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HERIAUD v. RYDER TRANSPORTATION SERVICES

September 8, 2005.

THOMAS J. HERIAUD and PAT HERIAUD, Plaintiffs,
v.
RYDER TRANSPORTATION SERVICES, RYDER TRUCK RENTAL, INC., MORGAN CORPORATION, and THE MAXON LIFT CORPORATION, Defendants.



The opinion of the court was delivered by: ARLANDER KEYS, Magistrate Judge

MEMORANDUM OPINION AND ORDER

On December 22, 2000, Thomas Heriaud, who was working at the time as a delivery truck operator, was injured on the job while using the tail gate lift device on a truck leased to his employer by Ryder. Mr. Heriaud sued Ryder, alleging that the lift was defective and that Ryder should therefore be liable for his injuries; he also sued Morgan Corporation and the Maxon Lift Corporation, which are alleged to have been involved in the design, manufacture, and distribution of the lift. Mr. Heriaud's wife joined in the suit, alleging loss of society. The defendants removed the case, and discovery has been limping along, with a relatively high degree of court intervention and monitoring. The case is currently before the Court on a motion for sanctions filed by the defendants. The defendants seek sanctions for the way the Heriauds' attorney, Bradley D. Steinberg, behaved at the May 17, 2005 deposition of the plaintiffs' liability expert, Douglas Morita; they also seek sanctions based upon the way Mr. Morita conducted himself at the deposition. According to the defendants, throughout Mr. Morita's deposition, Mr. Steinberg, made "speaking objections," with the apparent intention of, at times, testifying for Mr. Morita, and, at other times, signaling to Mr. Morita that he should testify (or not testify) in a particular manner. At one point during the deposition, the parties called the Court to seek guidance as to how to proceed, and the Court admonished Mr. Steinberg that his objections were improper and that he should stop making them. He apparently declined to follow the Court's instruction, and, ultimately, the defendants terminated the deposition.

Thereafter, Ryder, Morgan Corporation and Maxon Lift filed separate motions for sanctions. In its motion, Ryder asks the Court to disqualify Mr. Morita from further participation in the case, to censure Mr. Steinberg for his conduct, and to impose a monetary sanction on Mr. Steinberg and the Heriauds to cover the fees and costs Ryder incurred to have its attorneys prepare for and attend the aborted Morita deposition and to prepare the motion for sanctions. Morgan asks the Court to order Mr. Morita's re-deposition; it also seeks sanctions against Mr. Steinberg. Maxon Lift argues that the defendants and the Court have tolerated Mr. Steinberg's conduct for far too long. It asks the Court to bar Mr. Morita from testifying at trial; alternatively, Maxon asks the Court to order plaintiffs and Mr. Steinberg to pay Maxon for the attorneys' fees it incurred in preparing for and attending Mr. Morita's deposition, and to order plaintiffs and Mr. Steinberg to again produce Mr. Morita for deposition, at their expense.

