United States Constitution and KRE 503. In response to the petition for a writ of
prohibition, the Commonwealth argues that Stidham v. Clark, 74 S.W.3d 719 (Ky. 2002),
authorizes a court to conduct an in camera review of the communications between
Norsworthy and Mr. Lambertus to determine if any evidentiary privileges apply.
A writ of mandamus and/or prohibition will be granted only in the most
exceptional of circumstances. Shobe v. EPI Corp., 815 S.W.2d 395, 397 (Ky. 1991).
Generally, a writ will be granted only if (1) the lower court is proceeding or about to
proceed outside of its jurisdiction or (2) the lower court is about to act incorrectly,
although within its jurisdiction, and there exists no adequate remedy by appeal or
otherwise and great injustice and irreparable injury would result. Hoskins v. Maricle, 150
S.W.3d 1 (Ky. 2004). A writ must be granted where failing to do so would subject the
defendant to great injustice and irreparable injury for which there is no adequate remedy.
Chamblee v. Rose, 249 S.W.2d 775 (Ky. 1952).
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Norsworthy presents this matter to this Court as a writ of the second class.
He argues that the Ohio Circuit Court acted erroneously within its jurisdiction by
ordering his former counsel to disclose privileged communications and that no adequate
remedy by appeal or otherwise exists, and that he will be subjected to irreparable injury
and great injustice if forced to disclose any information claimed to be confidential under
the attorney-client privilege. Norsworthy is correct that he would possess no adequate
remedy by appeal because “there will rarely be an adequate remedy on appeal if the
alleged error is an order that allows discovery.” Grange Mutual Ins. Co. v. Trude, 151
S.W.3d 803, 810 (Ky. 2004). Moreover, taking as true Norsworthy’s claim of privilege,
“there is no adequate remedy on appeal because the privileged information cannot be
recalled once it has been disclosed.” Wal-Mart Stores, Inc. v. Dickinson, 29 S.W.3d 796,
800-01 (Ky. 2000).
KRE 503(d)(1), Furtherance of Crime or Fraud, provides in pertinent part
as follows:
There is no privilege under this rule: (1) If the services
of the lawyer were sought or obtained to enable or aid
anyone to commit or plan to commit what the client
knew or reasonably should have known to be a crime
or fraud[.]
“The attorney-client privilege is generally considered to be absolute as to
communications made by or to a person advising with an attorney as to past transactions
and offenses.” Steelvest, Inc v. Scansteel Service Center, Inc. 807 S.W.2d 476, 487 (Ky.
1991). “However, the rule does not apply to future transactions when the person seeking
the advice is contemplating the committing of a crime or the perpetration of a fraud.” Id.
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In Standard Fire Ins. Co. v. Smith Hart, 183 Ky. 679, 211 S.W. 441 (1919), the former
Court of Appeals explained it is the professional character of a lawyer to give advice
upon crimes or frauds that have already been committed.
In this matter, the Commonwealth has alleged that Norsworthy unlawfully
accessed the female patient’s KASPER records and provided those records to Mr.
Lambertus as part of the preparation of his defense to the administrative charges before
the Board of Medical Licensure in violation of KRS 218A.202. The Commonwealth
further argues that it provided sufficient evidence warranting an in camera review to
determine whether the crime/fraud exception to the attorney-client privilege applies.
The Supreme Court of Kentucky established the framework for in camera
review in Stidham v. Clark, 74 S.W.3d 719, 727-28 (Ky. 2002). In Stidham, the Court
concluded that, “[a] bare allegation of a criminal purpose is insufficient to warrant an in
camera review,” as such a standard would permit “‘opponents of the privilege to engage
in groundless fishing expeditions with [trial] courts as their unwitting (and perhaps unwilling) agents.’” (quoting United States v. Zolin, 491 U.S. 554, 571, 109 S. Ct. 2619,
2630, 105 L. Ed. 2d 469 (1989)). However, a lesser evidentiary showing is needed to
trigger in camera review than is required to overcome the privilege. Id. In quoting Zolin,
491 U.S. at 574-75, 109 S. Ct. at 2632, the Court further concluded that:
[B]efore a . . . court may engage in in camera review at the
request of the party opposing the privilege, that party must
present evidence sufficient to support a reasonable belief that
in camera review may yield evidence that establishes the exception’s applicability . . . . [T]he threshold showing to obtain
in camera review may be met by using any relevant evidence,
lawfully obtained, that has not been adjudicated to be privileged.
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Id. Thus, the party opposing the privilege must first persuade the trial court by a preponderance of the evidence that the desired information either falls outside the scope of the
privilege, or that an exception to the privilege exists.
Once this showing is made by a preponderance of the evidence:
the decision whether to engage in in camera review rests
within the sound discretion of the trial court, considering such
factors as the volume of materials the court is asked to review, the relative importance of the alleged privileged materials to the case, and the likelihood that the evidence produced
by an in camera review, together with other available evidence then before the court, will establish that the privilege
has been waived or that the communication or material is either outside the scope of the privilege or within a specified
exception to the privilege.
Id.
We note that the privilege at issue in Stidham was not the attorney-client
privilege, but rather the application of KRS 218A.280 to the psychotherapist-patient privilege. However, in relying on Zolin, which involved the crime/fraud exception to the attorney-client privilege, the Court in Stidham noted that it discerned no conceptual difference between the issue in Zolin and the application of KRS 218A.280 to the psychotherapist-patient privilege. Id. at 726. Thus, the standard for in camera review set forth in
Stidham applies to the instant case.
With respect to this matter, the Ohio Circuit Court has not made any findings as to whether the Commonwealth has actually proven by a preponderance of the evidence that an exception to the attorney-client privilege would apply. Without any initial
determination by the trial court that the Commonwealth has proven by a preponderance
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of the evidence that an exception to KRE 503 applies, an in camera review would be premature.
Therefore, having considered the petition for a writ of prohibition filed
herein by the petitioner, the response filed thereto by the real party in interest, and being
otherwise sufficiently advised, this Court ORDERS that the petition for a writ of prohibition be, and it is hereby, GRANTED. The Ohio Circuit Court is hereby PROHIBITED
from enforcing the June 2, 2010, order. This Court hereby DIRECTS the Ohio Circuit
Court to conduct an evidentiary hearing to determine whether the exception to the attorney-client privilege of KRE 503(d)(1) would apply. Should the Ohio Circuit Court determine that an exception under KRE 503(d)(1) applies after making findings of fact under
CR 52.01, it may then order an in camera review. The petitioner would then be entitled
to request review of any order granting in camera review to this Court by means of an
original action.
ALL CONCUR.
ENTERED: August 12, 2010
/s/ Michelle M. Keller
JUDGE, COURT OF APPEALS
PETITION FOR ERIC A.
NORSWORTHY:
RESPONSE FOR COMMONWEALTH:
TIMOTHY R. COLEMAN
COMMONWEALTH’S ATTORNEY
MORGANTOWN, KENTUCKY
DAVID A. LAMBERTUS
JOHN TIM McCALL
LOUISVILLE, KENTUCKY
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