United States District Court, E.D. Pennsylvania
July 13, 2004.
BARBARA SINGER and STEVEN SINGER, (H/W)
GUCKENHEIMER ENTERPRISES, INC.
The opinion of the court was delivered by: THOMAS RUETER, Magistrate Judge
MEMORANDUM OF DECISION
This is a routine slip and fall personal injury case. This
simple case has been transformed into an acrimonious battle
between two lawyers representing each of the parties in this
lawsuit. Plaintiffs' counsel has accused defense counsel of
intimidating an important witness in plaintiffs' case and with
influencing an expert witness to change certain language of his
expert report. Plaintiffs now seek to amend the complaint to add
a new cause of action based on defense counsel's actions.
Defendant has returned the salvo and asserts that plaintiffs'
counsel's allegations violated Fed.R.Civ.P. 11 and requests
that sanctions be imposed by the court. Before the court is
plaintiffs' Motion to Amend the Complaint*fn1 (Doc. No.
17),*fn2 and defendant's response in opposition thereto (Doc. No. 18.)
Plaintiffs also filed a Surreply. (Doc. No. 20.) For the reasons
stated below, plaintiffs' motion is GRANTED IN PART and DENIED IN
This matter arises from an incident which occurred on September
7, 2001. Plaintiff Barbara Singer alleges she was injured on that
date when she slipped and fell due to water and ice which had
accumulated on the floor of defendant's cafeteria. (Pls.' Br. at
1.) According to plaintiffs, during the pre-trial discovery phase
of this case, they identified a fact witness, Ms. Jocelyn Wright,
from whom they obtained statements concerning her observations
regarding the incident. The identity of Ms. Wright, along with
her address, were made known to defense counsel. (Pls.' Mot. to
Amend at 2.) Subsequently, Ms. Wright's deposition was scheduled
for December 15, 2003, at the offices of Deutsch, Larrimore,
Farnish & Andersson, L.L.P. Ms. Wright did not appear for this
deposition.*fn3 Her deposition was rescheduled for January
According to plaintiffs, on January 12, 2004 the following
individuals appeared at the deposition: Mr. Lou Vassil, an
adjuster from defendant's insurance company; Mr. David J. Budka,
a detective with the Philadelphia District Attorney's Office; and
a videographer. (Pls.' Mot. to Amend at 2-3.) Ms. Wright did not
appear for this deposition. Plaintiffs maintain that the presence
of the aforementioned individuals was an intentional attempt to injure the plaintiffs'
case via intimidatory and unprofessional tactics
meant either to keep this witness from testifying at
all or to tamper with the fact witness' ability to
testify by causing surprise, confusion and
unannounced pressure immediately preceding the
discovery deposition in a context where it was
certainly anticipated that the testimony would have
been favorable to plaintiffs' case in chief.
Id. at 3-4. According to plaintiffs, on January 19, 2004
plaintiffs' counsel contacted Ms. Wright by telephone to advise
that her deposition had been rescheduled for January 21, 2004.
Plaintiffs' counsel asserts that during this conversation, Ms.
Wright informed him that a man who identified himself as a
detective had telephoned her at home and "had actually threatened
to have her `locked up' on welfare fraud charges if she testified
for plaintiff herein, Barbara Singer."*fn4 Id. at 5.
Finally, plaintiffs allege that defense counsel, Evelyn Devine,
Esquire, "tampered" with the report of Dr. Close, defendant's
expert on plaintiff's medical condition. (Pls.' Br. at 13.)
Plaintiffs maintain that during the deposition of Dr. Close, it
"became obvious that his expert report had been materially
changed." Id. Upon review of the file of Dr. Close, plaintiffs
discovered a draft report which indicated that "I [Dr. Close]
cannot refute Dr. Bruno's opinion." Id. Dr. Bruno is a
physician who treated Mrs. Singer. Plaintiffs assert that this
statement about Dr. Bruno does not appear in the final report of
Dr. Close, and handwritten notes on the draft report indicate the
following: "Atty. Devine wants to know if this can be removed."
Id. Next to this statement were the letters, "OK." Id.; Pls.'
Mot. to Amend, Ex. "C." Accordingly, plaintiffs seek to depose
Ms. Devine to determine the "process through which the expert
report was changed." (Pls.' Br. at 13-14.) Plaintiffs assert that the
"outrageous misbehavior" of defendant and its counsel warrants an
award of punitive damages. Thus, plaintiffs seek to file an
amended complaint, alleging a violation of 42 U.S.C. § 1985(2),
and a claim for punitive damages. (Pls.' Br. at 14-15.)
