This case is presents a classic clash of process values v. the merits of a dispute.
The lawyers for the people bringing the lawsuit blow a deadline for responding to a motion for summary judgment. The essence of the motion is that there was no expert report filed to show that malpractice was committed. The lawyers who blew the deadline brought a motion to reconsider and in the last pleading filed in connection with that motion before the judge ruled, submitted the missing expert report which probably would have brought the case to a trial on the merits had it be timely filed.
While not handled optimally (the summary judgment response deadline should have been calendared, and an extension of time sought if a response wasn't ready at that point), it is quite possible that the underlying problem was that it was taking longer than hoped to find a doctor willing to offer an expert opinion, even though one was ultimately found. This difficulty moreover, may have flowed from needing to get the case filed before all the ducks were lined up in a row to meet a statute of limitations.
At any rate, the defendant doctor wins on a technicality, and we will never have anyone decide the merits of a case despite the fact that both side ultimately got expert reports to support their positions.
I don't think anyone doubts that, at some point, enough is enough, and that the demands of a smoothly functioning justice system calls for some civil litigations to be resolved based upon procedural grounds rather than substantive ones (in criminal cases and particularly in death penalty cases where there is a right to competent counsel because the defendant is indigent, this observation is far less obvious). Indeed, the default judgment is overwhelmingly the most common way for civil lawsuits to be resolved, and while some of those default judgment undoubtedly are due to bureaucratic ineptitude by defendants who had meritorious defenses, there is also little doubt that a large majority of default judgments involve cases where the claim made is justified or close to justified.
There is also, however, a doctrine in civil procedure that disfavors resolving cases on procedural grounds when there is a bona fide claim to reach another result on the merits.
The case decided yesterday resolved that question based upon precedents that give trial judges wide latitude when a particular kind of procedural mistake is made by a party in a civil case. But, this formalistic resolution, while practical and probably a correct ruling in light of past precedents, is also unsatisfying. What should illuminate the decision?
Why should the response in this case, where there are two active litigation teams, be to award the defense their attorneys fees incurred as a result of the delay and the need to bring a summary judgment motion, and a continuance of the trial date, if desired, rather than a dismissal? Is a procedural default mid-case that is demonstrably remediable really a sound basis for denying relief on the merits to a party?
Also, the equities in this case would be very different if a sworn expert report hadn't been filed in the trial court before a final decision was made by the trial judge who felt compelled by precedent to ignore it. Does a rule that allows a trial judge to ignore a last minute save of this kind really make sense? It is one thing to be a day late and a dollar short. It is another to deliver all the goods a day late.
8 comments:
what do you think about my situation? see http://www.rightscase.com. I applied for summary judgment in 02-1950. I filed first for partial summary judgment against Wittemyer, a Routt County D.A. insured by Lloyds of London and defended by David Brougham of Hall and Evans. Brougham already admitted to informal oral discussion about the procedures without our presence with former federal magistrate Schlatter, even thou prohibited by local rule 77.2. Magistrate Schlatter then ordered the defendants not to response to our summary judgment motions and Judge Nottingham struck them. The claim I had against Wittemyer was pursuing a criminal charge without a warrant or a police statement of probable cause, dismissal without observing the required procedures, and defamation after dismissing a criminal charge.
First, to be clear, I don't consider you my client and do not have all the facts necessary to make a full analysis or formulate a full opinion.
Still, generally speaking both a prosecutor and a magistrate have absolute immunity for non-ministerial actions taken in an official capacity which appears to include these charges. Even admitted violations of ethical rules applicable to those professions do not normally give rise to a private cause of action against those officials for acts taken within the scope of their duties.
A state prosecutor (as opposed to a federal prosecutor) does not have to have a grand jury indictment, or a warrant, or criminal complaint from a lay person to initiate a criminal proceeding, although a judge must be convinced that probable cause exists before issuing a warrant for an arrest (prosecutors never issue warrants on their own). A judicial determination that probable cause exists to issue a warrant would normally immunize an official who relied upon the warrant issued to make an arrest, although a false affidavit in an application for a warrant would be a ground for criminal (but not necessarily civil) perjury charges in the absolute discretion of a relevant prosecutor. In some cases there is a right to a preliminary hearing after charges are filed, but not before charges are filed.
A dismissal that doesn't follow a certain procedure would generally be a harmless error. Why would a criminal defendant ever want to complain about a charge being dismissed?
Defamation laws are generally very narrowly construed and there are a number of privileges that relate to criminal proceedings.
I don't see a basis for a claim against the prosecutor or magistrate in this case from the little that I know at this point in time.
