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. ) ____________________________________)
OPINION
This matter came before the Court on plaintiffs’ motion to disqualify Williams &
Connolly, LLP (“W&C”) as counsel for the defendants on the ground that Williams &
Connolly’s representation of both defendant Georgetown University Hospital and defendant
Dr. Vance E. Watson in this case is tainted by a conflict of interest. Both the case and the issue
itself are complicated and involve many filings, depositions and assertions of fact supported by
competing affidavits and declarations, all of which the Court has carefully considered.1 Because
1 The documents reviewed by the Court in reaching its decision include the following: plaintiffs’ Second Amended Complaint [Docket No. 101] (“Compl.”); plaintiffs’ Motion to Disqualify Defendants’ Counsel (“Mot.”); defendants’ Opposition to Plaintiffs’ Motion to Disqualify Defendants’ Counsel (“Opp.”); Opp., Ex. C (Transcript of December 14, 2007 Deposition of Dr. Vance Wilson) (“Dec. 14, 2007 Watson Dep.”); Opp., Ex. D (Transcript of May 31, 2007 Deposition of Dr. Watson) (“May 31, 2007 Watson Dep.”); Opp., Ex. E (Transcript of July 26, 2007 Deposition of Sheila Zimmet) (“July 23, 2007 Zimmet Dep.”); Transcript of June 26, 2007 Status Conference (“June 27, 2007 Tr.”); defendants’ Response to Alleged Conflict of Interest Issues [Docket No. 173] (“Defs.’ Resp.”); Affidavit of Defendant Vance E. Watson, M.D. [Docket No. 177] (“Watson Affid.”); Iacangelo v. Georgetown Univ., Civil Action No. 05-2086, Memorandum Opinion and Order (D.D.C. June 27, 2007) (“June 27, 2007 Mem. Op. & Order”); id., Memorandum Opinion and Order (D.D.C. July 16, 2009) (“July 16, 2009 Mem. Op. & Order”). the Court concluded that most of plaintiffs’ claims and contentions lack merit, it issued an Order
on March 26, 2010, denying the motion to disqualify. This Opinion explains the reasons
underlying that Order, and also discusses the one area where W&C may have a waivable conflict
of interest that has not yet been waived by Dr. Watson and the process by which that waiver may
be accomplished.
I. BACKGROUND
A. The Medical Treatment at Issue
This is a medical malpractice case concerning the care provided to Karyn A.
Kerris, the daughter of plaintiffs Felice Iacangelo and Cicily Iacangelo, by defendant Dr. Vance
Watson and Georgetown University Hospital (“Georgetown”). Ms. Kerris suffers from a
bithalmic arteriovenous malformation (“AVM”), an abnormal tangle of veins and arteries in her
brain through which blood does not flow properly. See Compl. ¶ 8. In 1998 and 1999, Dr.
Watson attempted to treat this condition by utilizing a process known as “embolization,” which
involves using a glue-like substance to seal abnormal blood vessels off from healthy ones. See
id. ¶¶ 8-9. As part of the embolization process, Dr. Watson combined two substances that would
be applied to the AVM: Histoacryl, a glue, and Lipiodol, a poppyseed-oil mixture containing
material that is visible in X-rays. Id. ¶ 9. Dr. Watson’s treatment was not successful, and Ms.
Kerris subsequently experienced damage to her brain that has incapacitated her. Id. ¶¶ 11-12.
Plaintiffs claim that at the time of the embolizations, Dr. Watson’s combination of
Histoacryl and Lipiodol was a “Class III[] medical device that had not been approved [by the
FDA] and was thus illegal.” Compl. ¶ 10(c). They further allege that Dr. Watson should have
2 obtained an investigational device exemption (“IDE”) from the FDA and submitted to
supervision by an institutional review board (“IRB”) before combining and using the two
substances in Ms. Kerris’ brain. Id. ¶¶ 10(d), (j). In addition, at the time of the embolizations,
Histoacryl was allegedly “the subject of a trade alert and had been seized by the FDA prior to its
use on” Ms. Kerris. Id. ¶ 10(k).
The defendants claim that they followed proper procedures in obtaining and using
Histoacryl. There is deposition testimony that in 1994, several years before treating Ms. Kerris,
Dr. Watson consulted Sheila Zimmet, a lawyer employed by Georgetown, about the use of
Histoacryl. Defs.’ Resp. at 6. The exact content of that discussion between Dr. Watson and Ms.
