Opinion
C.A. No. 97C-12-048-PLA
Submitted: September 14, 2001
Decided: October 11, 2001
UPON DEFENDANTS' APPLICATION FOR SANCTIONS AGAINST PLAINTIFF-GRANTED.
MEMORANDUM OPINION
This is the Court's decision on the issue of what sanctions, if any, to impose upon plaintiff and/or plaintiff's counsel as a result of a forced "eleventh hour" continuance of a four-day trial date, which had been scheduled for over a year. Although this is an unusual and unfortunate proceeding, and one that should rarely be necessary, the tortuous chronology leading up to this special hearing provides the background for why it was required.
Procedural History
This is a personal injury action that was filed by plaintiff nearly four years ago, on December 4, 1997. Plaintiff alleges that he was injured while using a dock plate at a warehouse facility while in the course of his employment for Corporate Interiors. Corporate Interiors was an independent contractor hired by defendant DuPont to store and move furniture items between various DuPont facilities. Plaintiff alleges that, at the time of the incident, one of the "teeth" was missing from the dock plate, allowing it to move, which caused him to sustain injuries when he fell between the dock and the truck.
Besides naming the DuPont Company as a defendant, plaintiff also sued J.C. Penney's for breach of warranty, strict liability, and negligence, alleging that it too was liable for any defective condition of the dock plate. J.C. Penney's had granted a license to DuPont two years earlier for DuPont's exclusive possession and control of the warehouse in which the incident occurred. Defendant subsequently named Rockland Industries and Steelcase (FMC) Inc. as third-party defendants. Rockland Industries had occupied the premises after J.C. Penney's vacated it, and Steelcase, had been retained by DuPont to run the furniture warehouse at the location. Steelcase, in turn, had subcontracted the duty over to Corporate Interiors.
A Scheduling Order was issued by the Court in August 1998, imposing a January 6, 1999 deadline for the filing of Motions to Amend Pleadings or to Add Additional Parties, and a deadline of March 6, 1999 for the filing of dispositive motions. On June 28, 1999 an Amended Scheduling Order was entered, to which the parties stipulated, establishing deadlines for discovery cut-off (10/3/99) and case dispositive motions (11/3/99).
In October of that same year, the Court entered yet another Order, extending the discovery cut-off date to April 7, 2000 and the filing of dispositive motions deadline to April 28, 2000. A status conference was scheduled for May 11, 2000. On April 24, 2000, Judge Cooch extended the discovery cut-off deadlines to June 9, 2000.
At the status conference on May 11, 2000, the following deadlines and dates were finalized, including a four-day trial date scheduled more than a year in advance:
Discovery Cut-Off December 2000 Dispositive Motions January 2001 Pretrial Conference April 20, 2001 @ 10:00 a.m. Trial May 29, 2001 4 days
By this time, Judge Bifferato had retired and the conference was conducted by Master Vavala. The foregoing deadlines were set forth in a written document, apparently prepared by the Clerk, memorializing the Master's imposed Orders. Discovery was to be completed by the end of December 2000, and all dispositive motions by the end of January 2001.
While plaintiff's counsel complains that the Court never entered the Order containing the discovery deadline of December 2000, and that he did not receive notice of it, his argument does not explain why he would not thereby have assumed that discovery was to be completed by the earlier deadline of 4/7/00, which was clearly the subject of a signed written Order, or the still earlier deadline of June 9, 2000.
Despite these Orders establishing deadlines, it was not until April 5, 2001 that defendant J.C. Penney, Inc. filed its Motion for Summary Judgment, which this Court refused to hear as it was filed nearly a year after the deadline. As a result, at the pretrial conference, J.C. Penney's counsel capitulated and withdrew his summary judgment motion, thereby acknowledging the existence of earlier deadlines. Unfortunately, plaintiff's counsel did not follow co-counsel's lead, insisting instead that he was unaware of the December 2000 discovery cut-off, and for the first time, naming three additional previously unidentified expert witnesses, presumably expecting permission from the Court without objection from counsel. That did not transpire.
Opposing counsel, understandably, vigorously objected and the Court, via this newly assigned Judge, saw fit to enforce its prior Orders. Even in the absence of the Order, however, it was fairly obvious to everyone, except perhaps to plaintiff or his attorney, that the last minute naming of experts in a case that had been pending for over three years, and with a trial date that had been scheduled a year earlier, was patently unfair both to the defendants and to the Court. The Court therefore refused to allow plaintiff to present the testimony of any expert witness that had not previously been identified.
