SANCTIONS: A WORD TO THE WISE

As a practicing attorney for the past thirteen years in both North Carolina and West Virginia, I have had the honor of trying cases and making legal arguments in a number of state and federal courts. Since becoming an attorney, I have practiced law with a number of attorneys whom I hold in very high regard and from whom I have received solid legal instruction, both in the law, as well as the ethical obligations attendant on taking the oath of a lawyer. Based on this instruction, it has been my practice to not just follow a strict interpretation of the ethical rules that all attorneys are charged with following, but to abide by the spirit and intent of those rules. I firmly believe that the vast majority of practicing attorneys have a respect for their ethical obligations similar to mine.

Over the past few years, however, I have also witnessed erosion in the professionalism that once existed between attorneys representing adverse clients. Among the most prominent shortcomings is the lack of candor to opposing counsel and their respective clients and, more importantly, lack of candor to the court. While an attorney has an ethical obligation to zealously represent his or her client, such obligation does not allow an attorney to misrepresent facts, make knowingly false statements, or withhold discoverable information and evidence. However, these are a few of the tactics that I have witnessed in the recent past as an adversary has attempted to gain an advantage in litigation. As a result of this ethical erosion, courts across the country have become much more active in addressing unprofessional and/or unethical behavior by punishing attorneys, or their clients, who choose not to follow the rules.

As an attorney practicing in West Virginia, my interest in the imposition of court ordered sanctions, particularly for lack of candor, was sparked by a recent Order entered on May 24, 2007 in the Circuit Court of Wood County, West Virginia, in the case of Boggs v. Camden-Clark Memorial Hospital. In Boggs, the Court awarded the plaintiff attorney fees and expenses, plus interest, in the amount of one million three hundred fifty-nine thousand two hundred forty-one dollars and two cents ($1,359,241.02), as a sanction for litigation misconduct committed by the defendant. While Boggs is a case of local, not national, significance, its subject matter is relevant to all practicing attorneys and should serve as a not-so-gentle reminder that our actions and conduct, as well as the actions and conduct of our clients can have significant and expensive consequences.

As is typically the case when a significant decision is issued, the Boggs opinion got the immediate attention of most, if not all, West Virginia attorneys. While the issue of sanctions has always been in play in West Virginia, the magnitude of the sanction in Boggs was unusually punitive. Needless to say, attorneys throughout the State began assessing the appropriateness of their own litigation strategies and conduct in light of the potential ramifications that could result if a court were to determine that their litigation conduct fell short of the appropriate standard. While the sanctions awarded in Boggs were against the client, Camden-Clark Hospital, one can imagine the impact on the attorney and/or his or her law firm, if a Boggs- type sanction was imposed on counsel.

Factually, Boggs was described by the West Virginia Supreme Court of Appeals as a case in which a woman being treated for a broken ankle died on the operating table.1 Filed in June, 2003, the Plaintiffs Complaint alleged negligence, wrongful death, fraud, spoliation of evidence, fraudulent concealment, the tort of outrage, negligent credentialing, and vicarious liability against Camden-Clark Hospital. Boggs was filed under West Virginia's then newly enacted Medical Professional Liability Act (MPLA) and primarily addressed its requirements. However, the impact of Boggs will likely extend beyond its teachings on West Virginia's MPLA and will be better remembered for its discussion of improper litigation conduct and the imposition of sanctions attributable to such conduct. To have a better understanding of the sanctions awarded in Boggs, it is important to appreciate the conduct that led to the sanction.

Discovery Requests

In June, 2004, the Plaintiff served his first set of discovery on Camden-Clark requesting contact information for "... every person known to you or your attorney who has knowledge of any discoverable matter... and a description of the information. . ." In July 2004, Camden-Clark served its responses and answered the interrogatory by stating that discovery and investigation were in their most rudimentary stages and that "those persons with knowledge of any of the relevant facts and circumstances . . . are identified in the medical records."

Despite being verified by its RiskManager, Camden-Clark's July, 2004 response to this Interrogatory was erroneous with regard to the knowledge of both Camden-Clark's Counsel and the RiskManager. In fact, in July, 2004 CamdenClark knew the identity of at least seven (7) people who had or could have discoverable information about the case and who were not identified in decedent Boggs' medical records.

