UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF COLUMBIA

____________________________________ ) FEL I CE I . I ACANGEL O, et al. , ) ) Plaintiffs, )

) v. ) Civil Action No. 05-2086 ( PL F) ) GEORGETOWN UNIVERSI TY, et al. , ) ) Def endants. ) ____________________________________)

OPI NI ON This matter ca

me bef ore the Court on plaintiffs’ motion to dis qualify Wil liams & Connolly , L L P (“W&C”) as counse l for the de fenda nts on the g round that Will iams & Connolly ’s re prese ntation of both defe ndant Geor g etown Univer sity Hospital and def

endant Dr. Va nce E . Watson in t his case is tainted by a conf lict of interest. B oth the case and the issue itself are complicated a

nd involve many

filings, de positions and assertions of fa ct supported by competingaff

idavits and dec larations, all of which the Court has c are fully considere d. Be cause

1

The doc uments review ed by the Court in rea chingits decision include the 1 following : plaintiffs’ Second Ame nded Complaint [ Docke t No. 101] (“Compl.”); plaintiffs’ Motion to Disqualify

Def endants’ Counsel ( “Mot.”); de fenda nts’ Opposition to P laintiffs’ Motion to Disqualify

Def endants’ Counsel ( “Opp.” ); Opp., Ex. C (Tra nscript of De cembe r 14, 2007 Deposition of Dr. V ance Wil son) (“ Dec . 14, 2007 Watson Dep.”); Opp., E x . D (Tr anscr ipt of May 31, 2007 Deposition of Dr. Watson) (“ May 31, 2007 Watson Dep.”); Opp., E x . E (Tra nscript of July

26, 2007 Deposition of Sheila Z immet) (“July 23, 2007 Z immet Dep.”) ; Transc ript of J une 26, 2007 Status Confere nce ( “June 27, 2007 Tr.”); de fenda nts’ Response to Alleg ed Conflict of Intere st I ssues [Docket No. 173] (“De fs.’ Resp.” ); Aff idavit of Def

endant Vanc e E. Watson, M.D. [Docket No. 177] (“Watson Affid.” ); I aca ng elo v. Geor g etown Univ., Civil Action No. 05-2086, Me morandum Opinion and Or der ( D.D.C. J une 27, 2007) ( “June 27, 2007 Mem. Op. & Orde r”) ; id., Memorandum Opinion and Or der ( D.D.C. J uly 16, 2009) (“ J uly 16, 2009 Mem. Op. & Orde r”)

.the Court conclude d that most of plaintiffs’ claims and c ontentions lack merit, it issued an Or der

on Marc h 26, 2010, denying the motion to di squalify . This Opinion ex plains the rea sons underlying that Order , and also discusses the one ar ea where W&C may have a waivable conflict of intere st that has not y et bee n waived by Dr. Watson and the pr ocess by which that wa iver may be ac complished.

I . BA CKGROUND A. The Medic al Treatment at Issue This is a medical malpra ctice c ase c oncer ning the car e provide d to Kary n A. Ker ris, the daug hter of pla intiffs Fe lice I aca ng elo and Cicily

I aca ng elo, by defe ndant Dr. V ance Watson and Georg etown Univer sity Hospital (“Ge org etown”) . Ms. Kerr is suffer s from a bithalmic arter iovenous malformation (“AVM” ), an a bnormal tang le of ve ins and arte ries in her brain throug h which blood does not flow pr operly . See Compl. ¶ 8. In 1998 and 1999, Dr

. Watson attempted to treat this condition by utiliz ing a

proce ss known as “e mboliz ation,” which involves using a

g lue-like substanc e to sea l abnormal blood vesse ls off fr om healthy ones. See id. ¶¶ 8-9. A s part of the embolization process, Dr. Watson combined two substanc es that would be applied to the A VM: Histoacry l, a g lue, and L ipiodol, a poppy seed- oil mix ture c ontaining materia l that is visi ble in X-ra y s. I d. ¶ 9. Dr. Watson’s tre atment was not succ essful, and Ms. Ker ris subsequently

experience d damag e to her brain that ha s incapa citated he r. I d. ¶¶ 11- 12. Plaintiffs claim that at the time of the e mboliz ations, Dr. Watson’s combination of Histoacry l and L ipiodol was a “Class I I I [] medical de vice that ha d not been a pproved [by

the FDA ] and was thus illega l.” Compl. ¶ 10(c). T hey further alleg e that Dr . Watson should have

2obtained an inve stigational device e x emption (“I DE”) from the F DA and submitted to

supervision by

an instituti onal re view boar d (“I RB”) befor e combiningand usingthe two substances in Ms. Ke rris’ br ain. I d. ¶¶ 10( d), (j). I n addition, at the time of the e mboliz ations, Histoacry l was alleg edly

“the subjec t of a tra de ale rt and ha d been se ized by the FD A prior to its use on” Ms. Ke rris. I d. ¶ 10(k)

.

