Elizabeth O'Neill
Elizabeth O’Neill, who represents the law firm and its former partner, said, We’re very pleased with the result. We think the judge got it right. ()

A judge has tossed out a suit against Owen, Gleaton, Egan, Jones & Sweeney and a former partner there, Amy Kolczak, that accused the lawyer of improperly conducting an ex parte conversation with a potential witness in a Bartow County medical malpractice case.

At issue in the underlying medical malpractice case was a conversation that Kolczak, who represented defendants in that case, had with the plaintiff’s treating physician, who hadn’t been sued. The judge in that case subsequently sanctioned Kolczak’s clients, a hospital and its nursing staff, by striking their defenses, and the plaintiff accepted a $2 million settlement prior to trial.

The plaintiff, Michele Buttacavoli, later sued Owen Gleaton and Kolczak, arguing that the lawyer’s contact with Buttacavoli’s treating physician had damaged her prospects at trial and forced her to settle “for far less than would have otherwise been reasonable and appropriate.”

On April 3, Fulton County Superior Court Judge John Goger granted summary judgment to Kolczak and the firm, writing that Buttacavoli had successfully sought the sanctions for the improper communications in the underlying case and agreed to settle.

“It would be improper for this court to grant relief for conduct that was previously litigated and resolved via sanctions in the Bartow litigation,” Goger wrote.

“We are very pleased with the result,” said the lead defense attorney, Hawkins Parnell Thackston & Young partner M. Elizabeth O’Neill, in a short email. “We think the judge got it right.”

Buttacavoli’s attorney, Fairburn solo Robert Koski, was unavailable for comment.

As detailed in court filings, the underlying case involved Buttacavoli’s 2002 premature delivery of her daughter at Northside Hospital, subsequent to which both she and the infant developed infections. The child was left severely brain-damaged, and in 2004 Koski filed suit on Buttacavoli’s behalf, naming as defendants the midwife who attended her prior to the baby’s birth; the midwife’s employer, Cartersville Ob/Gyn; and HCA Emory/Cartersville, where she had been treated prior to being transferred to Northside.

Kolczak and her firm were retained to represent the midwife and Cartersville Ob/Gyn, and in 2007 she told Koski they planned to call Buttacavoli’s treating obstetrician at Northside, Gilbert Webb, as an expert witness.

In September 2009, Bartow County Superior Court Judge David Smith entered an order mandating that Webb could meet with defense counsel only if Koski were apprised and given a chance to attend.

Two months later, the lawyers went to Webb’s office for a deposition, prior to which, Kolczak would later testify, she and the doctor had an approximately 15-minute conversation in private. The two were acquainted, she said, because Webb had been an expert in another of her cases, and his partner had treated her at one point.

Webb testified that about half of the time they spoke was spent discussing Buttacavoli’s case, while Kolczak said any such discussion was limited to two or three minutes.

When Koski learned of that conversation and other contacts Kolczak had had with Webb, he asked Smith to find Kolczak in contempt and sought sanctions against the midwife and Ob/Gyn practice. The judge complied, striking those defendants’ defenses.

In his written order, Smith wrote that Kolczak’s testimony that “only two out of 15 minutes involved the case before the court” was “not credible. There are only so many pleasantries than can be exchanged in 13 minutes.”

He also wrote that, while he had no authority to sanction Webb for violation of federal confidentiality laws, he was also convinced that Webb had violated the Health Insurance Portability and Accountability Act “by discussing details of his patients’ medical history with defense counsel, ex parte.”

Kolczak and her firm appealed Smith’s order to the Georgia Court of Appeals, but the case settled before arguments were heard.

In 2011 Buttacavoli filed suit in Fulton County Superior Court against Kolczak, Owen Gleaton and Webb, accusing Kolczak and Webb of conspiring to violate federal law and committing perjury regarding their private meeting and other conversations. The complaint included claims for fraud and deceit, conspiracy to defraud, invasion of privacy and racketeering.

By the time the suit was filed, Kolczak had left Owen Gleaton and moved to Colorado.

In 2012 Buttacavoli dismissed that suit and filed a new complaint dropping the doctor from the case.

The suit said that Webb repeatedly made false statements regarding the degree of his contact with Kolczak, and that she and her former firm, “in concert with each other, fraudulently concealed the true facts” about the case until Smith elicited them.

In a brief supporting their motion for summary judgment, O’Neill and fellow Hawkins Parnell attorney Kathryn Whitlock said that any alleged wrongdoing on their clients’ part was well known to Buttacavoli when she settled the Bartow suit, and that to allow the new suit to move forward would require a “peculiar and unprecedented trial” asking a jury to “make highly speculative findings under not one but two imaginary scenarios.”

In one instance, “if there had been no alleged wrongdoing by the defendants, would a jury have found for the plaintiffs on liability, and how much would the jury have awarded the plaintiffs?” the brief asked.

In the other, “[If] the plaintiffs had proceeded to trial despite the defendants’ purported wrongdoing, how much in damages would a jury have awarded the plaintiffs?”

“When a plaintiff’s claims, unusual to begin with, require such an unprecedented and unusual trial procedure, it is an unmistakable sign that the claims are meritless.”

In his order dismissing the case, Goger characterized the suit as “a collateral attack on the settlement agreement entered in the Bartow litigation,” Goger wrote.

“This is not the proper forum to bring those actions,” the order said. “The proper course of action was to file a motion to set aside in the Bartow litigation. … To allow otherwise would be to invite an endless stream of litigation relating to matters long since resolved.”

The case is Buttacavoli v. Owen, Gleaton, Egan, Jones & Sweeney, No. 2013CV225750.