II. LEGAL STANDARD
A. Motion to Amend the Complaint
Federal Rule of Civil Procedure 15(a) states in relevant part:
"[A] party may amend the party's pleading only by leave of court
or by written consent of the adverse party; and so leave shall be
freely given when justice so requires." Fed.R.Civ.P. 15(a). A
district court has the discretion to deny a party's request for
leave to amend a complaint "if it is apparent from the record
that (1) the moving party has demonstrated undue delay, bad faith
or dilatory motives; (2) the amendment would be futile; or (3)
the amendment would prejudice the other party." Lake v. Arnold,
232 F.3d 360, 373 (3d Cir. 2000) (citing Foman v. Davis,
371 U.S. 178, 182 (1962)). Moreover, the Third Circuit has recognized
the "strong liberality . . . in allowing amendments under
Rule 15(a)." Bechtel v. Robinson, 886 F.2d 644, 652 (3d Cir. 1989).
B. 42 U.S.C. § 1985(2)
The relevant language of 42 U.S.C. § 1985(2) provides that an
action for damages may be brought:
If two or more persons in any State or Territory
conspire to deter, by force, intimidation or threat,
any party or witness in any court of the United
States from attending such court, or from testifying
to any matter pending therein, freely, fully, and
truthfully, or to injure such party or witness in his
person or property on account of his having so
attended or testified.
Section 1985 was enacted following the Civil War, and the
legislative history of the statute "bespeak[s] a Congressional intent to insulate witnesses, parties
and grand or petit jurors from conspiracies to pressure or
intimidate them in the performance of their duties, and an intent
to guard against conspiracies the object of which is to deny
citizens the equal protection of the laws." Brawer v. Horowitz,
535 F.2d 830
, 839 (3d Cir. 1976). As the Third Circuit explained,
the section is concerned with "conspiratorial conduct that
directly affects or seeks to affect parties, witnesses or grand
or petit jurors." Id. at 840.
C. Punitive Damages
Punitive damages are damages other than compensatory or
nominal, awarded against a tortfeasor to punish him for
outrageous conduct and to deter him and others like him from
similar conduct. In re: TMI, 67 F.3d 1119, 1124 (3d Cir. 1995)
(applying Pennsylvania law), cert. denied, 517 U.S. 1163
(1996). Punitive damages are available for a violation of Section
1985(2). Irizarry v. Quiros, 722 F.2d 869, 972 (1st Cir. 1983).
See also Smith v. Wade, 461 U.S. 30, 56 (1983) (In a civil
rights case, punitive damages may be awarded "when the
defendant's conduct is shown to be motivated by evil motive or
intent, or when it involves reckless or callous indifference to
the federally protected rights of others.").
A motion to amend a complaint should be granted unless there
was "undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, [and] futility of
amendment." Foman v. Davis, 371 U.S. at 182. In the case sub
judice, defendant has not alleged dilatoriness on the part of
plaintiffs, nor has defendant asserted that granting plaintiffs'
motion to amend would cause undue prejudice. Rather, defendant
avers that plaintiffs' Section 1985(2) and punitive damage claims are
futile. With respect to the 1985(2) claim, defendant maintains
that even assuming arguendo defense counsel contacted the
Philadelphia District Attorney's Office to notify authorities of
Ms. Wright's whereabouts, such communication would be
privileged.*fn5 (Def.'s Rep. at 4-8.) Accordingly, defendant
contends that plaintiffs have "no claim pursuant to § 1985(2)."
Id. at 8.
A court may deny a motion to amend a complaint on the grounds
that the amendment would be futile. To assess futility, a court
"applies the same standard of legal sufficiency as applies under
Rule 12(b)(6)." In re Burlington Coat Factory, 114 F.3d 1410,
1434 (3d Cir. 1997). Therefore, in deciding whether an amendment
is futile, a court must take all well-pleaded facts in the
complaint as true and view them in the light most favorable to
the plaintiffs. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
On the other hand, leave to file an amendment should be denied if
"it is clear that no relief could be granted under any set of
facts that could be proved consistent with the allegations."
Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).
