As Printed in the July 31, 2000 Legal Intelligencer
                                      


Unpleasant Discovery

  Harrisburg Attorney Under Fire Over
  Firm's Two Versions of Expert Report
  
   by Ruth Bryna Cohen
   Of the Legal Staff
   A routine personal-injury case in Dauphin County could result in the
   discipline of Margolis Edelstein defense attorney Barry A. Kronthal.
   According to allegations made in an emergency contempt hearing held by
   the common pleas court on June 26 and 27, the attorney allegedly
   engaged in perjury, discovery abuse and bad-faith assertion of a bogus
   defense, all in pursuit of winning a case.
   Kronthal allegedly failed to turn over a first draft of a defense
   expert witness's report during discovery. The second report, which
   contradicted the first document and favored the defense, was
   apparently the only one sent to the plaintiff's attorneys, until the
   day before the expert was to be deposed. Counsel for the plaintiff
   alleged that Kronthal's office intended to keep the first draft secret
   but were thwarted when the first draft was mistakenly attached to a
   pretrial memo and faxed to the other side.
   "I make no slight of this," said Judge Lawrence F. Clark during the
   course of the hearing over which he presided, according to a
   transcript of the hearing.
   "That's why we're going through this rather extraordinary proceeding
   here this morning. You could be criminally prosecuted, given a certain
   set of facts, for subornation of perjury, criminal conspiracy to be
   involved in perjury, and perjury as an accomplice. Those are all
   felonies for which you can spend a substantial portion of your life in
   a penitentiary."
   Plaintiff's attorneys Peter Villari and Paul Brandes, senior counsel
   and associate respectively at Ostroff Villari & Kusturiss of Lansdale,
   represented April Johnson in Johnson v. Henry Thomas and Harrisburg
   City School District. Johnson sustained injuries when her car was hit
   by a government vehicle in 1996.
   Brandes and Villari filed suit on behalf of Johnson under the
   Municipal Tort Claims Act in Dauphin County. Margolis Edelstein
   represented State Farm, the insurer for the defendant. State Farm had
   made an undisclosed offer to settle which Johnson refused. The case
   was ready to proceed to trial.
   On June 15, the day before defense expert witness Dr. Richard Boal was
   to be deposed, Brandes received a pretrial memo from defense counsel.
   Attached to the memo, he said, was an exhibit similar to a report
   authored by Boal which had already been sent to him by Kronthal. The
   report resembled the one he already had, "but about a page of text was
   missing, and the doctor's opinion was completely different from the
   first report we received about the cause of [Johnson's] condition,"
   Brandes said. The first report Brandes received did not make a causal
   connection between the car accident and Johnson's injuries.
   "All of a sudden [in this report], the doctor said the car accident
   was the cause of her injuries. This was the first time we saw anything
   like that," said Brandes.
   A typed note in capital letters at the conclusion of Boal's report
   read, "I do believe that her back pain and subsequent surgery was
   related to her automobile accident. Her prognosis is guarded. I don't
   know how well she will get following her spine fusion surgery. She
   continues to have low back pain and should be given limitations with
   respect to her activities and I do want to discuss these with Barry
   Kronthal by phone before I write him a letter."
   Boal was deposed on June 16. The Legal received both videotape and
   transcript copies of the proceeding. Brandes said he fully expected to
   hear an explanation of the different report during Boal's deposition
   during the direct examination of the doctor.
   "I thought they were going to bring it up right away and explain it,"
   he said. "I assumed the doctor would say something like he had written
   an earlier report but then found new information that caused him to
   change his mind."
   But that never happened, he said.
   "I sat through the whole direct, and it never came up. That's when I
   realized they had no idea they sent us this other report. They also
   filed [the different report] with the court, as part of the pretrial
   memo," he added.
   