Zimmet is unclear, but it is reasonably certain that (1) Ms. Zimmet informed Dr. Watson that he
did not require the approval or the supervision of the IRB in order to perform the embolizations
on Ms. Kerris, id.; and (2) Dr. Watson properly inferred from Ms. Zimmet’s comments and
demeanor that his use of Histoacryl was permissible, even though Histoacryl was not yet
FDA-approved. See Defs.’ Resp. at 7; Dec. 14, 2007 Watson Dep. at 350.
Dr. Watson consulted Ms. Zimmet again in 1998 to learn “how best to achieve
prompt importation of Histoacryl.” Defs.’ Resp. at 7. Dr. Watson had already spoken with a
U.S. Customs agent about the issue and had “been provided with language to be used” in a letter
to be presented to the FDA, known as a “letter of need.” Id. Ms. Zimmet recommended that Dr.
Watson send the letter to the FDA by fax so that it would arrive at the agency before the
Histoacryl shipment went through Customs. Id. Dr. Watson successfully obtained the Histoacryl
and used it in treating Ms. Kerris, giving rise to the current lawsuit.
3 B. Plaintiffs’ Claims
Plaintiffs’ most recent amended complaint included, among its other claims, three
counts of negligence per se by Dr. Watson and Georgetown. Plaintiffs claimed that Dr. Watson
had violated 21 U.S.C. § 360c(a)(II) and 21 C.F.R. § 812.20(a)(2) by obtaining and using
unapproved “artificial embolization devices” without obtaining an IDE from the FDA. Compl.
¶¶ 45-59; 69-72. According to plaintiffs, Dr. Watson also breached 21 U.S.C. §§ 331(a)-(c), (g)
and (k) by receiving and combining Histoacryl and Lipiodol, two allegedly “adulterated and
misbranded devices.” Id. ¶¶ 60-68. Plaintiffs argued that by allegedly violating these laws, Dr.
Watson had necessarily breached his duty to Ms. Kerris, causing her injuries. The Court
disagreed with that argument and dismissed plaintiffs’ negligence per se claims in Orders issued
on September 30, 2008 and February 4, 2009. Iacangelo v. Georgetown Univ., Civil Action
No. 05-2086, Order and Judgment (D.D.C. Sept. 30, 2008) [Docket No. 125]; id., Memorandum
Opinion and Order (D.D.C. Feb. 4, 2009) [Docket No. 145]. There remain five still-viable
claims for relief in plaintiffs’ amended complaint: negligence, lack of informed consent, breach
of warranty, fraud, and breach of fiduciary obligations. Compl. Counts I-V. Currently pending
before the Court is a motion by defendants for partial summary judgment on the plaintiffs’
informed consent, breach of warranty, and fraud claims. See Defendants’ Motion for Summary
Judgment on Counts II-IV of the Second Amended Complaint [Docket No. 143].
4 C. The Conflict-of-Interest Issue
The possibility that Williams & Connolly might have a conflict of interest in this
case was first raised by Anthony Newman, plaintiffs’ counsel, at a deposition of Dr. Watson.
Megan Hills, a Williams & Connolly lawyer defending both Georgetown and Dr. Watson,
notified Magistrate Judge Alan Kay of Mr. Newman’s allegations. On June 27, 2007, this Court
held a status conference to discuss the situation with counsel.
At the status conference, Mr. Newman attempted to explain the potential conflict
he perceived. Dr. Watson had described during his deposition the content of his discussions with
Georgetown attorney Sheila Zimmet concerning the use of Histoacryl. Mr. Newman
characterized Dr. Watson’s description as follows: “Dr. Watson testified that . . . [Ms.] Zimmet
. . . said, it’s not illegal to use this stuff that is not approved and is being smuggled across the
border. . . . Two, she said, you don’t need to go through the Institutional Review Board.” June
27, 2007 Tr. at 6. At that time, Ms. Zimmet had not yet been deposed, and Mr. Newman
expressed concern that her account of her discussions with Dr. Watson, whatever it might be,
would create problems for the defense. If she confirmed Dr. Watson’s account, then “[t]here
may be a defense Watson has[,] saying, look, I didn’t mean to break any rules, I was told to do
so.” Id. at 10. Mr. Newman did not clearly articulate the conflict he believed would arise if Ms.
Zimmet disputed Dr. Watson’s account.
