Opinion
On defendants' motion to preclude one of the plaintiff's expert witnesses from testifying at trial, the District Court, Grimm, United States Magistrate Judge, held that: (1) plaintiff's expert witness would not be precluded from testifying at trial on ground that her deposition answers were often evasive, incomplete, and non-responsive, where expert's testimony might have been more complete but for unprofessional behavior exhibited by defendants' counsel at the deposition, and (2) unprofessional behavior exhibited by defendants' counsel warranted sanctions.
Motion denied; sanctions ordered.
H. Robert Erwin, Jr., The Erwin Law Firm, Baltimore, MD, for plaintiff.
Brandon Gladstone, Lee & McShane, Washington, DC, for defendant.
MEMORANDUM AND ORDER
GRIMM, United States Magistrate Judge.
Defendants Gipe Associates Inc. (" Gipe" ) and Bohlin, Cywinski & Jackson (" B, C & J" ) (collectively " Defendants" ) have filed a motion, (Paper No. 55), to preclude one of the plaintiff's expert witnesses, Grace Ziem, M.D., from testifying at trial, because, they contend, she failed to comply with this Court's order of October 15, 1999, allowing the Defendants additional time to depose Dr. Ziem. In this order, (Paper No. 46), the Court found that when originally deposed by the Defendants, Dr. Ziem's answers often were evasive, incomplete, and non-responsive. Accordingly, Defendants were given additional time to depose Dr. Ziem, and Plaintiff's counsel was warned that if she failed to give proper answers the Court would consider additional sanctions, including ordering that she not be permitted to testify at trial, as allowed by Fed.R.Civ.P. 37(b)(2)(B). Defendants contend that when Dr. Ziem was redeposed on January 18 and 19, 2000, she violated this Court's order, and, as a sanction, she should not be permitted to testify at trial. Plaintiff has filed an opposition, (Paper No. 57), and Defendants filed a reply, (Paper No. 58). I have considered these filings, and determined that no hearing is necessary. Local Rule 105.6. For the reasons stated below, Defendants' motion is denied, and sanctions will be entered against Defendants' attorney, Mr. Brandon M. Gladstone, for his unprofessional conduct during the resumption of the Ziem deposition.
Previously, on August 31, 1999, I granted Defendants an additional 5 hours of deposition time for Dr. Ziem, because Plaintiff's Rule 26(a)(2)(B) disclosures for this witness were incomplete. Paper no. 38. The effect of the August 31 and October 15 orders was to give the Defendants two days, seven hours each, of additional deposition time for Dr. Ziem.
Local Rule 606 provides " [t]he Court expects all of its judges and all counsel to conduct themselves in a professional and courteous manner in connection with all matters pending before the Court." Discovery Guideline 1.c. of this Court provides " [a]ttorneys are expected to behave professionally and with courtesy towards all involved in the discovery process, including but not limited to opposing counsel, parties and non-parties." The cited local rule and guideline apply to the conduct of an attorney taking a deposition, and an attorney who is abusive to counsel and/or a witness during a deposition violates them.
During the seven hours of the first day of Dr. Ziem's renewed deposition, January 18, 2000, Defendants' counsel repeatedly and flagrantly was insulting to Plaintiff's counsel and Dr. Ziem (taunting Plaintiff's counsel about his case, accusing the deponent of " playing games", demeaning the professional competence of the deponent, suggesting that the deponent had cognitive difficulties, referring to the deponent as " a piece of work", and implying that the deponent was dishonest, to name a few examples). Additionally, Defendants' counsel made antagonistic and hostile comments throughout the first day of the deposition (baiting the deponent by saying she was going to " get three strikes" and be " out", taunting the deponent about the fact that the plaintiff was paying his fee as a sanction for her past deposition responses, accusing the deponent of having a hearing problem, peremptorily telling the deponent and Plaintiff's counsel that " I'm running this deposition", and " I'm asking the questions", and accusing the deponent of playing " semantic games" ).
