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United States District Court, E.D. Pennsylvania

July 13, 2004.


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 PART.


  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 12, 2004.

  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).

  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 actionable offense.

  "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 actions.

  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 says.").

  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 complaint.*fn11 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 warrants. ORDER

  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.

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