07:17 AM EST on Thursday, March 4, 2004

LOUISVILLE, Ky. (AP) -- A judge has sanctioned a medical malpractice lawyer who claimed he had lined up an expert witness who actually had not agreed to testify.

Louisville lawyer Scott Whonsetler, one of Kentucky's most successful medical malpractice lawyers, represented a Louisville neurosurgeon who was accused of operating on the wrong disc in a patient's back in 1995. The lawsuit was eventually settled for $425,000 last year.

Jefferson County Circuit Judge Tom McDonald found that Whonsetler's assertion that a Lexington neurosurgeon would back his client "borders on being a total fabrication" and referred Whonsetler to the Kentucky Bar Association's disciplinary committee.

Whonsetler, 45, has denied wrongdoing and asked the court to set aside the sanction, which was issued Feb. 1. A hearing is set for April 5.

Legal experts say the disclosure of expert witnesses and their expected testimony is important because cases often are settled before depositions are taken from every expert.

"Attorneys must be trustworthy if the system of justice that we have in place is to work," said professor Grace Giesel, who teaches ethics at the University of Louisville's Brandeis School of Law.

Attorney Ann Oldfather, who represented Karen Gilland, the plaintiff in the case, and who requested sanctions against Whonsetler, said, "The disclosure of expert witnesses is not meant to be a game of bluff, nor is it meant to be a `let's pretend."'

Whonsetler won defense verdicts in 20 of the 22 cases he tried between 1998 and 2002, according to the Kentucky Trial Court Review, a trade publication for attorneys and the insurance industry.

The sanction arose from a lawsuit filed in 1997 by Gilland, 38, against Dr. David Petruska and two other physicians.

Gilland had a herniated disc, but a radiologist miscounted the discs and marked the wrong location on her X-ray film, according to court records.

"He sliced her open and fused her spine at the wrong place," Oldfather said of Petruska.

Petruska denied that he was negligent, saying that he followed accepted medical procedures.

In a court disclosure filed in September 2002, Whonsetler said that Dr. William Brooks, a Lexington neurosurgeon, "will testify that Dr. Petruska acted as a reasonably prudent neurosurgeon would have" and "shares in the opinions" of Petruska and three other doctors who said that he acted properly.

But McDonald found Whonsetler only talked to Brooks once—in a "casual conversation" when they met by chance in the hallway of a Lexington hospital. Whonsetler introduced himself and asked if it was appropriate for a surgeon to rely on a radiologist's marking, according to court records.

Brooks said his "unformalized opinion" at the time was that Petruska did nothing wrong.

But McDonald found that "not only did Dr. Brooks never agree to serve as an expert witness, he testified that he never even reached a final opinion."

In a motion to vacate the sanction, Whonsetler's attorney, Campbell, said the hallway exchange was more than a casual conversation. Campbell said that Brooks both indicated his willingness to testify and disputed the view of his former partner, the plaintiff's expert witness, that Petruska was negligent.

(Copyright 2004 by The Associated Press. All Rights Reserved.)