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Fuller v. Borough of Wyoming

United States District Court, M.D. Pennsylvania

September 21, 2017

BOROUGH OF WYOMING, et al., Defendants.



         I. Introduction and Procedural History

         In this action, Michael Fuller ("Plaintiff'), a former police sergeant for the Borough of Wyoming, claims that the Borough and Mayor Robert Boyer (collectively "Defendants"), retaliated against him for engaging in protected speech. Specifically, Plaintiffs Second Amended Complaint, (Doc. 21), brings two First Amendment retaliation claims pursuant to 42 U.S.C. § 1983 which allege that Defendants suspended Plaintiff and took other adverse employment action against him in retaliation for Plaintiff (1) reporting Defendant Boyer's girlfriend's misconduct to the Pennsylvania State Police (Count I), and (2) filing the present lawsuit (Count II). Presently before the Court is Defendants' Motion for Summary Judgment. (Doc. 40). For the reasons that follow, the Court will grant in part and deny in part Defendants' Motion.

         II. Statement of Undisputed Facts

         Before delving into the facts of this case, the Court is forced to deal with a preliminary issue. Rule 611 of the Federal Rules of Evidence provides that "[l]eading questions should not be used on direct examination except as necessary to develop the witness's testimony." Fed.R.Evid. 611 (c). Rule 30 of the Federal Rules of Civil Procedure provides that "[t]he examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615." Fed.R.Civ.P. 30(c)(1). Rule 30 also states, "[t]he court may impose an appropriate sanction-including the reasonable expenses and attorney's fees incurred by any party-on a person who impedes, delays, or frustrates the fair examination of the deponent." Fed.R.Civ.P. 30(d)(2).

         The Third Circuit has stated that "it is generally improper for [an] attorney to employ leading questions" when "pos[ing] questions to a friendly witness during a direct examination." Jarbough v. Attorney Gen., 483 F.3d 184, 192 (3d Cir. 2007) (citing Fed.R.Evid. 611(c)).

Leading questions are undesirable in this context because of their suggestive power. The "search for the truth, " Nix v. Whiteside, 475 U.S. 157, 171, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986), in our adjudicatory system is best served when the finder of fact considers the testimony of the friendly witness based upon his or her recollection, not the testimony of counsel calling the witness. Suggesting answers to the friendly witness may "supply a false memory for the witness-that is, to suggest desired answers not in truth based upon real recollection." 3 John Henry Wigmore, Evidence § 769, at 154 (Chadbourne Rev. 1970). See Hail v. Clifton Precision, 150 F.R.D. 525, 531 (E.D. Pa. 1993) ("It should go without saying that lawyers are strictly prohibited from making any comments, either on or off the record, which might suggest or limit a witness's answer to an unobjectionable question.").

Id. at 192-93.

         The Hall decision, cited by the Jarbough court above, involved an attorney who sought to confer with his client while the client was being deposed and to take recesses for such conferences to occur. Hall, 150 F.R.D. at 526. The court held that these practices-as well as the practice of interposing objections that "suggest or limit a witness's answer to an unobjectionable question"-were inappropriate and abused the deposition process. See Id. at 530-31. The court observed,

The underlying purpose of a deposition is to find out what a witness saw, heard, or did-what the witness thinks. A deposition is meant to be a question-and-answer conversation between the deposing lawyer and the witness. There is no proper need for the witness's own lawyer to act as an[ intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness to formulate answers. The witness comes to the deposition to testify, not to indulge in a parody of Charlie McCarthy, with lawyers coaching or bending the witness's words to mold a legally convenient record. It is the witness-not the lawyer-who is the witness. As an advocate, the lawyer is free to frame those facts in a manner favorable to the client, and also to make favorable and creative arguments of law. But the lawyer is not entitled to be creative with the facts. Rather, a lawyer must accept the facts as they develop.

Id. at 528 (footnote omitted) (emphasis added).

         Turning to the case at hand, the following exchange took place between Plaintiff and his Counsel at Plaintiff's deposition:

         BY MS. POLLICK:

Q And let's go through your complaint. If you could go to Defendant's 2 page 3, and if you could read starting at page 11.
. . .
Q Go to page three and if you could start reading at page 11 and then if you could after each allegation say if that is true or not.
MR. McDONOUGH: Paragraph 11-
MS. POLLICK: Paragraph.
MR. McDONOUGH: -1 think you meant to say.

         BY MS. POLLICK:

Q So, 11.
A Eleven: On or about August 7, 2015, plaintiff reported official misconduct related to Defendant Boyer's girlfriend who was also defendant borough of borough manager.
Q So can you attest if that's true or false?
A True.
Q Number 12?
A Number 12: Plaintiff reported that Boyer's girlfriend may have committed wrongdoing/crime by fixing a bid to the Pennsylvania State Police and the Federal Bureau of Investigation, FBI, which are both outside of the plaintiff's chain of command. The plaintiff specifically spoke with Pennsylvania State Trooper Bill Schutter and an unknown or a name unknown FBI agent.
Q True or false?
A True. Thirteen: Plaintiff was acting as a citizen when he went outside the chain of his command and reported official misconduct with Boyer's girlfriend to the Pennsylvania State Police and FBI.
Q True or false?
MR. McDONOUGH: Object to the form.
MR. JENNINGS: Objection.
MR. McDONOUGH: Calls for a legal conclusion.

         BY MS. POLLICK:

Q You can answer the question.
A True.

(Dep. of Michael Fuller, Doc. 42-1 at 95-97). Much of Plaintiffs counsel's questions proceeded in this manner. For example:

         BY MS. POLLICK:

Q Then I'm going to skip a couple and then go to 44.
A Forty-four: But for engaging in protective activities and seeking access to The Courts, Plaintiff Fuller has been subjected to even more retaliatory acts which shows ...

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