The de fenda

nts claim that they

followed prope r proc edure s in obtaining a nd using Histoacry l. There is deposition testi mony that in 1994, severa l y ear s befor e tre ating Ms. Kerr is, Dr. Watson consulted Sheila Z immet, a lawy er e mploy ed by Geor g etown, about the use of Histoacry l. Defs.’ Resp. at 6. The e x act c ontent of that discussion betwee n Dr. Watson and Ms. Z immet is unclear, but it is reasona bly cer tain that (1) Ms. Z immet informed Dr. Watson that he did not require the approva l or the super vision of the I RB in orde r to perf orm the embolizations on Ms. Kerr is, id.; and (2) Dr. Watson prope rly inferr ed fr om Ms. Zimmet’s c omments and demea nor that his use of Histoac ryl was per missibl e, eve n though H istoacry l was not yet FDA -appr oved. See D efs.’ Resp. at 7; Dec . 14, 2007 Watson Dep. at 350.

Dr. Watson consulted Ms. Z immet ag ain in 1998 to learn “ how best to ac hieve prompt importation of Histoacry l.” Def s.’ Resp. at 7. Dr . Watson had alrea dy spoken with a U.S. Custom s ag ent about the issue a nd had “be en provide d with lang uag e to be use d” in a letter to be pre sented to the F DA, known a s a “le tter of ne ed.” I d. Ms. Z immet recommende d that Dr. Watson send the letter to the F DA by fax so that it would arrive at the a g ency befor e the Histoacry l shipment went throug h Customs . I d. Dr. Watson succe ssfully obtained the Histoac ryl and used it in treating Ms. Ke rris, g iving r ise to the curr ent lawsuit.

3B. Plaintiff s’ Claims Plaintiffs’ most rece nt amended c omplaint included, amongits other claims, three counts of neg lige nce per se by Dr. Watson and Ge org etown. Plaintiffs claimed that Dr. Watson had violated 21 U.S.C. § 360c(a )(I I ) and 21 C.F .R. § 812.20(a)( 2) by obtaining a

nd using unapprove d “ar

tificial embolization devices” without obtaining an I DE fr om the FDA . Compl. ¶¶ 45- 59; 69-72. Acc ordingto plaintiffs, Dr. Watson also brea ched 21 U .S.C. §§ 331(a)-( c), ( g ) and (k) by

rec eiving and combiningHistoacry l and L ipiodol, two allege dly “adulter ated a

nd misbranded de vices.” I d. ¶¶ 60- 68. Plaintiffs argued that by alleg edly violating these laws, Dr. Watson had nece ssarily

brea ched his duty

to Ms. Kerris, c ausingher injuries. The Court disag ree d with that argument and dismissed plaintiffs’ neg lige nce per se claims in Order s issued on September 30, 2008 a

nd Fe bruar

y 4, 2009. I aca

ng elo v. Geor g etown Univ., Civil Action No. 05-2086, Or der a

nd J udg ment (D.D.C. Sept. 30, 2008) [Docket No. 125]; id., Memorandum Opinion and Orde r (D.D .C. Feb. 4, 2009) [Docket No. 145]. There r emain five still -viable claims for r elief in plaintiffs’ amende d complaint: neg lige nce, la ck of infor med conse nt, brea ch of wa rra nty , fra ud, and bre ach of

fiduciar y obliga tions. Com pl. Counts I -V. Curre ntly pending befor e the Court is a motion by defe ndants for pa

rtial summary

judgme nt on the plaintiffs’ informed c onsent, brea ch of w arr anty , and fr aud cla ims. S ee D efe ndants’ Motion for Summary J udg ment on Counts I I -IV of the Sec ond Amended Complaint [Docket No. 143].

4C. The Confl ict-of-Inte rest Issue The possibility

that Wil liams & Connolly might have a conf

lict of interest in this

case was fir st raised by

Anthony Newma n, plaintiffs’ counse l, at a deposition of Dr . Watson. Meg an Hills, a Will iams & Connolly lawy er de fendingboth Georg etown and D r. Watson, notified Mag istrate Judge A lan Kay of Mr. Ne wman’s a lleg ations. On J une 27, 2007, this Court held a status conf

ere nce to discuss the situation with counsel. At the status confe renc e, Mr. Ne wman attempted to e x plain the potential conf lict he per ceive d. Dr. Watson had desc ribed duringhis deposition the content of his discussions with Geor g etown attorne y

Sheila Z immet concer

ning the use of Histoac ryl. Mr. Newma n char acte rized Dr. Watson’s descr iption as follows: “Dr. Watson testified that . . . [Ms.] Z immet . . . said, it’s not ill eg al to use this stuff that is not approved a nd is being smugg led ac ross the border . . . . Two, she sa id, y ou don’t nee d to go thr oug h the Institut ional Review B oard.” J une 27, 2007 Tr. at 6. At that time, Ms. Z immet had not y et bee n deposed, a nd Mr. Newman expressed conc ern that her a ccount of her discussions with Dr. Watson, whate ver it mig ht be, would cre ate pr oblems for the de fense . I f she c onfirmed Dr . Watson’s acc ount, then “[t] here may be a de fense Watson has[ ,] say ing, look, I didn’t mean to bre ak any rules, I was told to do so.” I d. at 10. Mr. Ne wman did not clea rly articula te the conf

lict he believe d would arise if Ms. Z immet disput ed Dr . Watson’s acc ount.

