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In re Griffith12/9/2003
y no. 4 asked Gonsalves to identify "any hospital or institution" to which Pina had been admitted prior to his arrest and to identify "the periods of time and dates during which" Pina was in the hospital or institution. Interrogatory no. 5 asked Gonsalves to " tate the names and addresses of all persons or institutions having custody and control of any of [Pina's] medical records."
On January 8, 1992, Gonsalves answered the interrogatories with the respondent's assistance under the pains and penalties of perjury. The respondent did not object to the interrogatories on any ground, including privilege. Gonsalves's answer to interrogatory no. 4 stated that she had "no knowledge as to whether or not [Pina] was admitted to any hospital or institution for examination or treatment before this alleged incident," and her response to interrogatory no. 5 was "See answer to interrogatory no. 4." These answers were false; Gonsalves knew that Dr. Chowdri had treated Pina and that Pina had been a patient at St. Luke's Hospital in May, 1988. Further supplementation of the Joyce interrogatories did not change the answer that failed to identify Dr. Chowdri or St. Luke's Hospital.
On January 22, 1992, John Folan, another defense attorney, served a request for documents on Gonsalves, including a request to produce all "medical records, hospital records, charts, and correspondence with any doctor or hospital rendering treatment on behalf of [Pina] for a period of five years prior to" Pina's death. On February 6, 1992, the respondent, without objection, agreed to produce all responsive documents "if and when available." The respondent, however, never produced the records he had received the previous July identifying either Dr. Chowdri or St. Luke's Hospital.
On May 26, 1992, in response to a subpoena duces tecum, Folan received medical records from St. Luke's Hospital, which, at that time was the only hospital in New Bedford. The records contained an extensive medical history for Pina, but they did not contain any information concerning Pina's HIV status or Dr. Chowdri's treatment of him. The cover sheet accompanying the records noted that portions of the medical record were "further protected" and had been redacted. The defense counsel who saw the redaction notice did not inquire further as to the redacted matters. The respondent was aware that the records received by Folan (and then supplied to all counsel of record) did not contain any information concerning Pina's HIV status or Dr. Chowdri's treatment of Pina.
In response to a pretrial motion in limine to exclude evidence of hedonic damages (damages to compensate for loss of enjoyment of life), the respondent attached a report from an expert economist he retained to testify on damages arising from Pina's alleged wrongful death. The respondent had not told this expert that Pina was HIV positive. The respondent maintained that the expert should be permitted to testify at trial about the "statistical realities of life and health expectancies for an average African-American male of [Pina's] age." The expert had calculated Pina's lost net income at $357,473, and his "total loss of pleasure of life" at $2,069,893.
The United States District Court judge assigned to the case heard argument on the motion in limine on December 6, 1995. The respondent proposed to call his expert economist and to rely on life tables showing average life expectancy. Defense counsel objected to the use of life tables on the ground that they were misleading when applied to an intravenous drug user such as Pina. The judge allowed the respondent to offer proof of hedonic damages, but precluded him from calling his expert, and reserved judgment on the use of
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