Arthur Parker ingested Upsher-Smith Laboratories’ drug amiodarone, developed pulmonary difficulties, and died. His widow brought a product liability action against Upsher Smith.
Lawyers for Upsher-Smith wanted to interview some of Parker’s treating physicians. Plaintiff opposed those ex parte interviews, saying that Nevada law prohibits the interviews and that waivers granted under HIPAA do not preempt Nevada’s physician-patient privilege. Parker v. Upsher-Smith Labs., No. 3:06-CV-0518-ECR (VPC), 2009 WL 418596 (D. Nev. Feb. 18, 2009).
At a hearing held on February 3, 2009, Magistrate Judge Valerie Cooke held that the defendant could engage in interviews and specifically authorized defendant’s counsel to interview six physicians. The court directed counsel to meet and confer as to the proper scope of those interviews. Id. at *1. The court also found that HIPAA “permits a physician to disclose a patient’s medical information once a patient has executed a valid authorization.” Id. at *2. Plaintiff’s counsel said that the HIPAA authorizations had expired, and he would not advise his client to execute new ones. The court ordered that defendant’s counsel could interview the treating physicians despite that refusal. Id.
We need a thesaurus to write our next sentence fragment:
So senseless as to be laughable: absurd, foolish, harebrained, idiotic, imbecilic, insane, lunatic, mad, nonsensical, preposterous, silly, softheaded, tomfool, unearthly, zany. Informal: cockeyed, crazy, loony, loopy. Slang: balmy, dippy, dopey, jerky, sappy, wacky.
On the very next day — February 4 — without giving notice to anyone, plaintiff’s counsel mailed letters to 20 of the treating physicians advising the physicians that, despite the court order, they were “free to decide whether or not you wish to meet privately with defense counsel. There is legal authority which provides that neither HIPAA-compliant authorizations nor a court order can force a healthcare professional to communicate with the attorneys.” Id.
It gets worse.
On that same day, co-counsel for plaintiff spoke to defense counsel, but failed to disclose that plaintiff’s counsel had mailed the letters.
Where’s that book?
Idiotic: asinine, batty, birdbrained, crazy, daffy, daft, dull, dumb, fatuous, foolhardy, foolish, harebrained, imbecile, imbecilic, inane, insane, lunatic, moronic, senseless, silly, squirrelly, thick-witted, unintelligent.
It gets worse.
On the next day — February 5 — plaintiff’s counsel filed with the court a document renewing her argument that ex parte interviews of the treating physicians were improper — but not mentioning the 20 letters that he had mailed the previous day!
When a court starts to list the ways in which it can sanction lawyers, someone in the courtroom should be nervous. So when Magistrate Judge Cooke trotted through “inherent power” to sanction, “sanctions under Fed. R. Civ. P. 37(b)(2),” “sanctions under 28 U.S.C. Sec. 1927,” and “sanctions pursuant to Local Rule IA 4-1,” id. at *4-6, you could see the Grim Reaper taking his backswing.
The Reaper didn’t miss.
Judge Cooke found that plaintiff’s counsel could have objected to the court’s decision permitting the interviews to proceed or moved for reconsideration. But counsel could not engage in self-help: “If a lawyer disagrees with an order of the court, that lawyer does not have leave to disregard or circumvent that order; his or her recourse is to take appropriate steps to test the validity of that ruling pursuant to Local Rules of Practice and the Federal Rules of Civil Procedure.” Id. at *8.
The court found that plaintiff’s counsel sent the letters “for the improper purpose of influencing these witnesses not to cooperate with defendant’s counsel in ex parte interviews, and it was done to gain a tactical advantage; that is, to subvert the court’s order.” Id. Plaintiff’s counsel “acted recklessly and with an improper intention,” in “bad faith,” and “in violation of [Local Rule] IA 4-1.” Id. at *8-9.
The court thus ordered plaintiff’s counsel (“not the plaintiff”) to pay defendant’s costs incurred in connection with the sanctions motion, plus $4000 to the local Attorney Admission Fund. Id. at *9.
And the magistrate judge deferred ruling on additional sanctions, pending an appeal to the district court of the order permitting the ex parte interviews. If the district court affirms the order allowing those interviews, then the magistrate judge would “fashion remedial measures to undo the harm plaintiff’s counsel caused.” Id.
The whole situation is just, well —
Incredible: absurd, far-fetched, fishy, flimsy*, implausible, impossible, improbable, incogitable, inconceivable, insupposable, out of the question, outlandish, phony, preposterous, questionable, ridiculous, rings phony, suspect, thin*, unbelievable, unconvincing, unimaginable, unsubstantial, untenable, unthinkable.