*1
Michelle M. Plaintiff
Below, Appellant,
v. STEWART, M.D.,
Daniel H. Defendant
Below, Appellee, Haddad, Gregory
P. Intervenor.
No. 30631.
Supreme Appeals Court of Virginia.
Submitted Jan. 2002. April
Decided 2003. Opinion
Dissenting of Justice July
McGraw
Dissenting Opinion of Chief Justice July
Starcher *2 Romano, Esq., Jones
David J. Christine Office, Pacyna, Esq., Romano Law Clarks- burg, Appellant. Raffle, Esq., Steptoe &
Beth A. Johnson PLLC, Ramey, Esq., Ancil A. Morgantown, PLLC, Charleston, for Steptoe & Johnson Appellee. Betts, Esq., Allen Guthrie & A.
Rebecca Charleston, McHugh, for Intervenor. MAYNARD, Justice. Beto, appeals appellant, Michele M. Court of Harrison
the order the Circuit County found no obstruction which appellee, diseoveiy process Dr. Daniel Stewart, attorney, Gregory H. P. Had- dad, underlying malpractice in the medical Ms. Had- action. Beto avers attempted dad to conceal material evidence circuit court abused its dis- argues by concluding that ob- cretion struction occurred. She also believes the by deciding the collateral circuit court erred proceeding. We find issue in in camera discovery process. no abuse I.
FACTS surgi- February cysts cally perineal three from Ms. removed surgery did right groin area.1 The Nonetheless, leg. imme- not involve her left following surgery, Beto’s left low- diately Ms. During leg numb. her er foot were leg her hospitalization, the left condition improve. Beto’s doctors did not foot suffering from “left- that she was determined operative neuropathy related sided sciatica lithotomy position.” In positioning in the Clarksburg, Virginia. Hospital surgery performed Center at United 1. The words, injury On March served Dr. other she sustained nerve Beto dropped Videotaped Depositions which left with a left foot. Af- “Notice of going through at ter treatment the Cleveland and Production of Documents.” Attached *3 physical therapy, Ms. Clinic and Beto’s condi- request production was a of documents . improved. tion and left foot which asked medical records custodian to leg permanently impaired. are provide: Any tangible all documents or of items Center, Hospital Ms. Beto United Dr. sued any kind or whatever nature which man- Stewart, par- nurse anesthetist who diagnosis ner to or relate treatment
ticipated surgery, alleging in the medical Plaintiff, Beto, provided to Michele M. malpractice. hospital The and the nurse Action, subject which is the of Civil this anesthetist with pre-trial. settled Ms. Beto to, any including, personal but not limited proceeded against Ms. Beto to trial Dr. Stew- diaries, memoranda, notes or correspon- art. aspects She criticized two of Dr. Stew- dence, records, (1) any medical or other such lithotomy art’s care: his use of the or items, (2) INCLUDING ANY position; MEDICAL frog-leg the fact that he RECORDS OR OTHER DOCUMENTS padding beyond no utilized which is built HOSPITAL, RECEIVED ANY FROM into operating jury The table. returned CLINIC, PHYSICIAN, OR INDIVIDU- verdict favor Ms. amount Beto AL, $714,000.00. OR ANY OTHER SUCH ENTITY. petitioned Dr. Stewart this request This is broadly construed jury Court review of the verdict. His or tangible include and all documents petition was on denied March might any way items that relate to this issue, obstruction, The collateral Beto, involving case Michele M. and the appeal, which is the crux of this revolves record custodian should err on the side pad- around the failure to utilize additional producing any opposed as documents ding dining surgical procedure. op- withholding any tangi- documents such or report by written Dr. erative Stewart is si- might ble items that not be considered padding lent as lateral whether was used scope request. within the this during surgery, and Dr. Stewart has never Any privilege might which be asserted to padding contended that additional uti- was prevent tangible or documents items from Shortly surgical procedure lized. after the being discovered was to be made at known performed, was Dr. Stewart two let- wrote April deposition. professional liability ters to his insurance carrier, (TDC),2 Company The Doctors delin- Dr. nor Neither Stewart his records custo- eating surrounding appeared deposition. the facts Ms. sur- dian for the A subse- gery quent because he believed the would of deposition incident notice 12, 1998, litigation. 