See Attachment A to this order, which is incorporated herein, which provides specific examples of Defense Counsel's insulting comments.
See Attachment B, incorporated in this order by reference, for specific examples.
Defendants' counsel also was sarcastic throughout the deposition (baiting the deponent about making " legal objections" to questions, and asking if she was going to instruct herself not to answer questions during the deposition, mocking the Plaintiff's counsel by mimicking him, and remarking " Yeah, yeah, yeah" when he made an objection, making light of the fact that the plaintiff was to bear the expense of the deposition pursuant to the Court's earlier order, and making derisive comments about the deponent's professional qualifications). Finally, Defendants' counsel frequently made threatening comments to the deponent and Plaintiff's counsel during the deposition (repeatedly threatening to terminate the deposition and " slap" another motion to dismiss the case on plaintiff's counsel).
See Attachment C, incorporated in this order by reference, for specific examples.
See Attachment D, incorporated by reference in this order, for specific examples.
Viewed as a whole, the conduct of Defendants' counsel during the first day of the deposition was appallingly unprofessional and discourteous, suggesting that he took the Court's orders allowing him additional time to depose Dr. Ziem, and ordering her to be responsive, as license to do whatever he wanted during the deposition. No one expects the deposition of a key witness in a hotly contested case to be a non-stop exchange of pleasantries. However, it must not be allowed to become an excuse for counsel to engage in acts of rhetorical road rage against a deponent and opposing counsel, using an order of the court as the vehicle for the abuse. While isolated acts of discourtesy or loss of temper can be expected, even from the best of counsel, and excused by the court, systematic and deliberate abuses such as displayed by Defendants' counsel during Dr. Ziem's deposition cannot go unsanctioned as they are destructive of the very fabric which holds together the process of pretrial discovery-cooperative exchange of information without the need for constant court intervention.
When an attorney for one of the parties misbehaves badly during pretrial discovery, there is a very real danger that others will do the same, fighting fire with fire. In this case, though, Plaintiff's attorney resisted the impulse to do so, and displayed commendable, indeed remarkable, self-control during the deposition of Dr. Ziem. Throughout the deposition he intervened to calm the waters between Dr. Ziem and Defendants' counsel, trying to keep the examination focused, and the deponent's answers responsive, despite the conduct of Defendants' counsel.
There also is a more pragmatic reason why counsel should not engage in the type of behavior that Defendants' counsel displayed during the first day of the deposition. It is counterproductive. At the beginning of the second day of the deposition, January 19, 2000, Dr. Ziem brought in a video photographer to record the deposition. Although Defendants' counsel objected, and threatened to call the Court for a ruling as to whether the video recording could be made, he did not do so, acquiescing in the recording. While being videotaped during the second day of the deposition, the conduct of Defendants' counsel markedly improved, as did the responsiveness of Dr. Ziem's answers to his questions. This suggests that Defendants' counsel realized the impropriety of his conduct during the first day. The Court cannot help but wonder whether Dr. Ziem's testimony during the first day of the deposition would not have been more complete and responsive had Defendants' counsel behaved professionally. In such circumstances, it would be improper to order that Dr. Ziem not be permitted to testify at trial because to do so would punish the Plaintiff for the misconduct of Defendants' attorney. However, the Plaintiff and Dr. Ziem should take note that if, at trial, her testimony in response to properly framed questions is evasive, or non-responsive, it will be stricken.
For the reasons stated above, the Defendants' motion to exclude Dr. Ziem's testimony at trial is DENIED. Furthermore, it is ORDERED that, as a sanction for his unprofessional behavior, and to help insure that it is not repeated in the future, Defendants' counsel, Mr. Brandon M. Gladstone, will, within 10 days of this order write a letter of apology to Dr. Ziem and Mr. Erwin, Plaintiff's counsel, for his unprofessional conduct. Further, any payment made by the Plaintiff of Mr. Gladstone's fees in connection with the taking of the deposition of Dr. Ziem on January 18 and 19 will be returned to the Plaintiff or her counsel within 30 days of this order. If no such payment has been made to date, the obligation to do so is rescinded. And, finally, Mr. Gladstone will be required to take a professionalism course approved by the Court. Within 30 days of this order he will provide the Court with information regarding such a course that he proposes to take. Upon review and approval of the proposed course, he will be required to attend it, and provide proof of satisfactory completion to the Court. If the course suggested is unacceptable, the Court will designate the course he will attend.
