Wellstar Health Systems, Inc. v. Kemp
324 Ga. App. 629
| Ga. Ct. App. | 2013Background
- Pamela Kemp sued WellStar for wrongful death of her husband; she attached an expert affidavit of Dr. William Stinnette.
- WellStar’s counsel (Henry Green and David Sapp of Green & Sapp) contacted Stinnette’s employer, Northside Hospital (via Susan Sommers), after learning Stinnette would testify for Kemp.
- After pressure from Sommers following Green’s calls, Stinnette withdrew as Kemp’s expert shortly before his scheduled deposition.
- Kemp moved to disqualify the Lawyers, to depose them, and to compel production of internal emails; the trial court disqualified the Lawyers, denied their motion to quash, and conducted in camera review of documents.
- The trial court struck WellStar’s answer and entered default judgment on liability as a sanction for witness interference; damages were later tried and a jury awarded Kemp damages.
- On appeal the Lawyers challenged their disqualification and discovery rulings; WellStar challenged striking the answer/default, denial of recusal, and several other trial rulings (some not reached on appeal).
Issues
| Issue | Plaintiff's Argument (Kemp) | Defendant's Argument (WellStar / Lawyers) | Held |
|---|---|---|---|
| Disqualification of counsel for contacting expert’s employer | Lawyers interfered with and intimidated Kemp’s expert; disqualification appropriate | Lawyers deny improper intent; call was a “professional courtesy” to inform employer | Court affirmed disqualification of Lawyers for intentionally pressuring employer to deter testimony |
| Scope of depositions and production (motion to quash) | Kemp needed depositions/emails to prove interference; limited scope and in camera review appropriate | Lawyers asserted work-product protection | Court affirmed denial of motion to quash; limited depositions and in camera review justified; work-product did not shield factual communications |
| Striking answer and entry of default as sanction for witness tampering | Striking answer and default were warranted given egregious, repeated interference prejudicing Kemp | WellStar argued default was excessive; evidence about decedent’s death remained intact and lesser sanctions available | Court reversed striking of WellStar’s answer and default; held sanction was an abuse of discretion and remanded for lesser sanctions/reconsideration |
| Motion to recuse trial judge based on CLE comments | Kemp implicitly supported judge; (motion addressed by WellStar) | WellStar argued judge’s CLE comments required recusal; motion timely from receipt of tape | Court affirmed denial of recusal for untimeliness and legally insufficient affidavit under USCR 25.1 |
Key Cases Cited
- Ford Motor Co. v. Young, 322 Ga. App. 348 (2013) (nonparty attorneys may have standing to appeal disqualification where order includes adverse findings affecting them)
- Sanderson v. Boddie-Noell Enterprises, 227 F.R.D. 448 (E.D. Va. 2005) (attorney may not indirectly pressure an employer to prevent an expert from testifying)
- St. Simons Waterfront v. Hunter, Maclean, Exley & Dunn, P.C., 293 Ga. 419 (2013) (court’s broad power to control conduct attached to proceedings and limits on privileges where misconduct implicated)
- McKesson HBOC v. Adler, 254 Ga. App. 500 (2002) (disqualification and counsel-conduct standards; courts reluctant to disqualify absent tainting of trial)
- Bridgestone/Firestone N. Am. Tire v. Campbell, 258 Ga. App. 767 (2002) (analysis of sanctions and remedy severity; dismissal/default are harsh and reserved for extreme cases)