Judge: Cynthia A Freeland, Case: 37-2021-00048948-CU-PO-NC, Date: 2023-09-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - September 28, 2023

09/29/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  PI/PD/WD - Other Motion Hearing (Civil) 37-2021-00048948-CU-PO-NC WALKER VS VILLAS AT POWAY [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Disqualify Attorney of Record, 09/14/2023

Defendant Palomar Health ('Defendant')'s motion to disqualify Plaintiffs Patsy Walker, deceased, by and through her Successor-in-Interest, Eugene Walker, Eugene Walker individually, Shauna Koelzer, and Victor Walker (collectively, 'Plaintiffs')'s counsel is denied.

The California Supreme Court has noted that: A motion to disqualify a party's counsel may implicate several important interests. Consequently, judges must examine these motions carefully to ensure that literalism does not deny the parties substantial justice. See Comden v. Superior Court (1978) 20 Cal.3d 906, 915, 145 Cal.Rptr. 9, 576 P.2d 971.) Depending on the circumstances, a disqualification motion may involve such considerations as a client's right to chosen counsel, an attorney's interest in representing a client, the financial burden on a client to replace disqualified counsel, and the possibility that tactical abuse underlies the disqualification motion.

(See In re Complex Asbestos Litigation, supra, 232 Cal.App.3d at p. 586, 283 Cal.Rptr. 732; River West, Inc. v. Nickel (1987) 188 Cal.App.3d 1297, 1308-1309, 234 Cal.Rptr. 33; see generally, 1 Hazard & Hodes, The Law of Lawyering (2d ed.1996 & 1998 supp.) § 1.10:103, pp. 320-322 [discussing interests involved in vicarious disqualification.) Nevertheless, determining whether a conflict of interest requires disqualification involves more than just the interests of the parties.

People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal. 4th 1135, 1144-1145.

The trial court's authority to disqualify an attorney derives from its inherent authority '[t]o control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.' Ibid., at 1145 (quoting Cal. Code Civ. P. § 128(a)(5)). Disqualification is, under certain circumstances, necessary 'to protect the integrity of our judicial process by enforcing counsel's duties of confidentiality and loyalty.' Sharp v. Next Entertainment, Inc. (2008) 163 Cal. App. 4th 410, 424. Indeed, in ruling on a disqualification motion, '[t]he paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar. The important right to counsel of one's choice must yield to ethical considerations that affect the fundamental principles of our judicial process. [Citations.]' M'Guinness v. Johnson (2015) 243 Cal. App. 4th 602, 613.

The Second District Court of Appeal has explained that: 'Absent written consent, the proper rule and its application for disqualification based on nonlawyer Calendar No.: Event ID:  TENTATIVE RULINGS

3017571 CASE NUMBER: CASE TITLE:  WALKER VS VILLAS AT POWAY [IMAGED]  37-2021-00048948-CU-PO-NC employee conflicts of interest should be as follows. The party seeking disqualification must show that its present or past attorney's former employee possesses confidential attorney-client information materially related to the proceedings before the court. [Fn. omitted.] The party should not be required to disclose the actual information contended to be confidential. However, the court should be provided with the nature of the information and its material relationship to the proceeding. [Citation.] [¶] Once this showing has been made, a rebuttable presumption arises that the information has been used or disclosed in the current employment. The presumption is a result by necessity because the party seeking disqualification will be at a loss to prove what is known by the adversary's attorneys and legal staff. [Citation.]' (In re Complex Asbestos Litigation, supra, 232 Cal.App.3d at p. 596, 283 Cal.Rptr. 732.) Shadow Traffic Network v. Sup. Ct. (1994) 24 Cal. App. 4th 1067, 1084-1085. However, the Third District Court of Appeal has subsequently held that the rebuttable presumption set forth in Shadow Traffic does not apply in instances where the disputed expert remains in the employ of the original party. See Collins v. State of California (2004) 121 Cal. App. 4th 1112, 1128-1129. More specifically, 'where the expert has remained under the control of the moving party, and there is no evidence counsel knowingly retained the opposing party's expert or that the expert intentionally advised both sides, the Shadow Traffic rebuttable presumption does not apply. In this case, the moving party has the burden of proving that the confidential information it imparted to its expert witness has been transmitted to the opposing party.' Ibid., at 1129.

Against this legal backdrop, the court finds that Defendant has not met its burden of demonstrating entitlement to an order disqualifying Mr. Moore or his firm as Plaintiffs' counsel in this matter. The evidence shows that on June 2, 2022, Defendant's counsels' firm, Dummit, Buchholz & Trapp ('DB&T'), retained Dr. Greg Lewis as a consultant to review the care and treatment of Ms. Walker at Villa Pomerado and Palomar Medical Center – Poway and to render opinions concerning the standard of care, cause of Ms. Walker's death, and the damages in this action. See Freistedt Decl., ¶ 4, Ex. A. On September 6, 2022, Christopher M. Freistedt of DB&T engaged in an initial telephonic conference with Dr. Lewis during which Mr. Freistedt and Dr. Lewis discussed Dr. Lewis's interpretation of his record review as well as Mr. Freistedt's potential theories and impressions of the case. Ibid., ¶ 5, Ex. B. On July 27, 2023, Stacy E. Thumsuden, also of DB&T, met with Dr. Lewis via a Zoom conference to discuss Defendant's upcoming motion for summary judgment and case developments. During this meeting, Ms.

