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Rorrer v. Cleveland Steel Container Corp.

September 20, 2010


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


Given the unnecessarily combative and overly contentious relationship between counsel throughout the course of this case, it is no surprise that the current issue before the Court pertains to Defendant's submissionfor attorney's fees stemming from our finding at trial that Plaintiff's counsel had engaged in sanctionable discovery violations.*fn1 The facts leading to these sanctions are as follows:

A central issue in this case involved the extent of Plaintiff's mental damages which she alleged were suffered as a result of Defendant's discriminatory conduct. Plaintiff's position was that she was completely incapacitated, and suffered from post-traumatic stress disorder. Defendant acknowledged that Plaintiff was suffering from an array of psychological problems but posited that none were related to its conduct. Both parties hired experts on this issue.

After extensions were granted, the final discovery scheduling order required that Plaintiff's expert report be produced no later than July 31, 2009, and any rebuttal expert report be transmitted no later than September 4, 2009. All expert discovery was to be completed by September 25, 2009.

During the course of discovery, Plaintiff identified Dr. Robert Toborowsky as her expert forensic psychiatrist to testify about her mental condition. Toborowsky met with Plaintiff on December 22, 2008 to conduct an independent medical evaluation ("IME"). Plaintiff subsequently produced Toborowsky's reports on January 22, 2009, March 26, 2009 and August 31, 2009, all within the discovery deadline.

The sequence of events that followed, which resulted in the Court's June 21, 2010 sanction Order, are mostly undisputed. Jury selection commenced on June 11, 2010, and was completed that same day. Sometime during the jury selection process, Plaintiff's counsel, Martha Sperling, approached Defense counsel, Mary Kohart, and her co-counsel, Kathryn Deal, and advised that Dr. Toborowsky desired to meet with and re-examine Plaintiff prior to his upcoming trial testimony. Ms. Sperling asked Defense counsel whether they objected to this re-examination. Not surprisingly, Defense counsel responded that they "absolutely" objected. Indeed, this re-examination would have been entirely impermissible for a variety of reasons, including: 1) Discovery was closed, and thus, the defense would be unable to obtain a report or deposition regarding the results of this reexamination; and 2) Defendant's mental health expert would not be provided with the results of this re-examination nor provided the same opportunity for a follow-up re-examination of Plaintiff. Despite Defense counsel's clear and unequivocal objections, Ms. Sperling never disclosed thatan appointment with Dr. Toborowsky was already scheduled and that she had every intention of ensuring that this re-examination was completed. (Trial Tr., 6/17/20, pp. 106-107, 134-35.)

Testimony was scheduled to begin on Tuesday, June 15, 2010. On Monday, June 14, 2010, Ms. Sperling called Defense counsel to advise that Plaintiff had a doctor's appointment on the following day and therefore would not be the first witness to testify as previously indicated. Again, Ms. Sperling failed to advise Defense counsel that Dr. Toborowsky had already re-examined Plaintiff. Upon learning that Plaintiff had a doctor's appointment, Defense counsel immediately forwarded correspondence to Sperling stating, "out of an abundance of caution, we simply want to reiterate our objections to Plaintiff seeing or consulting with Dr. Toborowsky before his trial testimony." Ms. Sperling did not respond to the letter and remained silent about the re-examination, compounding her initial deception. (Tr. Trans. 6/17/2010, pp. 106, 118, 132; Correspondence of Kathryn Deal to Martha Sperling, 6/15/2010.)

As noted above, despite Defense counsel's continuing clear and unequivocal objection to a re-examination outside of the discovery deadline, Plaintiff had indeed been re-examined by Dr. Toborowsky on June 11, 2010. This information only came to light during Dr. Toborowsky's cross-examination on June 17, 2010, when he was asked about the total length of time he had spent with Plaintiff. Dr. Toborowsky explained that this re-examination was necessary "because after all this time that had gone by, I was interested in how she was doing, and as another source of information about her." (emphasis added). Dr.Toborowsky acknowledged that he met with Plaintiff for about forty-five minutes on Monday, June 11, 2009, where he went through his report and the history he had taken a year-and-a-half prior to see where Plaintiff "stood on those issues." Dr.Toborowsky also met with and interviewed Plaintiff's husband to inquire about Plaintiff's mental state. He testified that the meetings "tended to reinforce opinions that I had independently arrived at before." Notes were taken during the meeting, which Dr. Toborowsky described as "scribbles." Despite having received a subpoena requiring him to preserve and bring his entire file to court, Dr. Toborowsky testified that these notes were destroyed. (Trial Tr., 6/17/10, pp. 94-104, 136-44, 242-44.)

Out of the presence of the jury, Ms. Sperling was asked to explain why she never disclosed the re-examination to Defense counsel:

THE COURT: Did you tell defense counsel that your expert had another meeting, which he's now saying reinforces his opinions?

Did you tell them that?


Upon further inquiry, Ms. Sperling seemed to change course:

THE COURT: Wait. I want to understand. You called her said that He wanted to meet with her again, and Mrs. Kohart said, no, I object. And then, he went ahead and did it anyway, obviously, because he's testified to that. Did you advise Ms. Kohart that ...

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