11, 2000; result in Dr. May On March was on documents served alia, wrote, “Padding deposition May 19, inter was rescheduled for placed under response, the feet and anide areas. No In Dr. Stewart submitted to Ms. padding placed additional or felt neces- Beto an affidavit with documents attached. sary pressure against as there were areas Because she could find no reference these aspects legs. operat- lateral relating pad- lateral whether ing operating pad ding table had a surgery, standard table was used during her Ms. Beto padding special requested telephone no additional or mat- deposition that a 20, 1998, custodian, placed.” March Eplin, tresses were On records Kim be conducted. explained During deposition, Ms. Eplin Beto was Ms. failed seeking opinion identify second at the two Ms. Beto Cleveland letters. contends Clinic and that she declined his advice to Haddad was aware that pain pad- seek care at a clinic. The use at time existed thereof, conducted, ding, lack was not in the mentioned records custodian was but he this letter. chose to remain silent. She believes that he filed, surgery per- 2. At the time the Beto was December at time the lawsuit was formed, Dr. Stewart was insured TDC. In insured PHICO. clarify a motion hold the court’s order intentionally correct or filed chose abeyance petition to this testimony. pending Court. Eplin’s inaccurate Also, and TDC filed motion Dr. Stewart during Stewart’s June or, alternative, make in the reconsider acknowledged deposition, that he the doctor law. findings fact and conclusions of circumstances had surround- summarized meantime, In before the circuit court had ing surgery in form and Ms. Beto’s letter discovery commissioner’s entered the recom- to his insurer. Ms. Beto mailed the letters order, for sanctions mended Ms. Beto moved date, later that on same June learned finding ob- 2000, Attorney called Ben- Michelle *4 upon based her characterization struction nett, TDC, representative for to ask a claims delay identifying pro- in Dr. and Stewart’s company if had the the insurance letters ducing requested attor- the letters. She also copies if could sent to him. Ms. Bennett be ney expended in and costs for the time fees “Mr. that let- before these informed seeking withheld production of the docu- him, to need ters could be sent we would to ments. These motions were transferred explaining the circumstances letter from him discovery commissioner. In his the recom- them, copy along with a why he wanted order, found that mended the commissioner Complaint in action.” Ms. filed this the discovery Dr. not obstruct the Stewart Dr. Beto contends that after Stewart ruling process; regarding deferred copies aware that Haddad became Attorney Haddad the whether obstructed obtained, they could be denied the letters discovery process until commissioner the However, knowledge. admits having this she counsel; could briefed and deferred to be product work that Dr. asserted the Stewart ruling the circuit court the on sanc- protect to from doctrine the letters discov- the tions. The circuit court entered recom- ery. 3, January on mended order 2001. that Ms. Beto claims before hearing on The circuit court held its own finally produced, sent six notices were she contempt motions on and obstruction to production of documents 23, By January 2001. order entered on Feb- Dr. Stewart. The circuit referred 2001, 2, ruary that the court directed to of the commis- matter in motion to hold Dr. be Stewart The scheduled hear- sioner. commissioner this abeyance until the trial in matter held 24, listening ing After to for October completed; that the letters written from arguments, discovery commis- counsels’ company Dr. his insurance be rule on of the sioner declined to the merits counsel; that furnished dispute. making Instead determination $5,197.50 attorney’s as pay Beto pro- regarding whether the documents were 34.65 of work ex- fees and costs for hours product privilege, by the work tected seeking pended production of the letters. that the letters commissioner recommended day. light produced In The letters produced on claimed be based waiver 5, approaching trial of the date March privilege. The recommended commissioner’s 2001, parties agreed that the circuit court specifically privilege order states jurisdiction would retain over the matter May Had- Gregg on “waived Attorney Haddad obstructed discov- whether Doc- promising dad’s letter ery. particular That issue would be resolved Company tor’s file David Romano. completion following of the trial. already had that he had testified Company July the circuit court ordered to the Doctor’s sent two letters responsive that all documents to Ms. Beto’s May 2000 letter was written. before the court for Therefore, subpoenas be submitted Attorney Haddad was aware hearing camera review. A date file he set the letters would/should 2001; however, Court re- August “[t]he agreed produce.” circuit court en- right, reviewing docu- on after serve[d] order November tered the recommended camera, not ments a determination make the documents were if respect obstruction issue produced at that time because Dr. Stewart on that it can do based its STANDARD OF REVIEW Court believes so knowledge of the situation and the current question we are asked to resolve prior submissions to the Court this issue is case whether the circuit court correct- Following ly
as
as
well
camera review.”