The Court fr amed the pote ntial conflict problem this way : “Presumably , if Sheila Z immet say s Inever

said that to Watson, then W atson has a c redibility problem. . . . Watson’s counsel ha s to stand by

Watson’s credibility , but Watson’s counsel also has to stand by Sheila

5Z immet’s cre dibilit y since she [Z immet] is a Geor g etown employ ee.” J une 27, 2007 Tr. at 9. Addre ssing W&C c ounsel, the Court elabor ated:

[I ]f Sheila Zimmet[] say s that what Watson say s is true, . . . I ’m not sure how the conflict c omes out if she say s it’s true. I f she say s it’s not true, then ca n y ou rea lly

. . . put both W atson and Z immet[ ] on t he stand, or doe s one of them ne ed a dif fer ent lawy er a t trial[? ] You’ve g ot two clients, Georg etown and Watson. Their interests ar e identica l, unless a primary spokesper son for Geor g etown [Zimmet] say s that your other c lient isn’t telling the truth. And we c erta inly

can’ t find ourselves in a situation midtrial wher e that happe ns. I d. at 12-13. The Court also pointed out that if Ms. Zimmet we re to de ny Dr. Watson’s ac count of their c onversations, Georg etown mig ht attempt to argue that Dr . Watson had acte d on his own without authorization, t hus obviating respondeat superior liability : “I f I

wer e re prese nting Geor g etown I

would say , wait a minute, if this guy is off on a f

rolic of his own, isn’t there some way we c ould ge t out of this? ” I d. at 14. In light of those c oncer ns, the Court order ed that Ms. Z immet be independe ntly repr esente d at her

deposition, and that W&C arr ang e for independe nt counsel to advise D r. Watson on any potential conflicts of inter est. See June 27, 2007 Mem. Op & O rder at 2. Ms. Z immet subsequently was de posed, and the independe nt counsel eng ag ed for Dr. Watson, Geor g e Clark, attended her deposition. Ms. Zimmet conf irmed that she ha d told Dr. Watson that he could treat Ms. Kerris with Histoacr yl without the approval of a n I RB. Jul y

23, 2007 Z immet Dep. at 52-53. She w as aw are that Histoacry l was not FD A appr oved, that it was beingimported from Cana da for Dr. Watson’s use, a

nd that no I DE had be en obtained f rom the

6FDA . I d. at 60-61. She ne verthe less did not object to Dr. Watson’s plan for the treatment of Ms.

Ker ris. I d. After

Ms. Z immet’s deposition passed without appare nt incident, the conflict-ofinterest proble m resurf

ace d when c ounsel for the defe ndants filed a motion to strike some of the plaintiffs’ desig nated e x perts. Those e x perts cla imed that “[d] efe ndant Geor g etown’s in-house counsel [Z immet] violated the national standa rd of c are by

condoningand allowingthe use a nd continued use of

illega l, unapprove d Class I I Idevice s without both an I DE and I RB appr oval.” I aca ng elo v. Geor g etown Univ., Civil Action No. 05-2086, Memora ndum Opinion of Mag istrate J udg e Alan K ay

at 7 (D.D .C. J une 17, 2008) ( quoting plaintiffs’ Opposition to Defenda nts’ Emerg ency

Motion to Ex tend the De adlines for Def endants’ F ed. R. Civ. P. 26(a)(2) E x pert Disclosures a

nd to Strike Pl aintiffs’ Expert Reports for Plaintiffs’ Fa ilure to Comply with Fed. R. Civ. P . 26(a) (2)( B) , at 5) (inter nal quotation marks omitted). Judge Ka y g rante d the motion to strike, and the pla intiffs moved for r econside ration. In their opposition to the moti on for

rec onsideration, def

endants a rgued that the testimony

of the prof

fer ed leg al experts reg arding communications betwe en Ms. Z immet and Dr. Watson was irr eleva nt to this medical malpr actice

case : “As the he alth car e provide r at issue, Dr . Watson’s decision to use a non-F DA appr oved device to treat a

patient was his alone .” De fenda nts’ Opposition to P laintiffs’ Motion for Reconsider ation of Mag istrate Judge K ay ’s J une 17, 2008 Or der [Docke t No. 116] at 3.

The Court found this asser tion troubling bec ause “ the ar g ument that the dec ision to use a non-F DA appr oved devic e wa s Dr. Watson’s ‘alone ’ — re g ardle ss of what Ms. Z immet advised him or what any one else at Geor g etown may have sa id or done — only seems to reinfor ce the Court’s initial view that a conf lict of interest e x ists (or may in the future e x ist)

