Motion to Vacate Judgment

SUPERIOR COURT, STATE OF WASHINGTON, COUNTY OF SPOKANE

 

DAVID W. MURPHY, as Personal     )

Representative for the Estate of KATHLEEN    )

  1. MURPHY,     )

Plaintiff,     ) Case No. 18-2-00260-0

)

  1.     )

)

MEDICAL ONCOLOGY ASSOCIATES, P.S.  ) PLAINTIFF’S MOTION TO

a Washington Corporation; ARVIND     ) VACATE JUDGMENT 

CHAUDHRY, M.D., Ph.D.; BRUCE     )

CUTTER, M.D.     )

Defendants.     )

 

TO THE HONORABLE COURT:

  1. This Motion is made pursuant to Rule 60 of the Federal Rules of Civil Procedure.
  2. The Plaintiff appeals to this Honorable Court for an order vacating the judgment entered in this action until the motion can be considered.

  • STATEMENT OF FACTS
  1. The Plaintiff filed this suit against the Defendants alleging medical malpractice and wrongful death. 
  2. The jury entered verdict in favor of the Defendants. The Plaintiff contends that the said verdict and subsequent judgment was procured through fraud on the court.

  • LEGAL ARGUMENT
  1. Rule 60(d)(3) of the Federal Rules of Civil Procedure states in pertinent part that nothing in Rule 60 limits a court’s power to set aside a judgment for fraud on the court.
  2. The following are the particulars of fraud alleged by the Plaintiff:

  • DR. CRAIG NICHOLS’ PERJURED TESTIMONY
  1. In lines 15 and 16 of page 844 of the trial transcripts, the judge asked Dr. Nichols a question from one of the jurors:

“Can bleomycin toxicity be detected postmortem?”

  1. In line 17 of page 844 of the trial transcripts, Dr. Nichols gave his answer as follows:

“Ah, no.”

  1. In 1997, Dr. Nichols co-authored an article titled, ‘Pulmonary Toxicity in Patients with Advanced-Stage Germ Cell Tumors Receiving Bleomycin with and Without Granulocyte Colony Stimulating Factor’ with Dr. Scott Saxman and Dr. Lawrence Einhorn.
  2. Dr. Nichols’ intention in bringing up the article was to downplay the potential negative interaction of bleomycin and neulasta when taken together. Notably, the group of patients in his article is comprised of otherwise healthy men (median age 24) with testicular cancer, not elderly persons over 60 years of age, with comorbidities where bleomycin lung toxicity is a much higher risk.
  3. Dr. Nichols’ answer to the juror’s question was intended to mislead the jury. He was aware that autopsy findings could identify bleomycin lung toxicity as indicated in the article he co-authored in 1997.
  4. The Defense counsel portrayed Dr. Nichols as a physician who had administered bleomycin to more patients than any other physician in the world. Dr. Nichols’ answer to the juror’s question concealed from the jury his knowledge of the historical pathology evidence of bleomycin lung toxicity such as:
  • Postmortem findings of bleomycin lung toxicity at autopsy.
  • Multitude of scientific papers hat discuss the pathology of bleomycin toxicity damage to lung tissues.
  • The Food and Drug Administration product insert for bleomycin that discusses the microscopic tissue changes that occur due to bleomycin lung toxicity.
  1. At lines 1-6 of page 68 of Dr. Nichols’ deposition, he discusses patients suffering physiologic and anatomic consequences of bleomycin lung toxicity. He is aware of those physiological and anatomic damages to a patient’s lung from bleomycin lung toxicity.
  2. From line 21 of page 99 until line 5 of page 100 of Dr. Nichols’ deposition, he mentions bleomycin lung toxicity reaching the fibrotic stage. Lung fibrosis is severe lung damage. He is aware that bleomycin lung toxicity damage develops through phases as it damages the patient’s lungs.
  3. From line 24 of page 1264 to line 4 of page 1265, the Defense counsel, in his closing argument, used Dr. Nichols’ perjured testimony to further mislead the jury regarding the cause of death.

