Cobb County Superior Court Judge Grubbs Grants Default Judgement Against Wellstar as Sanctions for Defense Counsel Interfering with Plaintiffs Expert Testimony

Pamela Kemp brought a medical malpractice suit against WellStar Health System, Inc. alleging that doctors at WellStar Douglas Hospital gave her husband medication when he was admitted for shortness of breath related to chronic emphysema but did not take into account the two packs of cigarettes and six beers he consumed daily. The suit alleges that the medication caused respiratory failure and brain damage and ultimately led to his death.

Plaintiff’s attorney, Gary Bunch, retained William Stinnett, MD, a Northside Hospital employee, as an expert witness. Dr. Stinnett was scheduled to be deposed in April but suddenly backed out after believing that his job with Northside was in jeopardy.

Plaintiff claimed that WellStar’s counsel, Henry Green, Jr. of Green & Sapp called Susan Sommers, Northside’s general counsel and Dr. Stinnette’s boss, to assist in preventing his testimony.

Dr. Stinnette testified that Ms. Sommers called and informed him that WellStar Hospital had called her “very, very upset, indeed enraged” about him testifying for Plaintiff and did not want him to be an expert in the case. Ms. Sommers expressed her extreme displeasure and referred Dr. Stinnette to his contract with Northside. This conversation with Ms. Sommers intimidated Dr. Stinnette into, not only backing out of the deposition, but withdrawing as Plaintiff’s expert all together. Dr. Stinnett believed that his job was at risk and he would be blackballed in the medical community if he continued as Plaintiff’s expert witness.

David Sapp, admitted to his partner contacting Ms. Sommers about Dr. Stinnette’s involvement in the case but claimed it was “as a professional courtesy.”

Internal emails obtained from Sapp’s law firm during the case showed that attorneys assumed that Dr. Stinnette would not be testifying after Ms. Sommers talked to him.

“Do you think that is a bluff, and that Dr. Stinnette has heeded Sue’s suggestion that he not continue as an expert on that case,” one of the firm’s associates, Austin Gillis, wrote to Sapp on March 14.

“Sue Sommers has made it clear that Stinnette is not going to be a factor,” Sapp wrote to Gillis later that day.

Plaintiff brought her allegations of defense counsel interfering with Dr. Stinnette’s involvement with the case before Judge Grubbs back in July and after hearing testimony for both sides, Judge Grubbs disqualified Green & Sapp determining that the partners had “deliberately, repeatedly and willfully” intimidating Dr. Stinnette into withdrawing from the case.

Plaintiff moved to have WellStar’s defense tossed as an additional sanction. Judge Grubbs heard arguments on the matter Tuesday.

In Tuesday’s hearing, WellStar’s new lawyer, Russell Davis of Downey Cleveland, cited cases in which default judgments were reversed on appeal, although he noted none of them contained the same facts as this one. Mr. Davis argued that the law does not provide guidance for the ultimate sanction in this case. “Whether Green & Sapp’s conduct was egregious or not, there’s no statutory basis for striking the answer,” he said.

Mr. Bunch countered with a list of cases where the so-called civil death penalty was ordered for witness tampering. “That’s what this is,” Mr. Bunch said. “It’s witness tampering. It’s also a violation of bar rules. The system couldn’t function if you allowed defendants to take out plaintiff’s experts.”

Mr. Davis told the court that WellStar had been “in the dark” about the actions of its previous counsel and presented three affidavits from hospital employees saying, “If we’d known, we would have stopped it.” Judge Grubbs informed Mr. Davis that the law holds the client accountable for the action of counsel. “It doesn’t matter whether the client knew or not if the lawyer did it.”

Judge Grubbs ultimately ruled against WellStar and granted a default judgment to Plaintiff as a sanction for defense counsel interfering with Dr. Stinnette’s testimony.

In her ruling, Judge Grubbs cited a 1962 U.S. Supreme Court decision, Link v. Wabash Railroad Co., 370 U.S. 626. In that case, the court held it was not unjust to dismiss a petitioner’s claim “because of his counsel’s unexcused conduct.”

“Petitioner voluntarily chose this attorney as his representative in the action and he cannot now avoid the consequences of the acts or omissions of the freely selected agent,” the high court held.

“Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent and is considered to have notice of all facts, notice of which can be charged to the attorney.”

Judge Grubbs’s Order said the court was not persuaded that WellStar didn’t know about the witness intimidation. “While Wellstar, now, seeks to distance itself from its attorneys, the evidence is contrary to their position,” the order said. “The court finds from all the evidence that defendant Wellstar was aware of the bad faith acts of previous counsel.”

The order cited Stinnette’s testimony at the July hearing “that he was told by a preceding witness that defendant Wellstar was upset at the hospital, Northside, because Dr. Stinnette was testifying against Wellstar. Dr. Stinnette was the most open and credible witness at that hearing.”

The order also cited Bouv & Mohr v. Banks, 274 Ga. 758 (2005). “Where a party has destroyed or significantly altered evidence that is material to the litigation, the trial court has wide discretion to fashion sanctions on a case-by-case basis,” the order said, quoting the decision. Citing another case, Chapman v. Auto Owners Insurance Co., 220 Ga. App. 539 (1996), the order added, “This includes dismissing a case or striking an answer.”

Judge Grubbs’ decision means that Plaintiff no longer has to prove that WellStar was responsible for the 2009 death of her 64-year-old husband. Instead, the case will proceed to deciding damages.

Judge Grubbs called the punishment of WellStar Health System Inc. “the only fair and just resolution of this case given the egregious conduct of the defendant.”

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