concluded that
Haddad did
intentionally conceal material
of all
evidence. Af-
extensive in camera review
relevant
concluding
ter
did not obstruct
documents, the circuit court
determined
discovery,
necessarily
the court
found that no
evidentiary hearing
unnecessary
“an
is
be-
beyond
further sanctions were warranted
presented
cause the evidence
and reviewed is
$5,197.50 previously awarded to Ms.
as
Beto
properly
sufficient for the
Court
rule.”
attorney’s
fees
costs. Ms. Beto asks
subsequently
The court
found “that
that we
the circuit
reverse
court’s order and
discovery pro-
Haddad did not obstruct the
present
remand the
allow her to
case
cess.” The court
motion
denied Ms. Beto’s
showing
affidavit
spent
contempt by
stating:
hold
Stewart in
seeking
more than 200 hours of billable time
case,
present
In the
the Court finds that
production of the
In the
documents.
alterna-
Attorney Haddad’s conduct was deficient
tive,
requests
she
that we reverse the circuit
*5
Attorney
in the manner that
Haddad con-
evidentiary
court’s order and remand for an
documents,
ducted the initial interview with Dr.
hearing
Stew-
wherein all
in-
relevant
cluding
January 2000;
by
in
those
art
reviewed
the court in cam-
deficient
his review
era, will be
in open
discussed
court.
also
She
Videotaped Deposition
of the “Motion for
Attorney
asks that
referring
we consider
by
and Production of Documents” served
to disciplinary
Haddad
counsel for the West
20, 2000;
Attorney Romano on March
defi-
Virginia
appropriate proceed-
State Bar for
overseeing
obtaining
cient
docu-
ings.
responsive
pro-
request
ments
to the
for
documents;
duction of
deficient
in his
previously
This Court
discussed the
preparation
Kathy
Eplin,
witness
imposed by
review of sanctions
circuit courts
custodian;
medical records
deficient
by stating:
preparation
his
for
Virginia
The West
Rules of Evidence
deposition.
medical records
Virginia
and the West
Rules of Civil Proce-
Court
finds
these
deficiencies
significant
dure allocate
discretion to the
shortcomings
Attorney
Haddad’s
evidentiary
trial
in making
pro-
duty
Thus,
to his client and not his duties and
rulings.
rulings
cedural
on the ad-
obligations
missibility
processes.
appropriate-
its
the Court and
evidence
particular
discovery
a
Attorney
ness of
sanction for
not
Haddad did
obstruct the dis-
violations are committed to the
covery
discretion
process,
to comply
fail
with a sub-
excep-
of the trial court. Absent a few
poena or
nor
court order
violate
ethi-
tions,
evidentiary
this Court will review
obligation
result,
cal
to the Court. As a
procedural rulings
of the circuit court
Court
finds that his deficient conduct
an
under
discretion
abuse
standard.
does not warrant sanctions because the
Syllabus
1,
McCammon,
McDougal
Point
v.
plaintiff
by
actions,
prejudiced
was not
his
(1995).