  • DR. CURTIS VEAL’S PERJURED TESTIMONY
  1. Kathleen Murphy’s Pulmonary Function Test results indicated she had Severe Obstructive Pulmonary Disease (COPD – Chronic Obstructive Pulmonary Disease). She clearly had pre-existing lung disease prior to initiation of chemotherapy. 
  2. Testimony under oath by Defendant Dr. Arvind Chaudhry, Dr. Elmer and Dr. Nichols also stated that Kathleen Murphy had COPD and confirmed the results of the Pulmonary Function Test.
  3. Kathleen Murphy’s medical records also indicate that she had chronic kidney disease.
  4. During trial, Dr. Veal labelled the wording on the Pulmonary Function Test result page as a “prosaic description on the back of the numbers.
  5. Dr. Veal misrepresented the Pulmonary Function Test record to the jury. This was intentional to mislead the jury about the results of the Pulmonary Function Test, and mislead the jury about Kathleen Murphy’s pre-existing lung disease prior to chemotherapy.
  6. In lines 6-8 of page 701 of the trial transcripts, Dr. Veal stated in front of the jury that based on the Pulmonary Function Test, there is no evidence of obstructive lung disease. This was another attempt to mislead the jury. The Pulmonary Function Test (PFT) results clearly indicate that Kathleen had obstructive pulmonary disease.
  7. In lines 5-7 of page 702 of the trial transcripts, Dr. Veal stated in front of the jury that the PFT along with CT and X-ray scans is incompatible with Chronic Obstructive Pulmonary Disease. Considering the clear perjured testimony surrounding the PFT results, nothing Dr. Veal said can be trusted as anything other than intentionally trying to mislead the jury.
  8. From line 8 of page 702 to line 2 of page 703 of the trial transcripts, Dr. Veal discussed how there was no mention of COPD in the autopsy report. This again, was misleading the jury. Within the autopsy report was the Death Certificate which stated that COPD was a condition that contributed to Kathleen’s death.
  9. In lines 3-16 of page 703 of the trial transcripts, Dr. Veal was asked if he reviewed Kathleen’s medical record, and if he saw that throughout, COPD was documented. He went on to explain why her prior medical records indicated she had COPD. Dr. Veal misled the jury again. His testimony rewrote Kathleen Murphy’s entire lung medical history that indicated that she had a history of COPD. Dr. Veal said to the jury, “in this case there is no evidence of COPD.”
  10. From line 7 of page 717 to line 18 of page 723 of the trial transcripts, Dr. Veal discussed Kathleen’s June-September 2015 medical records and compiled data. He misled the jury by concluding that Kathleen’s kidneys were normal. From line 2 of page 740 to line 21 of page 744, Dr. Veal again testified that Kathleen’s kidney function was so close to normal. Throughout Kathleen’s medical records, she was diagnosed with Stage 3 Chronic Kidney Disease. Dr. Veal attempted to intentionally misrepresent Kathleen’s kidney function, while replete through her medical records she had been diagnosed with Chronic Kidney Disease, including seeing a nephrologist, and being cared for for that condition by her primary care doctor for years. She also took medication for her chronic kidney disease.
  11. From line 8 of page 727 to line 8 of page 729 of the trial transcripts, Defense counsel directed Dr. Veal to Defense Exhibit D101-5/6 as their last key topic at close of direct examination. The Defense chose this exhibit to highlight that Dr. Cutter heard diffuse fine crackles in Kathleen’s lungs, and that was a concern for bleomycin lung toxicity, and have Dr. Veal concur that it was an important issue for concern regarding further administration of bleomycin to Kathleen. The Defense failed to point out that the very last record they brought to the jury’s attention on the display screen also showed Dr. Cutter (treating physician on 08/27/15) stating that Kathleen had basic COPD. 
  12. From line 10 of page 737 to line 4 of page 738 of the trial transcripts, Dr. Veal was asked why nebulizer was previously prescribed to Kathleen. He acknowledged he was aware of her January 2015 hospitalization for COPD exacerbation. Dr. Veal misled the jury by invalidating Kathleen’s prior medical history of COPD, treatment for COPD, and hospitalization for COPD exacerbation in January 2015.
  13. From line 8 of page 749 to line 1 of page 750 of the trial transcripts, Defense counsel elicited testimony from Dr. Veal as to why Kathleen would have been prescribed a Nebulizer if she didn’t have COPD. Dr. Veal continued the thought line that invalidated her medical history of COPD. The Defense counsel elicited this testimony to mislead the jury regarding Kathleen’s medical history of COPD and her treatments for the same.
  14. From line 21 of page 1251 to line 5 of page 1252 of the trial transcripts, Counsel Galloway cited Dr. Veal’s perjured testimony stating Kathleen never had COPD and her PFT results showed no evidence of COPD. From line 5-17 of page 280 of the trial transcripts, Defense Counsel Atty Van Wert elicited Dr. Veal’s perjured testimony. Counsel Galloway and Counsel Atty Van Wert, in a premeditated manner elicited perjured testimony from Dr. Veal regarding PFT results and Kathleen’s history of COPD in a bid to mislead the jury on the same.
  • DR. JEFFREY ELMER’S PERJURED TESTIMONY
  1. From line 24 of page 1075 to line 15 of page 1077 of the trial transcripts, Dr. Elmer testified on 01/14/20 that the notations at the bottom of his medical record notes, D108 in the last days of Kathleen’s life are there for billing purposes and do not represent what Kathleen was being treated for. He said the same thing during deposition. The notations at the bottom of Dr. Elmer’s notes on 09/24/15 clearly represent what Kathleen was being treated for. The notations begin as follows:

