The law firm Ahmad Zavitsanos & Mensing has responded to a motion from plaintiffs firm Arnold & Itkin asking the judge overseeing multidistrict litigation involving Hurricane Zeta, Transocean and its offshore employees to kick AZA off the case because of an alleged conflict of interest, arguing in a response filed Wednesday there’s no merit to the claim.
AZA argues that Arnold & Itkin’s latest motion seeking to disqualify it from representing Transocean is merely an attempt to distract from allegations AZA made regarding conduct that AZA described as an inappropriate “billing scheme” involving Arnold & Itkin, medical expert witnesses and a private equity firm that is allegedly providing funding for the litigation. In the underlying case, 23 workers who were aboard the Deepwater Asgard drilling rig in the Gulf of Mexico when Hurricane Zeta hit in October 2020 allege the decision by Transocean Offshore Drilling, Triton Voyager Asset Leasing and BOE Exploration to keep the rig operating caused physical and psychological injuries.
It was reporting on the financial allegations from AZA, based on publicly available court documents, that prompted Arnold & Itkin’s first motion to disqualify. Arnold & Itkin has accused AZA of pointing members of the news media — specifically The Texas Lawbook and Law360 — to the publicly filed documents in an effort to taint the jury pool.
Arnold & Itkin’s second motion to disqualify AZA is based on AZA’s current employment of associate attorney Karina Sanchez-Peralta, who formerly worked as a law clerk for Arnold & Itkin.
In a response to the motion to disqualify filed with the court Wednesday, AZA accused the plaintiffs’ firm of basing its second motion to disqualify on “facts that do not exist.”
“It is based on untrue statements, misstatements, and overstatements, but not facts,” the response reads.
Arnold & Itkin has alleged that Sanchez “gained knowledge of a substantial amount of privileged and confidential information related to this lawsuit and even emailed some of it to her personal email account in direct violation of her employment agreement with Arnold & Itkin and without the firm’s knowledge or permission.”
The firm pointed to two things in particular that Sanchez allegedly emailed herself — a PowerPoint file with a list of documents compiled by the firm for the Hurricane Zeta litigation and an “extensive” corporate representative deposition outline — that “reveal a confidential work product roadmap for how Arnold & Itkin deposes corporate witnesses.”
The PowerPoint file contained a screenshot of “hot docs,” which the motion describes as “a list of attorney-organized documents that are considered to be plaintiffs’ best evidence at trial,” that relate to this litigation against Transocean.
“Disturbingly, Ms. Sanchez also emailed to her personal email address an extensive corporate representative outline developed by Jason Itkin in a major injury case that provides the Arnold & Itkin confidential roadmap on deposing corporate representatives,” which, the motion alleges, “renders disqualification mandatory.”
Arnold & Itkin alleges that Sanchez not only shared that information with AZA but that the lawyers there then used that information to gain an advantage in this litigation.
AZA points out in the response that it took Arnold & Itkin more than a year after Sanchez began working at AZA and more than six months after she filed an appearance in this case to move to disqualify the firm.
“Why the delay? Why the untimely urging of a second disqualification motion based on alleged facts A&I has been sitting on for more than a year? The answer is simple,” the response reads. “A&I’s second motion is like its first: it is being used as a tactical weapon. The first was to delay the trial setting. The second is to avoid discovery the Court has ordered: discovery that will reveal the true nature of the relationship between A&I and its stable of go-to medical providers who provided treatment to the plaintiffs in this MDL just as they do to all of A&I’s plaintiffs, to avoid the effect of the paid-or incurred statute and to improperly inflate plaintiff’s damages by advancing grossly excessive medical charges.”
Arnold & Itkin’s motion to disqualify zeroes in on Sanchez’ involvement with Dr. Henry Small, an orthopedic surgeon who provided treatment to some plaintiffs in this case and whom AZA “intends to cross-examine at trial.” The firm alleges that Sanchez, while at Arnold & Itkin, worked closely with firm attorney Roland Christiansen in researching a Texas Medical Board report related to Dr. Small.
“Specifically, Ms. Sanchez performed work related to Dr. Small and his prior anticipated testimony regarding a Texas Medical Board complaint — the same documents that Transocean now includes on its exhibit list for this case,” the motion argues.
According to Texas Medical Board records, Dr. Small and the board entered an agreed order in March 2022 requiring that his practice temporarily be monitored by another doctor and that he complete certain continuing education courses after the board found he “did not properly assess a patient and document adequate medical rationale for a surgery, was issued a warning by the Food and Drug Administration for marketing of umbilical cord blood-developed cellular product not supported by evidence, and failed to document informed consent for procedures performed on a patient.”
Arnold & Itkin alleges Sanchez “has not only personally utilized the information about Dr. Small in her trial preparation for this case, but also directly imparted that knowledge to AZA to be used adversely against Plaintiffs during trial.”
Both at a hearing last week and in the response to the motion to disqualify, AZA hit back against that claim. A summary of their arguments is below:
- AZA alleges it knew about Dr. Small’s disciplinary history long ago, while Sanchez was still working as a clerk at Arnold & Itkin and that research Sanchez did for Arnold & Itkin was generically about the Texas Medical Board’s complaint process and not about Dr. Small specifically.
- AZA alleges Sanchez didn’t work on this multidistrict litigation “for a single minute while a law clerk at A&I.”
- AZA alleges the emails Sanchez sent herself on the last day of work at Arnold & Itkin have nothing to do with this litigation and instead relate to a project Kurt Arnold had agreed to let Sanchez continue working on after her clerkship ended. Additionally, Arnold & Itkin and AZA are cocounsel on that particular case Sanchez continued working on, referred to in court documents as “the Purland matter.”
- AZA alleges one item Sanchez emailed herself, a document titled “Transocean Corporate Representative Topics,” has nothing to do with this litigation, but is instead related to a different Transocean case.
A hearing in the case is currently set for Friday morning before Harris County District Judge Rabeea Collier.
The case number is 2022-36264.