Iacangelo v. Georgetown University

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________ ) FELICE I. IACANGELO, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 05-2086 (PLF) ) GEORGETOWN UNIVERSITY, et al., ) ) Defendants. ) __________________________________________)

MEMORANDUM OPINION AND ORDER

At a status conference in this matter on June 26, 2007, the Court discussed with

defense counsel, Megan Hills, Esq., of Williams & Connolly, the Court’s concern about an

actual, apparent or potential conflict of interest between defendants Georgetown University and

Dr. Vance E. Watson. See Transcript of June 26, 2007 Status Conference at 3-14. At that time,

the Court was particularly concerned about the prospect of the same lawyer or law firm

representing Georgetown University, Dr. Watson, and an in-house lawyer for Georgetown

University Hospital, Sheila Zimmet, at Ms. Zimmet’s deposition. See id. at 9 (“Watson’s

counsel has to stand by Watson’s credibility, but Watson’s counsel also has to stand by Sheila

Zimmett’s [sic] credibility since she is a Georgetown employee.”). The Court directed that

Williams & Connolly get Dr. Watson a separate lawyer to advise him on whether an actual or

potential conflict existed. Id. at 11-12. The following day, the Court issued a Memorandum Opinion and Order reflecting

what it had said at the status conference (which it behooves counsel to re-read again, carefully),

concluding that Ms. Zimmet was entitled to separate and independent counsel for purposes of

representing her at her deposition and directing that Georgetown University assist Dr. Watson in

obtaining independent counsel “to advise him on the issue of whether a conflict of interest has

arisen between his interests and those of defendant Georgetown, or whether there is a possible or

potential conflict of interests [sic] in view of both his [Dr. Watson’s] deposition testimony and

Sheila Zimmet’s forthcoming deposition testimony.” Iacangelo v. Georgetown Univ., Civil

Action No. 05-2086, Memorandum Opinion and Order at 4 (D.D.C. June 27, 2007). The Court

further ordered defendants’ counsel to file a notice with this Court identifying the independent

counsel retained for Dr. Watson. See id. Finally, the Court directed that once Dr. Watson had

obtained the advice of independent counsel, said independent counsel “shall file a report with

this Court setting forth that counsel’s analysis of the conflict or potential conflict issue,

accompanied by an affidavit from Dr. Watson stating his decision, if any, to waive or not waive

any conflict.” Id.

On July 17, 2007, counsel for defendants Georgetown University and Dr. Watson

filed a notice pursuant to the Court’s June 27, 2007 Memorandum Opinion and Order notifying

the Court that George R. Clark, Esq., had been retained as separate counsel for Dr. Watson to

advise Dr. Watson of any conflict of interest and to attend the deposition of Sheila Zimmet on his

behalf. See Iacangelo v. Georgetown Univ., Civil Action No. 05-2086, Defendants’ Notice at 1

(D.D.C. July 17, 2007). Since that time, two years have elapsed without Mr. Clark having filed

-2- the report (and affidavit from Dr. Watson) required by the June 27, 2007 Memorandum Opinion

and Order.

The Court now has before it plaintiffs’ motion for reconsideration of Magistrate

Judge Alan Kay’s June 17, 2008 Memorandum Opinion and defendants’ opposition to that

motion. In its effort to defeat the argument for the testimony of proffered legal experts at the trial

of this medical malpractice case, counsel for the defendants argue that the communication of

legal information from Georgetown University’s in-house counsel, Sheila Zimmet, to Dr. Watson

is “wholly irrelevant” to the “only issue” in this case, which counsel identifies as “whether Dr.

Watson’s medical treatment of Mrs. Kerris breached the standard of [medical] care for treating

interventional neuroradiologists[.]” Defendants’ Opposition to Plaintiffs’ Motion for

Reconsideration of Magistrate Judge Kay’s June 17, 2008 Order at 3. Counsel continue: “As the

healthcare provider at issue, Dr. Watson’s decision to use a non-FDA approved device to treat a

patient was his alone.” Id. at 4. While counsel go on to discuss the doctrine of respondeat

superior and the obligation of Georgetown University to pay any damages that may be assessed

after trial against Dr. Watson, see id., the argument that the decision to use a non-FDA approved

device was Dr. Watson’s “alone” -- regardless of what Ms. Zimmet advised him or what anyone

else at Georgetown may have said or done -- only seems to reinforce the Court’s initial view that

a conflict of interest exists (or may in the future exist) between Georgetown University and Dr.

Watson.1

1 In their reply brief, plaintiffs state:

The facts disclosed in discovery established that Defendant Dr. Watson relied on Ms. Zimmet’s advise [sic] as to the legality of the devices. Dr. Watson stated that if Ms. Zimmet had told him that

-3- Thus, the following questions must be addressed by Williams & Connolly and by

Mr. Clark -- after Mr. Clark fully discusses this matter with Dr. Watson. Does Georgetown

University stand behind Ms. Zimmet or behind Dr. Watson, both with respect to the pending

motion and, if necessary, at trial? What do Ms. Hills and her colleagues intend to tell the jury at

trial -- that Dr. Watson was solely responsible for what happened? Or that he shared

responsibility with the Hospital? If the Court rules that testimony from Ms. Zimmet and others

about her legal advice to Dr. Watson is relevant and will be admitted (with or without the

explanation of the expert opinion testimony proffered by plaintiffs), then will the defendants

argue that Dr. Watson should not be held liable at all while their other client (Georgetown

University) should be? Will Georgetown University in fact pay all damages and expenses for Dr.

Watson, if he is found liable, including any punitive damages that may be assessed? And how

would Georgetown University Hospital compensate Dr. Watson were he to lose his license to

practice medicine as a result of this litigation?

As these questions indicate, the Court cannot, at this point in time, comprehend

how Ms. Hills and Williams & Connolly can represent both Georgetown University and Dr.

Watson. If Mr. Clark has a different view after consulting with his client, he may provide it in

the devices were illegal, he would not have used them. (Motion, p. 2). There is also testimony by Ms. Zimmet that she did not believe that she had to do, nor did she do, any research of the Import Alerts or review of the statutes to determine whether the devices were in fact legal. (Id. at pp. 2-3).

Plaintiffs’ Reply to Defendants’ Opposition to Plaintiffs’ Motion for Reconsideration of Magistrate Judge Kay’s June 17, 2008 Memorandum Opinion at 3.

-4- the report that should by now have been filed, accompanied by an affidavit from Dr. Watson.

For these reasons, it is hereby

ORDERED that, on or before July 31, 2009, counsel for the defendants shall file a

response to the questions set out above, see supra at 3-4; and it is

FURTHER ORDERED that, on or before July 31, 2009, Mr. Clark shall file the

report (and affidavit from Dr. Watson) called for by this Court’s June 27, 2007 Memorandum

Opinion and Order and as now informed by this Memorandum Opinion and Order.

SO ORDERED.

/s/_______________________________ PAUL L. FRIEDMAN United States District Judge

DATE: July 16, 2009

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