7betwee n Geor g etown Univer sity and Dr . Watson.” J uly

16, 2009 Mem. Op. & Orde r at 3. The Court reminded the de fenda nts that they

wer e to submit a repor

t by Dr. Watson’s independe nt counsel, whic h they

had fa iled to do for over

two y ear s despite the Court’s ea rlier or der. I d. at 5. The Court also posed a

series of questions for both W&C and Ge org e Clark, Dr . Watson’s independe nt counsel. Amongthe questions was the f ollowing: “I f the Court rules that testimony from Ms. Z immet and others about he r leg al advice to Dr. Watson is rele vant and will be admitted . . . , then will the defe ndants arg ue that Dr . Watson should not be held liable at all while their other

client (Ge org etown Univer sity) should be? ” I d. at 4 (e mphasis in origina l). On J uly 31, 2009, Geor g e Clark submitted a re port in which he state d that he found no conf

licts of interest in W&C’s re prese ntation of both Georg etown and D r. Watson. See Report of Independe nt Counsel for Def endant Va

nce E . Watson, M.D. ¶ 2 [Docket No. 174]. On that same da

y , W&C filed re sponses to the questions posed by the Court. See De fs.’ Resp. In addition, Dr. Watson filed an a ffidavit in which he aver red, “ Iam satisfied with the repr esentation Ihave r ece ived from Williams & Connolly and believe that it is not tainted by conflict of inter est.” Watson Affid. ¶ 8. He a lso stated, “I

believe tha

t I know any

materia l risks and re asonably

available alterna

tives to continued repr esentation by Wil liams & Connolly . I ag ree to waive a

ny conflict of inter est.” I d. ¶ 10.

I I . DI SCUS SI ON A. The Applicable Rule of Professional Responsibility Acc ordingto the plaintiffs, Wil liams & Connolly ’s continued joint repr esenta tion of both Geor g etown and D r. Watson violates Rule 1.7(a) of the District of Columbia Rules of

8Professional Conduct. That Rule provide s: “A lawyer sha ll not advance two or more a dverse

positions i n the same matter.” D.C. R U L E S O F P R O F ’ L C O N D U C T R. 1.7(a) . I t sets out “the limit ed cir cumstance s in which repr esentation of conflictinginterests is absolutely prohibited

even w ith the informed conse nt of all involved clients.” D.C. R U L E S O F P R O F ’ L C O N D U C T R. 1.7, cmt. 1. Whil e the pr ohibition of Rul e 1.7(a ) is “absolute,” its “rea ch . . . is relatively narr ow.” D.C. Ba r L eg al Ethics Comm., Op. 217 (1991). The pr ohibition of Rul e 1.7(a ) “r elates only to actua l conflicts of position, not to mere for malities . . . [ A] lawy er is not absolutely forbidden to provide joint or simultaneous repr esentation if the clients’ positions are only nominally

but not actua lly adver se.” D .C. R

U L E S O F P R O F ’ L C O N D U C T R. 1.7(a), c mt. 6. Accor ding to the D .C. Ba r’s L eg al Ethics Commit tee, Rule 1.7(a ) applies only to situations where a

lawy er actually

asser ts two incompatible arguments on behalf of two differ ent clients on the same issue in the same proc eeding :

Rule 1.7(a) prec ludes a fir m that takes a position on behalf of Client A from repr esentingClient B in the same pr ocee ding only if Client B ac tually

takes or w ill take an adve rse position on the issue. I f the be nefits of joint repr esentation are suf ficiently g reat or the likelihood of preva iling on a position that would incre ase its individual recove ry

is sufficiently

small, eac h of the c lients might afte r “c onsultation” choose to for g o such ar g uments. . . . Acc ording ly , if Client B choose s to forg o taking an adve rse position on t he par

ticular issue, Rule 1.7(a ) would be ina pplicable by its terms. Rule 1.7(b) g overns in any case in which simult aneous r epre sentation of clients with potentiallyadver se interests would not ac tually require the firm to take inc onsistent positions i n the same pr ocee ding. D.C. Ba r L eg al Ethics Comm., Op. 217 (emphasis adde d). By this logic, Rule 1.7(a ) would apply if, for e x ample, W&C we re r epre senting both Georg etown and D r. Watson, and proposed to a rgue duringthe cour se of the sa me trial both

9that (1) a dminist eringthe Histoacr yl to Ms. Kerris wa s appropr iate and le g al, and (2) a dminist eringthe Histoacr yl to Ms. Kerris may

have be en illeg al and inappr opriate, a nd further that (3) only

Geor g etown, not Dr. Watson, bea rs any liability beca use Ms. Z immet (Ge org etown’s lawy er) told the doctor he c ould use the substance . In contra st, Rule 1.7(a) would not apply wher e W&C could

make both of those a

rguments but instead was makingonly Argument (1). I

n that case , Rule 1.7(b), not Rule 1.7(a ), g overns be cause W&C’s two clients have pote ntially

adver se intere sts but are not ac tually advanc ing a dverse positions i n the same proce eding . Rule 1.7(b) provide s that “[E] x cept a s permitted by para g raph ( c) be low, a lawyer shall not repre sent a c lient with respec t to a matter if . . . [s] uch re prese ntation will be or is likely to be adve rsely

aff ecte d by repr esentation of another c lient.” D.C. R U L E S O F P R O F ’ L C O N D U C T R. 1.7(b). 2 This disti nction matters for two rea sons. First, Rule 1.7(b), unlike Rule 1.7( a), is not an absolute ba

r to repr esentation where a conf lict exi sts; the conflict may be “c ured” if “[e]ach potentially

aff ecte d client provides infor med conse nt to such [j oint or dual] repr esentation after f

