Discovery allowed in long-running battle between former OB-GYN partners

By Steve Korris | Oct 28, 2011

Kenny Physician Tina Gingrich can gather more information for a suit that would force former partner Christina Midkiff to quit practicing across the street, Madison County Circuit Judge William Mudge decided on Sept. 30.



Physician Tina Gingrich can gather more information for a suit that would force former partner Christina Midkiff to quit practicing across the street, Madison County Circuit Judge William Mudge decided on Sept. 30.

He ruled that Gingrich needs answers to interrogatories and responses to requests for production in order to oppose a motion from Midkiff for summary judgment.

He rejected Midkiff's argument that no issues of fact remain in dispute and wrote that he will "allow some discovery."

"...Defendant Midkiff states that the requested discovery is unnecessary and enough facts have been adduced to date in the nearly 10 years of litigation between the parties in order for the Plaintiff to be able to properly reply to the motion for summary judgement," Mudge wrote.

On Oct. 24 and 25, Midkiff certified that she answered and responded as Mudge ordered.

Gingrich sued in 2007, claiming Midkiff violated an agreement not to compete for patients.

The suit followed five years of litigation in front of former associate judge Ralph Mendelsohn, over amounts Gingrich owed Midkiff when their partnership ended.

Circuit Judge David Hylla dismissed the second suit as a duplicate of the first, but Fifth District appellate judges in Mount Vernon found that the second suit involved distinct issues.

Hylla recused himself in January, and Chief Judge Ann Callis assigned the case to Mudge.

Midkiff moved for summary judgment, and Gingrich served discovery requests.

Midkiff didn't respond, and Gingrich moved to compel a response.

At a hearing on Sept. 26, Mudge said Gingrich asked for documents relating to Anderson Hospital.

He asked her lawyers, Robert Raleigh and Patrick Kenny of Armstrong Teasdale, if they could get the documents from the hospital.

Raleigh said a hospital officer testified about competition in the previous case.

Mudge said someone testified there was a shortage of obstetrician gynecologists in the area.

He said Gingrich admitted she had more business than she could handle.

Kenny said the area is not what it was at that time.

Mudge said, "Both of these practices are in Maryville?"

Kenny said, "They are right across the street from each other. We need to know, does Anderson still have limited capacity?"

For Midkiff, Mark Goldenberg of Edwardsville said, "Plaintiff's discovery requests in their motion to compel are illusory.

"What Judge Mendelsohn's order says is, there is no covenant to compete, and he factored that into the price that he paid Dr. Midkiff for her stock.

"Dr. Gingrich, as you picked up, has no legitimate business interest.

"She says, I can get as many patients as I need."

Goldenberg urged Mudge to deny the motion and hold a hearing on summary judgment.

"Dr. Midkiff has been in this litigation since the middle of 2002," Goldenberg said.

Mudge asked Kenny if numbers of patients and physicians are in his client's possession.

"She might not have a lot of information on Anderson," Kenny said.

"She might have some but we're not asking for actual Anderson documents."

He said Midkiff raised defenses with respect to competition in the area.

"We are clearly entitled to discovery on that before we address it in a summary judgment motion," Kenny said.

He said Gingrich has three partners and a huge base of patients.

"If somebody leaves and takes those patients with them, you might be able to hire a new o. b. g. y. n., but you've got nobody for them to service," Kenny said.

Mudge asked if there was an admission that the patients were Midkiff's in the first place.

"All I can do right now is assure you that there are statements from the prior trial that go exactly the opposite," Kenny said.

Goldenberg said, "They don't need discovery to get those in."

Raleigh said, "There may be additional defenses that we are unaware of that haven't been flushed out that these discovery requests go to."

Kenny said, "The court of appeals agrees that this is a new lawsuit. Dr. Midkiff hasn't quite accepted that this is a new lawsuit."

Goldenberg said, "We understand this isn't the same case. Our motion for summary judgment in this case is not inconsistent with what the appellate court said."

Raleigh said, "The fact that they filed a summary judgment motion doesn't stop discovery."

Four days later, Mudge agreed.

"The court, being mindful of the appellate court's Order...will allow some discovery," he wrote.

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Anderson Hospital Armstrong Teasdale

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