The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter came before the Court on plaintiffs' motion to disqualify Williams & Connolly, LLP ("W&C") as counsel for the defendants on the ground that Williams & Connolly's representation of both defendant Georgetown University Hospital and defendant Dr. Vance E. Watson in this case is tainted by a conflict of interest. Both the case and the issue itself are complicated and involve many filings, depositions and assertions of fact supported by competing affidavits and declarations, all of which the Court has carefully considered.*fn1 Because the Court concluded that most of plaintiffs' claims and contentions lack merit, it issued an Order on March 26, 2010, denying the motion to disqualify. This Opinion explains the reasons underlying that Order, and also discusses the one area where W&C may have a waivable conflict of interest that has not yet been waived by Dr. Watson and the process by which that waiver may be accomplished.
A. The Medical Treatment at Issue
This is a medical malpractice case concerning the care provided to Karyn A. Kerris, the daughter of plaintiffs Felice Iacangelo and Cicily Iacangelo, by defendant Dr. Vance Watson and Georgetown University Hospital ("Georgetown"). Ms. Kerris suffers from a bithalmic arteriovenous malformation ("AVM"), an abnormal tangle of veins and arteries in her brain through which blood does not flow properly. See Compl. ¶ 8. In 1998 and 1999, Dr. Watson attempted to treat this condition by utilizing a process known as "embolization," which involves using a glue-like substance to seal abnormal blood vessels off from healthy ones. See id. ¶¶ 8-9. As part of the embolization process, Dr. Watson combined two substances that would be applied to the AVM: Histoacryl, a glue, and Lipiodol, a poppyseed-oil mixture containing material that is visible in X-rays. Id. ¶ 9. Dr. Watson's treatment was not successful, and Ms. Kerris subsequently experienced damage to her brain that has incapacitated her. Id. ¶¶ 11-12.
Plaintiffs claim that at the time of the embolizations, Dr. Watson's combination of Histoacryl and Lipiodol was a "Class III medical device that had not been approved [by the FDA] and was thus illegal." Compl. ¶ 10(c). They further allege that Dr. Watson should have obtained an investigational device exemption ("IDE") from the FDA and submitted to supervision by an institutional review board ("IRB") before combining and using the two substances in Ms. Kerris' brain. Id. ¶¶ 10(d), (j). In addition, at the time of the embolizations, Histoacryl was allegedly "the subject of a trade alert and had been seized by the FDA prior to its use on" Ms. Kerris. Id. ¶ 10(k).
The defendants claim that they followed proper procedures in obtaining and using Histoacryl. There is deposition testimony that in 1994, several years before treating Ms. Kerris, Dr. Watson consulted Sheila Zimmet, a lawyer employed by Georgetown, about the use of Histoacryl. Defs.' Resp. at 6. The exact content of that discussion between Dr. Watson and Ms. Zimmet is unclear, but it is reasonably certain that (1) Ms. Zimmet informed Dr. Watson that he did not require the approval or the supervision of the IRB in order to perform the embolizations on Ms. Kerris, id.; and (2) Dr. Watson properly inferred from Ms. Zimmet's comments and demeanor that his use of Histoacryl was permissible, even though Histoacryl was not yet FDA-approved. See Defs.' Resp. at 7; Dec. 14, 2007 Watson Dep. at 350.
Dr. Watson consulted Ms. Zimmet again in 1998 to learn "how best to achieve prompt importation of Histoacryl." Defs.' Resp. at 7. Dr. Watson had already spoken with a U.S. Customs agent about the issue and had "been provided with language to be used" in a letter to be presented to the FDA, known as a "letter of need." Id. Ms. Zimmet recommended that Dr. Watson send the letter to the FDA by fax so that it would arrive at the agency before the Histoacryl shipment went through Customs. Id. Dr. Watson successfully obtained the Histoacryl and used it in treating Ms. Kerris, giving rise to the current lawsuit.