ull disclosure of the e x istence a nd nature of the possible conf lict and the Contrary to the arg

uments made in a motion rec ently filed by the plaintiffs, the 2 decision in Vestal v. Hof

fa, Civil Action Nos. 1832-71, 1313-71, 1237- 71, 1718-71, & 2010-71, 1972 WL865 (D.D.C. Jul y 11, 1972), is not “the lea ding D .C. authority direc tly on point reg ardingdisqualification from c oncurr ent re prese ntation of defe ndants.” Plaintiffs’ Motion to Stay the Entry of Appe ara

nce of J ennife r L . Attrep, Esq. [Docket No. 190], at 3 n.1. The le g al authority g overningthe disqualification question at issue in that ca se wa s not the District of Columbi a’s Rules of Prof essional Conduct or the pr ofessional c ode that pre cede d them, but Yablonski v. United Mine Workers of Americ a, 448 F .2d 1175 (1971), a case discussing the propriety of a la w firm’s c oncurr ent re prese ntation of a union and one of the union’s off icer s. Yablonski itself did not purport to interpre t the Rules of Professional Conduct, but instead applied the law

of labor r elations. See, e .g ., Yablonski v. United Mine Workers of Americ a, 448 F.2d at 1179-80. Be cause this case doe s not involve labor law, Ya blonski and Vestal ar e of little rele vance . 10possible adver se conse quence s of such re prese ntation.” D.C. R U L E S O F P R O F ’ L C O N D U C T R. 1.7(c). Sec ond, beca

use plaintiffs foc us solely on Rule 1.7(a) in their motion to di squalify , they spend a great deal of time attempting to classify minor or per

haps nonexistent inconsistencies in the de positions of Dr. Watson and Ms. Zimmet as “ adver se positions” advocated by

W&C.

B. The “Adverse P ositions” Identified by Plaintiffs The supposedly

adver se positions cited by the plaintiffs in their motion to disqualify W&C may

be org anized into three sets. One set of “a dverse positions” is composed of inconsistencies — or what plaintiffs unconvinc ingly prese nt as inconsistencies — in def endants’

case . A sec ond set involves instances in the c ourse of this li tiga

tion where , acc ordingto the plaintiffs, W&C has take n actions that will lead to one or more of its lawyers be ing c alled to the witness stand. The third set c onsists of only one asse rtion, the claim that Dr. Watson may have a defe nse that W&C may

not present be cause it would work to Georg etown’s disadva ntag e. Only this last claim requires se rious attention.

1. Inconsistencies in the D efe ndants’ Case Plaintiffs claim that W&C has adva nced “ adver se positions” beca use (1) Dr. Watson has said that Ms. Zimmet told him his use of Histoacry l was “le g al,” while Ms. Z immet doesn’t re member ha

ving c onversations with Dr. Watson usi ng the spec ific term “ leg ality ,” see Mot. at 7-8; (2) Dr . Watson say s he made the “‘ leg al’ distinction” in decidingI RB super vision of his Histoacryl use was unne cessa ry , while Ms. Z immet say s “she c larified the ‘leg al’ distinction,” see Mot. at 10; (3) Ms. Z immet said that letters of nee d alway s must be used to obtain

11unapprove d device s for c linical use, and D r. Watson did not use a letter of need to obtain the Histoacry l, Mot. at 11; and (4) Dr . Watson has said that there a re se rious medical r isks associated with the use of e mboliz ation, while def endants have ar g ued that ther e is no basis for ide ntifying the embolizations of Ms. Kerris’ AV M as the ca use of the de g ener ation of her health. Attempting to pursue their ar g ument that Ms. Z immet’s deposition testim ony conflicts with or re futes Dr . Watson’s, the plaintiffs take state ments contained in de position transcr ipts out of context and then pa rse them to cr eate the appe ara nce of inconsistency . At one of his depositions, Dr. Watson said that, prior to his treatment of Ms. Ke rris, he ha d “bee n told” by Ms. Z immet that his use of Histoacry l was “not illeg al.” Ma

y 31, 2007 Watson Dep. at 128. The plaintiffs c ontend that Ms. Z immet refuted this statement by saying that she had not discussed Histoacr

yl with Dr. Watson “in terms of leg ality .” Jul y 23, 2007 Z immet Dep. at 77-78. The Court finds that the stateme nts of Dr. Watson and Ms. Z immet reg ardingthis issue are not inconsistent when viewe d in context. Dr. W atson explained that his discussion of Histoacry l with Ms. Zimmet occ urre d when he asked he r if he ne eded to obtain I RB appr oval and supervision, and she sa id no. See May 31, 2007 Watson Dep. at 129-30. Ms. Z immet’s acc ount of their discussion is simil ar. See J uly 23, 2007 Z immet Dep. at 52. Dr . Watson never c laimed that Ms. Z immet used the specif ic term “ leg al” or