As usual, a Colorado Court of Appeals decision is more noteworthy for what it doesn't say than for what it does. :)
In a med mal case (and every other action for damages against a licensed professional), plaintiff's counsel must file a "certificate of review" within sixty days after service of the complaint. The certificate must declare that counsel has consulted with an expert who, based on review of the known facts, concluded that the case "does not lack substantial justification[.]" C.R.S. § 13-20-604(3)(a)(II). If plaintiff's counsel filed a timely certificate of review in this case -- and there's no indication that he didn't -- the court may have on that basis considered the failure to provide timely expert disclosures and an affidavit all the more "inexcusable." But that's just a half-educated guess.
The part that honks me off is the doc using his own affidavit as the sole support for his own summary judgment motion. I've always believed that such egregiously self-serving affidavits should automatically established a credibility issue that can't be resolved via summary adjudication, but the courts disagree. :)
The Colorado laws of criminal procedure were developed the way they were for a reason and Kay Sieverding had a right to rely on them. They state that prosecution must be begun with either a warrant or a police officer saying that they saw a crime. The prosecutor doesn't get to start a prosecution without either a warrant or a cop. However, Wittemyer did start the prosecution without either. Soon after this transcript was available:
“She’s (referring to KAY SIEVERDING) not following you around town, or anything like that?” JANE BENNETT answered, “Uh, I don’t believe so”
There has been no offensive touching?” JANE BENNETT answered “no”. “She hasn’t shoved, or pushed, or kicked, or anything like that? JANE BENNETT “Not me, no.”
“She’s not calling you late at night” (referring to KAY SIEVERDING). JANE BENNETT replied “She may have called me in the night years past. I can’t remember the date. She called one time... that was like a couple of years ago"
In the court appearance before JUDGE JAMES H. GARRECHT on September 6, 2000, KAY SIEVERDING asked JANE BENNETT if they had any interaction between a planning department meeting when KAY SIEVERDING had suggested they go out for coffee in the winter of 2000 and August 29, 2000 and JANE BENNETT answered, “I don’t recall interacting with you.”
KAY SIEVERDING asked JANE BENNETT about their conversation about a week before the restraining order hearing when JANE BENNETT was leaving a neighbor’s house directly across from SIEVERDING’S drive, asking “Did I say anything to you on any other subject other than the smelling of smoke that being the day that the condominiums burned?’ and JANE BENNETT answered “No”
In the court appearance before JUDGE JAMES H. GARRECHT on September 6, 2000, KAY SIEVERDING asked JANE BENNETT “Have I ever physically threatened you?” and JANE BENNETT answered, “I don’t know what you mean.”
Despite these statements under oath by Jane Bennett, showing that Kay Sieverding did not criminally harass Jane Bennett, Wittemyer continued the criminal charges for almost 6 months.
I think that criminal rule 42, saying that a criminal charge can only be dismissed in open court, was designed to stop what happened to me: being labeled as a criminal without a trial. It would have been much better for me to have actually had a trial, after I pled not guilty and hired William Hibbard, than to have the charges dismissed in the way that they were.
Wittemyer filed a motion to dismiss. She ignored the options listed on the standard form including “the interests of justice would best be served by the dismissal as herein requested” and typed underneath that, although no fill in the blank option was offered “Although probable cause exists it would not be in the best social or economic interests of the public to persist in the prosecution of this case. The victim concurs in this decision.”
Sieverdings’ attorney, William Hibbard, then wrote back on 3/28/01 (delivered to Wittemyer’s office) “While the defendant has no objection to the dismissal of the case, the Defendant has an objection to the statement that there was “probable cause” in the first instance for issuing the citation herein……the defendant requests an order from this Court finding that there was no probable cause for the charges of harassment as filed or alternatively requests a hearing for a determination as to whether or not there was probable cause to charge harassment.”
Wittemyer wrote back to Sieverdings’ attorney “I would not consider filing the requested document with the Court. I will rely on the documents already filed with the Court to speak for themselves”
Hibbards’ motion for a statement that there was no probable cause was rejected by County Court Judge Garrecht who wrote on 3/30/01 “The Court cannot make findings on probable cause as requested. The Court has not received any information in this case.” Wittemyer had a responsibility to determine that a crime had been committed, before she claimed there was probable cause. She had a lot of information to indicate that no crime was committed and that Jane Bennett’s motivation was to cover- up for her zoning and development code violations. If she believed there was probable cause, she would have told the accused, Kay Sieverding, her attorney, William Hibbard, or the Court what it was.
Wittemyer's statements that jane Bennett was my 'victim' then became the subject of an article in The Steamboat Pilot. This article is published on the Internet to this day and damages me regularly.
