Submitted: April 19, 2017
Bikash Bose, M.D.'s Motion to Disqualify Plaintiff's
J. Leoni, Esquire, SHELSBY & LEONI, Stanton, Delaware.
Attorney for Plaintiff.
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,
Richard Galperin, Esquire and Ryan T. Keating, Esquire,
MORRIS JAMES, LLP, Wilmington, Delaware. Attorneys for
Christiana Care Health Services, Inc.
Charles E. Butler Judge.
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.
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. 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
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
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. 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.
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.
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." 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.
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. Leoni says that is all that is
required under Fernandez, the case with which he and
his firm have such familiarity.
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" on the issues, we ...