The Court framed the potential conflict problem this way: “Presumably, if Sheila
Zimmet says I never said that to Watson, then Watson has a credibility problem. . . . Watson’s
counsel has to stand by Watson’s credibility, but Watson’s counsel also has to stand by Sheila
5 Zimmet’s credibility since she [Zimmet] is a Georgetown employee.” June 27, 2007 Tr. at 9.
Addressing W&C counsel, the Court elaborated:
[I]f Sheila Zimmet[] says that what Watson says is true, . . . I’m not sure how the conflict comes out if she says it’s true. If she says it’s not true, then can you really . . . put both Watson and Zimmet[] on the stand, or does one of them need a different lawyer at trial[?]
You’ve got two clients, Georgetown and Watson. Their interests are identical, unless a primary spokesperson for Georgetown [Zimmet] says that your other client isn’t telling the truth. And we certainly can’t find ourselves in a situation mid- trial where that happens.
Id. at 12-13. The Court also pointed out that if Ms. Zimmet were to deny Dr. Watson’s account
of their conversations, Georgetown might attempt to argue that Dr. Watson had acted on his own
without authorization, thus obviating respondeat superior liability: “If I were representing
Georgetown I would say, wait a minute, if this guy is off on a frolic of his own, isn’t there some
way we could get out of this?” Id. at 14. In light of those concerns, the Court ordered that Ms.
Zimmet be independently represented at her deposition, and that W&C arrange for independent
counsel to advise Dr. Watson on any potential conflicts of interest. See June 27, 2007 Mem. Op
& Order at 2.
Ms. Zimmet subsequently was deposed, and the independent counsel engaged for
Dr. Watson, George Clark, attended her deposition. Ms. Zimmet confirmed that she had told Dr.
Watson that he could treat Ms. Kerris with Histoacryl without the approval of an IRB. July 23,
2007 Zimmet Dep. at 52-53. She was aware that Histoacryl was not FDA approved, that it was
being imported from Canada for Dr. Watson’s use, and that no IDE had been obtained from the
6 FDA. Id. at 60-61. She nevertheless did not object to Dr. Watson’s plan for the treatment of Ms.
Kerris. Id.
After Ms. Zimmet’s deposition passed without apparent incident, the conflict-of-
interest problem resurfaced when counsel for the defendants filed a motion to strike some of the
plaintiffs’ designated experts. Those experts claimed that “[d]efendant Georgetown’s in-house
counsel [Zimmet] violated the national standard of care by condoning and allowing the use and
continued use of illegal, unapproved Class III devices without both an IDE and IRB approval.”
Iacangelo v. Georgetown Univ., Civil Action No. 05-2086, Memorandum Opinion of Magistrate
Judge Alan Kay at 7 (D.D.C. June 17, 2008) (quoting plaintiffs’ Opposition to Defendants’
Emergency Motion to Extend the Deadlines for Defendants’ Fed. R. Civ. P. 26(a)(2) Expert
Disclosures and to Strike Plaintiffs’ Expert Reports for Plaintiffs’ Failure to Comply with Fed. R.
Civ. P. 26(a)(2)(B), at 5) (internal quotation marks omitted). Judge Kay granted the motion to
strike, and the plaintiffs moved for reconsideration. In their opposition to the motion for
reconsideration, defendants argued that the testimony of the proffered legal experts regarding
communications between Ms. Zimmet and Dr. Watson was irrelevant to this medical malpractice
case: “As the health care provider at issue, Dr. Watson’s decision to use a non-FDA approved
device to treat a patient was his alone.” Defendants’ Opposition to Plaintiffs’ Motion for
Reconsideration of Magistrate Judge Kay’s June 17, 2008 Order [Docket No. 116] at 3.
The Court found this assertion troubling because “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)
7 between Georgetown University and Dr. Watson.” July 16, 2009 Mem. Op. & Order at 3. The
Court reminded the defendants that they were to submit a report by Dr. Watson’s independent
counsel, which they had failed to do for over two years despite the Court’s earlier order. Id. at 5.
The Court also posed a series of questions for both W&C and George Clark, Dr. Watson’s
independent counsel. Among the questions was the following: “If the Court rules that testimony
from Ms. Zimmet and others about her legal advice to Dr. Watson is relevant and will be
admitted . . . , then will the defendants argue that Dr. Watson should not be held liable at all
while their other client (Georgetown University) should be?” Id. at 4 (emphasis in original).