  'Get to the Truth, Doctor'
  
   On direct, Michael M. Badowski, of Margolis Edelstein, questioned Boal
   about what he believed was the cause of Johnson's injury. "I do not
   believe [Johnson's low back pain] was related to the car accident but
   was related to what we call degenerative disc disease of the lumbar
   spine," he answered. The doctor called this - as well as Johnson's
   failure to promptly complain of back pain - "the crux of this case."
   Brandes began his cross by asking Boal if he reviewed all of Johnson's
   medical records before writing his report. Boal said that he had.
   "And on page five of your report ... doesn't the following appear ...
   'it appears that Ms. Johnson did not have any back problems prior to
   her automobile accident in 1996.' Didn't you write that?"
   "Yeah, I did," said Boal.
   Boal said he "overlooked" repeated mentions of Johnson's low-back pain
   "when I reviewed this foot and a half of records," and that Badowski
   that morning "subsequently showed me the records again ... and there's
   four or five different occasions where it points out that she
   complains of low back pain."
   Brandes asked the doctor if Johnson's documented back pain in 1993 had
   not been resolved well before the 1996 accident - even years before
   the 1996 accident. Boal said that it had.
   "Now ... you're being paid by the defense attorney ... and yet your
   role here [is] that if you give an opinion and the defense attorney
   doesn't like it, that's too bad, right?"
   "That's correct."
   " ... Any drafts of your report, or you just wrote your report and
   gave it to defense counsel?"
   "Just wrote it and gave it to him," Boal answered.
   "You wrote in your report on the last page that no one can say that
   the back injury and the surgery are directly related to the motor
   vehicle accident due to that few week gap between the date of the
   accident and her first complaint of pain. ... But it's really not
   true, there are people who can say it's directly related, right?"
   asked Brandes. It was then, over objection by Badowski, that Brandes
   confronted Boal with the earlier report the doctor had written.
   "Let's get to the truth here, Doctor. Isn't it true that after looking
   at all the records and documents, after examining Mrs. Johnson, after
   listening to her history ... that you yourself were of the opinion,
   and I quote, 'I do believe that her back pain and subsequent surgery
   was related to her auto accident.' Didn't you say that?" asked
   Brandes.
   "I said it was related to her auto accident? ... I don't think so,"
   said Boal.
   "You said previously the draft you're telling this jury about was the
   one and only draft. Doctor, isn't this the first draft of your report
   you sent to defense counsel, Mr. Kronthal?"
   Boal said he did not recall whether he sent the draft to Kronthal, nor
   did he recall whether he discussed the first draft with Kronthal but
   said, "I'm sure [Kronthal] pointed out things that would make me think
   there was something different than my opinion," which would have
   necessitated writing a second draft.
   Brandes replied by pointing out a "five-page, single-spaced
   typewritten letter from Mr. Kronthal" sent to Boal before Boal wrote
   his first draft.
   "[Kronthal] goes through meticulous history ... in that letter to you
   ... he even pulls out quotes from certain records, doesn't he? And it
   was after you reviewed that letter and reviewed all of the records and
   saw Mrs. Johnson ... that you wrote the first draft of your report
   that was not part of your file, correct? (emphasis added).
   "I assume so, yes, sir," Boal said.
   