Also in the first set of discovery the Plaintiff requested the identity of all those who participated in the care and treatment of decedent Boggs. In response to this inquiry, Camden-Clark again responded by indicating that discovery and investigation were in their most rudimentary stage and again directed the Plaintiff to the medical records of decedent for the identity of said individuals. As discovery later revealed, at least two (2) individuals who participated in the care and treatment of decedent Boggs were not identified in her medical records. More importantly, despite Camden-Clark's representation that discovery and investigation were in their most rudimentary stage, Camden-Clark, via its Risk-Manager, had already conducted a comprehensive investigation, including, but not limited to, witness statements and interview summaries, which provided crucial information regarding the Plaintiffs claims.

In addition, the Plaintiffs first set of discovery also requested a copy of any written statements taken from anyone regarding the case. In its response, Camden-Clark asserted a work product objection and further answered that no statement was taken from either decedent Boggs or the Plaintiff other than the Plaintiffs deposition. This response, however, was ultimately termed by the Circuit Court of Wood County as simultaneously false and misleading. According to the circuit court, the response was false because Camden-Clark knew it had taken numerous witness statements as part of its comprehensive investigation. Likewise, the response was misleading because Camden-Clark failed to disclose or file a privilege log regarding its workproduct claims for the witness statements. Later, Camden-Clark claimed it had no statements and that nothing had been withheld.

As discussed by the circuit court, the identification and substance of the witness statements was critical, as a detailed timeline, evidence of a cover-up, and confirmation of missing time indices were revealed within the witness statements. By the time the Plaintiff obtained the information contained in the witness statements, no time was left to conduct further discovery, depose witnesses, disclose additional experts or theories, or develop additional evidence.

Court Orders

In addition to failing to respond fully and fairly to Plaintiffs discovery requests, Camden-Clark also was found to have failed to comply with three Court Orders regarding privilege logs and/or production of documents. In December 2004, May 2005, and August 2005, hearings were conducted on motions filed by the plaintiff to compel complete answers to written discovery. After the first hearing in December 2004, the Circuit Court ordered Camden-Clark to produce a privilege log of the documents it was withholding within thirty days of the Hearing. Following this December 2004, hearing, Camden-Clark produced a barebones privilege log relating only to a doctor credentialing file.

A second hearing was held in May, 2005. At that time, the Plaintiff requested that the Court overrule all objections to the production of documents raised by CamdenClark which were not included in the Abarebones privilege log. The circuit court denied the Plaintiffs request, and allowed CamdenClark ten additional days to produce a privilege log or motion for protective order justifying non-production. Camden-Clark apparently ignored the Court's second order and neither produced the appropriate privilege log nor filed a motion for protective order.

A third hearing was held in August, 2005. At this hearing, the Plaintiff again asked the Court to overrule all objections to the production of documents raised by Camden-Clark which were not included in the Abare-bones privilege log and which were the subject of Plaintiffs discovery requests and grant the Motions to Compel. Once again, however, the Court denied the Plaintiffs request, and gave Camden-Clark an additional seven (7) days to produce a privilege log and provide the documents to the Court for in camera review. Again, Camden-Clark did neither and apparently ignored the Court's order. Finally, in December 2005, the Plaintiff filed his Fourth Motion to Compel the previously undisclosed documents and for sanctions for failure to comply with the Court's prior Orders. At the hearing on December 19, 2005, the Court granted Plaintiffs Motion for Sanctions, but took the nature of the sanctions under advisement.