“leg ality ”; in fac t, he has ve hemently denied that she did so. See De c. 14, 2007 Watson Dep. at 354-55. Instead, he has said that he inf err ed from his g ener al discussion of Histoacr yl with her that he w as per mitted to use it; he assumed that she would have stopped him if he was not so per mitted. I d. at 358-59. Similarly , Ms. Z immet stated that she “indicated [to Dr. Watson] that . . . it seem[ed] to her that the F DA wa s 12acquie scingto clinical use [of Histoacr yl] in medical pra ctice.” J uly 23, 2007 Z immet Dep. at 78. 3 Plaintiffs nex t assert that the de fenda nts have pre sented inconsistent cla ims about the prope r mea

ns of obtaining Histoacry l. The def

endants ha

ve said that “ Geor g etown and D r. Watson and . . . Ms. Zimmet[] have a lway s asserte d that the L etter of Nee d proce dure w as the appropr iate proc edure to follow when, a s here , the intended use is indivi dual patient ca re a nd not for r esea rch.” Mot. at 11 (citing Def s.’ Resp. at 3) ( internal quotation marks omitted). Dr

. Watson has said that in obtaining Histoac ryl in the past, he found that “ [s] ometimes y ou neede d [a letter of ne ed],” and “ [s] ometimes y ou didn’t.” Mot. at 11 (c itation and internal quotation marks omitted). Ac cordingto the plaintiffs, these state ments by Dr. Watson, combined with the defe ndants’ inability

to locate the le tter of ne ed alleg edly used in Ms. Kerr is’ case , demonstrate conclusively

that no letter of ne ed wa s used to obtain the Histoacr yl for Ms. Ker

ris, and ther efor e contra dict the def

endants’ r epre sentations. This contention is really

just a preview

of one of plaintiffs’ ar g uments on the merits, and it does not prese nt an example of any “adve rse positions” espoused by W&C, or eve n any nece ssarily

inconsistent statements by the def endants. Dr . Watson’s statement that “[s] ometimes y ou neede d [l etters of need],” a nd “[s] ometimes y ou didn’t” re fer red to his experience s obtaining H istoacryl for various patients after he ar rived at Georg etown in 1994.

The plaintiffs a lso claim that there is a dispute reg arding“who made the dec ision 3 to foreg o I RB re view and upon whose word did they rely ,” Mot. at 10, but the Court ca nnot discern a ny inconsistency

in the depositions on this point. Both Dr. Watson and Ms. Z immet have sa id that, after

he told her that he would be usingHistoacry l to treat a patient, she told him that I RB involvement wa s unnece ssary . See Jul y 23, 2007 Z immet Dep. at 52; May 31, 2007 Watson Dep. at 129-30. 13See May

31, 2007 Watson Dep. at 138. Dr. Watson said that in many instances, Histoac ryl was available at the hospital, havingbeen pr ocure d by someone e lse, and that he only had to pre pare letters of ne ed to obtain additional Histoacr yl in some cases. I d. at 134-36. He has also said that, to a deg ree of “ve ry , very rea sonable c erta inty ,” he be lieves he did use a letter of ne ed to obtain the Histoacr

yl in Ms. Kerris’ c ase. D ec. 14, 2007 Watson De p. at 370. Ther e is no conflict betwee n Dr. Watson and Ge org etown on this point. P laintiffs argue that Dr . Watson failed to procur e a le tter of ne ed in Ms. Ker ris’ ca se, see Mot. at 12; both Georg etown and D r. Watson disag ree . See Opp. at 16-17.

Finally , plaintiffs say

that a conf

lict of interest e x ists because Dr. Watson has admitted that “embolization procedur es using the L ipiodol and Histoacry l mix ture” car

ry “sig nificant, g reat risks — including a high r ate of

failure , death, stroke , neurolog ic worse ning,” while the def

endants have ar g ued in their brie fs that “[t] here is no basis for asse rting that the embolization allege dly

cause d Ms. Kerr is to suffer pe rmane nt injury .” Mot. at 17. This claim by the plaintiffs, ag ain, is more of a n argument on the merits than it is an asser tion about conflict of interest. The defe ndants do not claim that embolization i s not risky . See Opp. at 23. Rather, they claim that any

possible risks “did not materialize.” Opp. at 8. 2. Testimony

by Wil liams & Connolly

L awyers In two of their a

rguments, plaintiffs claim that W&C has a c onflict of intere st beca use W&C lawyers may

need to be called to the w itness stand at trial to explain inconsistencies in their c ase. The plaintiffs point out that in an affidavit prepar ed for Dr. Watson to sign, W&C inac curately summarized the war

nings D r. Watson had g iven to Ms. Kerr is,

14writing that he had told her that a prior patient had died “a fter e x perie ncingcomplications associate d” with embolization. Mot . at 12. In fac t, the complications “we ren’ t rea lly associate d with the proce dure,” as Dr. Watson later explained in a deposition. I d. Instead, they resulted from a subse quent surg ical proc edure . May 31, 2007 Watson Dep. at 98-99. Reg ardle ss of the

rea son for the diff

ere nce be tween what Dr. Watson’s af fidavit say s and what he himself said at a deposition, plaintiffs assert that “ the ver acity of the De clar ation versus the ve rac ity of Dr. Watson is at issue. . . . Plainti ffs will have to ‘flesh out’ the f acts at trial by