  Hearing
  
   Judge Clark ordered a hearing on the issues for 9 a.m. June 26 and
   issued a subpoena duces tecum to both Boal and State Farm. In
   attendance at the hearing were representatives of the disciplinary
   board and the DA's Office. Dauphin County Deputy District Attorney
   Diana Woodside said she was instructed to attend the hearing by her
   boss, District Attorney Edward M. Marsico. Marsico told her they were
   invited by the judge to attend, Woodside said.
   The Legal received a copy of the hearing transcript, in which Clark
   said he was "compelled to conduct the hearing" given the serious
   nature of the allegations against Kronthal.
   At the outset of the hearing, Clark asked Brandes to summarize what
   occurred.
   "I'm frankly at an even greater loss about this issue than I was this
   morning, because it's the defendant's position now that the report at
   issue was voluntarily disclosed to the plaintiffs in accordance with,
   I imagine, what they profess to be their ethical obligations," said
   Brandes. "That allegation that [the report] was voluntarily disclosed
   is just not true, Your Honor."
   "They didn't represent to [Dauphin County Common Pleas] Judge [Scott
   A.] Evans that, 'Judge, I don't know what the big hoo-ha is, we
   purposely disclosed this report so there was full disclosure.' There
   was none of that," said Brandes. Instead, Brandes said, Kronthal
   stated in a motion that if there was any intent to hide Boal's
   preliminary report, it would not have been attached to a document
   filed with the honorable court.
   "The document that they are talking about, Your Honor, is their final
   pretrial memo. They attached that report to their final pretrial memo,
   Your Honor, and it was clearly inadvertent," Brandes said.
   "If they truly had no intent to deceive, if it was truly a voluntary
   disclosure, why didn't they prepare Dr. Boal to discuss it in his
   testimony on direct examination? That doesn't sound like good strategy
   to me.
   "That was not a voluntary disclosure, Your Honor. That was an
   inadvertent disclosure of a report that they fully intended to hide,"
   said Brandes.
   Attorney Steve Banko, also of Margolis, spoke on behalf of Kronthal.
   Banko said the disclosure of Boal's earlier report was "voluntary" in
   that Margolis attached it to the pretrial report. But he also stated
   that, if he were called to the stand, Kronthal would testify that,
   "quite honestly, he didn't even remember seeing the initial report
   back in October."
   "Wait a minute," said Clark. "I think you just told me, and you
   correct me if I'm wrong, that it wasn't a knowing act, and by that I
   think you mean to tell me that you didn't purposely attach it to the
   report ... but that nevertheless, inasmuch as it flowed out of your
   office, that it was voluntary. Do I miss something there, Mr. Banko?"
   "Judge, if there was any intent to bury this report from the beginning
   ... the fact of the matter is it wouldn't have been in our file in the
   first place. We would have thrown it away," said Banko. "What we've
   had at all turns in this case, unfortunately, Judge ... is really a
   comedy of errors."
   "Oh, this is no comedy," said Clark.
   "The allegations are serious, Judge."
   "Serious is an understatement ... so serious you can be disbarred for
   this."
   Brandes stated as further evidence of Kronthal's intent to hide the
   report was that only the earlier report was attached to the pretrial
   memo. "I don't want the court to get the wrong impression that they
   did full disclosure and gave both reports. The only report that they
   gave at pretrial was the hidden report. It was backdated, Your Honor."
   Banko replied that the materials were sent by letter dated Nov. 3,
   1999, and they were sent "in order to have a complete record."
   "So they had it for months and months before the pretrial conference,"
   said Banko.
   