On July 31, 2009, George Clark submitted a report in which he stated that he
found no conflicts of interest in W&C’s representation of both Georgetown and Dr. Watson. See
Report of Independent Counsel for Defendant Vance E. Watson, M.D. ¶ 2 [Docket No. 174]. On
that same day, W&C filed responses to the questions posed by the Court. See Defs.’ Resp. In
addition, Dr. Watson filed an affidavit in which he averred, “I am satisfied with the
representation I have received from Williams & Connolly and believe that it is not tainted by
conflict of interest.” Watson Affid. ¶ 8. He also stated, “I believe that I know any material risks
and reasonably available alternatives to continued representation by Williams & Connolly. I
agree to waive any conflict of interest.” Id. ¶ 10.
II. DISCUSSION
A. The Applicable Rule of Professional Responsibility
According to the plaintiffs, Williams & Connolly’s continued joint representation
of both Georgetown and Dr. Watson violates Rule 1.7(a) of the District of Columbia Rules of
8 Professional Conduct. That Rule provides: “A lawyer shall not advance two or more adverse
positions in the same matter.” D.C. RULES OF PROF’L CONDUCT R. 1.7(a). It sets out “the
limited circumstances in which representation of conflicting interests is absolutely prohibited
even with the informed consent of all involved clients.” D.C. RULES OF PROF’L CONDUCT R. 1.7,
cmt. 1. While the prohibition of Rule 1.7(a) is “absolute,” its “reach . . . is relatively narrow.”
D.C. Bar Legal Ethics Comm., Op. 217 (1991). The prohibition of Rule 1.7(a) “relates only to
actual conflicts of position, not to mere formalities . . . [A] lawyer is not absolutely forbidden to
provide joint or simultaneous representation if the clients’ positions are only nominally but not
actually adverse.” D.C. RULES OF PROF’L CONDUCT R. 1.7(a), cmt. 6. According to the D.C.
Bar’s Legal Ethics Committee, Rule 1.7(a) applies only to situations where a lawyer actually
asserts two incompatible arguments on behalf of two different clients on the same issue in the
same proceeding:
Rule 1.7(a) precludes a firm that takes a position on behalf of Client A from representing Client B in the same proceeding only if Client B actually takes or will take an adverse position on the issue. If the benefits of joint representation are sufficiently great or the likelihood of prevailing on a position that would increase its individual recovery is sufficiently small, each of the clients might after “consultation” choose to forgo such arguments. . . . Accordingly, if Client B chooses to forgo taking an adverse position on the particular issue, Rule 1.7(a) would be inapplicable by its terms. Rule 1.7(b) governs in any case in which simultaneous representation of clients with potentially adverse interests would not actually require the firm to take inconsistent positions in the same proceeding.
D.C. Bar Legal Ethics Comm., Op. 217 (emphasis added).
By this logic, Rule 1.7(a) would apply if, for example, W&C were representing
both Georgetown and Dr. Watson, and proposed to argue during the course of the same trial both
9 that (1) administering the Histoacryl to Ms. Kerris was appropriate and legal, and
(2) administering the Histoacryl to Ms. Kerris may have been illegal and inappropriate, and
further that (3) only Georgetown, not Dr. Watson, bears any liability because Ms. Zimmet
(Georgetown’s lawyer) told the doctor he could use the substance. In contrast, Rule 1.7(a) would
not apply where W&C could make both of those arguments but instead was making only
Argument (1). In that case, Rule 1.7(b), not Rule 1.7(a), governs because W&C’s two clients
have potentially adverse interests but are not actually advancing adverse positions in the same
proceeding. Rule 1.7(b) provides that “[E]xcept as permitted by paragraph (c) below, a lawyer
shall not represent a client with respect to a matter if . . . [s]uch representation will be or is likely
to be adversely affected by representation of another client.” D.C. RULES OF PROF’L CONDUCT
R. 1.7(b).2
This distinction matters for two reasons. First, Rule 1.7(b), unlike Rule 1.7(a), is
not an absolute bar to representation where a conflict exists; the conflict may be “cured” if
“[e]ach potentially affected client provides informed consent to such [joint or dual]
representation after full disclosure of the existence and nature of the possible conflict and the
2 Contrary to the arguments made in a motion recently filed by the plaintiffs, the decision in Vestal v. Hoffa, Civil Action Nos. 1832-71, 1313-71, 1237-71, 1718-71, & 2010-71, 1972 WL 865 (D.D.C. July 11, 1972), is not “the leading D.C. authority directly on point regarding disqualification from concurrent representation of defendants.” Plaintiffs’ Motion to Stay the Entry of Appearance of Jennifer L. Attrep, Esq. [Docket No. 190], at 3 n.1. The legal authority governing the disqualification question at issue in that case was not the District of Columbia’s Rules of Professional Conduct or the professional code that preceded them, but Yablonski v. United Mine Workers of America, 448 F.2d 1175 (1971), a case discussing the propriety of a law firm’s concurrent representation of a union and one of the union’s officers. Yablonski itself did not purport to interpret the Rules of Professional Conduct, but instead applied the law of labor relations. See, e.g., Yablonski v. United Mine Workers of America, 448 F.2d at 1179-80. Because this case does not involve labor law, Yablonski and Vestal are of little relevance.
