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SINGER v. GUCKENHEIMER ENTERPRISES

July 13, 2004.

BARBARA SINGER and STEVEN SINGER, (H/W)
v.
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 PART.

I. BACKGROUND

  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.)

  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 ...


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