  Villari on the Stand
  
   After Clark verified that Margolis' firm was the sender of the
   pretrial memo, and after the court viewed the videotaped deposition of
   Boal, plaintiff's attorney Villari was called to the stand to testify
   about a conversation that occurred before a pretrial conference the
   morning of June 16, the morning after Brandes and Villari received the
   pretrial memo.
   According to the transcript Villari told the court: "While we were
   waiting in ... I guess the antechamber or waiting area [of Judge
   Evans' chambers], Mr. Kronthal walked in ... I said to Barry, you
   know, in all candor, kiddingly, I said, 'I have only one question.'
   "He said, 'What is that?'
   "I said, 'Are you firing the person that faxed it to me?'
   "Barry looked at me. He kind of shrugged and he said, 'S-t happens.'
   Villari said he presented the judge with a motion to compel discovery
   and a second motion "asking for sanctions for what we believed to be
   the willful withholding of pertinent evidence in this case." Judge
   Evans, he said, "pretty much indicated he would ask a trial judge to
   address these issues before trial. That's what brings us here." Banko
   cross-examined Villari. "Have you ever approached a doctor ... where
   you've asked [him] to reconsider his opinion or change his opinion in
   any fashion?"
   "Never asked a doctor to change his opinion, but I have ... brought to
   his attention things that I believe he may not have remembered in the
   record. At times that leads to arguments ... there are some times when
   the doctors send me reports and I believe that they misstate things
   and, as is my obligation to my client, I call him or her and point
   that out to their attention," Villari said.
   "But what I don't do is ask for a new report that is backdated ... I
   ask for a second report to be published ... that references the first
   report."
   After an additional line of questioning of Villari about one of
   Johnson's doctors, Judge Clark spoke. "I've sat here patiently for
   about the last 20 minutes entertaining this, seeing if it's going to
   blossom into something. What it seems to be blossoming into is, quite
   frankly, an attempt to shift the focus from what defense counsel is
   alleged to have done to what somebody else at some other time ... had
   a conversation with a doctor about.
   "So unless you are going to tie it together with something more than a
   rubber band, I suggest you move on to something else.
   "As I can cobble it together from the plaintiff's viewpoint ... but
   for the possible inadvertence of someone in your firm sending [report]
   A instead of B to plaintiff's counsel as part of the pretrial
   memorandum, cutting to the chase here, it appears to be the contention
   of the plaintiffs that they never would have found out about the draft
   report.
   "And somebody at some point in time is going to explain to me why, at
   least according to what I saw on the videotape, the draft report was
   not part of the documents that were in Dr. Boal's file on the 16th of
   June 2000," Clark said.
   Banko moved for a continuance to obtain independent counsel. Clark
   recommended to Kronthal and Boal to "at a minimum, consult with
   counsel" and to have counsel present for the next day if they wished.
   
  Day Two
  
   By the second day, the parties had reached a settlement with respect
   to the underlying matter of April Johnson. All that remained was the
   contempt hearing.
   Brandes said State Farm made one offer, for $40,000. State Farm's sole
   defense was that the plaintiff had not complained about her back pain
   until later. After the incident, State Farm increased its settlement
   offer to $370,000. The plaintiff had not asked for the policy limit of
   $500,000 because her prognosis was good, he said.
   Representatives for Boal, State Farm and for Kronthal appeared on day
   two of the hearing. William J. Fulton appeared on behalf of Kronthal.
   In an effort to stop the hearing from proceeding, Clark said,
   representatives of Kronthal apparently had filed a pleading at the end
   of the first day of testimony with the Superior Court, seeking a writ
   of prohibition. Clark said that Superior Court Judge J. Michael Eakin
   called him that morning to inform Clark the petition was denied and
   that he was free to proceed.
   Clark said that it would have been unfair to Kronthal, State Farm and
   Boal not to allow them to consult with counsel and to be heard because
   "serious aspersions were cast upon them" in the previous day's
   testimony. While it would be "inappropriate" to compel any of them to
   testify, the judge said, it was his intention to offer all of them "a
   full and complete opportunity to be heard." The proceeding from that
   point on was voluntary, he said.
   Joshua D. Lock of Harrisburg's Goldberg Katzman & Shipman appeared on
   behalf of Dr. Boal. Lock posited that Clark had violated the
   separation of powers doctrine by continuing an investigation limited
   to the executive branch. Since the underlying action was settled,
   Clark no longer had jurisdiction over the matter, Lock said.
   "Yesterday it was my observation that someone from the District
   Attorney's office was present. Today it's my observation that someone
   from the disciplinary board was present. It is also my understanding
   the presence of those counsel was requested by the Court, and I
   believe that is an exercise of power by the judiciary ... greater than
   that which is granted to it under the Constitution," he said.
   "With all due respect," Clark told Lock, " ... we just don't quite see
   it that way. We believe the citizens of this Commonwealth have a right
   to know whether or not there is wrongdoing.
   "We certainly don't relish this by any stretch of the imagination,"
   said Clark. "This is extremely unpleasant, extremely unpleasant. [But]
   we cannot just short-circuit this ... the court is still under a duty
   to make a determination when matters are raised concerning the
   integrity of the practice of law."
   Fulton said it would "contravene the privacy and confidentiality that
   protects disciplinary investigations of attorneys" for Kronthal to
   take the stand. In addition, because of the "hint of possible criminal
   investigation" due to the DA's presence, he advised Kronthal not to
   participate.
   George H. Eager of State Farm said the insurer joined in the
   jurisdictional argument made by Lock, and would not participate.
   Boal did take the stand. The doctor said he "faxed [the first report]
   to Mr. Kronthal "just to tweak him to try to get him to talk to me."
   Boal said he and Kronthal "played telephone tag for probably six
   weeks," that the first draft "was not a final report" and that it was
   unsigned. In the second report, Boal said, "I was thinking with my
   head instead of my heart," because he prepared the first document in
   front of April Johnson and her mother. He said he never knowingly or
   otherwise made a false statement in preparing either of the two
   documents.
   "[Brandes and Villari] played a game with this piece of paper ...
   that's what I believe," Boal said. "They knew that was not my final
   report. They knew it's not what I believed. [Brandes] knew that's not
   what I testified to and he threw that in as a Perry Mason thing at the
   end of my deposition ... I had totally forgotten I ever created that.
   "It was a neat trick, and it worked for them. They made a lot of
   money. I wasn't doing anything wrong. Certainly Mr. Kronthal was not
   doing anything wrong," said Boal.
   
