Harrison Ex Rel. Harrison v. Board of Regents

2013 NMCA 105, 5 N.M. 111
CourtNew Mexico Court of Appeals
DecidedSeptember 5, 2013
Docket34,349;Docket 32,215
StatusPublished
Cited by41 cases

This text of 2013 NMCA 105 (Harrison Ex Rel. Harrison v. Board of Regents) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harrison Ex Rel. Harrison v. Board of Regents, 2013 NMCA 105, 5 N.M. 111 (N.M. Ct. App. 2013).

Opinions

OPINION

VANZI, Judge.

{1} The formal opinion filed in this case on August 28, 2013, is hereby withdrawn, and this opinion is substituted in its place.

{2} District courts have the inherent authority to “impose a variety of sanctions on both litigants and attorneys in order to regulate their docket, promote judicial efficiency, and deter frivolous filings.” State ex rel. N.M. State Highway & Transp. Dep’t v. Baca, 1995-NMSC-033, ¶ 11, 120 N.M. 1, 896 P.2d 1148 (internal quotation marks and citation omitted). The question raised in this appeal is whether a district court’s inherent power to impose sanctions includes the authority to issue a non-compensatory monetary sanction against a public entity. We answer this question in the affirmative and therefore affirm the district court’s imposition of a $100,000 sanction against Defendant-Appellant, the Board of Regents of the University of New Mexico (the Regents), for willful and improper interference with a disclosed witness in a matter pending before the district court.

BACKGROUND

{3} The facts underlying the imposition of sanctions in this case are not disputed by the Regents on appeal. We therefore rely extensively below on the factual background that was set forth in the district court’s letter decision imposing sanctions.

{4} In August 2009, Plaintiffs filed suit in district court against the Regents, along with other parties, alleging medical malpractice in connection with a cesarean section/tubal ligation surgery performed by physicians employed by the University of New Mexico (UNM) Health Sciences Center. Plaintiffs subsequently retained Dr. Ian Paul to serve as an expert witness in their case. At the time, Dr. Paul was a pathologist employed by the New Mexico Office of the Medical Examiner (OMI) and was also a clinical assistant professor in the Department of Pathology at the UNM Health Sciences Center. The conduct that led the district court to impose sanctions against the Regents in this case occurred upon Plaintiffs’ formal designation of Dr. Paul as one of their expert witnesses.

{5} Scot Sauder, an attorney employed as in-house counsel by UNM, learned of Dr. Paul’s designation as one of Plaintiffs’ medical expert witnesses. Sauder concluded that Dr. Paul’s participation in the case was not in the best interests of the UNM Health Sciences Center and, by extension, the Regents. At the time, Sauder was the head of the health law section of the University Counsel’s office and was also serving as the manager of litigation involving UNM Health Sciences Center, which included oversight of Plaintiffs’ case. Sauder initially communicated his concerns regarding Dr. Paul’s expert testimony in the case with Dr. Paul Roth, the chancellor of UNM Health Sciences Center, and he received unquestioned approval from Dr. Roth to contact Dr. Paul’s supervisors regarding the matter. Sauder then contacted Dr. Ross Zumwalt, who was Dr. Paul’s immediate supervisor at OMI, to inform him of Dr. Paul’s plan to testify against another UNM physician and to end Dr. Paul’s participation in the case. Dr. Zumwalt responded that he was familiar with Plaintiffs’ case as Dr. Paul had already informed him of his plan to testify as an expert witness for Plaintiffs in the case. Dr. Zumwalt further stated, “I am sure the Regents desire that this case be evaluated by competent, qualified, and unbiased experts. The Regents are fortunate that Dr._Paul fits those criteria.”

{6} Sauder also spoke with Dr. Paul’s supervisor, Dr. Thomas Williams, the head of the UNM Department of Pathology; however, nothing further happened until the case neared the mediation deadline set by the district court approximately three months later. At that time, Sauder contacted both of Dr. Paul’s supervisors, again suggesting that Dr. Paul’s involvement in the case as Plaintiffs’ expert created a conflict of interest with the UNM Health Sciences Center. He also informed them that Dr. Roth agreed with him and that he believed Dr. Paul should withdraw from the engagement. The next day, Sauder reached to outside counsel hired by the Regents to represent UNM in the litigation and informed her that Dr. Paul would not be testifying in the case. Sauder later testified that by the time he contacted outside counsel, he had already been assured by Dr. Williams that Dr. Paul would be withdrawing from the case. However, Dr. Williams testified that he offered no such assurance to Sauder. In fact, both of Dr. Paul’s supervisors later testified that they did not believe it was appropriate or necessary for Dr. Paul to withdraw from the case.

{7} Within days of Sauder’s communications with Dr. Paul’s supervisors, Dr. Paul withdrew from the case. In an email to Plaintiffs’ trial counsel informing him of his decision, Dr. Paul stated that he had been under “a lot of pressure from the higher ups at UNM” to withdraw. The district court noted that at the time these events unfolded, Dr. Paul was under consideration for a significant job promotion. Dr. Paul later testified that he felt intimidated and feared that his career was in jeopardy. He stated that he would not have withdrawn from the case but for Sauder’s actions.

{8} Upon Dr. Paul’s withdrawal from the case, Plaintiffs filed a motion in district court seeking sanctions against the Regents and their attorney, Sauder. Plaintiffs argued that the manner in which Sauder caused Dr. Paul to withdraw from the case amounted to improper witness interference and tampering and was a violation of a number of the Rules of Professional Conduct governing attorneys. It also established that Sauder acted with the full support and encouragement of Dr. Roth. The district court held two hearings on Plaintiffs’ motion for sanctions. However, by the time the second hearing was held on Plaintiffs’ motion, the parties had already reached a settlement for the claims in the underlying case.

{9} Following the hearings, the district court issued a letter decision imposing sanctions against the Regents and Sauder. The court stated in the decision that it was not persuaded by Sauder’s position at the sanctions hearings that Dr. Paul’s involvement in the case constituted an impermissible conflict of interest. The court found that there were no applicable policies in effect at UNM under which Dr. Paul’s decision to testify as an expert for Plaintiffs created an impermissible conflict of interest with the UNM Health Sciences Center. The court stated “[tjhat any public entity, let alone the flagship University of this State, believes it has such power to stifle comment is both terrifying and in violation of public policyf.j” In addition, the court pointed out that Sauder could have, but failed to, file a motion in open court in an attempt to prevent Dr. Paul from testifying, which would have allowed both parties to develop their arguments and would have provided the district court with an opportunity to determine whether Dr. Paul’s testimony would have been unduly prejudicial to UNM or otherwise improper. The court found that Sauder instead acted “internally, quietly . . .

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Cite This Page — Counsel Stack

Bluebook (online)
2013 NMCA 105, 5 N.M. 111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrison-ex-rel-harrison-v-board-of-regents-nmctapp-2013.