Thumsuden conveyed to Dr. Lewis her impressions of the case, potential defense theories, and proposed discovery strategies to include the upcoming depositions of treating physicians. Dr. Lewis, in turn, provided Ms. Thumsuden with his advice and impressions of the litigation. That being said, the court has little trouble concluding, and Plaintiffs do not seriously dispute, that DB&T and Dr. Lewis exchanged confidential information, i.e., information that DB&T reasonably expected would remain confidential. The question becomes, then, whether Dr. Lewis transmitted any confidential information to Plaintiffs' counsel. Because it is undisputed that Dr. Lewis remains employed as Defendant's expert in this matter, the burden of proof lies with Defendant under Shadow Traffic and Collins. Defendant has not satisfied its burden.

More specifically, the evidence shows that on August 2, 2023, Plaintiffs' counsel, Todd A. Moore of Walton Law APC, e-mailed Dr. Mark Lazarus seeking an expert to consult on pain management issues in the present action. See Moore Decl., ¶ 3, Ex. A. Mr. Moore subsequently provided Dr. Lazarus with the names of the parties so that a conflict check could be performed. Ibid., ¶ 4. After confirming no conflicts of interest, Dr. Lazarus referred Mr. Moore to Dr. Lewis. Ibid., ¶¶ 5-7. On August 3, 2023, Mr.

Moore called Dr. Lewis to arrange a consultation. Ibid., ¶ 8. Mr. Moore and Dr. Lewis agreed to discuss the matter later that day, with Mr. Moore e-mailing Dr. Lewis the pertinent medical records beforehand.

Ibid., ¶ 8, Ex. C. Per Dr. Lewis's custom and practice, he does not review any documents until speaking to the handling attorney and determining whether his services are appropriate under the circumstances.

See Lewis Decl., ¶ 7. It is undisputed that, during Mr. Moore's and Dr. Lewis's telephone conversation, the men discussed: (1) Dr. Lewis's credentials and experience, and (2) Mr. Moore's interpretation of the case. Ibid., ¶ 8. However, Mr. Moore's description of the case as one involving an opioid overdose by a patient at a skilled nursing facility prompted Dr. Lewis to inquire as to the persons involved. Ibid. Mr.

Moore responded with the names of the parties, at which point Dr. Lewis indicated that he had a conflict Calendar No.: Event ID:  TENTATIVE RULINGS

3017571 CASE NUMBER: CASE TITLE:  WALKER VS VILLAS AT POWAY [IMAGED]  37-2021-00048948-CU-PO-NC and could not speak with Mr. Moore further or work with him on the matter. Ibid. Mr. Moore and Dr.

Lewis have not spoken since. Dr. Lewis did not provide information about his work on the case or his relationship to Defendant or Defendant's counsel. See Moore Decl., ¶ 11. Indeed, Dr. Lewis's declaration supports this conclusion. Based on the foregoing, the court finds that Defendant has failed to demonstrate that Dr. Lewis transmitted any confidential information to Mr. Moore. Indeed, their telephone conversation, which appears to have lasted for approximately six minutes, was limited to a discussion of Dr. Lewis's credentials and Mr. Moore's recitation of the facts and impressions of the case.

Seeming to acknowledge the foregoing, Defendant, in its opposition, concedes that while Dr. Lewis did not explicitly convey Defendant's counsel's factual and legal theories to Mr. Moore, Mr. Moore nevertheless was able to reasonably infer that Dr. Lewis was involved with Defendant and disagreed with Plaintiffs' position in this case. Defendant, in essence, contends that Mr. Moore should be disqualified based upon what he may have implicitly learned through his brief conversation with Dr.

Lewis. Defendant's argument is not supported by the evidence or the above legal authorities.

Accordingly, the court denies Defendant's motion to disqualify. The court acknowledges Defendant's assertion that it may need additional time to explore the option of retaining a new expert through a trial continuance and special supplemental expert designation based upon the opinions of Plaintiffs' expert.

The court will entertain oral arguments on those issues at the hearing.

In light of the foregoing, the court denies Defendant's motion to disqualify Mr. Moore as Plaintiffs' counsel in this matter. Defendant's request for the costs incurred in prosecuting this motion is denied as Defendant has neither cited any authority for such a request nor provided evidence of what costs were incurred so that the court can engage in the appropriate reasonableness analysis. The parties should attend the hearing prepared to discuss Defendant's requests for a trial continuance and for permission to file a special supplemental expert designation, if necessary.

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