Lawyer tries to recover retainer from deceased expert witness

David Yates Nov. 24, 2009, 8:31am

Doctors who hire themselves out to trial lawyers to testify against their fellow physicians probably never expect to be sued by the attorneys who hire them.

However, that's exactly what happened to the late Dr. Phillip Coleman, who died shortly after receiving a $3,000 retainer to testify in a Jefferson County civil suit.

Hoping to collect his retainer from the deceased psychiatrist, plaintiff's attorney Gary Cornwell recently filed suit against Coleman, his partner Dr. Lawrence Hill, and their practice, Behavioral Health Consulting.

The suit was filed Nov. 18 in Jefferson County District Court.

In his suit, Cornwell says on March 30 he advanced Coleman a $3,000 retainer to provide expert testimony in a Jefferson County civil case.

Although the suit does not state in what case Coleman was hired to testify, in October Cornwell represented psychiatrist Dr. James Grubbs in a trial against Memorial Hermann Baptist Beaumont Hospital, in which the plaintiff alleged he was let go for reporting illegal Medicare billing practices.

Cornwell lost the case and his client was order to pay the hospital more than $100,000 for failing to use his best efforts to bill and collect.

However, six months prior to the trial, Coleman advised Cornwell on April 1 that he was "going to have to have some major abdominal surgery" and that he would not be able to provide any expert witness services, court papers say.

Cornwell says in his suit Coleman told him he would "return the $3,000 retainer in a couple of days."

"Upon information and belief, Coleman entered the hospital as anticipated, where he died shortly thereafter from surgical complications," the suit states.

"Because no expert witness services were performed, the entire amount of the retainer should have been refunded. Instead, no part of the retainer was ever refunded."

Coleman is suing to recover the $3,000 deposit, "plus all reasonable attorney's fees."

He is representing himself.

Judge Milton Shuffield, 136th Judicial District, has been assigned to the case.

Case No. D185-358

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