10 possible adverse consequences of such representation.” D.C. RULES OF PROF’L CONDUCT
R. 1.7(c). Second, because plaintiffs focus solely on Rule 1.7(a) in their motion to disqualify,
they spend a great deal of time attempting to classify minor or perhaps nonexistent
inconsistencies in the depositions of Dr. Watson and Ms. Zimmet as “adverse positions”
advocated by W&C.
B. The “Adverse Positions” Identified by Plaintiffs
The supposedly adverse positions cited by the plaintiffs in their motion to
disqualify W&C may be organized into three sets. One set of “adverse positions” is composed of
inconsistencies — or what plaintiffs unconvincingly present as inconsistencies — in defendants’
case. A second set involves instances in the course of this litigation where, according to the
plaintiffs, W&C has taken actions that will lead to one or more of its lawyers being called to the
witness stand. The third set consists of only one assertion, the claim that Dr. Watson may have a
defense that W&C may not present because it would work to Georgetown’s disadvantage. Only
this last claim requires serious attention.
1. Inconsistencies in the Defendants’ Case
Plaintiffs claim that W&C has advanced “adverse positions” because (1) Dr.
Watson has said that Ms. Zimmet told him his use of Histoacryl was “legal,” while Ms. Zimmet
doesn’t remember having conversations with Dr. Watson using the specific term “legality,” see
Mot. at 7-8; (2) Dr. Watson says he made the “‘legal’ distinction” in deciding IRB supervision of
his Histoacryl use was unnecessary, while Ms. Zimmet says “she clarified the ‘legal’ distinction,”
see Mot. at 10; (3) Ms. Zimmet said that letters of need always must be used to obtain
11 unapproved devices for clinical use, and Dr. Watson did not use a letter of need to obtain the
Histoacryl, Mot. at 11; and (4) Dr. Watson has said that there are serious medical risks associated
with the use of embolization, while defendants have argued that there is no basis for identifying
the embolizations of Ms. Kerris’ AVM as the cause of the degeneration of her health.
Attempting to pursue their argument that Ms. Zimmet’s deposition testimony
conflicts with or refutes Dr. Watson’s, the plaintiffs take statements contained in deposition
transcripts out of context and then parse them to create the appearance of inconsistency. At one
of his depositions, Dr. Watson said that, prior to his treatment of Ms. Kerris, he had “been told”
by Ms. Zimmet that his use of Histoacryl was “not illegal.” May 31, 2007 Watson Dep. at 128.
The plaintiffs contend that Ms. Zimmet refuted this statement by saying that she had not
discussed Histoacryl with Dr. Watson “in terms of legality.” July 23, 2007 Zimmet Dep. at
77-78.
The Court finds that the statements of Dr. Watson and Ms. Zimmet regarding this
issue are not inconsistent when viewed in context. Dr. Watson explained that his discussion of
Histoacryl with Ms. Zimmet occurred when he asked her if he needed to obtain IRB approval and
supervision, and she said no. See May 31, 2007 Watson Dep. at 129-30. Ms. Zimmet’s account
of their discussion is similar. See July 23, 2007 Zimmet Dep. at 52. Dr. Watson never claimed
that Ms. Zimmet used the specific term “legal” or “legality”; in fact, he has vehemently denied
that she did so. See Dec. 14, 2007 Watson Dep. at 354-55. Instead, he has said that he inferred
from his general discussion of Histoacryl with her that he was permitted to use it; he assumed
that she would have stopped him if he was not so permitted. Id. at 358-59. Similarly, Ms.