“The following conditions contribute to complex, high-level decision-making and to the high probability of acute, clinically significant deterioration:

ARDS

Bleomycin lung toxicity…”

On the same day, it was revealed that Dr. Heffernan, Dr. Cutter and Dr. Elmer all confirmed the presence of bleomycin lung toxicity.

  1. At lines 18-24 of page 1066 of the trial transcripts, Dr. Elmer was asked if he had an opinion whether Kathleen’s ARDS was caused by bleomycin lung toxicity. He said he did not whereas it was indicated in the medical records on 09/24/15.
  2. At lines 16-24 of page 34 of the deposition transcripts, Dr. Elmer said that he did not have an opinion regarding if pneumonia caused Kathleen’s ARDS. He perjured himself during trial, at lines 21-23 of page 1066 of the trial transcripts when he said that pneumonia is more statistically probable, and that Kathy had more parameters suggestive of pneumonia.
  3. From line 6 of page 32 to line 2 of page 33 of the deposition transcripts, Dr. Elmer said he doesn’t know what a low versus high dose of bleomycin is. He perjured himself during trial, from line 23 of page 1058 to line 5 of page 1059 of the trial transcripts when he said that bleomycin lung injury is dose-specific, which is contrary to the FDA bleomycin product insert. 
  4. Dr. Elmer intentionally perjured himself to mislead the jury.
  5. Dr. Elmer’s perjured testimony was used to mislead the jury. It was elicited by Defense Counsel and also cited in the Defense’s closing argument.