229,
193 W.Va.
an erroneous view letters, n.33 Ms. knowledged n. 460 S.E.2d 218 existence W.Va. (1995) J., concurring). (Cleckley, that both Dr. Stewart and Beto believes intentionally misrepresented ac- III. cessibility this letters. She believes discovery which an obstruction of constituted DISCUSSION violated West Rules Professional circuit appeal, Beto contends the and 8.4.3 Conduct 3.4 by finding attempt that the court erred not warrant conceal material evidence argues the circuit court Beto and obstruction of finding of abuse possibly demeanor and could not evaluate the justice. contends the court erred She also credibility regarding the of the witnesses substituting proceeding an in camera produce of who the documents issue failed evidentiary hearing this issue. holding evidentiary hearing in without ulti- counters that the circuit court’s open court. believes that She entirely disposition mate matter was opportunity to cross-examine denied points out appropriate. regarding reasons the rele- the witnesses motion was filed before timely produced. vant were not compel of the let- the motion interprets Dr. Stewart’s testi- She adjudicated and ters was heard or before mony attorney in mean that he told his production of let- circuit court ordered had January 2000 that he written the letters Thus, under which ters. no order existed TDC; yet, produced the letters were Haddad could be Dr. Stewart January until 2001. She believes *6 Consequently, the circuit contempt. held in hearing court’s failure to hold a amounts for correctly request denied Ms. Beto’s an of abuse discretion. relief. further begin- from Dr. maintains that Initially, must whether we determine padding was ning admitted no additional he correctly the circuit court determined during surgery. Even used Ms. Beto’s Attorney not discov Haddad did obstruct the though directly his admission contradicted disagreement among the ery process. The testimony surgical of nurse who testi- a interpre person’s parties boils down each used, padding had fied that additional been exchanged discoveiy tation how was of operative report which he wrote makes litigation. insists throughout Ms. Beto padding. of The let- no mention additional first notice the attachment her malpractice insur- which he to his ters wrote deposition production of was with documents padding simply confirm that no additional er and his so clear that Dr. Stewart protracted dispute which was utilized. The that' the letters should must have known concerning the and discov- ensued existence to the immediately produced. be She refers by a mis- erability of the letters was caused production requested attachment which memoranda, understanding regarding the diaries, and confusion “any or personal notes impres- records, request. Dr. was under any oth or correspondence, medical seeking medical rec- each sion that Ms. Beto such that was included with er items” (d) pretrial procedure, Virginia 3.4 make a frivolous 3. West Rule Professional Conduct reasonably discovery request part: fail make a pertinent or states comply legally proper diligent a effort to with lawyer not: A shall discovery request by party[.] opposing an (a) unlawfully party’s ac- obstruct another Virginia 8.4 Rule of Professional Conduct alter, destroy unlawfully or evidence or cess to part: pertinent states in having or material lawyer conceal a document other lawyer professional for a to: It is misconduct evidentiary potential A not value. shall (a) attempt or violate the Rules violate person another to do counsel or assist Conduct, knowingly in- assist or Professional act; such so, through do so duce another to do or (c) disobey obligation knowingly under another; acts of except open tribunal for an tlie rules dishonesty, (c) involving engage in conduct that no valid refusal based on assertion fraud, exists; misrepresentation!!.] or obligation deceit ords; request pursuant think Virginia he did not included noticed to West Rule of 30(b)(7) compa- summaries he wrote to his insurance Civil Procedure rather that Rule 30(b)(6).4 ny. at the deposi- first document subpoena also failed com- tion, quickly defense counsel aware ply became with West Rule Civil Proce- misjudged scope of that he had the docu- thirty days dure 34 which allows file subpoena. ment objection response or written to the records sought. just The notice arrived four busi- identified, Once the Stew- days prior deposition. ness to the scheduled product privilege. art asserted the work attorney spoke Attorney Beto’s Then, compel- without the benefit an order by telephone 4, 2000; on April Haddad a re- ling discovery, Ms. Beto moved for sanctions May notice was served 2000 which finding ob- deposition May scheduled the for struction. After Haddad received appeared The medical records custodian letters, copies of the Ms. Beto moved produced Ms. Beto’s med- compel production of documents. ical Eplin records. Ms. testified that she had motion was referred commis- knowledge personal documents cor- sioner privilege who avoided but issue respondence between Stewart and his production on recommended the basis of insurance carrier. recog- Haddad waiver. The produced documents were only nized that this information could day production. that the circuit court ordered provided by agreed Dr. Stewart that the intentionally Because he not withhold testify concerning doctor would these mat- violation aof court order and ters. Dr. Stewart testified on June prejudiced by because Ms. Beto was not At disclosure, the time that Dr. timing Stewart testified con- con- letters, cerning attorney objected tends that the circuit court’s resolution their disagreement entirely privilege. on the basis of proper. this interjects that the initial Moreover, Dr. Stewart could find his correspondence from Ms. Beto’s time, copy By of the letters. Dr. Stew- seeking discovery was in form and letter Morgantown art practice had closed his requested original medical rec- practicing his brother Charleston. *7 ords; no mention was of types made other His Attorney records were in boxes. So records, diaries, notes, personal such as or TDC, Haddad called who him informed that memoranda. no The letter indicated that he would to a copy have send of the com- taken, testimony paralegal would be so a or plaint request copies writing explain- and in person staff other could deliver the records ing why he needed them. Over the next or the could records be mailed. Without months, Ms. upon three Beto served Dr. explanation, days sixteen later Ms. Beto’s depositions Stewart several notices seek- videotaped a noticed ing production of the In documents. the production of Dr. documents directed to meantime, Attorney TDC retained Haddad’s Stewart’s medical This records custodian. represent company. law firm to the insurance internally notice in it was inconsistent that copies of TDC located and faxed the letters specifically required appearance by an the 8, Attorney August to Haddad’s on office requested medical records custodian but ad- 2000. Haddad states that he was ditional fall would not within in trial at that not see time the the domain of a medical records custodian. 14, August September letters until 2000. On 5, 2000, readily objection a Haddad admits that no he filed formal on behalf appeared produced claiming one documents on be- to or TDC the letters April 4, they prepared anticipation half of Dr. Stewart on in 2000. He were litigation states that the reason is unclear. and were covered the incorrectly objection subpoena product he notes that the work was doctrine. The same 30(b)(7) testimony, produc- deposition. 4. Rule relates a duction documents at documents, 30(b)(6) pro- tion while relates to 362 381, 389, 827, kle, 472 S.E.2d 196 W.Va. privilege was on behalf filed assertion (citations omitted). (1996) of Dr. Stewart. 6, 2000, a September Ms. Beto filed On judice in case does problem the sub The the production of docu- compel
motion
that Dr.