  The defendants seek sanctions under Rules 30 (d) (3) and 37 (b) (2) (E) of the Federal Rules of Civil Procedure. Rule 30 (d) (3) provides that "[i]f the court finds that any impediment, delay, or other conduct has frustrated the fair examination of the dependent, it may impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney's fees incurred by any parties as a result thereof." Rule 37 (b) (2) provides, in relevant part, that:
[i]f a party or an officer, director, or managing agent of a party or a person designated under Rule 30 (b) (6) or 31 (a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (A) of this rule or Rule 35, or if a party fails to obey an order entered under Rule 26(f), the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(E) Where a party has failed to comply with an order under Rule 35(a) requiring that party to produce another for examination, such orders as are listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows that that party is unable to produce such person for examination.
Subsections (A), (B), and (C) allow the Court to order that certain matters are deemed established (subsection A); to bar the disobedient party from supporting or opposing certain claims or defenses or prohibit that party from introducing designated matters into evidence (subsection B); and to strike out pleadings or parts thereof or dismiss the case entirely. Fed.R.Civ.P. 37 (b) (2). Under this rule, the Court can also order the disobedient party to pay the reasonable expenses, including attorney's fees, incurred as a result of the disobedience. Id.
  There is no question in this case that Mr. Steinberg's conduct "frustrated the fair examination of" Mr. Morita. He was hostile from the beginning, and he remained in that posture throughout the deposition. With counsel's third question, Mr. Steinberg was argumentative and combative — for no apparent reason:
[By Mr. Fuoco] Q Were you aware of the need to produce any and all documents to comprise a complete and unabridged case file?
Mr. Steinberg: Well, wait, you submitted a written document list as to what you wanted. And to the best of Mr. Morita's and Polytechnic's ability, those documents you requested were produced. Mr. Fuoco: Brad, are you testifying for Mr. Morita?
Mr. Steinberg: No, I am saying that what it was that was produced was pursuant to a specific request, not your oral one as you phrased it just now.
Transcript of Deposition of Douglas R. Morita, pp. 4-5. After Mr. Steinberg's interruption, counsel asked the same question again and, this time, got an answer:
Q At some point in time did you become aware of the need to produce your complete and unabridged case review material file?
A Yes.
Transcript of Morita Dep., pp. 4-5. Although this is a relatively mundane question and answer, the example is indicative of how Mr. Steinberg's constant interruptions and interjections, which began at the earliest opportunity, impeded the flow and progress of the deposition.
  Mr. Steinberg also interrupted the deposition when counsel marked exhibits. After counsel marked the first exhibit, clearly saying that he was going to mark it as "Group Exhibit A," Mr. Steinberg interjected the following:
Mr. Steinberg: Excuse me. You're going to mark this 1 or A did you say? Which was it?
Mr. Fuoco: A.
Mr. Steinberg: All right. So if I understand then your procedure, you're going to be using an alphabetized form of exhibit identification, is that correct?
Transcript of Morita Dep., pp. 7-8. When counsel stated that he was marking the second exhibit as "Group B," Mr. Steinberg again chimed in:
Mr. Steinberg: For the record, Mr. Fuoco, is it correct that you've identified Morita Group Exhibit B, numbered pages 1 through and including 16, as being reflective of professional services and the time sheet total, is that correct?
Mr. Fuoco: Remember, Brad, I don't answer deposition questions.
Mr. Steinberg: Well, you marked it. I'm asking you to correct it —
Mr. Fuoco: You didn't give me a chance, Brad.
Mr. Steinberg: Go ahead.
Transcript of Morita Dep., pp. 11-12. Again, this is really more annoying than prejudicial; it merely illustrates Mr. Steinberg's attempts to take charge and to impede and slow counsel's questioning of the witness.
  And there are plenty of examples of more prejudicial interjections. To cite just one, when counsel attempted to ask Mr. Morita about his findings concerning the cause of the lift gate's failure — one of the most critical issues in the case — Mr. Steinberg obstructed the dialogue:
Q Okay. Now sudden loading would mean an overload situation? A Yes.
Q Meaning if the capacity of the lift gate is 1600 pounds there was more than 1600 pounds on the lift gate platform, true?
A False.
Q Okay. In a sudden loading situation, we've already established it's an overload, right?
Mr. Steinberg: Excuse me, are you talking now about what he and I discussed or do you now just want to argue with him concerning the fact that there was no evidence of an overload? Which — could you clarify your question? . . . He is attempting to describe, if I understand your question correctly, the fact that there was no overload.
Transcript of Morita Dep., pp. 16-17.
  This prompted counsel for Ryder to admonish Mr. Steinberg "not to narrate" and to limit his comments to evidentiary objections, as required by the federal rules. See Transcript of Morita Dep., pp. 16-17. This, in turn, seemed to prompt Mr. Steinberg to interrupt even more, mostly to ask the court reporter to read a question or an answer back, see, e.g., Transcript of Morita Dep., pp. 21, 22, 24, 35, 37. And it also seemed to escalate his hostility. At page 24 of the transcript, he made a particularly accusatory objection for vagueness: "[t]hat question is so vague and so indefinite as to almost be incomprehensible and probably is incomprehensible. I'm objecting to it. It's vague and incomprehensible." And then, when counsel asked whether, despite the objection, Mr. Morita could answer the question, Mr. Steinberg interjected:
Excuse me, would you just let him answer one question at a time? He is at this time going through his file. Please let him finish doing what he's doing before you put another question.
Transcript of Morita Dep., p. 25. And when counsel noted his intention to mark the interjection as an example of an inappropriate comment, Mr. Steinberg retorted with "[i]f you will permit him to just go through his file before putting another question to him, I believe that would be a less oppressive and annoying way of conducting the deposition." Transcript of Morita Dep., p. 25.

  Mr. Steinberg's conduct at the deposition, appears to have been designed to rile his adversaries, and to suggest answers to Mr. Morita. Counsel for Ryder tried to work around him and tried to ignore him at times, but Mr. Steinberg just kept inserting himself into the proceedings. He interrupted the proceedings, for among other things, to ask whether the attorneys had decided how they intended to divide the seven hours allotted for Mr. Morita's deposition, to ask counsel for Ryder to get some kleenex, and to ask the court reporter what time she officially started the deposition.