Within a week, plaintiff's counsel filed a "Motion for Reconsideration" of the Court's decision refusing to allow the use of new experts at trial. Defendants filed pleadings vigorously objecting to allowing a new orthopaedist, Dr. Dawson, an economic expert, or a vocational expert to testify at trial as none of these individuals had been identified earlier. At the argument on the motion, plaintiff insisted that there would be no prejudice to the defendants, by claiming that his new medical expert witness would testify in the same manner as his previous medical expert, whom he now claimed was refusing to participate. Because it was inconceivable to the Court that the defendants should be expected to prepare for what amounted to a wholly different case because of plaintiff's manifest lack of preparation, the Court denied plaintiff's motion, announcing its decision in the Courtroom on May 9, 2001. No mention was made by counsel at that time of plaintiff's alleged immediate need for hip replacement surgery, nor was any mention made then (or in any of the other filings by counsel) that plaintiff would have difficulty sitting through a trial because of his pain.
Despite a growing host of discrepancies in counsel's representations to the Court and counsel, he apparently expected defendants to accept his word or assurance that the expert opinions would be identical.
On May 21, 2001, only eight days before trial was scheduled to commence, the Court received a letter, dated May 16, 2001, which had been mailed (not faxed), advising that plaintiff "has scheduled his necessary hip replacement surgery for May 18, 2001. Dr. Dawson advises us that Mr. Clark will not be able to participate in his trial on May 29 following the surgery." On that additional basis, plaintiff requested a continuance.
Needless to say, this unanticipated, unexpected, and previously unmentioned reason for a continuance request generated some interesting responses from defendants' counsel, each pointing out the elective nature of this surgery, the suspicious timing of the surgery, and the fact that plaintiff's counsel had never previously raised the medical condition of his client as a basis for requesting a continuance. Words such as "subterfuge", "transparent", "ulterior motive" were peppered throughout the defendants' letters. Each also pointed out, in precise terms, the type of prejudice they would encounter as a result of the plaintiff's decision to undergo the elective surgery on the date he intended, including the fact that plaintiff would thereby preclude the defendants from any independent medical evaluation concerning the need for the surgery and/or whether it was related to the alleged incident. The Court denied this latest effort to force it into granting a continuance.
Fortuitously for the plaintiff, and as yet unknown to the Court, plaintiff's surgery could not go forward on May 18, 2001. The Court and counsel subsequently learned by letter dated May 22, 2001, that the date of surgery had to be postponed from May 18, 2001 to May 25, 2001, a date just four days before the scheduled trial. Plaintiff's counsel indirectly alluded to plaintiff's pain by suggesting that "Mr. Clark expressed faith that surely the Court would not make him sit through a trial in pain and agony." This was the first mention of any difficulty on plaintiff's part in enduring a trial, and never did counsel ask this Court to make any accommodations for his apparent condition, despite the fact that this Court frequently conducts trials involving litigants who are in great pain.
Because of the flurry of last minute correspondence, the Court's rulings denying the requests were informally conveyed by telephone. By the time of the Call of the Calendar, which was conducted on the morning of May 23, 2001, all attorneys involved in this case knew that the Court was taking a hard line on adherence to the trial date. It was also becoming more and more apparent that plaintiff's counsel was utilizing every conceivable excuse to postpone the trial date.
At the Call of the Calendar, plaintiff's counsel, Fred Barakat, was not present. Instead, Kenneth Roseman, Esquire (who had entered his appearance as co-counsel on April 30, 2001) appeared. At that time, he sought again to convince the Court to continue the case.
Mr. Roseman candidly stated that his client was not able to attend the hearing, because he was planning to undergo hip replacement surgery in two days — on May 25, 2001 — and that his previously identified expert was unavailable to testify. Again, the defendants objected strenuously. Mr. Roseman emphasized the prejudice to his client. Given the number of excuses that had been offered by Mr. Barakat, and the serial manner in which they trickled into the Court, there was at that time little doubt in anyone's mind that the plaintiff's predicament stemmed entirely from his attorney's failure to prepare adequately in advance of trial.
