Blaik v. Health Care Service Corporation

W.D. Oklahoma

Blaik v. Health Care Service Corporation

DecidedJune 22, 2023

Docket5:19-cv-00968

StatusUnknown

This text of Blaik v. Health Care Service Corporation (Blaik v. Health Care Service Corporation) is published on Counsel Stack Legal Research, covering District Court, W.D. Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Blaik v. Health Care Service Corporation, (W.D. Okla. 2023).

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

A.B., a minor child, by and through her ) Parent and Legal Guardian, SHERRI ) BLAIK, ) ) Plaintiff, ) ) v. ) Case No. CIV-19-968-D ) HEALTH CARE SERVICE ) CORPORATION d/b/a/ BLUE CROSS ) BLUE SHIELD OF OKLAHOMA, ) ) Defendant. )

O R D E R Before the Court is Plaintiff’s Motion to Strike Lead Trial Counsel from Defendant’s Witness List [Doc. No. 135]. Upon consideration, the Court finds that the Motion is premature. In effect, Plaintiff asks for an advisory ruling on whether Defendant can call her lead counsel, Mark Engel, as a trial witness. Rule 3.7(a) of the Oklahoma Rules of Professional Conduct – adopted by LCvR83.6(b) – prohibits an attorney from acting as an advocate in a trial where the attorney is likely to be a necessary witness. See Okla. Stat. tit. 5, ch. 1, app. 3-A. Under this rule, “an advocate should be called as a witness only in circumstances of the utmost necessity.” See Boyd v. State, 1992 OK CR 40, ¶ 21, 839 P.2d 1363, 1370. Presently in this case, it is unknown whether an issue under the advocate- witness rule will arise or require a ruling. The issue will be presented for decision only if a trial is needed, the facts of which Mr. Engel has percipient knowledge are disputed, and there are no other means of evidentiary presentation. See Morganroth & Morganroth v. DeLorean, 213 F.3d 1301, 1309 (10th Cir. 2000), overruled on other grounds by TW Telecom Holdings, Inc. v. Carolina Internet Ltd., 661 F.3d 495 (10th Cir. 2011) (finding Rule 3.7 motion premature); see also Bell v. City of Okla. City, Case No. CIV-16-1084-D, 2017 WL 3219489, *2 (W.D. Okla. July 28, 2017) (narrowly defining “necessary witness”). IT IS THEREFORE ORDERED that Plaintiff's Motion to Strike Lead Trial Counsel from Defendant’s Witness List [Doc. No. 135] is DENIED without prejudice to a future submission, if appropriate. IT IS SO ORDERED this 22" day of June, 2023.

Md □□ OiPt TIMOTHY D. DeGIUSTI Chief United States District Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

A.B., a minor child, by and through her ) Parent and Legal Guardian, SHERRI ) BLAIK, ) ) Plaintiff, ) ) v. ) Case No. CIV-19-968-D ) HEALTH CARE SERVICE ) CORPORATION d/b/a/ BLUE CROSS ) BLUE SHIELD OF OKLAHOMA, ) ) Defendant. )

O R D E R Before the Court is Plaintiff’s Motion to Strike Lead Trial Counsel from Defendant’s Witness List [Doc. No. 135]. Upon consideration, the Court finds that the Motion is premature. In effect, Plaintiff asks for an advisory ruling on whether Defendant can call her lead counsel, Mark Engel, as a trial witness. Rule 3.7(a) of the Oklahoma Rules of Professional Conduct – adopted by LCvR83.6(b) – prohibits an attorney from acting as an advocate in a trial where the attorney is likely to be a necessary witness. See Okla. Stat. tit. 5, ch. 1, app. 3-A. Under this rule, “an advocate should be called as a witness only in circumstances of the utmost necessity.” See Boyd v. State, 1992 OK CR 40, ¶ 21, 839 P.2d 1363, 1370. Presently in this case, it is unknown whether an issue under the advocate- witness rule will arise or require a ruling. The issue will be presented for decision only if a trial is needed, the facts of which Mr. Engel has percipient knowledge are disputed, and there are no other means of evidentiary presentation. See Morganroth & Morganroth v. DeLorean, 213 F.3d 1301, 1309 (10th Cir. 2000), overruled on other grounds by TW Telecom Holdings, Inc. v. Carolina Internet Ltd., 661 F.3d 495 (10th Cir. 2011) (finding Rule 3.7 motion premature); see also Bell v. City of Okla. City, Case No. CIV-16-1084-D, 2017 WL 3219489, *2 (W.D. Okla. July 28, 2017) (narrowly defining “necessary witness”). IT IS THEREFORE ORDERED that Plaintiff's Motion to Strike Lead Trial Counsel from Defendant’s Witness List [Doc. No. 135] is DENIED without prejudice to a future submission, if appropriate. IT IS SO ORDERED this 22" day of June, 2023.

Md □□ OiPt TIMOTHY D. DeGIUSTI Chief United States District Judge

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