Court right to fine UNM regents for intimidation

According to the Albuquerque Journal, the New Mexico Court of Appeals has upheld a $100,000 sanction levied against the regents of the University of New Mexico for witness intimidation.

The sanction was imposed by District Court Judge Alan Malott after the university pressured Dr. Ian Paul, a forensic pathologist employed by the university-affiliated Office of the Medical Investigator, to withdraw as an expert for the plaintiff in a medical malpractice lawsuit filed against university-affiliated Lovelace Health System. Malott ordered the $100,000 to be split among several charities.

When Scot Sauder, an attorney for the university, learned of Paul’s intent to testify, he obtained permission from the chancellor of UNM’s Health Services Center to contact Paul’s superiors and ask them to persuade Paul to withdraw from the case.

Chief Medical Investigator Dr. Ross Zumwalt saw no reason to oppose Paul’s planned testimony. “I am sure,” Zumwalt said, “that the regents desire that this case be evaluated by competent, qualified and unbiased experts. The regents are fortunate that Dr. Paul fits those criteria.”

Apparently, the regents didn’t feel fortunate. With university backing, Sauder continued to make phone calls and send emails urging Paul’s superiors to forbid his testimony.

Paul, who was up for promotion, finally withdrew from the case. In an email to the plaintiffs’ attorney, he wrote: “I have been getting a lot of pressure from the higher ups … to withdraw … The fallout for me is not worth it at this point.”

Even if the university regents had no better sense, surely the university’s lawyer should have been smart enough to anticipate the trial judge’s reaction.

Sauder told Malott that Dr. Paul’s agreement to testify against the university was a conflict of interest and a violation of university policy. When the judge asked university regents to produce such a policy, they couldn’t.

Malott wrote in his opinion that to apply policy as the regents and their attorney urged “would be to make any and all comment on, or criticism of, the university an impermissible conflict of interest that could subject the commentator to discipline or termination.”

“That any public entity, let alone the flagship university of this state, believes it has such power to stifle comment is both terrifying and in violation of public policy,” Malott wrote. He said the university’s actions were “prejudicial to the interests of the witness, the other litigants and the administration of justice itself,” and that such conduct was “an affront to the court and every citizen of this state.”

The university hasn’t contested the reported series of events. It did appeal the $100,000 sanction, saying it was punitive, and punitive awards against state entities aren’t permitted because they punish innocent taxpayers.

The Court of Appeals didn’t buy that argument, saying that “(t)o do so would effectively allow a public entity to … engage in unethical conduct for which a private litigant would surely be sanctioned.”

Good for both the courts.

chuser@durangoherald.com. Dr. Carol J. Huser, a forensic pathologist, served as La Plata County coroner from 2003-12. She now lives in Florida and Maryland.

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