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In re Boone

Supreme Court of Kansas

June 7, 2019

In the Matter of Thomas Caleb Boone, Respondent.

          ORIGINAL PROCEEDING IN DISCIPLINE

          Stanton A. Hazlett, Disciplinary Administrator, argued the cause, and was on the formal complaint for the petitioner.

          John J. Ambrosio, of Morris, Laing, Evans, Brock & Kennedy, Chtd., of Topeka, argued the cause, and Thomas Caleb Boone, respondent, argued the cause pro se.

          PER CURIAM:

         This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Thomas Caleb Boone, of Hays, an attorney admitted to the practice of law in Kansas in 1982.

         On November 20, 2017, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent timely filed an answer to the complaint on January 18, 2018. A proposed probation plan was filed January 22, 2018. Stipulations signed by respondent and the office of the Disciplinary Administrator were filed August 7, 2018. Upon motion to continue which was granted on March 7, 2018, a hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on August 28, 2018, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 1.1 (2019 Kan. S.Ct. R. 295) (competence); 1.3 (2019 Kan. S.Ct. R. 298) (diligence); 8.4(c) (2019 Kan. S.Ct. R. 387) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Respondent stipulated to violating KRPC 3.4 (d) (2019 Kan. S.Ct. R. 353) (failure to comply with discovery request) and KRPC 8.4(d).

         Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:

"Findings of Fact
"DA12201
"12. In 2010, the respondent filed suit on behalf of C.Z. against the Osawatomie State Hospital, the Kansas Secretary of SRS and the Director of the Osawatomie State Hospital in Miami County, for injuries sustained while C.Z. was a patient of the hospital in 2008.
"13. On October 31, 2011, defendants filed a motion to dismiss based on the respondent's failure to prosecute the case. In the motion, counsel for the defendants alleged:
'This case will soon have been on file for fifteen (15) months. Soon it will be a year since the Plaintiff made effort to serve the moving Defendants. No written discovery has been propounded to Defendants and no depositions have been scheduled or taken by Plaintiff. The moving Defendants are aware of no action Plaintiff's counsel has taken to pursue the prosecution of the above-captioned case.'
The record does not reference the court's order related to this motion.
"14. On January 3, 2012, the parties jointly moved to dismiss the case without prejudice. The court granted the motion. On August 20, 2012, under the savings statute, the respondent refiled the case.
"15. On March 24, 2014, the court issued a case management order which set the following deadlines:
a. the parties were required to exchange lists of proposed non-expert witnesses and exhibits by May 5, 2014;
b. the plaintiff was required to make his expert witness disclosure by June 16, 2014;
c. the plaintiff was to undergo the statutory medical examination by August 22, 2014;
d. the parties were to complete discovery by September 8, 2014; and
e. the parties were to file all dispositive motions by October 6, 2014.
"16. The respondent failed to comply with the court's case management order.
"17. On June 16, 2014, the court held another case management conference.
According to the court's notes, the court set the following deadlines:
a. the respondent was required to prepare the case management conference order;
b. the plaintiff was required to provide a list of proposed non-expert witnesses and exhibits within five days; c. the plaintiff was required to file a statement of monetary damages within five days;
d. the plaintiff was required to make its expert witness disclosure by August 1, 2014;
e. the plaintiff was to undergo the statutory medical examination by September 10, 2014;
f. the parties were to complete discovery by October 10, 2014; and
g. the parties were to file all dispositive motions by November 21, 2014. Finally, the court scheduled another case management conference for September 5, 2014.
"18. On June 20, 2014, the respondent filed a non-expert witness and exhibit list as required. The respondent failed to file the statement of monetary damages as required.
"19. The respondent also failed to draft a case management conference order as directed by the court. As a result, counsel for the defendants drafted a case management order on August 8, 2014.
"20. The respondent failed to disclose an expert witness by August 1, 2014, as ordered by the court. On August 18, 2014, the respondent filed a motion for an extension of time to disclose an expert witness.
"21. On September 5, 2014, the court held the next scheduled case management conference. The court ordered the parties to develop a new case management order. The parties agreed to the following deadlines:
a. the plaintiff was to file discovery responses by September 12, 2014;
b. the plaintiff was to file the written statement of monetary damages by September 12, 2014;
c. the plaintiff was required to make the expert witness disclosure by September 22, 2014;
d. the plaintiff was to undergo the statutory medical examination by November 7, 2014;
e. the parties were to complete discovery by December 8, 2014; and
f. the parties were to file all dispositive motions by January 19, 2015.
After agreeing to the new deadlines, on September 8, 2014, counsel for the defendant drafted a proposed case management conference order and emailed the proposed order to the respondent. The respondent failed to sign and return the case management order.
"22. The respondent failed to provide discovery by September 12, 2014. The respondent failed to provide a written statement of monetary damages by September 12, 2014. The respondent failed to disclose his expert witness by September 22, 2014.
"23. On October 2, 2014, counsel for the defendants filed a second motion to dismiss for failure to prosecute.
"24. On October 6, 2014, the respondent filed a designation of expert witness by fax. The respondent named Don Horton, R.N. as the expert witness. The respondent signed the designation. The respondent included certain factual allegations and the following to summarize Mr. Horton's opinions:
'The expert witness believes these Defendants negligently failed to promulgate policies, procedures and/or systems to ensure that the proper hospital personnel could take quick corrective action in this instance. In the alternative, the hospital personnel who did receive the warnings described above, failed to act prudently in light of these warnings and failed to protect the Plaintiff from three threatening male patients. The expert witness believes that the warnings which Tim and she timely gave to the Defendants and/or their employees were more than sufficient to enable them to act in a timely fashion to easily and effectively protect the Plaintiff by physically intervening and physically separating the male patients from her before she was finally attacked.'
"25. Also on October 6, 2014, the respondent filed plaintiff's statement of monetary damages.
"26. On October 24, 2014, the respondent filed a response to the defendant's motion to dismiss.
"27. On October 29, 2014, the court entered a second amended case management order which had previously been approved by the parties. It appears that the second amended case management order was drafted with the expectation that it would be entered in September, 2014. Many of the deadlines delineated in the order had passed by the time the order was signed. In addition, the court set the following deadlines:
a. the defendant was required to make expert witness disclosures by November 7, 2014;
b. the plaintiff was required to undergo the statutory medical examination by November 7, 2014;
c. the parties were required to complete all discovery by December 8, 2014; and
d. the parties were required to file all dispositive motions by January 19, 2015.
"28. On November 7, 2014, the respondent filed a second designation of expert witness, naming Gerald Gentry, Ph.D., as an expert in the case. The document contained the same opinion language as the designation of Mr. Horton. See ¶ 24, above. Again, the designation was signed by the respondent.
"29. Also on November 7, 2014, the court heard the defendants' motion to dismiss. During the hearing, the respondent indicated that he filed the second expert witness designation because Mr. Horton was unavailable. The court took the motion under advisement.
"30. The respondent provided counsel for the defendant authorization to contact Mr. Horton to discuss the initial expert witness designation. On November 17, 2014, the defendants filed an objection to plaintiff's expert witness designation because Mr. Horton 'never agreed to be an expert witness and [he] informed [the respondent] that he did not believe Plaintiff had a case.' The respondent responded indicating that he was negligent in taking notes of interviews with potential expert witnesses and attributed the statements of another to Mr. Horton.
"31. On April 29, 2015, the court took up the defendant's objection to the plaintiff's expert witness disclosure and a motion for sanctions. The parties were ...

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