United States District Court, M.D. Pennsylvania
EDWARD RUEHL, Individually and as Administrator of the Estate of Shirley T. Ruehl, deceased, Plaintiff
S.N.M. ENTERPRISES, INC., Defendant
C. CARLSON UNITED STATES MAGISTRATE JUDGE.
write a final, melancholy chapter in this lawsuit as we
conclude sanctions litigation relating to the Plaintiffs'
expert witness, Michael Panish. The background of these
sanctions proceedings were thoroughly outlined by the court
in its prior decision finding that Panish engaged in
sanctionable misconduct. Ruehl v. S.N.M. Enterprises,
Inc., No. 1:15-CV-168, 2017 WL 5749560, (M.D. Pa. Nov.
28, 2017). Briefly, though, Panish was retained as a critical
liability expert by the Ruehl family following a mishap at a
motel in which Mrs. Ruehl, an elderly motel patron was
allegedly struck by a sliding door, suffering a severe fall
which the Plaintiffs alleged ultimately caused her death.
the issues framed in this fashion, the Plaintiffs sought out
Michael Panish as an expert witness in this case. At the time
that the Plaintiffs contacted Panish he held himself out as
an expert in multiple construction and building disciplines,
and specifically asserted that he was a premier expert
witness in the field of automated sliding glass door
technology. Panish also asserted that he had served as an
expert witness in over 1, 000 cases, an attestation which
meant that Panish was thoroughly conversant with his legal
and ethical obligations as an expert witness.
discovery proceeded the defendant sought to take a videotaped
deposition of Panish, a commonplace practice that is
specifically authorized by the Federal Rules of Civil
Procedure. Panish refused, citing a matter which he had
obliquely alluded to in his expert witness contract with
Plaintiffs' counsel, his odd, idiosyncratic view that the
video could be manipulated by third parties. Following a
conference with counsel on March 17, 2017, we entered an
order in this matter which provided in clear and precise
terms as follows:
Recognizing that the defendant has a right to record Mr.
Panish's deposition by video, and finding that the
plaintiff has not demonstrated sufficient good cause for the
issuance of a protective order, IT IS ORDERED THAT the
plaintiff's request for a protective order to preclude
the video recording of Mr. Panish's deposition is DENIED.
The defendant shall be permitted to record Mr. Panish's
deposition by video and stenographic means.
In order to address Mr. Panish's concerns, however; and
to memorialize the defendant's representations regarding
the intended use of the video recording of the deposition, IT
IS FURTHER ORDERED THAT the parties shall use Mr.
Panish's recorded deposition only for purposes of
defending or prosecuting the claims in this litigation, and
shall not disseminate the recording outside of these
proceedings in the absence of a Court order.
57, p. 6.)
our order directed a videotaped deposition of Mr. Panish, but
thoroughly addressed Panish's odd and speculative concern
that his visage and words would be digitally altered by
unknown sinister actors by setting strict limitations on the
dissemination of the video.
March 17 order gave Mr. Panish a few clear choices. He could
comply with the order. He could seek timely reconsideration
of the order. He could through separate counsel file his own
motion for protective order, or motion to quash the
deposition subpoena that the defendant was attempting to
serve upon him. The one thing he could not do, however, was
to engage in some unilateral passive-aggressive course in
which he ostensibly agreed to schedule a deposition, while
privately evading his basic obligation owed by all witnesses
by failing to appear for that deposition.
this is precisely the path that Panish chose.
