Shandralina G. v. Homonchuk

Opinion

McDONALD, J.

In a medical malpractice action filed by plaintiff Shandralina G. (Minor), counsel for defendant Tania Homonchuk, M.D. (Doctor), retained Dr. Landers as a confidential medical consultant. Shortly before the time set for designating expert witnesses, one of Minor’s counsel, Mr. Riley, unaware of Landers’s prior retention by Doctor’s counsel, telephoned Landers and, after Landers stated he was not familiar with the parties to the action, sent Landers certain medical records for his review. Minor’s counsel thereafter designated Landers as a potential expert witness for Minor.

[400]

Doctor subsequently moved, under

Shadow Traffic Network v. Superior Court

(1994) 24 Cal.App.4th 1067 [29 Cal.Rptr.2d 693]

(Shadow Traffic),

to disqualify Minor’s counsel from further participation in the action, alleging Riley had improperly obtained confidential information during his telephone call with Landers (the conversation). Doctor asserted the unauthorized contact by Riley with Landers created a rebuttable presumption that confidential information had been improperly disclosed by Landers to Riley during the conversation, and Minor did not sustain the burden of showing Riley had not obtained confidential information. Minor opposed the motion under

Collins v. State of California

(2004) 121 Cal.App.4th 1112 [18 Cal.Rptr.3d 112]

(Collins),

asserting the

Shadow Traffic

rebuttable presumption was not applicable because Landers remained under the control of Doctor, and therefore the burden of persuasion rested on Doctor affirmatively to show Riley

did

obtain confidential information from Landers during the conversation. Minor alternatively argued that, even if Minor had the burden to demonstrate Riley had not obtained confidential information during the conversation, affirmative evidence satisfied that burden.