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Bleacher v. Bose

Superior Court of Delaware

May 3, 2017

BONITA BLEACHER, Plaintiff,
v.
BIKASH BOSE, M.D., CHRISTIANA CARE HEALTH SERVICES, INC., a Delaware Corporation and NEUROSURGERY CONSULTANTS, P.A, Defendants.

          Submitted: April 19, 2017

         Defendant Bikash Bose, M.D.'s Motion to Disqualify Plaintiff's Counsel. GRANTED.

          Robert J. Leoni, Esquire, SHELSBY & LEONI, Stanton, Delaware. Attorney for Plaintiff.

          Dawn C. Doherty, Esquire, Norman H. Brooks, Esquire and Brett Norton, Esquire, MARKS, O'NEILL, O'BRIEN, DOHERTY & KELLY, P.C., Wilmington, Delaware. Attorneys for Defendants Bikash Bose, M.D. and Neurosurgery Consultants, P.A.

          Richard Galperin, Esquire and Ryan T. Keating, Esquire, MORRIS JAMES, LLP, Wilmington, Delaware. Attorneys for Christiana Care Health Services, Inc.

          Charles E. Butler Judge.

         In this case, Plaintiff Bonita Bleacher ("Plaintiff), represented by Robert Leoni, Esq. ("Leoni") of the law firm of Shelsby & Leoni has sued Doctor Bikash Bose, M.D. ("Bose") for medical negligence. Discovery has not yet commenced.

         Bose, through his counsel, has filed a motion to disqualify Plaintiffs chosen law firm. Bose alerts us that Leoni's partner, Gilbert Shelsby, Esq. ("Shelsby") previously represented Bose in defense of a medical malpractice action captioned McCusker v. Neurosurgery, PA.[1] We are told that the McCusker case, filed in 2001, was litigated through trial in 2005 and resulted in a $3.6 million verdict against Doctor Bose. Shelsby represented Bose throughout the litigation and was, and remains, a law partner with Leoni. Bose says it is "beyond the pale for a firm to achieve an unsuccessful trial result and then sue their client for that result."[2]

         In defense of his position that this does not present a conflict of interest, Leoni states that he never met Bose, did not participate in his representation in the McCusker matter and none of the current staff at Shelsby & Leoni - except for Shelsby - had any involvement with the McCusker case.

         Leoni's relies heavily on a Delaware Superior Court opinion bearing remarkable similarities to the instant dispute. In Fernandez v. St. Francis Hospital, Inc., the plaintiff, represented by Gilbert Shelsby, sued a Doctor Wiercinski for medical malpractice. Doctor Wiercinski had been represented in a previous medical malpractice action by Shelsby.[3] On Wiercinski's motion to disqualify Shelsby from continued representation of the Plaintiff in the action against his former client, the Court ruled that since both actions were medical negligence actions, there was a "substantial relationship" between the prior representation and the contemplated relationship, and Shelsby was therefore precluded from representing Fernandez.

         None of this is particularly provocative as far as it goes. The McCusker case and this case are both medical negligence matters, there seems little doubt that, since the McCusker case went through full discovery and trial, Shelsby would have been exposed to client confidences connected with Bose's medical practices. Leoni does not seriously argue otherwise.[4]

         But the Court in Fernandez went a step further. Commenting that "neither party has submitted compelling arguments on this issue, " the Court stepped into the thorny question of "imputed disqualification" of the Shelsby & Leoni law firm and noted that "Rule 1.10(c) carves out an exception to imputed disqualification when "the personally disqualified lawyer is timely screened from any participation in the matter."[5] In light of the exception in subsection (c), the Court held that Shelsby could essentially pass off the representation to his partner Leoni and so long as they undertook to screen off any likelihood of confidential information being shared, Leoni could represent the plaintiff in a case where Shelsby could not.

         Here, Shelsby and Leoni have tendered affidavits to the Court promising to keep Shelsby's McCusker confidences in confidence. They promise a "cone of silence" to wall off client confidences.[6] Leoni says that is all that is required under Fernandez, the case with which he and his firm have such familiarity.

         The Court has taken a long look at the Fernandez decision. With due respect to our learned brothers and sisters on the bench, who, like the Court in Fernandez, labor under the difficulty of parties who do not always "submit compelling arguments"[7] on the issues, we ...


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