  Rule 30 (d) requires that "any objection during a deposition must be stated concisely and in a non-argumentative and non-suggestive manner." Mr. Steinberg repeatedly violated this rule. He did not simply state the basis for his objections and allow the deposition to continue; rather, he consistently inserted himself into the process by giving lengthy soliloquies as to how counsel's performance and questions were lacking, and he refused to be ignored. To cite just one example, after one straight-forward question, Mr. Steinberg objected as follows:
Now, your question, again, there's an ambiguity in it I'd like you to clarify. Are you saying that elements of what you have said, are you asking whether elements have been used by him or are you asking that particular form and format that you're talking about used by him, which do you mean?
By Mr. Fuoco: [to Mr. Morita] Sir, do you understand my question?
Mr. Steinberg: You refuse to clarify the question apparently for the record. And, again, I think this is a violation of the Rule 30 because I have asked him to clarify and the interrogator refuses to clarify.
Transcript of Morita Dep., pp. 49-50. Over the next several questions, Mr. Steinberg continued to press his demand for clarification, despite the fact that the witness seemed not to need any. He interjected:
Now, again, that question is ambiguous. Are you including in this the contracts, are you including the documents that deal with what it was that was undertaken by Ryder in the format? In other words, is that included in your question or are you excluding it? So if you would clarify what you mean, please. Transcript of Morita Dep., pp. 54-55. And then:
What do you mean by all that he's learned? He's got his background and experience. Are you excluding that? Please clarify what you mean by all that he has learned. Clarify it.
Transcript of Morita Dep., p. 56. And then, in case anyone had missed his objections:
On several occasions thus far, okay, I have asked for clarification. In the absence of clarification of this type and form of question is annoying. It is also abusive in the absence of clarifying. And that is the reason why it is that I am asking for clarification so that we can move on with this deposition.
Transcript of Morita Dep., p. 57. Undeterred, after the next question, he interjected:
Excuse me. Again, will you please clarify, are you asking for the basis? Are you asking for the substantive information? Will you please clarify? And in the absence of this, your question is abusive, it's annoying, okay? And it's deliberately ambiguous. Will you please clarify it?
Transcript of Morita Dep., p. 57. Without belaboring the point, the repeated and often lengthy diatribes in search of "clarification" continued — all despite the fact that Mr. Morita, who had already demonstrated that he was perfectly capable of seeking clarification when he needed it, did not seem to be struggling with the questions.

  And Mr. Steinberg's objections and demeanor became increasingly hostile and personal as the deposition proceeded. At one point, Mr. Steinberg objected to a question by telling counsel "you either don't know what you're doing or you are complicating things in such a way as to make the question incomprehensible scientifically." Transcript of Morita Dep., p. 39. Although he said, on the record, that he was doing what he needed to do to preserve objections, it is impossible to imagine that he actually believed his conduct was required, or even appropriate, under the federal rules.

  Mr. Steinberg also used his objections to push his theory that the lift gate was defective. For example, at one point he objected to a question about the original welding on the lift gate by saying: "Again, by this do you mean the actual physical welding as it was being done, counsel, or do you mean the remnants of it? Which do you mean?" Transcript of Morita Dep., pp. 82-83. And when counsel asked Mr. Morita whether he had "made any effort at all to physically compare the Maxon drawings that have been produced in this case to validate and verify that the subject gate was made in accordance with those drawings, Mr. Steinberg interjected "[i]n accordance or nonaccordance, counsel, which way do you mean it?" Transcript of Morita Dep., p. 84. Similarly, when counsel asked Mr. Morita whether he "could personally go out and locate a model RCM Maxon lift gate, take it into your laboratory, get out the design drawings and compare the left cam and stop in terms of how this exemplar lift gate had been manufactured," Mr. Steinberg objected by saying:
Objection. The objection is this, if another vehicle is involved, that might be a proper question. But if you are now taking some other particular vehicle with another type of lift gate, that may or may not have any bearing. And at this point there is a lack of factual basis for your question.
Now, at this point I am asking you to please form your question clearly and please don't use questions that have no basis in the evidence. I object for those reasons.
Transcript of Morita Dep., pp. 85-86.

  And when counsel for Ryder asked Mr. Morita what role corrosion plays in the degradation of a weld, Mr. Steinberg objected on the ground that "[t]his particular form of question is objectionable. It's objectionable because of the fact that it is a misstatement of the particular opinions expressed by Mr. Morita in his report. I object to the form of it for those reasons." Transcript of Morita Dep., p. 91.

  At one point, Mr. Steinberg interrupted the deposition, saying that he wanted to ask Mr. Morita a question; he then engaged in a whispered, off-the-record exchange with Mr. Morita, in which he appears to have tried to refresh Mr. Morita's memory — without any prompting — about some testimony Mr. Heriaud had given at his deposition. See Transcript of Morita Dep., pp. 92-94. This was inappropriate. Additionally, when counsel for Ryder asked Mr. Morita to highlight on a diagram a particular part he was talking about, Mr. Steinberg instructed Mr. Morita not to mark documents unless and until defense counsel agreed that their experts would be permitted to mark drawings when asked to do so. See Transcript of Morita Dep., p. 32. And, based upon Mr. Steinberg's instruction, Mr. Morita refused to highlight the diagram as requested. Id. at 33-34. This was tantamount to an ...


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