Zimmet stated that she “indicated [to Dr. Watson] that . . . it seem[ed] to her that the FDA was
12 acquiescing to clinical use [of Histoacryl] in medical practice.” July 23, 2007 Zimmet Dep. at
78.3
Plaintiffs next assert that the defendants have presented inconsistent claims about
the proper means of obtaining Histoacryl. The defendants have said that “Georgetown and Dr.
Watson and . . . Ms. Zimmet[] have always asserted that the Letter of Need procedure was the
appropriate procedure to follow when, as here, the intended use is individual patient care and not
for research.” Mot. at 11 (citing Defs.’ Resp. at 3) (internal quotation marks omitted). Dr.
Watson has said that in obtaining Histoacryl in the past, he found that “[s]ometimes you needed
[a letter of need],” and “[s]ometimes you didn’t.” Mot. at 11 (citation and internal quotation
marks omitted). According to the plaintiffs, these statements by Dr. Watson, combined with the
defendants’ inability to locate the letter of need allegedly used in Ms. Kerris’ case, demonstrate
conclusively that no letter of need was used to obtain the Histoacryl for Ms. Kerris, and therefore
contradict the defendants’ representations.
This contention is really just a preview of one of plaintiffs’ arguments on the
merits, and it does not present an example of any “adverse positions” espoused by W&C, or even
any necessarily inconsistent statements by the defendants. Dr. Watson’s statement that
“[s]ometimes you needed [letters of need],” and “[s]ometimes you didn’t” referred to his
experiences obtaining Histoacryl for various patients after he arrived at Georgetown in 1994.
3 The plaintiffs also claim that there is a dispute regarding “who made the decision to forego IRB review and upon whose word did they rely,” Mot. at 10, but the Court cannot discern any inconsistency in the depositions on this point. Both Dr. Watson and Ms. Zimmet have said that, after he told her that he would be using Histoacryl to treat a patient, she told him that IRB involvement was unnecessary. See July 23, 2007 Zimmet Dep. at 52; May 31, 2007 Watson Dep. at 129-30.
13 See May 31, 2007 Watson Dep. at 138. Dr. Watson said that in many instances, Histoacryl was
available at the hospital, having been procured by someone else, and that he only had to prepare
letters of need to obtain additional Histoacryl in some cases. Id. at 134-36. He has also said that,
to a degree of “very, very reasonable certainty,” he believes he did use a letter of need to obtain
the Histoacryl in Ms. Kerris’ case. Dec. 14, 2007 Watson Dep. at 370. There is no conflict
between Dr. Watson and Georgetown on this point. Plaintiffs argue that Dr. Watson failed to
procure a letter of need in Ms. Kerris’ case, see Mot. at 12; both Georgetown and Dr. Watson
disagree. See Opp. at 16-17.
Finally, plaintiffs say that a conflict of interest exists because Dr. Watson has
admitted that “embolization procedures using the Lipiodol and Histoacryl mixture” carry
“significant, great risks — including a high rate of failure, death, stroke, neurologic worsening,”
while the defendants have argued in their briefs that “[t]here is no basis for asserting that the
embolization allegedly caused Ms. Kerris to suffer permanent injury.” Mot. at 17. This claim by
the plaintiffs, again, is more of an argument on the merits than it is an assertion about conflict of
interest. The defendants do not claim that embolization is not risky. See Opp. at 23. Rather,
they claim that any possible risks “did not materialize.” Opp. at 8.
2. Testimony by Williams & Connolly Lawyers
In two of their arguments, plaintiffs claim that W&C has a conflict of interest
because W&C lawyers may need to be called to the witness stand at trial to explain
inconsistencies in their case. The plaintiffs point out that in an affidavit prepared for Dr. Watson
to sign, W&C inaccurately summarized the warnings Dr. Watson had given to Ms. Kerris,
14 writing that he had told her that a prior patient had died “after experiencing complications
associated” with embolization. Mot. at 12. In fact, the complications “weren’t really associated
with the procedure,” as Dr. Watson later explained in a deposition. Id. Instead, they resulted
from a subsequent surgical procedure. May 31, 2007 Watson Dep. at 98-99. Regardless of the
reason for the difference between what Dr. Watson’s affidavit says and what he himself said at a
deposition, plaintiffs assert that “the veracity of the Declaration versus the veracity of Dr. Watson
is at issue. . . . Plaintiffs will have to ‘flesh out’ the facts at trial by calling both Dr. Watson and
the lawyer(s) from Williams & Connolly who drafted the document to the stand.” Mot. at 13.