Attachment A: Examples of Insulting Comments by Defense Counsel during 1/18/00 Deposition
Page
Comment
670
[to Plaintiff's counsel] " You're about asbad as she is."
672
[to Plaintiff's counsel, after he objected to oneof defense counsel's questions] " Youdon't like the compound part of it, is that theproblem, Mr. Erwin, too difficult for you?"
675
[to Plaintiff's counsel] " Yes, you arenervous, Mr. Erwin, because this case is rapidlydiminishing"
682
[to witness] " So say it. Don't play yourtypical games."
695
[to Plaintiff's counsel] " And you've beenright now how often in this litigation .... How oftenhave you been right in this litigation in yourviewpoints?"
698
Witness: " I've never been subjected to suchhostility from any defense lawyer."
Defense counsel: " I've never been treatedlike this by any witness, touche. Can you finish youranswer?"
724
[to witness] " What don't you understand aboutthe question, Dr. Ziem? Is this the feigned ignorancepart that has been the subject of a previousmotion?"
737
[to witness] " Maybe you have MCS [multiplechemical sensitivity, a condition which Plaintiffasserts causes cognitive impairment] then ..."
767
[to witness] " You are a piece of work, Dr.Ziem."
775
Witness: " I've never had such difficulty witha defense lawyer, Mr.-"
Defense counsel: " Oh, Dr. Ziem, the feeling ismutual."
777
Witness: " I'm trying to be scientific."
Defense counsel: " And evasive, which you get an Aplus in."
807
[referring to witness and Plaintiff's counsel]" Both you two, it's like Jekyll and Hyde inhere, its unbelievable. It's like a tag team thatI've never seen before. It's called hide theball, lay the record-muddle up the issues-" .
843
[to witness] " Answer the question. You know, Idon't need ... a sideshow."
882
Witness [referring to Plaintiff's alleged cognitivedifficulties] " Yes, and she's havingdifficulty remembering her lines [in theater class]..."
Defense counsel: " Just as you're havingdifficulty today remembering your previous legal casesin which you were excluded from testifying in,correct?"
882-83
[to witness] " And your inability to recall theprior cases in which you've been excluded fromtestifying in, do you find that hinders your ability tofunction normally in today's society?"
Attachment B: Examples of Antagonistic and Hostile Comments by Defense Counsel during 1/18/00 Deposition
888
[responding to witness' offer to make him a morelegible copy of an exhibit] " For some reason Ijust cannot take your word for it."
Page
Comment
635
[to witness] " You're going to get threestrikes and you're out today.... No gamestoday."
636
[to witness] " Well, your time is out in thiscase."
667
[to witness] " I'm not being hostile....you're reverting to your old self."
716
[to Plaintiff's counsel] " Don't lectureme.... Don't even think about it .... Don'teven dream about it."
772
[to witness] " You're not going to obstructthis deposition any more than you have ..."
786
Defense counsel: " Say no then."
Plaintiff's counsel: " She did."
Defense counsel: " She said the long-windedversion, which she loves to do, and which got her intotrouble before."
787
[to witness] " And incidentally, who's payingyour bills today, or are you eating the costs? Are yougetting paid today for your testimony?
Witness: " Yes, are you?"
Defense counsel: [referring to plaintiffs' counsel]" He's paying me, thanks to you. See how itworks?"
798
[asked not to raise his voice by Plaintiff'scounsel] " I'm not raising my voice. I thinkshe has a problem hearing now .... This is the hearingtactic I didn't mention before .... I didn'tthink your ears were that bad."