Under the circumstances, the Court advised Mr. Roseman that it would not continue the matter because plaintiff still had the opportunity to postpone his surgery and be available for trial. The Court further indicated that, if in fact it was not plaintiff's decision or choice to miss the trial date, but instead the fault of counsel, plaintiff's remedy would be against his attorney. It was at that point that the Court was advised by Mr. Roseman that Mr. Barakat had allowed his malpractice insurance to lapse as he was closing his practice at the end of the year. Therefore, contrary to the Court's inference, Mr. Roseman represented to the Court that the plaintiff would not have a remedy. The Court thereupon explained to Mr. Roseman that the series of reasons provided by Mr. Barakat for a continuance did not seem forthright and appeared to be fabricated excuses. Since counsel had never admitted that the fault was his, the Court was disinclined to alter its ruling.
The foregoing dialogue at the Call of the Calendar ultimately led Mr. Barakat to write to the Court. In his letter, counsel explained that he was simply not prepared to go to trial and that the real reason for the various requests for continuance were the fault of counsel, not the client.
Mr. Barakat's letter — which he now claims was untrue and was written only because the Court required this admission in order to obtain a continuance — outlined in great detail counsel's lack of preparation. The Court thereby concluded (mistakenly) that counsel, and not Mr. Clark, was responsible for this predicament. With great reluctance, the Court sent a letter to counsel advising that it could not, in fairness to plaintiff, force him to go to trial if his attorney was not prepared. As a result, the Court granted the continuance but indicated in its letter decision that it would consider any applications for sanctions made by defense counsel. That Order was not mailed, however, until late in the day, Friday, May 25, 2001.
Unbeknownst to the Court, plaintiff did not wait for the Court to rule that the continuance was granted. Instead, at 7:00 a.m. on the morning of May 25, 2001, he underwent the elective hip replacement surgery, at a time when the trial scheduled for May 29th was to go forward. Defense counsel, upon learning of this situation, again sent correspondence to the Court expressing outrage at the fact that plaintiff had proceeded with the hip replacement surgery, had therefore purposely made himself unavailable for trial, and had also greatly altered the "medical horizon." DuPont's counsel referred to the continuance as a "rare gift" to plaintiff. In a May 31, 2001 letter to the Court, DuPont's counsel also questioned whether Mr. Barakat's former malpractice insurance carrier had actually disclaimed coverage and insisted that proof be mandated. In essence, DuPont's counsel requested that the Court reconsider its decision to afford Mr. Clark another trial date, in the event the requested proof does not materialize.
Mr. Shannon's correspondence to the Court on behalf of Third-Party Defendant Steelcase echoed the concerns expressed by DuPont's counsel. In particular, counsel for Steelcase pointed out that defendants had prepared their defense based upon the factual record as it existed prior to May 29, 2001 in anticipation of trial commencing on that date. Steelcase counsel further emphasized the need to counterbalance the prejudice to defendants with the unilateral benefit plaintiff obtained through the continuance. The letter, written June 12, 2001, asked the Court to reexamine plaintiff's claim of necessity for the continuance in light of the fact that plaintiff went forward with the hip replacement elective surgery anyway, before knowing of the Court's May 25, 2001 Order continuing the case, thereby making himself unavailable for trial. Steelcase requested further inquiry into the timing of the procedure and documentation establishing that plaintiff would have no recourse against his attorney. Counsel for Steelcase even went so far as to characterize the decision to proceed with the surgery on May 25, 2001 as a "cynical ploy to win the Court's sympathy, set up grounds for appeal, and/or deny defendants the opportunity to mount any defense to belated claims some three to four times greater in quantum than those supported by the facts prior to May 23, 2001."
Faced with the growing concerns conveyed to the Court by defendants, and the difficulty of determining the true circumstances without a full hearing, the Court wrote to counsel on June 15, 2001. In its letter, the Court advised that a hearing would be scheduled to enable it to resolve the factual discrepancies, to determine the extent to which either plaintiff or counsel were at fault for the prejudicial impact on defendants that the continuance had wrought, and to require proof of several of the assertions made by plaintiff's counsel upon which the Court relied in its decision to grant the continuance.
Specifically, the Court identified the issues that it would explore at the hearing and the proof it would require, including a specific request for documentation of the status of Mr. Barakat's malpractice insurance coverage. Plaintiff's counsel was directed to make plaintiff available for questioning and to have the doctor who performed the surgery available also (at least by telephone). The Court also advised defense counsel to prepare lists of their expenses associated with the delay.