A. Plaintiffs' Section 1985(2) Claim
This court interprets plaintiffs' motion to amend the complaint
regarding their 1985(2) claim to be a two-pronged request. First, plaintiffs
allege that in an effort to intimidate plaintiffs' witness,
Jocelyn Wright, defendant contacted the office of the
Philadelphia District Attorney and notified a representative from
that office that Ms. Wright, a witness with an outstanding bench
warrant, would appear for a scheduled deposition for January 12,
2004.*fn6 (Pls.' Mot. to Amend at 2-5.) For the reasons set
forth below, the court finds that even assuming this allegation
were true, this prong of plaintiffs' 1985(2) claim would fail
since such an action is privileged and Attorney Devine is
therefore excused from tortious liability. The mere fact that
Attorney Divine may have contacted the District Attorney's Office
as to the whereabouts of Ms. Wright does not constitute an
"Privilege is the modern term applied to those considerations
which avoid liability where it might otherwise follow." W.
Prosser and W. Keeton, Law of Torts, § 16 at 109 (5th ed.
1984). Privilege is used to excuse a tort, because it signifies
that a defendant has acted to further an interest of "such social
importance that it is entitled to protection, even at the expense
of damage to the plaintiff." Id. Actions of a defendant, which
otherwise might form the basis of liability, are excused because
the interests of society will be better served by allowing such
It has long been recognized that there is an important societal
interest in reporting crimes. See In re: Quarles and Butler,
158 U.S. 532, 535 (1895) ("It is the duty . . . of every citizen to assist in prosecuting, and in securing the punishment
of, any breach of the peace of the United States."). Indeed,
citizens are often called upon to assist authorities in their
efforts to combat criminal behavior. As Justice Cardozo
explained, "[s]till, as in the days of Edward I, the citizenry
may be called upon to enforce the justice of the state, not
faintly and with lagging steps, but honestly and bravely and with
whatever implements and facilities are convenient and at hand"
Babington v. Yellow Taxi Corp., 250 N.Y. 14, 17 (1928). The
Supreme Court of the United States has held that a private
citizen has a duty to provide assistance to law enforcement
officials when it is required. United States v. New York Tel.
Co., 434 U.S. 159, 175 n. 24 (1977). See also Roviaro v.
United States, 353 U.S. 53, 59 (1957) ("The [informer's]
privilege recognizes the obligation of citizens to communicate
their knowledge of the commission of crimes to lawenforcement
officials."). Similarly, the Restatement (Second) of Torts
explains that "[t]he interest of society in the apprehension of
offenders and in the investigation of crime makes it the duty of
all persons, upon request, to assist a peace officer in making an
arrest, unless there is no doubt that the arrest is unprivileged
and tortious." Comment on Subsection (2), Restatement (Second) of
Torts § 139 (1965).
Moreover, the Supreme Court of Pennsylvania also has held that
the attorneyclient privilege did not preclude an attorney from
disclosing the whereabouts of her fugitive client. Supreme Court
of Pennsylvania v. Maguigan, 511 A.2d 1327, 1337-38 (Pa. 1986).
In that case, the court reasoned that it had a right and
obligation to ascertain certain information which may lead to the
determination of the location of a criminal defendant who failed
to appear for trial. Thus, even the attorney-client privilege
yields to society's interest in the apprehension of criminals.
Finally, Pennsylvania Rule of Professional Conduct 3.6(c) permits
an attorney to "state without elaboration . . . (2) the information contained in
a public record." Although the rule is primarily concerned with
trial publicity, the rule provides that it is appropriate for an
attorney to discuss information contained in a public record. At
worst, Attorney Devine merely reported information contained in a
public record, i.e., the outstanding bench warrant, to the
authorities. See Def's. Rep., Ex. D. Accordingly, this court
finds that there was nothing improper about Attorney Devine
reporting to the authorities that Ms. Wright, an individual with
an outstanding bench warrant, would be attending a deposition on
a date certain, since such communication was privileged.
Plaintiffs' second allegation is that defendant conspired with
a representative from the Philadelphia District Attorney's Office
in an effort to intimidate and/or harass witness Wright. (Pls.'
Br. at 12-13.) The court finds this allegation troubling. An
affidavit submitted under penalty of perjury by Ms. Wright
indicates that during the weekend of January 17-18th, 2004, she
received a telephone call from an individual who identified
himself as a detective working in the Philadelphia District
Attorney's Office. According to the affidavit, the detective
informed Ms. Wright that he would "lock [her] up if she testified
on behalf of Barbara Singer. He said that if I testified that I
would be prosecuted for welfare fraud." (Pls.' Mot. to Amend, Ex.
