Lawyer held accountable for his bad conduct

Dr. Andrew Gross, who is a physician/lawyer, and I filed a podiatrist malpractice case on behalf of Brandy Cannon in Dallas in 2007. The case was turned into an acrimonious fight by a junkyard dog lawyer, Gary Werley from Ft. Worth. Justice finally came yesterday in an opinon issued by the El Paso Court of Appeals confirming the decision of trial court Judge Marty Lowy to sanction Werley for his bad conduct. See the opinion at the Court of Appeals site.

Brandy Cannon was injured by a podiatrist who did excessive bone removal during her bunionectomies. Due to this condition, her feet did not support her weight and continued to fracture. She has not been pain free or been able walk normally since. When she finally sought a specialist, she was told of the "overaggressive bone removal." She hired my firm to represent her in an action against the podiatrist, Dr. Scott Ashton. After the suit was filed, the doctor called her treating physicians. He complained to one podiatrist about the note he had in his file:

that his X-rays showed “severe over-aggressive bone removal during the bunion surgery.”

Dr. Ashton was quite aggitated when he spoke with his colleagues. The Texas podiatrist community is very close knit and discourages anyone from testifying against a fellow podiatrist. This is known as the "conspiracy of silence" in the legal community. Every podiatrist I questioned under oath said that testifying in a malpractice case was strongly discouraged by their fellow podiatrists. Under the intense peer pressure, this podiatrist changed his opinion about a month after the suit was filed. When we saw the change in the medical records we brought it to the court’s attention. We filed a motion for protective order and set it for a hearing. Judge Lowy was disturbed by the conduct and

…granted the motion and prohibited the defendants “from any ex parte contacts with non-party treating physicians of Brandy Cannon.”

The term "Ex parte" contacts means without having us, Brandy’s lawyers, present. Mr. Werley ignored the court’s order and contacted four of Brandy’s subsequent physicians in an attempt to influence their testimoney, without notifying us. We brought a motion for sanctions against Werley and the judge fined him $12,600. He appealed this judgment and the Court of Appeals found in our favor. All of this took four years. In the meantime Dr. Ashton’s new lawyers settled his case with Brandy.

You often hear about "frivolous" lawsuits but the general public has no idea the waste of time and money these "Rambo" tactics cost the courts and therefore the taxpayers. The 8th Court of Appeals and Judge Marty Lowy certainly understand the problem. Judge Lowy said in his sanctions order, that he was:

“seriously bothered by [the defense’s] flagrant . . . disobedience” of its order.

We are too.