Contrary to the plaintiffs’ claims, there is no reason to suppose that any lawyers
from W&C would be necessary witnesses at trial to address this issue. To the extent that there are
discrepancies between Dr. Watson’s affidavit and his deposition testimony, plaintiffs are free to
explore them and their reasons for them in cross-examining Dr. Watson. The jury will decide if
his explanations affect its view of his credibility. There is no “adverse position” here, since
W&C agrees with Dr. Watson’s clarification of his affidavit. See Opp. at 20.
Plaintiffs also complain that W&C did not show Dr. Watson the documents that
the law firm intended to file as exhibits to his affidavit before asking him to sign the affidavit.
Mot. at 14. It appears, however, that Dr. Watson did review the exhibits, but did not understand
the way that they were numbered. See May 31, 2007 Watson Dep. at 150; Opp. at 21. Here, too,
the plaintiffs claim that they will need to call a W&C lawyer as a witness at trial to “establish
whether the exhibits were attached to the Declaration when Dr. Watson executed it and whether
they were in error and/or did not relate to the issue for which they were cited.” Id. at 14. Again,
it is difficult to imagine why the Court would permit the plaintiffs to call defendants’ counsel to
15 the witness stand to testify on this issue. It is utterly irrelevant to the merits of the case, is easily
explained, and, at most, goes to Dr. Watson’s attention to detail (and hence his credibility); there
is no conflict or adversity.
3. Failure to Present a Complete Defense of Dr. Watson
Plaintiffs argue that by moving to strike the plaintiffs’ legal experts, W&C
demonstrated that they will neglect a defense available to Dr. Watson — the argument that Dr.
Watson reasonably relied on Ms. Zimmet to tell him if obtaining and using the Histoacryl was
legal or involved possible violations of law. See Mot. at 17. This is a legitimate concern. If the
legality of Dr. Watson’s acquisition and use of Histoacryl became relevant at trial, it is
conceivable that he could limit or eliminate his own liability by explaining that he behaved as
any reasonable practitioner would have: he consulted with and received the approval of in-house
counsel before treating Ms. Kerris with a substance unapproved by the FDA. Of course, if Dr.
Watson testified in this fashion, he could undermine Georgetown’s position that Ms. Zimmet’s
advice was absolutely correct. See Defs.’ Resp. at 9. Georgetown thus has an interest in not
presenting this defense that Dr. Watson does not, presenting a potential conflict of interest
problem for W&C.
The Court alluded to this concern in its July 16, 2009 Memorandum Opinion: “If
the Court rules that testimony from Ms. Zimmet and others about her legal advice to Dr. Watson
is relevant and will be admitted . . . , then will the defendants argue that Dr. Watson should not
be held liable at all while their other client (Georgetown University) should be?” July 16, 2009
Mem. Op. & Order at 4 (emphasis in original). W&C evaded this question in the response it
16 filed with the Court on July 31, 2009. While arguing that the Court should not admit any
evidence regarding alleged statutory or regulatory violations, W&C did not provide assurances
that in representing Dr. Watson it will present all defenses open to him:
There was no violation of FDA rules or regulations and the care provided was state of the art, standard of care therapy. . . . The Court instructs the jury on the law and the Court has already dismissed the Counts [for negligence per se] based on alleged violations of FDA regulations. Thus, any testimony about this issue — from any witness — should be excluded as it is no longer part of this case.
Defs.’ Resp. at 9.
It is true, as W&C asserts, that plaintiffs’ negligence per se claims already have
been dismissed, so that plaintiffs cannot prove that Dr. Watson was negligent simply by
demonstrating that he violated FDA regulations or the FDCA. At the same time, W&C ignores
the fact that statutory or regulatory provisions may well be relevant for the purpose of defining
the standard of care in a negligence case, and that violations of those provisions, even when they
do not establish negligence per se, may still be some evidence of negligence. See RESTATEMENT
(SECOND ) OF TORTS § 288B (“The unexcused violation of an enactment or regulation [not
adopted as defining the standard of care] may be relevant evidence bearing on the issue of
negligent conduct.”). From W&C’s responses to the Court’s questions, it seems clear to the
Court — if not to Dr. Watson or his independent counsel — that if evidence of alleged statutory
or regulatory violations is admitted at trial, W&C nevertheless will decline to present any sort of
“reasonable reliance” defense on Dr. Watson’s behalf: “Should this issue need to be litigated . . .