After numerous attempts to accommodate the schedules of the several attorneys involved, the Court scheduled such a hearing for September 14, 2001. On September 6, 2001 this Court denied Mr. Barakat's request for a continuance to enable him to attend his niece's rehearsal dinner. In his letter request, Mr. Barakat again implored the Court to cancel the hearing and allow him instead to provide pro bono services to the Court.
What impact, if any, Mr. Barakat's volunteer services would have upon the defendants' case and the mitigation of the prejudice to them was not identified in Mr. Barakat's letter. This still remains unclear to the Court.
Evidence at this Hearing
At the hearing on September 14, 2001 both Mr. Barakat and Mr. Roseman appeared on behalf of plaintiff. Neither plaintiff nor Dr. Dawson appeared, and only after a great deal of effort on the part of Court staff, were they able to be contacted by telephone. Mr. Barakat provided no documentation of the status of his malpractice coverage, despite the Court's express request, emphasized that his client's great pain caused him to choose to undergo the surgery four days before trial, and testified that he was "happy" that Mr. Clark was having the surgery so that the trial would not go forward.Plaintiff, David M. Clark, was contacted by the Court's law clerk and testified by telephone. He had not received a copy of the Court's June 15, 2001 letter concerning this hearing and he seemed to be unaware that his appearance had been required. His testimony, however, was nothing short of surprising to the Court and to defense counsel.
While the Court had been lured into believing that the timing of Mr. Clark's surgery and the sudden need for it had been carefully orchestrated by plaintiff's attorney, Fred Barakat, in fact, plaintiff disavowed any participation by his attorney in selecting the May 25th date for his operation. As a matter of fact, at the hearing plaintiff made it clear that he deliberately and intentionally chose to undergo hip replacement surgery on May 25, 2001 at a time that he knew would interfere with his participation at trial, and at a time when he could not have been aware of the Court's last minute change of heart regarding the continuance. And, while the Court was earlier under the impression that it was plaintiff's counsel who was frantically trying to salvage the case to the detriment of plaintiff, the evidence at this hearing reveals that only plaintiff was responsible for this last minute decision and that the plaintiff himself was not in need of the Court's efforts to protect him from what was then perceived to be his counsel's negligence. Although the Court had been led to believe that Mr. Clark had no remedy, at this most recent hearing, he made it clear that it was his sole decision to go forward with the procedure despite the fact that it would thereby make him unavailable for trial. Thus, the Court's grant of the continuance at issue in this case, done solely in an attempt to be fair to plaintiff, was based upon an assumption of the plaintiff's blamelessness that was created by his own attorney.
Decision
The Court's authority to impose sanctions for improper conduct of an attorney or a party in a case such as the case at bar is firmly established in our Rules of Civil Procedure. Superior Court Civil Rule 11(b)(1) provides:
(b) By representing to the Court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresentative party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, —
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
Rule 11(c) sets forth the Court's authority to impose sanctions upon the attorneys, law firms, or parties that have violated subdivision (b) of this Rule.
The Discovery Rules also provide a basis for the imposition of sanctions upon a party or his counsel. For example, Superior Court Civil Rule 26(g) and 37 contain such provisions.
Moreover, the Court's rule regarding pretrial conferences and Orders expressly provides in Rule 16(f) as follows:
(f) Sanctions. If a party or party's attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party's attorney is substantially unprepared to participate in the conference, or if a party or party's attorney fails to participate in good faith, the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B),(C),(D). In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party, or both, to pay the reasonable expenses incurred because of any noncompliance with this Rule, including attorneys' fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust. (Amended, effective Sept. 4, 1984; Jan. 1, 1987; Jan. 1, 1988; June 1, 1990; Jan. 1, 1991; Oct. 1, 1997).
To reinforce the significance of the Court's pretrial Order, which was entered in this case on May 16, 2001, Rule 16(e) states that:
(e) Pretrial orders. After any conference held pursuant to this Rule, an order shall be entered reciting the action taken. This order shall control the subsequent course of the action unless modified by a subsequent order. The order following a final pretrial conference shall be modified only to prevent manifest injustice.
Finally, under Super. Ct. Civ.R. 41(b), a defendant may move for dismissal of an action or of any claim against the defendant "for failure of the plaintiff to prosecute or to comply with these Rules, or any order of Court."
While defendants did not file formal motions under the above Rules, the gist of their applications amounts to requests for dismissal. Having considered the facts that were fully set forth earlier herein, in light of defendants' request for reassessment and reconsideration of its decision to continue the case, I conclude that dismissal of plaintiff's claims is appropriate, even at this later date. The reasons for this decision are manifest.