callingboth Dr. Watson and the lawyer( s) from Williams & Connolly who dra fted the doc ument to the stand.” Mot. at 13. Contrary to the plaintiffs’ cla ims, there is no rea son to suppose that any lawy ers from W&C would be ne cessa ry witnesses at trial to addr ess this issue. To the extent that there ar e discrepa ncies be tween D r. Watson’s aff idavit and his deposition testim ony , plaintiffs are fre e to explore them and their r easons f or them in cross- examining Dr. Watson. The jury will decide if his ex planations aff

ect its view of his c redibility . There is no “adve rse position” her e, since W&C ag ree s with Dr. Watson’s clarif ication of his af

fidavit. See Opp. at 20. Plaintiffs also complain that W&C did not show Dr. Watson the documents that the law f irm intended to file as e x hibits t o his affidavit before askinghim to si g n the af fidavit. Mot. at 14. I t appea

rs, howeve r, that Dr. Watson did revie w the exhibits , but did not understand the way that they wer e number ed. See Ma y 31, 2007 Watson Dep. at 150; Opp. at 21. He re, too, the plaintiffs cla im that they will need to ca ll a W&C lawy er a s a witness at trial to “e stablish whether the exhibit s were attache d to the Dec laration when Dr. Watson executed it and whe ther they wer e in er

ror a nd/or did not relate to the issue f or which the y

wer e cited.” I d. at 14. Ag ain, it is di fficult to imag ine why the Court would permit the plaintiffs to ca ll defenda nts’ counsel to

15the witness stand to testify on this iss ue. It is utt erly irrele vant to the merits of the c ase, is ea sily explained, and, at most, g oes to Dr. Watson’s attention to detail (a nd hence his credibility

); there is no conflict or a dversity

.

3. Fa ilure to Present a

Complete Defe nse of Dr . Watson Plaintiffs argue that by

moving to strike the pla intiffs’ leg al experts, W&C demonstrated that they

will neg lect a de fense available to Dr. Watson — the argument that Dr. Watson reasona

bly relied on Ms. Z immet to tell hi m if obtaining a nd using the Histoacry

l was leg al or involved possible violations of law. See Mot. at 17. This is a leg itimate conce rn. I f the leg ality of Dr. Watson’s a cquisition and use of Histoac ry l became re levant at tria l, it is

conce ivable that he c ould limi t or eliminate his own liability by explaining that he be haved a s any rea sonable pra ctitioner would have : he consulted with and r ece ived the appr oval of in-house counsel be fore trea

ting Ms. Ke rris with a substanc e unappr oved by the FD A. Of c ourse, if D r. Watson testified in thi s fashion, he c ould undermine Ge org etown’s position that Ms. Zimmet’s advice was a

bsolutely corr ect. See Def

s.’ Resp. at 9. Ge org etown thus has an inter est in not prese nting this defe nse that Dr. Watson does not, pre senting a potential conf lict of interest problem for

W&C. The Court alluded to this conce rn in its J uly 16, 2009 Memorandum Opinion: “I f the Court rules that testimony from Ms. Z immet and others about he r leg al advice to Dr. Watson is rele vant and will be a dmitted . . . , then will the defenda nts argue that Dr . Watson should not be held liable at all while their other c lient (Geor g etown Univer sity) should be? ” Jul y 16, 2009 Mem. Op. & Orde r at 4 (e mphasis in origina l). W&C evade d this question in t he re sponse it

16filed with the Court on J uly 31, 2009. Whil e ar g uing that the Court should not admit any evidenc e re g ardingalleg ed statutory or re g ulatory

violations, W &C did not provide a ssuranc es that in repre senting Dr. Watson it will present all defe nses open to him:

There was no violation of F DA rule s or re gulations and the ca re provided wa s state of the a rt, standar d of ca

re the rapy . . . . The Court instructs the jury

on the law a

nd the Court has alre ady dismiss ed the Counts [for neg lige nce per se ] based on alleg ed violations of FDA r egulations. Thus, any testimony

about this issue — from any

witness — should be excluded as it is no longe r part of this ca se. Def s.’ Resp. at 9.

I t is true, as W&C asser

ts, that plaintiffs’ neg lige nce per se claims alre ady have been dismissed, so that plaintiffs ca nnot prove that Dr . Watson was neg lige nt simpl y by demonstratingthat he violated F DA re g ulations or the FD CA. At the same time, W&C ig nores the fa ct that statutory

or re gulatory

provisions may

well be r eleva

nt for the pur

pose of de fining the standar d of ca

re in a neg lige nce c ase, a

nd that violations of those provisions, even whe n they do not establish neg lige nce per se , may still be some e vidence of neg lige nce. See R E S T A T E M E N T (S E C O N D ) O F T O R T S § 288B ( “The unexcused violation of an ena ctment or re g ulation [ not adopted a s definingthe standar d of ca re] may be re levant evide nce be aring on the issue of neg lige nt conduct.”) . Fr om W&C’s responses to the Court’s que stions, it seems cle ar to the Court — if not to Dr. Watson or his independent counse l — that if evidenc e of a lleg ed statutory

or re g ulatory

violations is admit ted at trial, W&C neve rtheless will dec line to present a ny sort of “re asonable relianc e” de fense on Dr. Watson’s beha lf: “Should this i ssue nee d to be litigate d . . . Def endants will prese nt a united front.” Def s.’ Resp. at 9. W&C say s:

