The New Mexico Court of Appeals has upheld a $100,000 fine levied against the University of New Mexico (UNM) Board of Regents for intimidating Dr. Ian Paul, a forensic pathologist at the Office of the Medical Investigator in Albuquerque, into withdrawing as an expert witness in a medical malpractice case against the university.
Dr. Paul was asked to serve as an expert witness for a woman who experienced a bowel perforation during a cesarean section/tubal ligation procedure in her malpractice case against the University of New Mexico.
Soon after Dr. Paul accepted the request, Mr. Scot Sauder, in-house counsel for UNM, found out about Dr. Paul’s involvement and contacted Dr. Paul Roth, the UNM chancellor, who gave Mr. Sauder his “unquestioned approval” to contact Dr. Paul’s bosses. Mr. Sauder first called Dr. Ross Zumwalt, chief medical examiner for the state and Dr. Paul’s boss, and told him to pull Dr. Paul off the case.
To his immense credit, Dr. Zumwalt said he already knew about the case because Dr. Paul told him about it, and also said:
I am sure the Regents desire that this case be evaluated by competent, qualified, and unbiased experts. The Regents are fortunate that Dr. Paul fits those criteria.
Unsatisfied, Mr. Sauder then contacted Dr. Thomas Williams, chief of the Department of Pathology at UNM, and asked him to pull Dr. Paul off the case, but nothing happened.
As the mediation deadline neared, Mr. Sauder contacted Drs. Zumwalt and Williams again and told them he and the chancellor wanted Dr. Paul off the case. Mr. Sauder then called the outside attorneys who were representing UNM in the malpractice case and told them Dr. Paul was off the case, based on an assurance from Dr. Williams.
The only problem is, Dr. Williams later testified he gave no such assurance, and in fact, both he and Dr. Zumwalt said Dr. Paul’s withdrawal was not “appropriate or necessary.”
A few days after Mr. Sauder’s call to the outside counsel, Dr. Paul did indeed withdraw. Per an email to the plaintiff’s attorney, Dr. Paul stated he had received ”a lot of pressure from the higher ups at UNM.”
It later became clear that at the time these events were unfolding, Dr. Paul was being considered for a promotion and felt his career was in jeopardy. He also testified Mr. Sauder’s actions were the reason for his withdrawal.
After Dr. Paul quit the case, the plaintiffs filed a motion in district court, arguing what Mr. Sauder amounted to “improper witness interference and tampering” and that Mr. Sauder had violated numerous rules of professional conduct for attorneys.
Two hearings on the plaintiff’s motion were held, and during that time, the underlying malpractice case was settled.
After the settlement, the district court ruled against UNM and stated:
[t]hat any public entity, let alone the flagship University of this State, believes it has such power to stifle comment is both terrifying and in violation of public policy
and also said Mr. Sauder’s:
`behind the scenes’ interference with a witness is just the kind of conduct that fosters distrust and disdain for our profession and the [c]ourt system.
The court ordered UNM to compensate the plaintiffs $32,000 for the attorney fees they racked up as a result of Mr. Sauder’s actions, fined Mr. Sauder $1,500 (payable to the Roadrunner Food Bank), and fined UNM $100,000 (payable to four different charities).
UNM challenged the $100,000 fine, arguing the district court did not have the authority to levy an entirely punitive fine against a governmental agency in tort and contract civil actions.
The district court denied UNM’s motion, and UNM appealed.
On August 28, 2013, the appeals court ruled the district court does indeed have legal authority to impose a punitive sanction against a government entity.
I do not know if UNM plans to appeal to the NM Supreme Court.
As I said in my previous post about this case, I have actually worked with Dr. Paul, and he is a nice guy and a very competent forensic pathologist. I hope his promotion was not negatively impacted in any way as a result of these events.
The full appeals court decision is here.