Litigation Misconduct, A Disturbing Trend On The Rise In Civil Litigation

The incidence of serious litigation misconduct in civil litigation is apparently on the rise. An increasing number of incidents have arisen where defendants, and in some cases their attorneys, used illegitimate, dishonest and underhanded tactics in order to defeat claims on behalf of victims of negligence and intentional torts. This trend should be of great concern to attorneys and clients, but even more importantly, to the judiciary.

Five years ago, in the case of Boggs v. Camden-Clark Memorial Hospital, Bordas & Bordas uncovered a massive fraudulent scheme to deceive the Plaintiff in that case, Bernard Boggs, and the Circuit Court of Wood County regarding what had happened to Hilda Boggs when she died at Camden-Clark Memorial Hospital. What the hospital risk management department did to cover up the malpractice was scandalous. After more than two years of litigation involving, among other things, the hospital's cover-up, Judge Robert Waters issued his landmark 55 page order here detailing how the hospital's attorney and the risk management department deliberately deceived the Plaintiff and the Court about what had occurred. As a result of the misconduct, the Judge ordered that a sanction in excess of $1,350,000,000.00 be paid. You can read a copy of the order here. Camden-Clark's appeals were rejected.

Several years later, in Haught v. Weirton Medical Center, another hospital was caught red-handed on the first day of a malpractice trial having withheld in discovery significant material documents regarding Weirton Medical Center's liability to Genevieve Haught, particularly for the negligent credentialing of Drs. Jayapal Reddy and Hardev Parihar. Those two physicians had collaborated on a botched surgery that cost Genevieve Haught her life. On the first day of trial, the Plaintiffs, represented by Bordas & Bordas, filed a Motion for Sanctions asking the Court to strike the answers of Weirton Medical Center in light of their misconduct in failing to be forthcoming with the Court and the Plaintiff regarding these documents. After the Judge expressed an inclination to grant Plaintiffs' motion after trial, if not before, the hospital decided to confess judgment in open Court the full amount of its self-insured retention, a sum of over $2,000,000.00. The WVAJ later gave the Plaintiffs an award for courage in bring the case to trial.

Also, within the past five years, the cases of Roberts v. Murthy and Karpacs v. Murthy were tried in Wetzel County, West Virginia. In each of these cases, the Defendant, Dr. Murthy, made stunning and unanticipated reversals of her deposition testimony and testimony given through sworn pretrial discovery responses at the trial. In the Karpacs case, Judge Karl issued an opinion sanctioning Dr. Murthy for that misconduct as well as other litigation misconduct that occurred in the defense of that case on the part of Dr. Murthy and her insurer. The West Virginia Supreme Court of Appeals reversed the sanctions stating that an evidentiary hearing would have to be held before the sanctions could be recognized. That hearing will occur later this year.

Perhaps most famously, in 2009, the corporations Richmond American Homes, Inc. and MDC, Inc. were sanctioned with a default judgment in Joy v. Richmond American Homes for a complex course of litigation misconduct. Richmond had attempted to hire the Plaintiffs' attorney at a mediation wherein the Plaintiffs' attorney was attempting to resolve his clients' claims against Richmond. The underlying idea appeared to be that if the claims went away, the Plaintiffs' attorney would find "good employment" with Richmond American and MDC - two large, wealthy corporations. When that didn't work, Richmond tried a new tack sending letters directly to the Plaintiffs who were represented by counsel containing false and misleading statements about their attorney and attempting to break down the Plaintiffs' attorney-client relationship in that way. In addition, Richmond had engaged in significant discovery misconduct in the case, holding up the case with hundreds of objections to legitimate requests for information by the Plaintiffs.

After Judge Sanders imposed the default judgment in Richmond, an extraordinary writ proceeding was held in the Supreme Court of Appeals in West Virginia. The extraordinary writ proceeding resulted in an opinion that you can read here strongly affirming the Trial Court's right to enter a default judgment upon making certain specific types of findings of fact and conclusions of law. A detailed concurring opinion by Chief Justice Robin Davis indicated that the misconduct of Richmond was more than sufficient to warrant a default judgment under the new standard announced by the Supreme Court of Appeals in Richmond. I had the opportunity to argue the case in the Supreme Court of Appeals. Upon remand, Judge Sanders reimposed the default judgment sanction under the new standards as set forth by the Supreme Court of Appeals. Thereafter, Richmond settled the claims with the Plaintiffs confidentially.

Each of these Bordas & Bordas cases involving significant litigation misconduct on the part of the defendants could easily have been the "other" type of litigation misconduct case, i.e., a case where the misconduct is never discovered. The assumption in respect to frauds of this kind is that the majority go undiscovered and unpunished. The fact that this type of litigation misconduct has not only been exposed but exposed so convincingly that it was determined adversely to the defendants by Court orders strongly indicates that the incidence of significant litigation misconduct is far more prevalent than any Court system should tolerate. The judicial system, and particularly judicial officers, should be prepared to hold litigants' feet to the fire in regard to the critical duties of candor to the tribunal and honest and legitimate conduct in the production of documents - whether they are damaging or not. Conduct such as that exhibited by Richmond American Homes in attempting to subvert the attorney-client privilege should never be tolerated for any reason.

Of course, attorneys, particularly those representing injured victims, must be especially vigilant, as Bordas & Bordas has been, to uncover this type of misconduct and bring it before judicial officers in as comprehensive and specific manner as possible. Otherwise, the "anything goes" mentality shown by the Defendants in Boggs, Haught, Joy, Wilson, Roberts and Karpacs will continue to be a disturbing and growing posture for litigants caught in wrongdoing.

Chris Regan

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