The opinion of the court was delivered by: THOMAS RUETER, Magistrate Judge
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.)
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).
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.
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 ...