834
Witness: " I would like to read the question [onquestionnaire, an exhibit] into the record. Ifyou-"
Defense counsel: " No, you're not. I'mrunning this deposition."
853
[to witness] " Just answer the question. Letsstart anew for once. I'm tired of your old answerswhich don't answer the questions."
857
[to witness] " I'm not going to play semanticgames with you, as you constantly are trying to dohere."
884
[responding to witness' offer to get him some testdata] " Get it to me by tomorrow. Stop wasting mytime now."
892
Plaintiff's counsel: " Mr. Gladstone, keepyour voice down."
Defense counsel: " Quiet. I'm asking thequestions, I resent the interruption."
Attachment C: Examples of Sarcastic Comments by Defense Counsel during 1/18/00 Deposition
Page
Comment
695
Plaintiff's counsel: " Mr. Gladstone, notnecessary. She's answered your question."
Defense counsel: " Which comes first the chickenor the egg, Mr. Erwin?"
741
[responding to the witness' answer] " Yeah,right."
744
" She [referring to witness] always has to hedge,doesn't she, Mr. Erwin. You always have to coveryourself; nothing's ever a straight answer."
749
[to witness] " I appreciate the legal objection,Dr. Ziem, it seems like you know more than you'vepretended to know all along about your legalknowledge.... I'm curious, are you going toinstruct yourself not to answer certain questionstoday?"
776
Witness: " They're all related to reactiveairway disease and how its produced."
Defense counsel: " Sure, they are."
Plaintiffs' counsel " We don't needsarcastic comments."
Defense counsel: " I'm not being sarcastic.I'm totally believing everything your witness says,and I'm taking everything she says on face value,unchallenged. You know, I'm the naive attorneyyou've always dreamed of."
790:
Defense counsel: " Can you please read thequestion again. I don't think she answered it, asusual."
Plaintiff's counsel: " Objection. Save thespeeches"
Defense counsel: " Objection"
Plaintiffs' counsel: " Save the sarcasm."
Defense counsel: " Yeah, yeah, yeah."
805
[after suggestion by Defense counsel that witness wasnot telling the truth, the witness insisted she was.Defense counsel replied]: " Gee, you know, I'mconvinced."
814
[responding to witness saying she does not understandthe question] " Should I be surprised ?"
821
[Defense counsel, to witness] " ... you'repaying me for my time."
Witness: " A disabled patient is paying you foryour time."
Defense counsel: " Should I feel sorry ?"
824
[to witness, who sought clarification of a question]" What do you think? Are you playing that gameagain?"
847
[to Plaintiff's counsel] " It certainly makesit easier, doesn't it ... when she answers thequestion appropriately the first time. This is afirst."
870
[to witness following an answer to a question] "Back to game playing, huh?"
883
[responding to witnesses reference to her credentialsin her CV] " Am I supposed to be impressed?"
Attachment D: Examples of Threatening Comments by Defense Counsel during 1/18/00 Deposition
893
[In response to witness' request to clarify aquestion asked] " What do you think I mean? Do youthink I'm talking about foods she ate ten years agoas a kid?"
Page
Comment
635
" There will be a motion forthcoming to excludeher testimony in this case ...."
667
" Well, we're going to end this deposition...."
667
" It's not my case that's on the linehere. You're treading some thin ice."
683
" And I tell you, this case is really close tobeing dismissed."
711
[asked by Plaintiff's counsel not to yell at thewitness and to keep his report to himself] "I'm not doing either .... And if you want tocontinue with your antices, them you will see anothermotion.
805
[to witness] " I'll cheek up on you, Dr Ziem,see if you're telling the truth. That is the pointof this exercise."
854
[to Plaintiff's counsel] " Laugh all you want.The last laugh is always with me .... You think this isreally funny. I'm taking this very seriously.I'm outraged at the way this has proceeded. And, asyou know, I'm continuously debating in my mindwhether to stop at any given moment and slap one moremotion to end this case on you."