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Ferguson v. Valero Energy Corp.

May 27, 2010

KENNETH L. FERGUSON, ET AL.
v.
VALERO ENERGY CORP., ET AL.



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

This wrongful death and survivorship action arises out of the death of a worker at the Delaware City Refinery ("DCR"). The plaintiffs filed this action in February 2006, and the Court began a jury trial in February 2010. On the third day of trial, the Court granted the defendants' unopposed request for a mistrial based upon the conduct of the plaintiffs' counsel, Wayne A. Schaible, who violated several of the Court's prior orders and rulings, resulting in prejudice to the defendants.

The defendants bring a motion for sanctions against Mr. Schaible and his law firm, McCann, Schaible & Wall, LLC, for Mr. Schaible's trial conduct. The defendants request that: (1) Mr. Schaible and his firm pay the defendants' attorneys' fees and costs, (2) Mr. Schaible and his firm pay the Court's costs in preparing for and conducting two days of trial, and (3) Mr. Schaible be disqualified from representing the plaintiffs in any further proceedings in this matter.

The Court will grant in part and deny in part the defendants' motion. The Court grants the defendants' request that Mr. Schaible and his firm pay sanctions in the form of the defendants' attorneys' fees, costs and expenses associated with trial and with the filing of the instant motion. The Court denies the defendants' request for sanctions for the Court's costs and expenses.

The Court also denies as moot the defendants' request for sanctions in the form of disqualification of Mr. Schaible. The plaintiffs have represented that Mr. Schaible will not take part in the upcoming trial of this case, with the exception of previously recorded videotape testimony. This result will adequately protect the defendants' interests. The Court finds that disqualification is not necessary and would work a hardship on the plaintiffs.

I. Pretrial Proceedings

This case concerns the death of twenty-nine-year-old boilermaker John Jerry Ferguson, Jr. Mr. Ferguson died in an accident at the DCR, in Delaware City, Delaware, on the night of November 5, 2005. At the time, the DCR was conducting a turnaround, an activity in which areas of the refinery are shut down for maintenance. Mr. Ferguson died of nitrogen asphyxiation while working on one of the refinery's reactors in connection with the turnaround.

Mr. Ferguson was survived by two brothers, Kenneth and Michael Ferguson, and his father, John Jerry Ferguson, Sr. His brother Kenneth Ferguson brings claims under the Delaware Survivor's Act, 10 Del. Code § 3701, as administrator of his brother's estate and on behalf of any statutory beneficiaries. His father brings claims under the Delaware Wrongful Death Act, 10 Del. Code § 3724, in his own right and as the primary beneficiary under the statute.*fn1

The defendants are Valero Energy Corporation ("Valero") and Premcor Refining Group, Inc. ("Premcor"). Premcor owned and operated the DCR. Valero merged with Premcor in September 2005, approximately two months prior to Mr. Ferguson's death.

A. Prior Sanctions

The Court has sanctioned Mr. Schaible for his conduct in this litigation once before. During discovery, the defendants submitted a letter to the Court raising concerns that Mr. Schaible was harassing deposition witnesses. They stated that Mr. Schaible's conduct included clapping at a witness during the witness's testimony and asking fact witnesses opinion questions and questions on subjects and documents outside of their personal knowledge.

During an on-the-record telephone conference held on March 19, 2007, the Court discussed Mr. Schaible's behavior with counsel for both parties. The Court first addressed Mr. Schaible's clapping at a witness during the witness's deposition, a DVD recording of which had been provided to the Court prior to the call. The Court stated that such behavior was "obviously inappropriate" and told Mr. Schaible that it assumed that he "lost track of what [he was] doing . . . and that won't happen again." Transcript of Telephone Conference March 17, 2007, at 5:3-7. Mr. Schaible agreed and apologized to the Court and counsel.

The Court then discussed Mr. Schaible's inappropriate questioning of fact witnesses. This included asking a non-medical witness his opinion on autopsy photographs, asking witnesses about letters and press releases that they had neither drafted nor seen before their depositions, and asking non-executive employees questions about Valero's corporate profits and corporate charitable spending. When the defendants' counsel stated that Mr. Schaible's conduct was "improper opinion questioning from beginning to end," the Court agreed, stating that "it sounds that way to me, Mr. Schaible. I truly don't know what is going on here. If these are fact witnesses, you ask them about facts." Id. at 10:19-23.

After Mr. Schaible was unable to articulate an adequate basis for his questions, the Court directed Mr. Schaible to refrain from such conduct in future depositions. Finding Mr. Schaible's questioning to be improper, harassing, and a waste of time, the Court stated that it was "very disappointed" and warned that it did not "want to see anything more like this again." Id. at 18:2-3. The Court, however, did not sanction Mr. Schaible at that time.

On April 20, 2007, the plaintiffs deposed refinery foreman Tom Fitzpatrick. Despite the Court's direct instructions, Mr. Schaible asked Mr. Fitzpatrick pages of questions about topics about which the witness had no personal knowledge, including the exact topics the Court addressed in the earlier conference call. Counsel also asked numerous improper opinion questions. The defendants' memorandum in support of its motion for sanctions contained ten pages of excerpts from the deposition that demonstrated the improper questioning. Mr. Schaible's conduct was harassing and wasteful of everyone's time. The defendants moved for sanctions pursuant to Rule 30(d)(3) of the Federal Rules of Civil Procedure.

In an Order dated July 17, 2007, the Court agreed that Mr. Schaible had violated its orders and granted the defendants' motion for sanctions. The Court stated that it was very surprised by the conduct of Mr. Schaible at the deposition of Mr. Fitzpatrick. This questioning was almost identical to the questioning that was the subject of an earlier motion and an on-the-record telephone conversation with counsel. At that time, the Court sustained objections to the areas of questioning set forth in the defendants' motion and ordered Mr. Schaible in no uncertain terms not to repeat that conduct. Mr. Schaible assured the Court that he would not.

Order of July 13, 2007 (Docket No. 83). Although the Court explained that it "resists [sanctioning lawyers] as much as it can, as is evidenced by the fact that it did not sanction Mr. Schaible for the earlier harassment of witnesses," it "cannot see its orders disobeyed in this way." Id. The Court reiterated that "[t]here is nothing legitimate to be gained from asking these kinds of questions." Id.

B. The Court's Rulings on Motions in Limine

In the weeks leading up to trial, the parties submitted extensive motions in limine. The plaintiffs filed a motion in limine (Docket No. 271) that asked the Court to preclude the defendants from offering evidence at trial on three different issues. The defendants filed two motions in limine: (1) a motion in limine to admit certain evidence at trial (Docket No. 272), and (2) a motion in limine to exclude certain evidence at trial (Docket No. 273). The Court heard argument and ruled on the plaintiffs' motion in limine to preclude evidence and the defendants' motion in limine to admit certain evidence on-the-record during the final pretrial hearing held on January 29, 2010.

In their motion in limine to exclude evidence, the defendants asked the Court to exclude evidence on 51 separate issues. The Court decided the defendants' motion over the course of several Orders, dated ...


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