Notably, moments before the December 19, 2005 Hearing, Camden-Clark produced and filed its second privilege log and provided the Court with voluminous documents which the Court later deemed critical. No prior disclosure of mese said documents had been made to either the Plaintiff or the Court notwithstanding the three previous Court orders requiring their production. Sadly, this second privilege log, produced more than a year late, failed to comply with West Virginia law with respect to those documents alleged to be privileged based upon attorney-client/work product or subject to medical peer review protection.2

After the December, 2005 hearing and despite its filing of a second privilege log, Camden-Clark continued to withhold key evidence not identified in the privilege log nor submitted to the Court for in camera review. Specifically, four witness interview summaries, including summaries of two of the most critical fact witnesses in the case, were produced for the first time by CamdenClark on the first day of trial. Three of the four summaries provided key information regarding destruction of documents, collusion of stories, falsification of medical records, and negligence. Even a witness statement which Camden-Clark advised the jury had likely been destroyed, was produced on the fourth day of trial. Again, this statement was not identified in any privilege log, provided to the Plaintiff before trial, or produced to the Court.3

Uncorrected Testimony by Camden-Clark Employees and Counsel at Pre-Trial Proceedings and at Trial

In addition to the insufficiency in its discovery responses and its violation of multiple Court Orders, Camden-Clark also knowingly permitted its employees or agents to testify inaccurately or incompletely. Moreover, Camden-Clark's counsel, who had received and reviewed all of the information held by Camden-Clark, allowed its employees to testify falsely or incompletely and further, misled the Court with regard to an incident report and witness statements. Counsel for Camden-Clark went so far as to make erroneous assertions during opening statements concerning physician credentialing, doctor privileges, and time signatures on the cardiac rhythmic strips. Finally, Camden-Clark's counsel presented expert testimony from several expert witnesses who had not been permitted to review all relevant factual evidence in the case prior to the giving of their testimony.

Other Acts Evidencing a Lack of Candor

In addition to the above noted transgressions, Camden-Clark also made other misrepresentations to the Circuit Court. First, in its emergency motions, CamdenClark made inaccurate representations regarding the circuit court's previous hearings and rulings. Likewise, CamdenClark, via its Risk-Manager, testified inaccurately regarding material matters including, but not limited to: 1) instructions to witnesses to provide copies of notes; 2) knowledge of notes or other documents made by hospital employees outside the medical record; 3) consultations outside of individuals identified in the Risk-Manager's deposition; 4) instructions to witnesses to destroy notes, copies, or otherwise; 5) the identity of those interviewed; and 6) instructions to nurses to destroy notes. Similarly, Camden-Clark's Counsel represented, on the record, during a witness deposition that her notes were being withheld under privilege but later argued that the notes did not exist.

Thus, as summarized by the Circuit Court of Wood County, ACamden-Clark's strategy in denying, throughout the case, things it knew well to be true went far beyond the privilege of putting the Plaintiff to his proof. By breaching court orders, filing false discovery responses and by giving and permitting to be given inaccurate testimony under oath, and through multiple false statements to the Court, the Plaintiff and the Jury, Camden-Clark engaged in litigation misconduct.

Conclusion

Few would argue that the conduct identified by the Court in Boggs was not egregious and deserving of sanctions. However, practicing attorneys should not pass off the issuance of sanctions as awarded in Boggs as an aberration limited only to the most disturbing litigation conduct. The message to be taken from Boggs should be that any arguably improper conduct can become the subject of court scrutiny which could result in sanctions detrimental to the client. Other frequently used sanctions include the striking of a party's pleadings, the entry of judgment on liability, waiver of a party's objections and privileges, exclusion of evidence and/or witnesses. While not as attention grabbing as a substantial monetary sanction, these other less noxious sanctions can be just as devastating to a client and/or his or her counsel.

As Courts become more accustomed to levying sanctions for inappropriate litigation conduct and lack of candor, attorneys will more frequently be forced to assess their own conduct in their interaction with their clients, adversaries, and the court. While it is unclear what degree of conduct will prompt sanctions, it is clear that courts throughout the county are becoming more proactive in demanding fair and ethical conduct and less willing to excuse inappropriate behavior.

The Boggs example should cause practitioners to revisit and review the ethical rules governing the conduct of attorneys in their own jurisdiction. Boggs should also cause each of us to recommit ourselves to following not just the rules, but the spirit and intent behind the rules. As I was taught early in my career, if one has to question whether certain actions or conduct are appropriate, it is conduct that should not be accepted. A dedication to this type of practice may lead to an improvement in the perceived lowered standards of professionalism and ethics within the legal profession. Even if this were not the case, maintaining this type of practice would likely prevent the type of abuses and sanctions that were the subject of the Boggs opinion and other decisions like it from around the country.4