Lloyds of London's lawyer David Brougham arranged for my motion for summary judgment to be ignored. In that motion, filed in 2003, I quoted:
"The second case, Hilliard v. Williams, 465 F.2d 1212 (6th Cir. 1972), denied immunity to a prosecutor charged with the deliberate suppression of an FBI laboratory report that established the innocence of the defendant. The court reasoned that since a prosecutor's duty is to protect the innocent as well as to convict the guilty, his discretion does not extend to seeking the conviction of a person he knows to be innocent.*fn1 Accordingly, it held that the district court erred in dismissing the complaint. Hilliard represents a real, but very limited, departure from the traditional rule of prosecutorial immunity. The complaint charged an intentional abuse of the prosecuting function which resulted in a denial of due process.*fn2 It supported this charge, with specific averments of the evidence concealed by the prosecutor, its exculpatory effect, and the deceitful means he used. Under the principles expressed in Hilliard, a complaint such as Weathers' could not be dismissed on the ground of immunity” “Weathers v. Ebert, 505 F.2d 514 (4th Cir. 11/13/1974)
I quoted
Florey v. District Court, 713 P.2d 840 (Colo. 1985). Says that prosecutors have only qualified immunity from suit for "investigative" or "administrative" functions, which have a more attenuated connection with the judicial process”
New Mexico specifically discusses a prosecutor giving a press conference and found that that was not a protected activity. As filed in plaintiffs “Request for clarification: Basis for your comments at the Status Conference that you believe attorneys have immunity for their professional actions and in various court communications challenging that we have a legal basis to sue attorneys who did not represent us.” On page 22 that document says “As far as our claim against district attorney Elizabeth P. Wittemeyer for her defamatory statements to the Steamboat Pilot and Today Newspapers after withdrawing her case for harassment against Kay Sieverding, there is a case which specifically finds district attorney liability for defamation at a press conference. It says “The ruling of absolute immunity as a matter of law involves the concepts of judicial immunity and executive immunity. Judicial immunity is involved because the office of district attorney is a quasi-judicial office. Ward v. Romero, 17 N.M. 88, 125 P. 617 (1912). Executive immunity is involved because the office of district attorney has duties which cannot be properly classified as quasi-judicial. See § 36-1-18(B) and (C), N.M.S.A. 1978.
[21] The ruling of absolute immunity as a matter of law also involves the concepts of absolute immunity and qualified immunity. Robinson was the district attorney and Singer was his special assistant. On the basis of these positions, Robinson and Singer contend they have an absolute immunity; plaintiff contends their immunity is qualified. Involved in this aspect of the immunity argument is the fact that Robinson and Singer and attorneys; they claim an absolute privilege on that basis as well as on the basis of their official positions.
[22] Attorney immunity is not involved. Absolute immunity is accorded to attorneys for defamation reasonably related to communication preliminary to, in the institution of, or during the course and as a part of judicial proceedings in which the attorneys participates as counsel. Romero v. Prince, 85 N.M. 474, 513 P.2d 717 (Ct. App. 1973). This immunity does not apply to defamation on the attorney's part which occurs after final disposition of the judicial proceeding. Prosser, Law of Torts (4th ed. 1971)…
There being nothing showing that Robinson's press conference remarks were immune, plaintiff could be entitled to relief under this claim.
[57] The order dismissing the claim against Singer is affirmed. The order dismissing the defamation claim based on Robinson's letter to the sheriff is affirmed. The order dismissing the defamation claim based on Robinson's press conference remark is reversed. Candelaria v. Robinson, 93 N.M. 786, 606 P.2d 196 (N.M.App. 01/03/1980) New Mexico Court of Appeals, No. 4017. 93 N.M. 786, 606 P.2d 196, 1980.NM.40474”
So why was my motion ignored? You can't say that I filed too many motions either because this was one of the first i filed. I also filed a motion to be told the probable cause for the criminal prosecution and the injunction. That was ignored too.
Wittemyers' attorney David Brougham of Hall and Evans emailed to me confirming that Underwriters of Lloyds of London insured the claim against her. Lloyds is not an admitted insurance company in Colorado but sells insurance as a surplus carrier. Therefore the requirements of Colorado Revised Statutes 10-3-1004 Defense of Action by Unauthorized Insurer were triggered. Co defense counsel Traci Van Pelt of McConnell Siderious emailed to me that TIG Specialty Insurance also acted as an unautorized insurer and the only papers in the time period that the Colorado Insurance Commission (ask Peggy Brown) can find related to auto inurance but my claim against Van Pelt's client, Klauzer & Tremaine law firm, was for abuse of process and malicious injunction. They also ignored 10-3-1004, So did Christopher Beall, who was paid by Mutual Insurance of Bermuda. They apparently have never filed any papers with any state insurance regulator yet they advertise that they sell defamation insurance to newspapers across the U.S. covering claims up to $15 million. They don't acknowledge on the Internet if they have any funds at all set aside to pay claims. All these lawyers filed waivers of response to our charges of criminal acts and violations of Colorado insurance law in our pending Supreme Court mandamus petition
http://www.rightscase.com
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