be so much
not seem
on
hearing
held
a
ments. Before
disobeyed
discovery
a
or-
motion,
a
to hold
Stew-
she
motion
filed
unnecessarily
they
caused
der but whether
discovery.
obstructing
contempt for
art
in
by failing to
litigation
prolonged
to be
sides,
arguments from both
hearing
After
produce the
documents.
record
earlier
recommended to the
commissioner
court first
circuit
ordered
shows
produced
letters be
circuit court
6,
letters on November
discov-
on
The court ordered
based
waiver.
objections
determined that
The court later
produced prior
were
ery
the documents
a clerical error.
received due to
to trial.
3, 2001,
objected.
January
that the doctor waived
circuit court found
that this
agree
circuit court
with the
We
attorney-client privilege or
right
assert
governed
proceeding is
37(b)(2).
product
affirmed the
work
doctrine and
The Rule
of Civil Procedure
Rule
9,
6,
January
2000 order. On
November
pertinent part:
in
states
and TDC filed motion
director,
officer,
or
party
or an
If
asking the circuit court
hold the order
person
party
managing agent of a
or
pending petition to
A
abeyance
this Court.
30(b)(6)
31(a) to
designated
or
under Rules
hearing
for
on the motion
scheduled
obey
testify
party
fails to
on behalf
January
appar-
This motion was
discovery,
permit
in-
provide
or
order
ently
argued before
circuit court.
never
cluding an order made under subdivision
hearing
January
During a
held on
(a)
party
if a
rule or Rule
or
of this
pro-
court ordered that
provided
as
for under
supplement
fails to
regardless of
motions. The
pending
26(e),
duced
party
obey
if a
Rule
or
fails
ultimately
February
26(f),
settled
issue
Rule
order entered under
its order
when
court memorialized
may
pending
make
in which the action is
$5,197.50
writing
Ms. Beto
and awarded
regard to the failure as are
such orders
prior
...
“attorneys’ fees and costs
just[.]
discovery disputes[.]” Ms.
motion
sanctions
Rule
various
enumerates
was held
Dr. Stewart
hold
may impose
the court
for failure
which
completed.
trial was
abeyance until the
provides
obey an order
then
require
party failing
the court shall
trial,
circuit court addressed
Following
attorney advising
obey
the order
Hold Defendant Stewart
“Motion to
*8
party
pay
both to
reasonable
that
Obstructing Discovery
for
Contempt
fees,
attorney’s
including
expenses,
caused
though the motion
Even
Other Relief.”
failure,
finds that
by the
the court
unless
contempt,
in
sought
hold
substantially justified or
the failure was
determined that the issue
whether
court
an award of
that other circumstances make
intentionally
Attorney
failed to dis-
Haddad
unjust.
expenses
correspondence
be-
close the existence
In other
the doctor and his insurer.
purpose
that
tween
has said
“the
This Court
words,
not
before the court was
issue
11
Rule
Rule
37
should be held
con-
trial whether Dr. Stewart
is to allow
Rules of Civil Procedure
but
Dr. Stewart’s defense
parties
tempt,
do not
whether
to sanction
who
meet
courts
contempt.