  Aftermath
  
   Villari reserved the right to file a bad-faith action against State
   Farm, who asserted things in its defense that it allegedly knew were
   not true. Brandes said that State Farm, Kronthal and Boal all knew
   about Johnson's back pain from claims filed with her employer, which
   were part of the record.
   As to actions against Kronthal, Clark said that "at some point in
   time, this court may well be faced with making a decision as to
   whether or not these matters ... rightly should be referred to the
   District Attorney of this judicial district and/or to the Supreme
   Court disciplinary board of this Commonwealth."
   However, whether Clark elects to make a recommendation or not to
   either entity is "really irrelevant," said Samuel C. Stretton.
   Stretton, whose practice is based in West Chester, represents
   attorneys in disciplinary board actions.
   "The DA and the disciplinary board were present in this case. They
   don't need the judge's go-ahead to pursue the matter," Stretton said.
   As of Thursday, Woodside, relaying a message from District Attorney
   Marsico, told The Legal, "at this point, there is no intention of the
   DA to file charges, although we have not completed a review of the
   [hearing] transcript." Woodside said she only attended day one of the
   hearing and had not yet received the transcript including testimony
   from day two.
   But Stretton said in matters like this, while the DA need not take
   further action, "The disciplinary board is under an obligation to look
   into misconduct if they know about it."
   And that seems to be the only concern left.
   John L. Doherty, chief disciplinary counsel for Pennsylvania, did not
   return a call for comment Friday on the Kronthal matter. Nor did
   Fulton.
   Stretton said that expert witnesses change reports all the time, but
   they usually make note of the prior report. That does not pique the
   disciplinary board's interest, he said. But if the witness swore under
   oath that he only wrote one report and that he could never be
   persuaded to change a report, only to be proven wrong with evidence of
   another report, then "that's another story," Stretton said.
   When contacted two weeks ago, Banko said he thought Judge Clark would
   likely "let the matter die."
   "As far as I know, it's over. The [underlying personal-injury case
   involving State Farm] was settled, and I don't see why anyone would be
   interested," Banko said, adding that "if there is any action taken as
   a result of the [contempt] hearing, I have no comment on it."
   Rolf Kroll, Kronthal's partner at Margolis, said Friday that "it's the
   consensus of everyone I have spoken to that the matter is dead. Talk
   of an investigation at this point may be at odds with the reality of
   the situation."
   But Stretton wasn't so sure. "It doesn't sound like it's over," he
   said. "If it's true that this happened, the doctor could lose his
   license as well ... for perjury."