Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-23-2001

Saldana v. Kmart Corporation
Precedential or Non-Precedential:

Docket 99-4055




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Filed July 23, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 99-4055 and 00-3749

MARIE SALDANA

v.

KMART CORPORATION

MARIE SALDANA, Appellant in No. 99-4055
LEE J. ROHN,* Appellant in No. 00-3749

*Pursuant to Rule 12 (a), F.R.A.P.

(Amended Per Court's Order of 3/16/01)

ON APPEAL FROM THE DISTRICT COURT
FOR THE DISTRICT OF THE VIRGIN ISLANDS
D.C. Civil No. 95-cv-00090
District Judge: Honorable Thomas K. Moore

Argued: May 18, 2001

Before: McKEE, RENDELL and BARRY, Circuit Judg es

(Filed July 23, 2001)

       K. Glenda Cameron, Esquire
        (Argued)
       Lee J. Rohn, Esquire
       Law Office of Lee J. Rohn
       1101 King Street, Suite 2
       Christiansted, St. Croix
       USVI, 00820

        Attorney for Appellants
       Andrew C. Simpson, Esquire
        (Argued)
       Suite 1
       5025 Anchor Way, Gallows Bay
       Christiansted, St. Croix
       USVI, 00820

        Attorney for Appellee

OPINION OF THE COURT

BARRY, Circuit Judge.

This case arises from a slip-and-fall suffered by Marie
Saldana at a Kmart store on St. Croix. Ms. Saldana appeals
the grant of summary judgment against her while her
attorney, Lee Rohn, Esq., appeals the imposition of
sanctions against her for her out-of-court vulgar language
in a handful of cases, including this one. The tortuous
procedural history that has led to the consolidation of a slip
in a puddle of car wax with sanctions for vulgar language
need not detain us. Suffice it to say that we have
jurisdiction under 28 U.S.C. S 1291 and will affirm the
District Court's December 20, 1999 decision with respect to
Saldana, but will reverse with respect to Rohn.

I.

Marie Saldana alleged in her complaint that she slipped
in a puddle of car wax in a Kmart aisle on April 20, 1995
and suffered injury. No one saw the wax before Saldana fell,
no one else slipped in the puddle, and Saldana did not see
tracks of wax near the puddle that might indicate someone
else had stepped in the spill. Saldana stated that after she
fell, she noticed that the puddle measured 24 inches across
and was covered with a layer of light brown dust. A Kmart
employee, Eugenie Williams, had walked down the same
aisle less than three minutes prior to Saldana's fall and saw
no wax on the floor at that time. After Saldana fell, Williams
spotted an unbroken, completely empty bottle of wax on the
floor with its top off.

                                2
Kmart brought a motion for summary judgment. In
response, Saldana offered no evidence that any Kmart
representative knew of the spill. Rather, she attempted to
show constructive notice through the expert testimony of
Rosie Mackay, proffered as a safety engineer, and her own
testimony regarding the dust on the puddle. Saldana
offered two reports by Mackay: an initial report dated
January 1997, and a supplemental report dated April 1997.
In the January report, Mackay concluded that "K-Mart was
negligent in that there was a spill, and it was not cleaned
up. Ms. Saldana was the unfortunate victim of this act of
poor housekeeping . . . ." App. at 361. Mackay based this
conclusion in part on safety regulations promulgated
pursuant to the Occupational Safety and Health Act
("OSHA"). Mackay's April report detailed the results of
"pouring tests" she conducted to determine the length of
time it would take for the same brand of wax to escape
from an inverted bottle and form a 12-inch puddle on her
kitchen floor. At her deposition, Mackay discussed
additional experiments carried out in June 1997 involving
open bottles lying on their sides. The District Court found
Mackay's opinions and tests to be "irrelevant under Rule
402, . . . confusing or misleading under Rule 403, and . . .
technically (scientifically) unreliable under Rule 702."
Saldana v. Kmart, 

, 636 (D.V.I. 1999).
The Court also found that any observation of dust on the
puddle after Saldana's fall was not relevant to the state of
the wax before the fall. 

Court granted Kmart's
motion for summary judgment.

When reviewing an order granting summary judgment,
we exercise plenary review and apply the same test a
district court applies. Armbruster v. Unisys Corp., 

, 777 (3d Cir. 1994). "Under Federal Rule of Civil
Procedure 56(c), that test is whether there is a genuine
issue of material fact and, if not, whether the moving party
is entitled to judgment as a matter of law." 

v. York Newspapers, Inc., 

, 1078 (3d
Cir. 1992). "In so deciding, a court must view the facts in
the light most favorable to the nonmoving party and draw
all inferences in that party's favor." 

should find
for the moving party "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the

                               3
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed. R. Civ. P. 56(c);
Anderson v. Liberty Lobby, Inc., 

, 247 (1986).
The party opposing summary judgment "may not rest upon
the mere allegations or denials of the . . . pleading"; its
response, "by affidavits or as otherwise provided in this
rule, must set forth specific facts showing that there is a
genuine issue for trial." Fed. R. Civ. P. 56(e); Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 

(1986).
"[T]here is no issue for trial unless there is sufficient
evidence favoring the nonmoving party for a jury to return
a verdict for that party." 

. "Such
affirmative evidence -- regardless of whether it is direct or
circumstantial -- must amount to more than a scintilla,
but may amount to less (in the evaluation of the court)
than a preponderance." Williams v. Borough of West
Chester, 

, 460-61 (3d Cir. 1989).