A.) This statement, if made at the behest of defendant and/or
defense counsel, would establish plaintiffs' claim under Section
1985(2). See Heffernan v. Hunter, 189 F.3d 405, 409-11 (3d
Cir. 1999) (holding that filing a frivolous lawsuit to intimidate
and affect an individual's attendance and testimony as a witness
was enough to assert a 1985(2) claim); Chahal v. Paine Weber,
725 F.2d 20, 25 (2nd Cir. 1984) (statements made to potential
witness in a lawsuit to dissuade him from testifying sufficient to withstand motion for
summary judgment).*fn7 A genuine issue of material fact
exists regarding whether Detective Budka or a representative from
the District Attorney's Office, acting in concert with defendant
and/or defense counsel, attempted to threaten, harass or
intimidate Ms. Wright in an effort to dissuade her from
testifying on behalf of plaintiffs in this case. Therefore,
plaintiffs are entitled to extend the discovery deadline in order
to obtain the deposition testimony of Detective Budka and Mr.
Vassil with respect to any communication these individuals had
with Ms. Wright and Attorney Devine.
Plaintiffs also seek to depose Attorney Devine in order to
ascertain what role, if any, she played in notifying the District
Attorney's Office as to Ms. Wright's whereabouts,*fn8 or any
effort Ms. Devine may have made to intimidate Ms. Wright. (Pls.'
Br. at 13.) This court is reluctant to grant plaintiffs' request
to take the deposition of Attorney Devine. Although the Federal Rules of Civil Procedure do not expressly prohibit a
deposition by a party of another party's attorney,*fn9
"[m]any courts have found that it is appropriate to grant such an
order to prevent the deposition of a party's attorney . . .
unless . . . the information sought is relevant, nonprivileged
and critical to the preparation of the case and that there is no
other way to obtain the information." Slater v. Liberty Mut.
Ins. Co., 1999 WL 46580, at *1 (E.D. Pa. Jan. 14, 1999)
(citations omitted). During the deposition of Messrs. Budka and
Vassil, plaintiffs' counsel can ascertain how Detective Budka
learned that Ms. Wright was scheduled for deposition on January
12, 2004, and whether Detective Budka was instructed to contact
Ms. Wright at the behest of defendant and/or defense counsel
subsequent to the scheduled deposition. Since an alternative way
exists to discover such information, this court will deny
plaintiffs' request to depose Attorney Devine until the
depositions of Messrs. Budka and Vassil are completed. At that
time, plaintiffs may request the court's permission to depose
Attorney Devine if such discovery is warranted by the outcome of
the deposition testimony of Messrs. Budka and Vassil.
For the foregoing reasons, this court grants plaintiffs' Motion
to Amend the Complaint and Extend the Discovery Deadline to the
extent that plaintiffs seek to investigate the alleged
intimidation and/or harassment of Ms. Wright. Plaintiffs are
hereby permitted to take the deposition testimony of Detective
Budka and Mr. Vassil on or before August 13, 2004. Plaintiffs'
motion also is granted to the extent they seek to amend their
Complaint to add a claim under Section 1985(2). Plaintiffs may
add such a claim, and also seek punitive damages based on that
claim, and request additional discovery based upon the punitive
damages claim. B. Report of Dr. Close
As noted above, plaintiffs also seek to depose Attorney Devine
in an effort to ascertain the process through which the expert
report of Dr. Close was altered so as to support their claim for
punitive damages. Plaintiffs allege that Dr. Close "was directly
asked by defense counsel to alter a material fact in his initial
expert report by concealing the fact that he could not disagree
with the conclusions of plaintiffs' expert, Dr. Bruno, on an
important issue in this case." (Pls.' Br. at 14.) This court
finds that the actions of Attorney Devine do not constitute
outrageous conduct justifying punitive damages.
Fed.R.Civ.P. 26(a)(2)(B) permits counsel to assist in the
preparation of expert reports. As indicated in the Advisory
Committee note for Rule 26(a)(2)(B), the rule "does not preclude
counsel from providing assistance to experts in preparing the
reports, and indeed . . . assistance may be needed." As one court
acknowledged, "the expert witness more likely preoccupies himself
with his profession or field of expertise" and has "little
appreciation for the requirements of Rule 26" or the legal
significance of his choice of words. Marek v. Moore,
171 F.R.D. 298, 301 (D. Kan. 1997). See also Clintec Nutrition Co. v.
Baxa Corp., 1998 WL 560284, at *6 (N.D. Ill. Aug. 26, 1998)
(declining to exclude report despite expert's admission that he
did not prepare the first draft of his report and that he
prepared it with counsel's assistance). However, an expert report
should set forth the substance of direct examination, and should
reflect the testimony to be given by the witness. Marek,
171 F.R.D. at 300-01. This court finds that the request by defense
counsel to remove the phrase "I cannot refute Dr. Bruno's
opinion" did not alter the substance of Dr. Close's report, and
does not preclude the report from qualifying as one "prepared
. . . by the witness, within the meaning of Rule 26(a)(2)(B)."
