Famed UPMC surgeon Dr. James Luketich makes a phone call during a break in a hearing to determine whether an audio recording can be used in a medical malpractice case against him in Allegheny County Common Pleas Court at the City-County Building, Downtown, on Tuesday, Dec. 13, 2022. (Sean D. Hamill/Pittsburgh Union Progress)

An Allegheny County Common Pleas judge on Wednesday turned down a request to end a hearing where lawyers for famed UPMC surgeon James Luketich, M.D., are seeking to ban evidence from a secretly recorded conversation between him and a doctor who prescribes him the drug suboxone.

The ruling by Judge Philip Ignelzi, on the second day of the hearing this week, came after lawyers for the family of Bernadette Fedorka and for co-defendants, Jonathan D’Cunha, M.D., and Lara Schaheen, M.D., moved to end the case.

Their attorneys argued not only was the venue improper and the case was filed too late but also that it was not following both state and federal law and court decisions.

More importantly, the Fedorkas’ attorney, Patrick Loughren, argued, Luketich and UPMC have not proven that the Fedorkas’ related medical malpractice case against Luketich and other UPMC doctors stemmed in any way from the information found in the recorded conversation — the central point in Luketich’s counter-claim case that is the subject of this week’s hearing.

The Fedorkas filed a medical malpractice case in December 2018, alleging the lung transplant done at UPMC Presbyterian for Ms. Fedorka earlier that same year was botched because of a series of poor decisions that began with Luketich, head of UPMC’s cardiothoracic surgery department. Even though Luketich didn’t perform the surgery, those poor decisions, they argue, were due in part to his use of suboxone.

It wasn’t until 2021, that “we get a letter that says, ‘We think your case is based on a wiretap,’” Loughren told Ignelzi on Wednesday. “We didn’t even know anything about that” recording.

Loughren said he first learned of the existence of the recording when two UPMC lawyers began asking questions about it during depositions in 2021 of D’Cunha and Schaheen — even though UPMC first learned about the recorded conversation between Luketich and David Wilson, M.D., in November 2018.

When UPMC attorney John Conti argued that the lawsuit by Luketich to suppress the recording was filed properly, Ignelzi said: “I haven’t been drawn in hook, line and sinker [by Loughren’s argument], but it’s a very interesting argument he’s making.”

Loughren said the judge should also reject the “credibility” of Luketich because when Luketich was asked about something he said on the recording, his response “was a blatant lie.

“You should reject [Luketich’s credibility] because he lied to your face,” Loughren said.

To go over that point, Ignelzi closed the courtroom again — as he’s done multiple times during the hearing, which began over three days in August — to play the recording again. All non-parties, including reporters, were cleared from the room.

Loughren said a big problem with Luketich’s counter lawsuit over the recording is that it has stalled the medical malpractice case, which is already four years old and hasn’t progressed in nearly a year.

“We should be able to proceed with our case unhindered with this injunctive stuff” that is the goal of Luketich’s cross-claim about the recording, Loughren said.

But even though attorneys for Fedorka, D’Cunha and Schaheen say there are multiple “independent” sources for the medical malpractice allegations that Luketich’s drug use impacted his job as a surgeon and chairman of the department, Luketich’s attorney, Efrem Grail, argued that he believes D’Cunha and Schaheen made the recording and all those allegations “are fruit from the tree that they grew.”

Conti, UPMC’s attorney, agreed, telling Ignlezi that the “overwhelming evidence in this case is this recording was made by Schaheen and D’Cunha as part of a yearslong vendetta” against Luketich, who was their superior at UPMC.

They were upset with Luketich, Grail said, because he had learned that D’Cunha, who was married at the time and in charge of the lung transplant division, and Schaheen, who was a resident working in that division, were having an affair.

Luketich “broke up their love nest” and reassigned Schaheen to a different surgical rotation away from D’Cunha, Grail said.

Conti also contended that recording Luketich and Wilson while they talked on Feb. 26, 2018, in an observation room at UPMC Presbyterian was part of a pattern at that point.

Just three days before that recording was made, while Schaheen was attending a conference in Houston with Luketich, she used her iPhone to videotape him in an effort to try to show him using suboxone.

So “the gremlin” who recorded Luketich and Wilson “did exactly what Schaheen and D’Cunha would do” and sent copies of the recording and a transcript with a cover letter to a competing academic medical center, West Virginia University, and to the FBI.

At one point, Grail said, Schaheen told a colleague: “I’m going to watching Dr. Luketich die a painful death.”

“Well, we’re here, judge. That’s what she’s doing,” Grail said.

Ignelzi’s decision to deny the request to end the hearing means attorneys for the Fedorkas, D’Cunha and Schaheen began putting on their defense.

On Thursday, they will present their own audio expert, David Smith, who will describe his analysis of the recording, as well as D’Cunha himself. 

Sean is a reporter at the Pittsburgh Post-Gazette, but he's currently on strike. Reach him at seandhamill@yahoo.com.

Sean D. Hamill

Sean is a reporter at the Pittsburgh Post-Gazette, but he's currently on strike. Reach him at seandhamill@yahoo.com.