Kitts v. U.S. Health Corp. of S. Ohio9/29/1994
GREY, Judge.
This is an appeal from a judgment of the Common Pleas Court of Scioto County. After the death of her infant daughter, Molly, Teresa Kitts instituted a suit, based on medical malpractice and wrongful death. On the day the trial was to begin, the defendants moved for disqualification of Kitts's chosen counsel, the law firm of Wolske and Blue. The motion was based on ethical considerations. The court granted the motion and disqualified trial counsel as well as all partners and associates of the law firm of Wolske and Blue. We reverse.
Molly Kitts, a Down's Syndrome child and daughter of Teresa Kitts, died after receiving medical treatment. On August 5, 1991, Teresa Kitts, as a result of Molly's death, filed a complaint based in medical malpractice and wrongful death. The named defendants were U.S. Health Corporation of Southern Ohio, d.b.a. Scioto Memorial Hospital, Robert M. Dale, M.D., Richard Murphy, M.D., MacDonald-Murphy Pediatrics, William Buente, M..D., Ting L. Liu, M.D., Ting L. Liu, M.D., Inc., Paul J. Roesler, Jr., M.D., Life Ambulance Service, and assorted John Does, i.e., people and corporations related to the care of Kitts's daughter whose alleged negligence contributed to Molly's death. The complaint was filed by the firm of Wolske and Blue, counsel for the plaintiffs. David Shaver, an attorney with Wolske and Blue, was acting as lead counsel.
The named defendants answered with a general denial and argued that the plaintiffs had assumed an obvious risk, that the court lacked jurisdiction, that the statute of limitations had run, that the plaintiffs had been contributorily negligent, and that the plaintiff had assumed a portion of the risk.
Dr. Liu was represented by Joseph F. Elliott of Porter, Wright, Morris & Arthur ("Porter Wright"). Sometime in March 1993, Mary Ellen Spirito, formerly with Porter Wright, joined the firm of Wolske and Blue. On May 24, 1993, Spirito was officially added as counsel of record for the plaintiffs in this case. On that same day, plaintiffs voluntarily dismissed Dr. Liu and Ting L. Liu, M.D., Inc., as defendants.
On August 17, 1993, Dr. Robert Dale, Dr. Paul J. Roesler, Jr., Dr. William L. Buente, and Portsmouth Radiologists, Inc., were also voluntarily dismissed as defendants. On September 29, 1993, Anne M. Valentine of Wolske and Blue was added as counsel of record in place of Walter J. Wolske, Jr.
The final pretrial conference was scheduled for November 1, 1993, at 8:30 a.m., and trial to jury was scheduled to commence immediately thereafter, at 9:00 a.m. At the pretrial conference, Robert Dever, counsel for U.S. Health Corporation of Southern Ohio, orally moved to disqualify Spirito, Valentine, and all partners and associates of the law firm of Wolske and Blue. His motion was based on Spirito's former affiliation with Porter Wright, counsel for Dr. Liu, who was no longer a party. Upon motions by all parties, a continuance was granted, and the court ordered that memoranda be submitted addressing the issue of disqualification.
Counsel for the defendants seeking disqualification said they had consulted with Elliott about the case and discussed their respective defense strategies. They expressed concern that Spirito might have learned something through Elliott which would compromise their positions.
In her memorandum, Spirito said that as soon as she realized there might be a conflict of interest, she contacted Elliott, Dr. Liu's counsel, at Porter Wright. She supplied an affidavit from Elliott to the effect that, while she was at Porter Wright, Spirito did not work on the case and that he had not discussed any information reg
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