Plaintiffs' most recent amended complaint included, among its other claims, three counts of negligence per se by Dr. Watson and Georgetown. Plaintiffs claimed that Dr. Watson had violated 21 U.S.C. § 360c(a)(II) and 21 C.F.R. § 812.20(a)(2) by obtaining and using unapproved "artificial embolization devices" without obtaining an IDE from the FDA. Compl. ¶¶ 45-59; 69-72. According to plaintiffs, Dr. Watson also breached 21 U.S.C. §§ 331(a)-(c), (g) and (k) by receiving and combining Histoacryl and Lipiodol, two allegedly "adulterated and misbranded devices." Id. ¶¶ 60-68. Plaintiffs argued that by allegedly violating these laws, Dr. Watson had necessarily breached his duty to Ms. Kerris, causing her injuries. The Court disagreed with that argument and dismissed plaintiffs' negligence per se claims in Orders issued on September 30, 2008 and February 4, 2009. Iacangelo v. Georgetown Univ., Civil Action No. 05-2086, Order and Judgment (D.D.C. Sept. 30, 2008) [Docket No. 125]; id., Memorandum Opinion and Order (D.D.C. Feb. 4, 2009) [Docket No. 145]. There remain fivestill-viable claims for relief in plaintiffs' amended complaint: negligence, lack of informed consent, breach of warranty, fraud, and breach of fiduciary obligations. Compl. Counts I-V. Currently pending before the Court is a motion by defendants for partial summary judgment on the plaintiffs' informed consent, breach of warranty, and fraud claims. See Defendants' Motion for Summary Judgment on Counts II-IV of the Second Amended Complaint [Docket No. 143].
C. The Conflict-of-Interest Issue
The possibility that Williams & Connolly might have a conflict of interest in this case was first raised by Anthony Newman, plaintiffs' counsel, at a deposition of Dr. Watson. Megan Hills, a Williams & Connolly lawyer defending both Georgetown and Dr. Watson, notified Magistrate Judge Alan Kay of Mr. Newman's allegations. On June 27, 2007, this Court held a status conference to discuss the situation with counsel.
At the status conference, Mr. Newman attempted to explain the potential conflict he perceived. Dr. Watson had described during his deposition the content of his discussions with Georgetown attorney Sheila Zimmet concerning the use of Histoacryl. Mr. Newman characterized Dr. Watson's description as follows: "Dr. Watson testified that . . . [Ms.] Zimmet . . . said, it's not illegal to use this stuff that is not approved and is being smuggled across the border. . . . Two, she said, you don't need to go through the Institutional Review Board." June 27, 2007 Tr. at 6. At that time, Ms. Zimmet had not yet been deposed, and Mr. Newman expressed concern that her account of her discussions with Dr. Watson, whatever it might be, would create problems for the defense. If she confirmed Dr. Watson's account, then "[t]here may be a defense Watson has[,] saying, look, I didn't mean to break any rules, I was told to do so." Id. at 10. Mr. Newman did not clearly articulate the conflict he believed would arise if Ms. Zimmet disputed Dr. Watson's account.
The Court framed the potential conflict problem this way: "Presumably, if Sheila Zimmet says I never said that to Watson, then Watson has a credibility problem. . . . Watson's counsel has to stand by Watson's credibility, but Watson's counsel also has to stand by Sheila Zimmet's credibility since she [Zimmet] is a Georgetown employee." June 27, 2007 Tr. at 9. Addressing W&C counsel, the Court elaborated:
[I]f Sheila Zimmet says that what Watson says is true, . . . I'm not sure how the conflict comes out if she says it's true. If she says it's not true, then can you really . . . put both Watson and Zimmet on the stand, or does one of them need a different lawyer at trial[?]
You've got two clients, Georgetown and Watson. Their interests are identical, unless a primary spokesperson for Georgetown [Zimmet] says that your other client isn't telling the truth. And we certainly can't find ...