Coffey v, Healthtrust, Inc., 1F.3d 1101 (10th Cir. 1993)
In an anti-trust suit by a radiologist against a hospital plaintiff’s attorney filed an economic study, expert’s affidavit and an accompanying brief supporting the plaintiff’s position that the hospital did not have any competitors within its marketing areas.
In a motion for Rule 11 sanctions, defendant’s attorney stated that the economic study’s author had told plaintiff’s attorney that their expert’s use of the report to support his opinion was misguided.
At the Rule 11 hearing, plaintiff’s attorney stated the author had not told him this. The district court imposed Rle11 sanctions against the plaintiff’s attorney for knowingly filed a false and misleading pleading.
The tenth Circuit Court of Appeals reversed holding that while lying may be a disciplinary problem, it is not subject to Rule 11 sanctions.
The court reasoned that an attorney must be able to reasonable rely on an expert’s opinion without fear of punishment for the expert’s errors in judgement. The court found that the attorney’s reliance on the expert’s opinion had been reasonable because: the expert had sworn to his position in an affidavit; the trial court had accepted the witness’s expert status and; the expert had held his position even though confronted with evidence to the contrary.
Your court cited Schering Corp v Vitarine Pharmaceuticals, Inc. 889 F.2d 490 (3d Cir. 1989), which held that failure to disclose a contrary expert opinion alone is not a sufficient basis for imposing Rule 11 sanctions.
In concluding, the court noted that defendant’s attorney had the opportunity and duty to expose weaknesses in evidence. Thus the court concluded that it is not a Rule 11 violation for an attorney to disclose contrary expert opinion. The adversary system is alive and well.
Home ! Search Page ! Master index ! Table of Contents for This Issue