Belleville attorney Terry Brown filed a motion to compel a physician to provide communications with his insurer regarding a potential settlement in a legal malpractice suit alleging a Jefferson County jury entered a $3.75 million verdict against the doctor after his attorney failed to press for settlement.

Dr. Manoj Desai, a Mt. Vernon urologist alleges he was a defendant in a 2011 wrongful death lawsuit, in which a jury returned a verdict in favor of plaintiff Marie Clayton, awarding her $3.75 million (11-L-66). Clayton filed her wrongful death suit on behalf of decedent Robert Clayton.

In his legal malpractice suit, Desai claims Clayton offered to settle the case within the policy limits of the liability insurance maintained by Desai.

Desai hired Brown to advise him on how to respond to Clayton’s settlement demand and to advise his insurance carrier to settle the case in order to avoid exposing his personal assets. Desai claims Brown told him it was in his best interest not to settle the Clayton case.

However, a jury later ruled in favor of Clayton and awarded her $3.75 million, which was $2.5 million more than the liability limits maintained by Desai’s insurance.

As a result of the jury verdict, Desai alleges his personal assets are at risk.

Brown filed a motion to compel on Aug. 17 through attorneys Daniel Konicek and Thomas Long of Konicek & Dillon PC in Geneva, Ill.

He seeks to compel the plaintiff to produce all communications with Desai and Timothy Richards, the attorney appointed by ISMIE to represent Desai in the Jefferson County action, concerning the evaluation and possible settlement of the litigation at issue and any settlement negotiations. He also seeks any documentation to any physician review committee concerning potential settlement.

Brown argues that Desai is alleging the defendant should have “pressed” ISMIE to settle the Jefferson County action and that if he had. As a result, Desai has placed at issue ISMIE”s process to evaluate and potentially settle the action, including communications with Desai and attorneys.

“Similarly, by disputing the existence of an improper assignment and by seeking as damages sums which Desai has not paid and may not ever pay, Desai has placed at issue the negotiations which led up to the settlement agreement and the terms of the agreement.

“In particular, while Desai now claims that he is still potentially subject to personal liability for the unpaid portion of the verdict, the attached e-mail exchange between Desai’s bankruptcy counsel, Steven Wallace, and the Mediator, David Stack, indicates that Desai would be receiving a ‘full release’ as part of the settlement agreement,” the motion states.

Brown explains that on May 5, he issued a subpoena to Richards, seeking all documents with respect to his representation of Desai. Richards was representing Desai at the same time Brown was providing legal advice.

Brown also issued a subpoena to Jennifer Fitzgerald of ISMIE for contents of the insurer’s file on the Jefferson County action.

In response, Richards produced a “large number” of documents on Aug. 7, but withheld several other documents on assertions of privilege. The withheld documents include emails regarding the settlement agreement and pre-trial communications about possible settlement.

On Aug. 17, Desai’s counsel advised Brown that the plaintiff was adopting the privilege claims raised by Richards’ counsel against the production of any documents by ISMIE.

“Given the nature of the allegations being made by Desai in the instant action, any privilege which may have applied to documents and communications concerning the ability and willingness of ISMIE to settle the Jefferson County litigation prior to trial and the negotiations leading up to and the terms of the settlement agreement which was ultimately entered into has been waived,” the motion states.

Brown argues that any claim of attorney-client privilege is “not well taken” because the claims asserted in the legal malpractice suit are asserted as a result of the attorney-client privilege between Desai and Richards.

The defendant notes that the Illinois Supreme Court held that “when a client sues an attorney for malpractice, the attorney-client privilege is waived not only with respect to communications between the client and the defendant/attorney but also with respect to communications between the client and any other attorneys who were representing the client in connection with the same matter at the same time and the alleged malpractice occurred.”

Desai filed a response on Aug. 23 through attorney Michael J. Gras of the Law Office of Christopher Cueto Ltd. in Belleville.

He argues that the documents Brown seeks are not relevant to the case. He explains that Brown failed to protect his interests by failing to send a letter to ISMIE and Richards instructing them to settle the case.

“This caused Plaintiff to lose rights that he would have had regardless of what ISMIE or Tim Richards would have done in response to that letter. If Defendant would have written the letter and the case wouldn’t have settled, Plaintiff would have rights and causes of action against ISMIE for bad-faith to protect himself from the multi-million-dollar judgment against him.

Desai adds that the documents related to the negotiation of a settlement agreement in the case at issue aren’t relevant, and he has provided the written agreement.

“That document contains the entire agreement between parties in the underlying litigation and it speaks for itself. There is no reason for attorney-client communications and work product related to the creation of that agreement to be disclosed.

“If the Defendant’s interpretation of the law should stand, then the attorney-client privilege could be pierced in every single case where any contract or written agreement is at-issue. Surely the Defendant is not advocating for such an absurd result,” the response states.

Brown filed a reply in support of his motion to compel on Sept. 20, arguing that he seeks information “vital” to the defense of the case.

He also argues that his failure to send a letter to ISMIE did not cause the plaintiff to lose any rights to pursue a bad faith claim against the insurer. He explains that Desai only requires knowledge on the part of the insurer that an excess verdict is possible and that the mater can be settled within the policy limits” to pursue a bad faith claim.

“Without question then, all parties understood that, after trial, Plaintiff had a bad faith claim against ISMIE even though no ‘demand to settle’ letter had been sent by Brown,” the reply states. “Accordingly, either the Plaintiff’s entire claim is legally without merit or the documents being withheld are both at issue and vital to the defense of the case.”

St. Clair County Circuit Court case number 16-L-387

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Konicek & Dillon St. Clair County Circuit Court

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