17I f there is any discussion of FDAregulations, counsel will tell the jury that Dr. Watson was c orre ct in his decision to use Histoacr yl and L ipiodol on a case -by -ca se basis to treat patients without an I DE or I RB super

vision, and that a L etter of Nee d was a

ppropriate to import the devices. Ms. Z immet never instruc ted Dr. Watson otherwise. I d. Since it is appare nt from their filing s that W&C has no intention of prese nting evidenc e of the rea sonable re liance de fense on behalf of Dr. Watson or a

rguing it to the jury , 4 two questions remain: (1) Can the Court be satisfied that Dr. Watson has bee n made a war e of this possi ble def

ense by W&C or by

Mr. Clark and that he knowing ly , voluntarily and intelligently

consente d to forg o it? And (2) how valuable is this potential defe nse — so valuable that the Court cannot pe rmit Dr. Watson to waive it by keepingW&C as his counsel? As to the first question, the Court has see n nothing in the voluminous filings by W&C on the conflict- ofinterest issue to convince it that someone has cle arly explained to Dr. Watson that a rea sonable relianc e def

ense ma y exis t, and that he must g ive it up if he wishes to re tain W&C as his counsel. Dr. Watson’s af

fidavit, in which he pur

ports to waive a

ny conflict of inter est fac ed by W&C, makes no mention of this issue. Neither does the re port of Mr. Clark, the independe nt counsel

secur ed for

Dr. Watson by

W&C. In fac t, Mr. Clark af firms that W&C’s re prese ntation of Geor g etown and D r. Watson “is not an instance w here one commonly

repr esente d defe ndant is trying to blame the other f or any alleg ed liability .” Report of Independe nt Counsel ¶ 29. I t appea rs that Mr. Clark ha s not contemplated the possibility that it could conce ivably be in Dr. Watson’s interest to blame Ge org etown.

The Court will, of cour se, conf irm this with counsel at a hea ringin open cour

t 4 befor e the c ase pr ocee ds to trial. 18One of the leg al ethics e x perts who ha s written a r eport in support of W&C’s opposition t o the motion to dis qualify decla res that Mr. Clar

k “has spe cifica lly

disclaimed on Dr. Watson’s behalf the c laim that ‘Geor g etown g ave him “ba d advice ” with re spect to whe ther he had to g o to the I RB or w ith respec t to how to import Hist oacr yl from Canada .’” O pp., Ex . B (De clar ation of Ha

milton P . Fox I I I ) at 16 (c itation omit ted). With all due respe ct to this acknow ledg ed expert in the field of leg al ethics, this statement is not acc urate . Mr. Clark has promised that Dr. Watson will not assert

that Geor g etown g ave him “ba d advice .” See Re port of Independe nt Counsel ¶¶ 17, 31, 34. He ha s not said that he explained a possible re asonable relianc e def

ense to Dr . Watson and that Dr. Watson agree d to forg o that defe nse in order to retain W&C as his counsel.

Dr. Watson has not, then, provided satisfactory assura nce that he under stands and does not wish to assert the r easona ble re liance de fense . He should be pe rmitted an opportunity to do so. As explained above, c onflicts of intere st gove rned by Rule 1.7(b) of the District of Columbi a Rules of Profe ssional Conduct may be wa ived by

the client under

Rule 1.7(c) “[i] f the benef its of joint represe ntation are sufficie ntly g reat or the likelihood of pre vailing on a position that would incre ase [his] individual recove ry is sufficiently

small.” D.C. Ba

r L eg al Ethics Comm., Op. 217. Whil e one ma y debate whether

the re asonable relianc e def ense is likely

to be of help to Dr. Watson, Dr. Watson nee ds to be fully advised be fore the Court can c onclude that he has g iven informed

consent a nd wishes to forg o the def ense a nd reta in W&C as his counsel.

19I I I . CONCL USI ON W&C’s dec ision not t o prese nt the rea sonable re liance de fense — and the f irm’s failure to provide assura

nces that Dr. Watson knows he is forg oing suc h a def ense by reta ining W&C as his counsel — cr eate s the only potential conflict-of

-intere st issue that merits serious attention. Acc ording ly , the Court will hold a hear ing at which it will inqui re of Mr. Clark and lead tria l counsel for

the def endants whe ther they

have disc ussed the re asonable relianc e def ense with Dr. Watson. I t will also address Dr . Watson directly and explain to him t he re asonable relianc e def

ense. The Court will advise Dr. Watson that while it does not know how strongthe defe nse is or eve n whether the def ense w ill be releva

nt at trial, Dr. Watson is cer tainly g iving it up if he c hooses to be re prese nted by W&C. The Court will then inquire whe ther Dr . Watson is prepa red to for g o that defe nse in order to stay with W&C. An Order

providing for the sc heduling of the ne cessa

ry hear ing w ill is sue this same day

. SO ORDERED.

/s/_______________________________ PAULL . FRI EDMAN United States District J udg e DATE: May

7, 2010

20