Follow-
variety
should be held
of conduct in a
counsel
minimum standards
of various
[Moreover],
in camera review
ing
trial
an extensive
court
circumstances....
documents,
court
the circuit
deter-
authority
to enforce its orders
relevant
has broad
not obstruct
that
Haddad did
party
comply
mined
who fails
sanction
discovery.5
discovery rulings.”
v. Hin-
its
Bartles
with
failing
argument
its discretion by
the circuit court abused
find
merit
in Ms. Beto's
that
5. We
363
provided
previously
This Court
duct had in the case.
we find no
Because
guidance
regarding
to circuit courts
the issue
erroneous assessment of the evidence or the
stating:
by
case,
of sanctions
say
law in this
cannot
we
the circuit
court abused its discretion.
formulating
appropriate
“In
sanc
tion,
guided by equitable
a court shall be
foregoing,
Based on the
the order of the
principles.
Initially, the court must identi
circuit
is
affirmed.
fy
alleged wrongful
conduct and deter
Affirmed.
if it warrants a sanction.
mine
The court
explain
clearly
must
its reasons
on the
McGRAW, Justice, dissenting.
if it
appropri
record
decides
sanction is
(Filed
2003)
2,
July
ate. To
what will
determine
constitute
sanction,
appropriate
may con
the court
by
deposition testimony
As
indicated
conduct,
sider the seriousness of the
Stewart,
the knowledge,
counsel
defense
had
impact the
2000,
conduct had
the ease and in
early
January
as
as
that Dr. Stewart
justice, any mitigat
administration
had
Company
written
The Doctor’s
circumstances,
ing
con
whether the
regards
injury
to Ms. Beto’s
lack
due
duct was an isolated
or was a
occurrence
padding during
procedure.
additional
pattern
wrongdoing throughout
the According
testimony,
to Dr. Stewart’s sworn
2,
Hinkle,
Syl. pt.
B
case.”
v.
artes
counsel
defense
knew the documents’ exis-
(1996).
381,
W.Va.
opposing ery available. requests to make these letters failing prompt- discovery requests and produce letters, of went The failure counsel ly defense provide the letters, continued identify and his advocacy. beyond the boundaries they even misrepresentations about whether indi- mark majority misses the when The existed, im- impaired plaintiffs case and Beto. no to Ms. cating that was harm there ability upon her exceptional hardships posed pri- proceedings “[A]ttorney disciplinary are fairly try her case. public, to re- marily designed protect reliability integrity is process it as to the intended The assure fair, proce- hopefully in the safeguard simple, interest truthful attorneys and to its ” majority acquiesces to justice.... opinion Committee The administration dure. dissent, and Virginia goal, respectfully Bar I the West State but still Legal Ethics allowed 450 S.E.2d court should have W.Va. the circuit v. Keenan 192 believe (1994). examine plaintiff opportunity conduct is cross Defense counsel’s Haddad, thereby gives pub- rise establish very kind of conduct lawyers are dishonest and leaves sanctions. lic need for additional view profession. our noble a black mark on of de- that the actions I believe Because sanetionable, I re- must counsel wei*e
fense
spectfully dissent.
STARCHER, C.J., dissenting. 2003)
(Filed July S.E.2d 811 opinion. majority’s The I from the dissent ex rel. LAURA STATE West Attor- R., Individually to not sanction circuit court’s decision and as Next Friend of R., Petitioner, been based appears to have ney Haddad R. and Katie Christian secret, by upon affidavit reviewed sealed v. proceeding. an in camera the circuit JACKSON, Sally Judge of Honorable G. thereby was plaintiff for the Berkeley County; Family Court At- opportunity cross-examine denied R., Gary Respondents. Haddad, possibly contradict torney surrounding dis- of the events statement No. 30969. written covery of letters Stewart. Appeals Supreme Court majority opinion because I also dissent Virginia. letters, ap- importance of the downplays the accepting Dr. Stewart’s contention parently 11, 2003. March Submitted beginning from he admitted April Decided during padding used lateral runs con- this contention surgery. plaintiff forced fact that the
trary to the prove go to trial to absence padding standard breached the
lateral injury. The plaintiffs and caused the
care prepared operation, both
report of the nurses, operating and two room
doctor padding. lateral about
silent contemporaneous only
were therefore the *10 lateral that demonstrated
padding had not been used. shows
The record letters, but of the existence
knew