First, there was no evidence presented at this hearing of the need for the hip replacement surgery on that specific date. In fact, the evidence was to the contrary. Mr. Clark testified that he first saw Dr. Dawson in February 2001, not as a treating physician, but for a consultation in connection with this litigation. No further appointments with Dr. Dawson were scheduled until the May 18, 2001 date, which was originally the date the hip replacement surgery was to occur. Although Mr. Clark stated that he saw the doctor several times before the scheduled surgery, Dr. Dawson had no documentation of any intervening visits and no clear explanation of why he would schedule surgery without any opportunity for a presurgical examination. All that Dr. Dawson could state was that he had spoken on the phone to Mr. Clark. Dr. Dawson was unable to testify that the surgery was anything but "elective". Most significantly, while acknowledging that he was in so much pain that he had to undergo this operation, Mr. Clark also emphasized that he had endured this pain for more than a year. Thus, the Court can easily conclude that plaintiff could have planned well in advance to have the surgery at a time when it would not conflict with the trial date.
The testimony was conflicting with regard to why Dr. Dawson, an orthopedist in Reading, Pennsylvania was chosen. Mr. Barakat stated that his expert witness fees were discounted — a fact that the doctor himself denied. Mr. Clark referred to him, rather tentatively, as "a friend".
Lastly, the Court can conclude that plaintiff did not have to have the surgery on May 25th, anymore than he did not have to have it on May 18th, the first scheduled date. Surgery on that date was postponed for a full week to enable Mr. Clark to have his heart condition checked. If the elective hip replacement surgery was postponed for a week, it could have also been postponed for two weeks, so as not to interfere with the trial. Moreover, no medical documentation has ever been provided to the Court to support any such sudden necessity for the operation.
Presumably, this postponement would have been unnecessary if there had been the customary pre-surgical consultation.
The second reason that dismissal is warranted herein is that, by his decision to go forward with surgery when he did, plaintiff has taken affirmative steps to insure that the defendants no longer have the capability of examining his pre-surgery condition in any meaningful way. By doing so, plaintiff has precluded the defendants from adequately preparing any defense to his claims that are now several times higher than they were before the surgery on May 25, 2001. Under these unusual circumstances, the Court is powerless to find an adequate remedy or to impose any sanction that will offset the prejudice to defendants, short of dismissal.
Third, the Court concludes that plaintiff has had his "day in Court," or at least a full opportunity to have his day in Court. Indeed, he had four full days set aside to present his case. As the record stands at this juncture, plaintiff fully acknowledged that he made the choice to have the surgery at about the same time as the scheduled trial date, thereby choosing to forego his appearance at trial. He also made it clear at the hearing that the decision to do so was solely his decision, and that it was not one manipulated by Mr. Barakat. Thus, the Court's perceived concern for protecting plaintiff from the dereliction of his lawyer was obviously misplaced. That is, the Court's last minute decision to postpone the trial, notwithstanding the strenuous objections of defendants, was based on its view of the unfairness of forcing plaintiff to go to trial represented by an unprepared lawyer. Now that the Court has been presented with facts establishing that plaintiff himself was responsible for his unavailability, the Court's grant of a continuance can only be deemed precipitous. Moreover, it has proved so prejudicial to defendants that an Order of Dismissal is the only appropriate remedy. Indeed, as the record now stands, the only real unfairness that exists in this case now weighs in on the defendants' side. That inequity is so great that it plainly warrants dismissal.
Finally, I cannot avoid commenting upon the extremely suspicious nature of the events in this case. It is still somewhat difficult to accept that Mr. Barakat did not play some part in orchestrating the sudden highly coincidental surgical date to buy additional time for his trial preparation. However, the evidence at this recent hearing does not reveal any such deliberate maneuvering, assuming the Court accepts plaintiff's testimony at face value, which I have done. If plaintiff has chosen to join his attorney by contributing to this complicity through dishonesty, then he has done so at his own peril. And, if he was not made fully aware of the consequences of his decision to participate in such a scheme, then that becomes a matter strictly between him and his counsel, regardless of the existence or non-existence of malpractice coverage. What is most clear is that the defendants should not be required to continue to defend plaintiff's claims under these circumstances.
Conclusion
For all of the foregoing reasons, this case is hereby dismissed with prejudice pursuant to Superior Court Civil Rule 41(b).