LACONIA — A Superior Court judge is being asked to strip a Michigan lawyer of his ability to serve as co-counsel in a high-stakes medical malpractice case surrounding the birth of a baby.
“In 35 years before the bar I have never challenged the conduct of opposing counsel,” said attorney Peter A. Meyer, of Sulloway & Hollis in Concord, representing the defense, during a Nov. 6 hearing in Belknap County Superior Court.
He accused the plaintiff’s attorney, Brian J. McKeen, of having improper contact with an expert witness hired by the defense and claimed the high-profile medical malpractice attorney bullied witnesses when questioning them at depositions in advance of trial, which is presently scheduled to begin in March.
McKeen, of McKeen & Associates in Detroit, once secured Michigan’s largest medical malpractice verdict, a record $55 million in Hall v. Henry Ford Health System.
Speaking in his own defense, McKeen described his out-of-court interaction with the expert at a San Diego conference where they were both speakers as “very brief, very open and very innocent.”
“I feel very strongly that I conducted myself appropriately,” he said.
As McKeen is not a member of the New Hampshire bar, judicial approval is needed to allow him to work on a case here.
According to Meyer, McKeen approached a physician that the defense had hired as an expert and in effect challenged him by questioning whether he was going to testify that there was a genetic component to the birth injuries alleged by the plaintiff.
Norma Kortz of Laconia, on behalf of her son, Kaeden, filed suit in March 2017, alleging that the child had been born seven weeks prematurely, weighing about 4 pounds, due to medical negligence.
The suit, which has since been amended, initially claimed she was admitted to Lakes Region General Hospital on Dec. 7, 2007, with contractions. It further claimed that testing revealed she had Group B streptococcus organisms in her urine. Kortz was treated with a drug that successfully stopped her contractions and she was discharged the following day.
The complaint alleges she was not told she had a urinary tract infection and that she was not prescribed an antibiotic.
A week later, the contractions returned and she went back to LRGH, according to the suit. Her white blood cell count was found to be elevated and other tests showed she was at risk of preterm labor, the suit says.
Kortz was transferred by ambulance to Dartmouth-Hitchcock Medical Center in Lebanon. The suit goes on to allege that the Dartmouth defendants negligently mismanaged Kaeden’s delivery on Dec. 13, 2007, causing trauma to the baby’s premature skull, leaving him with brain damage and other significant injuries, and leaving him severely and permanently disabled.
The defendants deny all allegations of negligence and breaches of standards of care.
Meyer alleges McKeen spoke with a defense expert when he was not represented by a lawyer. Meyer also joined attorney Gregory G. Peters, of Wadleigh, Starr & Peters in Manchester, who represents the Dartmouth-Hitchcock defendants in the case, in asserting that McKeen had been a bully during pretrial depositions, repeatedly interrupting those testifying and not allowing them to finish answering the questions.
Peters reminded the judge that he had initially opposed allowing McKeen to serve on the case as McKeen was once reprimanded by the Michigan Attorney Discipline Board for “grabbing” the necktie of a rival lawyer during a deposition when questioning became heated, Peters said. The reprimand was handed down in May 2003 and the board found that McKeen had “grasped” the tie of opposing counsel, but did not pull on it in a “threatening or assaultive manner.”
While there is no court rule that directly precludes contact with an expert outside the courtroom, Meyer maintained it is standard practice in New Hampshire that opposing counsel doesn’t speak with an expert witness unless there is representation by counsel.
“There is no written rule, but there is right and wrong. When you allowed him (to serve as co-counsel) you conditioned his approval on following the rules and standards. Today is the tomorrow you wrote about yesterday. Sadly, he did not follow the rules,” Meyer said.
Attorney Kimberly Kirkland of Reis & Kirkland in Manchester, who represents the plaintiff, described McKeen her co-counsel as an “incredibly effective advocate in this case” and argued that the narrative that occurred during a chance meeting between McKeen and the defense expert had been “rewritten” by Meyer. Were Judge James D. O’Neill III to revoke McKeen’s privilege to serve on the case, Kirkland said, it would deprive Kortz of the best defense and amount to gamesmanship on behalf of the lawyers for the defendants.
“These are highly paid experts who understand the process,” she said, challenging Meyers’ assertion that the quick exchange between the pair amounted to intimidation.
“The expert was presenting to a birth injury group of trial lawyers. This was not an ambush. (McKeen) was a speaker and they followed each other. This was not an attempt to obtain discovery or to intimidate,” Kirkland said.
The brief exchange between the expert and McKeen, according to Kirkland, was focused on the realization that the expert’s father had opined that the medical condition alleged by the plaintiff was the result of a birth injury, while the expert had come to the conclusion that there was a genetic component to the injuries.
Nothing was revealed, Kirkland said, and the exchange didn’t cause any detriment to the defendants.
As to the issue of McKeen’s alleged bullying of witnesses, Kirkland asserted that McKeen was countering obstructive tactics by experts who had been coached to evade questions. When most lawyers would give up, McKeen persists and that is why Meyers and Peters want him off the case, she said.
Kirkland urged the judge to read the transcripts of the depositions asserting that they would show “excellent lawyering” by McKeen.
Were the court to preclude McKeen from participating in the case, Kirkland said, the plaintiff would be severely disadvantaged and face a huge burden in trying to find a replacement.
“To deprive Mrs. Kortz of the best defense is not appropriate or reasonable,” Kirkland said.
Defendants in the suit are the estate of Carolyn Drake, M.D.; Dartmouth-Hitchcock; Diana L. Fitzpatrick, M.D.; Blair T. Lacy, M.D.; LRGHealthcare, doing business as Lakes Region General Hospital; Deborah Morrison Martin, M.D.; Mareca D. Pallister, M.D.; Heather Scott, R.N.; Ellen Stickney, R.N.; and Rebecca S. Uranga, M.D.