Defendants will present a united front.” Defs.’ Resp. at 9. W&C says:
17 If there is any discussion of FDA regulations, counsel will tell the jury that Dr. Watson was correct in his decision to use Histoacryl and Lipiodol on a case-by-case basis to treat patients without an IDE or IRB supervision, and that a Letter of Need was appropriate to import the devices. Ms. Zimmet never instructed Dr. Watson otherwise.
Id.
Since it is apparent from their filings that W&C has no intention of presenting
evidence of the reasonable reliance defense on behalf of Dr. Watson or arguing it to the jury,4
two questions remain: (1) Can the Court be satisfied that Dr. Watson has been made aware of
this possible defense by W&C or by Mr. Clark and that he knowingly, voluntarily and
intelligently consented to forgo it? And (2) how valuable is this potential defense — so valuable
that the Court cannot permit Dr. Watson to waive it by keeping W&C as his counsel? As to the
first question, the Court has seen nothing in the voluminous filings by W&C on the conflict-of-
interest issue to convince it that someone has clearly explained to Dr. Watson that a reasonable
reliance defense may exist, and that he must give it up if he wishes to retain W&C as his counsel.
Dr. Watson’s affidavit, in which he purports to waive any conflict of interest faced by W&C,
makes no mention of this issue. Neither does the report of Mr. Clark, the independent counsel
secured for Dr. Watson by W&C. In fact, Mr. Clark affirms that W&C’s representation of
Georgetown and Dr. Watson “is not an instance where one commonly represented defendant is
trying to blame the other for any alleged liability.” Report of Independent Counsel ¶ 29. It
appears that Mr. Clark has not contemplated the possibility that it could conceivably be in Dr.
Watson’s interest to blame Georgetown.
4 The Court will, of course, confirm this with counsel at a hearing in open court before the case proceeds to trial.
18 One of the legal ethics experts who has written a report in support of W&C’s
opposition to the motion to disqualify declares that Mr. Clark “has specifically disclaimed on Dr.
Watson’s behalf the claim that ‘Georgetown gave him “bad advice” with respect to whether he
had to go to the IRB or with respect to how to import Histoacryl from Canada.’” Opp., Ex. B
(Declaration of Hamilton P. Fox III) at 16 (citation omitted). With all due respect to this
acknowledged expert in the field of legal ethics, this statement is not accurate. Mr. Clark has
promised that Dr. Watson will not assert that Georgetown gave him “bad advice.” See Report of
Independent Counsel ¶¶ 17, 31, 34. He has not said that he explained a possible reasonable
reliance defense to Dr. Watson and that Dr. Watson agreed to forgo that defense in order to retain
W&C as his counsel.
Dr. Watson has not, then, provided satisfactory assurance that he understands and
does not wish to assert the reasonable reliance defense. He should be permitted an opportunity to
do so. As explained above, conflicts of interest governed by Rule 1.7(b) of the District of
Columbia Rules of Professional Conduct may be waived by the client under Rule 1.7(c) “[i]f the
benefits of joint representation are sufficiently great or the likelihood of prevailing on a position
that would increase [his] individual recovery is sufficiently small.” D.C. Bar Legal Ethics
Comm., Op. 217. While one may debate whether the reasonable reliance defense is likely to be
of help to Dr. Watson, Dr. Watson needs to be fully advised before the Court can conclude that
he has given informed consent and wishes to forgo the defense and retain W&C as his counsel.
19 III. CONCLUSION
W&C’s decision not to present the reasonable reliance defense — and the firm’s
failure to provide assurances that Dr. Watson knows he is forgoing such a defense by retaining
W&C as his counsel — creates the only potential conflict-of-interest issue that merits serious
attention. Accordingly, the Court will hold a hearing at which it will inquire of Mr. Clark and
lead trial counsel for the defendants whether they have discussed the reasonable reliance defense
with Dr. Watson. It will also address Dr. Watson directly and explain to him the reasonable
reliance defense. The Court will advise Dr. Watson that while it does not know how strong the
defense is or even whether the defense will be relevant at trial, Dr. Watson is certainly giving it
up if he chooses to be represented by W&C. The Court will then inquire whether Dr. Watson is
prepared to forgo that defense in order to stay with W&C. An Order providing for the scheduling
of the necessary hearing will issue this same day.
SO ORDERED.
/s/_______________________________ PAUL L. FRIEDMAN United States District Judge DATE: May 7, 2010