Panish responded to this clear direction from this court, and
the plain dictates of the Federal Rules of Civil Procedure,
in a fashion which was deceptive, occasionally profane,
highly unprofessional, contumacious and sanctionable. At the
outset, according to the testimony and contemporaneous notes
of Plaintiffs' counsel which we find to be entirely
credible, when notified by Plaintiffs' counsel following
the court's conference call with the parties that the
court had denied his request for a protective order which
would have forbidden this videotaped deposition Mr. Panish
replied: “I don't care about you or her [the
decedent Plaintiff, Shirley Ruehl] or some asshole
judge.” (Doc. 86-1.) Indeed, when Plaintiffs' counsel
appealed to Panish's conscience by noting that the family
of the deceased plaintiff, Shirley Ruehl, was counting upon
his testimony and assistance, Panish responded in a manner
that was cold, calculating and cruel, reportedly stating
that: “ Nothing will bring her back so who gives a
shit.” (Id.) Furthermore, while casting his
position as a matter of principle, Panish was willing to
surrender his principles for a price and told Plaintiffs'
counsel that he would surrender his principles if they
provided him a $10, 000, 000 indemnity bond from Lloyds of
the same time that Panish was privately voicing his complete
disdain for this court's order and his own client, he was
ostensibly complying with the order by making scheduling
arrangements for this deposition in April of 2017. Panish
also retained a $3, 050 advance he had received from the
defendant as payment for this deposition, keeping and using
those funds for his own benefit for some eight months before
surrendering these funds which he had obtained on the pretext
that he would undergo a deposition on the eve of the
sanctions hearing set in this case. On April 18, 2017, Panish
failed to appear for this deposition without any prior
explanation or excuse from the court, or counsel.
Panish's failure to appear, and his apparent disregard of
this court's explicit instructions, had a series of
adverse consequences for the Plaintiffs who had retained him.
First, the Plaintiffs were placed in the difficult position
of trying to defend Panish's indefensible conduct, filing
pleadings seeking to set aside our March 17 order, an order
Panish had effectively ignored. (Docs. 62 and 63.) The
Plaintiffs were also compelled to negotiate a settlement of
this lawsuit from a highly disadvantageous position, since
Panish's abandonment of the plaintiffs and refusal to
cooperate in this deposition greatly undermined their case.
Panish's course of conduct also had an adverse impact
upon the defendants, who were denied information relevant to
their defense of this case, expended thousands of dollars to
schedule this deposition, and paid $3, 050 to Panish for his
services, money that Panish retained for months despite never
living up to his obligations as a witness.
against this backdrop that the Defendant moved to sanction
Panish. (Doc.64.) The Plaintiffs also joined in this motion,
(Doc. 76), and following a hearing we concluded that Panish
had indulged in sanctionable misconduct. We granted the
defendant's sanctions motion and awarded a sum certain in
sanctions to the defendant. We further instructed the
plaintiff and Panish to submit briefs and argument in support
of the Plaintiffs' request for sanctions. The parties
have fully briefed this issue and this matter is now ripe for
reasons set forth below, in the exercise of our discretion,
we will award sanctions of $22, 270.30 in favor of the
Plaintiffs against Panish.
well-settled that a district court has the inherent power to
sanction persons appearing before it for refusing to comply
with its orders and to control litigation before it. See,
e.g., Tracinda Corp. v. DaimlerChrysler AG, 502
F.3d 212, 242 (3d Cir. 2007). Indeed, the inherent power of
the Court to act in this area has long been recognized by the
United States Supreme Court, which has held that:
It has long been understood that “[c]ertain implied
powers must necessarily result to our Courts of justice from
the nature of their institution, ” powers “which
cannot be dispensed with in a Court, because they are
necessary to the exercise of all others.” United
States v. Hudson, 7 Cranch 32, 34, 3 L.Ed. 259 (1812);
see also Roadway Express, Inc. v. Piper, 447 U.S.
752, 764, 100 S.Ct. 2455, 2463, 65 L.Ed.2d 488 (1980) (citing
Hudson). For this reason, “Courts of justice
are universally acknowledged to be vested, by their very
creation, with power to impose silence, respect, and decorum,
in their presence, and submission to their lawful
mandates.” Anderson v. Dunn, 6 Wheat. 204,
227, 5 L.Ed. 242 (1821); see also Ex parte Robinson,
19 Wall. 505, 510, 22 L.Ed. 205 (1874). These powers are
“governed not by rule or statute but by the control