Id. The deletion of the language did not change Dr. Close's opinions
and the "basis and reasons therefor." Fed.R.Civ.P.
26(a)(2)(A).*fn10 Furthermore, a deposition of Attorney
Devine is not critical, since an explanation of why Dr. Close
deleted the language is readily ascertainable during plaintiffs'
cross-examination of the expert. See Marek, 171 F.R.D. at 302
("Effective cross-examination serves to expose inconsistencies of
importance. It may also develop the extent to which an [expert]
witness has been influenced by counsel to make changes in what he
C. Defendant's Request for Rule 11 Sanctions
In its Reply to Plaintiffs' Motion to Amend the Complaint,
defendant implies that plaintiffs' filing of the motion
constituted "a frivolous action pursuant to Federal Rule of Civil
Procedure 11." (Def.'s Rep. at 4.) Plaintiffs object to the
imposition of sanctions, and rely, inter alia, upon
defendant's failure to properly seek such sanctions. Fed.R. Civ.
P. 11 provides in relevant part:
[t]he signature of an attorney or party constitutes a
certificate by the signer that the signer has read
the pleading, motion or other paper; that to the best
of the signer's knowledge, information, and belief
formed after reasonable inquiry it is well grounded
in fact and is warranted by existing law or a good
faith argument for the extension, modification, or
reversal of existing law, and that it is not
interposed for any improper purpose, such as to
harass or to cause unnecessary delay or needless
increase in the cost of litigation. . . . If a
pleading, motion or other paper is signed in violation of this rule, the court, upon
motion or upon its own initiative, shall impose upon
the person who signed it, a represented party, or
both, an appropriate sanction, which may include an
order to pay to the other party or parties the amount
of the reasonable expenses incurred because of the
filing of the pleading, motion, or other paper,
including a reasonable attorney's fee.
Rule 11 sanctions may be imposed only when an attorney has
signed and filed papers without conducting "a reasonable
investigation of the facts and a normally competent level of
legal research to support the presentation." Mary Ann Pensiero,
Inc. v. Lingle, 847 F.2d 90
, 94 (3d Cir. 1988). To determine
compliance with the rule, the court shall apply an objective
standard of reasonableness under the circumstances. Lieb v.
Topstone Indus., Inc., 788 F.2d 151
, 157 (3d Cir. 1986).
Rule 11 sanctions should be applied only in "exceptional circumstances."
Gaiardo v. Ethyl Corp., 835 F.2d 479
, 483 (3d Cir. 1987). Such
circumstances are not present in this case. Plaintiffs have
raised a genuine issue of material fact as to the alleged
harassment of plaintiffs' witness, Jocelyn Wright. As stated
above, this court granted plaintiffs' request to extend the
discovery deadline to investigate what role, if any, defendant
and/or defense counsel played in this alleged harassment. Only
after completion of that discovery may plaintiffs file an amended
Likewise, the court cannot say that
counsel's raising the issue of Dr. Close's expert report is
without any basis. Accordingly, defendant's motion for
Rule 11 sanctions is denied.
For all of the foregoing reasons, plaintiffs' motion to amend
the complaint is GRANTED IN PART and DENIED IN PART. Plaintiffs
may amend their complaint to include a 42 U.S.C. § 1985(2) claim, as well as a claim for punitive
damages. The request to add a claim for punitive damages based on
Dr. Close's report is DENIED. The amended complaint shall be
filed on or before September 7, 2004. Defendant's response to the
amended complaint shall be filed on or before September 21, 2004.
The discovery deadline is extended to allow plaintiffs to
schedule the depositions of Messrs. Vassil and Budka on or before
August 13, 2004. Plaintiffs must seek leave of court to depose
Attorney Devine after said depositions, if the evidence so
AND NOW, this 13th day of July, 2004, upon consideration of
Plaintiffs' Motion to Amend the Complaint, (Doc. No. 17),
Defendant's Response thereto (Doc. No. 18), and Plaintiffs'
Surreply, (Doc. No. 20), it is hereby
that plaintiffs' motion is GRANTED in PART and DENIED in PART.
Plaintiffs shall file their amended complaint in accordance with
the memorandum of opinion issued on this date, on or before
September 7, 2004. Defendant shall file an answer to the amended
complaint no later than September 21, 2004. The discovery
deadline is extended until August 13, 2004 to allow plaintiffs to
depose Messrs. Vassil and Budka.