  • SUBORNING PERJURY BY DEFENSE COUNSELS
  1. Between 2nd-5th January 2015, Defense Counsel recommended eliminating medical records from the Defendant’s office file that pertained to Kathleen Murphy’s January 2015 hospitalization for COPD. 
  2. The Defendants had those records in their possession before Kathleen Murphy was given chemotherapy. The Defense Counsel intended to have an expert witness mislead the jury by stating that Kathleen never had COPD. 
  3. The plan was to mislead the jury that Kathleen didn’t have COPD by eliminating January 2015 medical records and having Dr. Veal falsely testify that Kathleen didn’t have COPD.
  4. Defense Counsels also elicited perjured testimonies from the Defense witnesses and used them to mislead the jury as to the medical condition of Kathleen before her demise.
  5. Contrary to procedure, Defense Witness #2 was allowed to sit in and listen to the testimony of Defense Witness #1. The Defense Counsels erred by intentionally allowing this to happen.
  • RELEVANT CASE LAW
  1. The Plaintiff cites the following case law in support of this Motion:
  2. In Figgie Intern. v. Alderman, 698 So. 2d 563, (Fla. Dist. Ct. App. 1997), the defendant: 1) had lied about its retention and use of outside human factors experts in the designand labelling of its open end sectional scaffold in sworn answersto interrogatories; 2) had concealed pertinent data relating  to  other  accidents  involving  the  same  model  of  scaffoldingin  response  to plaintiff’s initial discovery requests; 3) initially had testified, through its product safety director, that certain documents did not exist, only to later admit, under oath, that they had disposed of such documents; and 4) had engaged in a pattern of false and evasive deposition testimony calculated to conceal relevant information from the plaintiff. The trial court concluded and the Third District agreed “that the ultimate sanctions of dismissal or default [were] justified by the [defendant’s] repeated presentation of false testimony under oath, which. . . ultimately [was] uncovered by the assiduous efforts of opposing counsel.”
  3. In Low v. Minichino, 267 P.3d 683 (2011), Minichino appealed on the grounds that the Circuit Court erred in failing to vacate the award for fraud, or violation of public policy, resulting from Low’s alleged perjury at the arbitration hearing. In the alternative, she contends that the court erred in failing to grant an evidentiary hearing concerning the allegation of fraud. The appellate court held that because Minichino presented evidence establishing a prima facie case of fraud, the Circuit Court erred in failing to hold an evidentiary hearing and failing to issue findings of fact and conclusions of law.
  4. In Hytechpro, Inc. v. Sylvain Analytics, Inc., No. 226-2012-CV-871, (N.H. Super. Oct. 21, 2016), a default judgment was entered against Sylvain in the amount of $271,597 plus costs and interest. Sylvain has now filed a Motion to Bring Forward and a Verified Motion to Set Aside Final Judgment Order, alleging in substance that the affidavit submitted in support of the default judgment against it was fraudulent. For the reasons stated in this Order, the Court orders that an evidentiary hearing be held.
  5. In Rembrandt v. J & J Vision (Fed. Cir. 2016), Rembrand’s technical expert witness Dr. Thomas Beebe drastically changed his testimony regarding his methodology for testing whether the accused contact lenses were soft. On appeal, the Federal Circuit reversed and remanded – ordering a new trial under Fed. R. Civ. Pro. 60(b)(3) which permits relief from final judgment based upon “fraud, misrepresentation, or misconduct by an opposing party.”
  6. In Maxey v Hubble, 238 Va. 607, (Va 1989), expert witnesses were the key to the case, and a dispute arose concerning the propriety of interviewing an opponent’s prospective expert witnesses. The court ruled that physicians who had not treated the plaintiff, but who were to testify only as expert witnesses, could not be interviewed by opposing counsel. However, any physician who had treated the plaintiff was available to either side for interview and discovery. The court stated, “The conduct of plaintiff’s counsel in this medical malpractice case was so calculated to inflame and prejudice the jury as to preclude a fair trial and the trial court’s rulings denying a mistrial motion and entering judgment in favor of the plaintiff are reversed.”
  7. In Bong Jin Kim v. Nazarian, 216 III. App. 3d 818, 819 (III. App. Ct. 1991), the court stated, “… finding improper use of non-testifying experts’ opinions was prejudicial where defense counsel “highlighted” opinions in opening and closing statements. We conclude that the record does not affirmatively demonstrate that the improperly admitted testimony was not prejudicial to plaintiffs, so the error is not harmless. Accordingly, plaintiffs are entitled to a new trial.”

 

I understand that I am required to produce all witnesses, books, receipts, evidence and support upon my hearing as proof for the cancellation of this judgment.

The foregoing statement is factual, correct and true according to my knowledge and belief and under the laws of the state of Washington.

 

Respectfully Submitted,

______________________________

David W. Murphy

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