Summary
finding a metallurgical expert, who had no experience in designing ladders, unqualified to render expert opinion because he "failed to address the central issue of this case at sufficient level of intellectual rigor in the field of ladder design."
Summary of this case from Sittig v. Louisville Ladder Group LLCOpinion
Civ. No. 99-1426, SECTION "N".
January 26, 2000.
ORDER AND REASONS
Before the Court is defendant's Motion to Disqualify Sidney L. Shushan as plaintiff's trial counsel. For the following reasons, defendant's Motion is GRANTED.
BACKGROUND
This case arises out of plaintiff's fall from a ladder allegedly manufactured by defendant R.D. Werner Company ("Werner"). Plaintiff claims that her fall led to injury to her right wrist, causing her to be unable to work as a word processor. Plaintiff seeks compensatory damages including loss of past and future wages and loss of earning capacity. At the time of alleged injury, plaintiff was employed through a temporary agency as a legal secretary for Sidney L. Shushan, L.L.C. Following her fall, plaintiff retained Shushan s services as counsel to bring this products liability suit.
Plaintiff filed a Motion to Substitute Trial Counsel on December 13, 1999, in which plaintiffs trial counsel, Sidney L. Shushan, indicated to the Court that he would likely testify as a witness at plaintiff's trial, and therefore sought leave to substitute Joseph P. Landry as plaintiff's trial counsel. Shushan did not seek leave to withdraw as counsel of record for plaintiff, but sought to maintain a role in the case as associate counsel. Prior to filing the Motion to Substitute, Shushan obtained the signature of opposing counsel representing defendant's consent to Shushan's proposed substitution.
Court notes that defendant now asserts that in consenting to Shushan's Motion to Substitute, it believed Shushan would no longer act as plaintiffs counsel in any manner.
Recognizing the long-standing ethical rule against an attorney serving as both advocate and witness in the same case, this Court granted plaintiff's request to enroll Landry as trial counsel, but deferred ruling on Shushan' s request to remain involved in the case until additional information was submitted to the Court. In the event he sought to continue representation of the plaintiff as associate counsel, the Court ordered Shushan to brief the issue of whether he and/or the firm with which he is associated should be disqualified. Defendant subsequently filed a Motion to Disqualify Shushan as counsel for plaintiff.
LAW AND ANALYSIS
Motions to disqualify counsel are "governed by state and national ethical standards adopted by the court." Federal Deposit Ins. Corp. v. United States Fire Ins. Co., 50 F.3d 1304, 1311-12 (5th Cir. 1995) (quotation and citation omitted). Within this Circuit, the Court considers four relevant ethical canons to determine whether disqualification of counsel is warranted: (1) the Local Civil Rules; (2) the Model Rules; (3) the Model Code; and (4) state rules. See id. at 1312. The Model Code of Professional Responsibility requires a lawyer to be called as a trial witness to withdraw from representation if it becomes apparent that his testimony is or may be prejudicial to his client. See DR 5-102(B). This Court's Local Rules, Rule 3.7 of the Rules of Professional Conduct of the Louisiana State Bar Association, and Rule 3.7 of the ABA's Model Rules of Professional Conduct, all prohibit a lawyer from acting as an advocate at trial in which the lawyer is "likely to be a necessary witness." Id. Rule 3.7 of the Rules of Professional Conduct of the Louisiana State Bar Association, however, also states two relevant exceptions to the rule against an attorney serving as both advocate and witness in the same case. The rule provides for an exception where: (1) the testimony relates to an uncontested issue; or (2) disqualification would work substantial hardship on the client. See Rule 3.7.
Pursuant to Local Civil Rule 83.2.4E, "The court hereby adopts the Rules of Professional Conduct of the Louisiana State Bar Association. . . ." Id.
Defendant contends that Shushan has disclosed that he will testify at trial regarding plaintiff's ability to continue working as a legal secretary, and that because such testimony will be prejudicial to plaintiff's interests, he should be disqualified from participating as counsel for plaintiff in any capacity. At the outset, the Court recognizes that it is undisputed that Shushan is likely to be a necessary witness. Nonetheless, plaintiff asks the Court to allow Shushan to remain associate counsel for plaintiff to assist trial counsel in preparation and presentation of plaintiff's case. In response to the Court's request for additional information and defendant's Motion to Disqualify Shushan, plaintiff asserts that Shushan is most intimately familiar with the facts and circumstances of plaintiff's claims. Moreover, plaintiff characterizes Shushan's potential role as a witness as "tangential involvement as a fact witness to un-controverted facts. . . ."
Plaintiff asserts the possibility of submitting a joint stipulation of Shushan' s testimony to eliminate his testimony at trial. To date, however, a stipulation has not been submitted to this Court.
The Court finds that under the relevant ethical canons, plaintiff's reliance on whether the Shushan's testimony will be un-controverted is misplaced. Whether Shushan's testimony will be un-controverted is not dispositive of the issue of whether his testimony relates to an uncontested issue. Because plaintiff seeks damages for loss of past and future wages, plaintiff's ability to perform work as a word processor is a contested issue. Moreover, defendant asserts that Shushan's testimony regarding his decision to hire plaintiff as a permanent legal secretary only two months after her alleged injury will be prejudicial to plaintiff, as it may be contrary to plaintiff's assertions that she was unable to resume word processing work. Because plaintiff does not rebut this argument, the Court finds that Shushan's testimony may, indeed, be prejudicial to plaintiff.
Second, the Court finds that plaintiff fails to establish that Shushan' s disqualification will work "substantial hardship." Shushan does not contest defendant's assertions as to his lack of involvement in recent matters pertaining to plaintiffs claims. Defendant asserts that counsel other than Shushan have attended recent depositions and hearings before a magistrate judge. If, in fact, Landry needs additional time to become familiar with the facts and circumstances surrounding plaintiff's claims, continuing plaintiff's trial date would be a more appropriate course of action than denying Shushan's disqualification in light of the likelihood he will be a necessary witness at trial.
Finally, if Shushan is prohibited from serving as plaintiff's associate counsel, plaintiff requests that Shushan' s firm and staff be allowed to continue with the preparation and presentation of plaintiffs case. The Court finds that it is necessary to disqualify Shushan from representing plaintiff at any stage of these proceedings, as there exists potential for his testimony to be prejudicial to plaintiff. In addition, Shushan' s own conduct in hiring plaintiff as a permanent employee may be at issue, and this may impede his ability to give plaintiff impartial advice. In light of the upcoming trial date, however, the Court will not prohibit Shushan's staff from aiding Landry in his acquisition of knowledge of the facts and circumstances surrounding plaintiffs claims and in his preparation for presentation of plaintiffs claims at trial.
Accordingly,
IT IS ORDERED that defendant's Motion to Disqualify Sidney L. Shushan as plaintiff's trial counsel is GRANTED. Shushan is hereby disqualified from participating as counsel for plaintiff in any capacity.
New Orleans, Louisiana, this 25 day of January, 2000.