Because Saldana does not allege actual notice on the part
of Kmart, she would ultimately be required to show that the
wax was "on the floor long enough to give [Kmart]
constructive notice of this potential `unreasonable risk of
harm.' " David v. Pueblo Supermarket, 

, 234
(3d Cir. 1984) (quoting Restatement (Second) of Torts S 343
(1965)). Although it is uncontested that the wax was on the
floor at the time of the fall, "the mere presence of the
foreign substance does not establish whether it had been
there a few seconds, a few minutes, a few hours or even a
few days before the accident." 

that a substance was left on the floor for an inordinate
period of time can be enough to constitute negligence;
where a plaintiff points to such evidence, it is a question of
fact for the jury whether, under all the circumstances, the
defective condition of the floor existed long enough so that
it would have been discovered with the exercise of
reasonable care. 

Put another way, Saldana must
point to evidence that would allow the jury to infer that the
wax was on Kmart's floor for some minimum amount of
time before the accident. Only then could a jury begin to
consider whether under the circumstances the amount of
time indicated by the evidence establishes constructive
notice.

                               4
To show that the wax was on Kmart's floor an
unreasonable length of time, Saldana relied chiefly on the
information submitted by her expert, Rosie Mackay. As the
District Court noted, Federal Rule of Evidence 702 imposes
three major requirements as to expert opinions: (1) the
witness must be an expert; (2) the procedures and methods
used must be reliable; and (3) the testimony must"fit" the
factual dispute at issue so that it will assist the jury. See
Kumho Tire v. Carmichael, 

, 149-50 (1999);
Daubert v. Merrell Dow Pharms., 

, 590-93
(1993); United States v. Downing, 

, 1242 (3d
Cir. 1985). Even if the evidence offered by the expert
witness satisfies Rule 702, it may still be excluded if its
"probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading
the jury." Fed. R. of Evid. 403.

We will assume arguendo, as did the District Court, that
Mackay meets the requirements of an "expert." Even so,
Mackay's reports and conclusions would not be admissible.
In her January report, Mackay concluded that, although
Kmart purports to follow safety procedures similar to
certain OSHA regulations, "K-Mart was negligent in that
there was a spill, and it was not cleaned up." App. at 361.
Kmart "allowed" the wax to spill, Mackay wrote, and
therefore "failed to use good, logical, prudent safety
precautions." App. at 362. These conclusory statements
essentially attempt to force upon Kmart a strict liability
standard based on Mackay's reading of OSHA, a regulatory
scheme far different from the applicable law described
above. To be sure, in Rolick v. Collins Pine Co. , 

(3d Cir. 1992), this Court found admissible an
expert's opinion that the defendant violated OSHA
standards. 

That case, however, applied
Pennsylvania law, and we noted that Pennsylvania courts
had previously borrowed OSHA regulations for use as
evidence of the standard of care owed to plaintiffs. 

is guided by the Restatement of Torts, which
governs in the Virgin Islands in the absence of a local
statute. 1 V.I.C. S 4. Under the Restatement,"[t]he court
will not adopt as the standard of conduct of a reasonable
man the requirements of a legislative enactment or an

                               5
administrative regulation whose purpose is found to be
exclusively . . . to protect a class of persons other than the
one whose interests are invaded." Restatement (Second) of
Torts, S 288; see also Restatement (Second) of Torts S 286,
Illust. 1 (safety statute for protection of employees does not
define standard of care owed to business invitee). As we
have stated, Kmart is liable in this negligence action only if
it knew or should have known of the dangerous condition
but failed to take reasonable steps to correct it. 

. Thus, Mackay's opinion that Kmart violated
worker safety requirements would not assist the fact finder
in deciding whether Kmart unreasonably failed to detect a
wax spill that injured a business invitee. Mackay's April
report includes similar conclusory statements that the
District Court properly found would not be admissible at
trial.

Mackay's April pour tests indicated that, depending on
the technique used, a bottle of the wax at issue would take
almost three minutes to empty and an additional five
minutes to form a 12-inch puddle. For her June tests,
Mackay altered the pour angle and found a 14- to 15-inch
puddle would form in about eight minutes. The District
Court believed that the primary concern with these tests
was not their accuracy, but their relevancy.1 Saldana
connects these tests to the size of the Kmart puddle after
her fall and argues the time involved establishes
constructive notice. Undisputed evidence shows, however,
that Saldana's fall and her recovery from that fall left her
legs and skirt wet with car wax. This disturbance
undoubtedly altered the size of the puddle; measurements
of how quickly wax spreads without such interference
simply have no bearing on this case.
_________________________________________________________________

1. We note in passing, however, that Mackay conducted her pour tests
on what she called a "vinyl tile surface particularly similar to the one
at
K-Mart." App. at 366. As we have already mentioned, this "vinyl tile
surface" turned out to be Mackay's own kitchen floor, which she testified
was at least 17 years old. Mackay further stated that the Kmart floor
appeared to be significantly newer than her own; she also did not know
whether the two floors had been cleaned with the same type of
substance or resembled each other in any way relevant to her tests. We
are, therefore, not persuaded that the accuracy of these tests was not
also a concern.

                               6
Similarly, the time necessary for a wax bottle to empty
does not, by itself, provide information regarding when the
spill commenced or concluded. Nothing in the record
indicates exactly when the bottle was found to be
completely empty, leaving no way to deduce when the spill
began. The spill may have started just as Saldana reached
the aisle and continued as she fell, as she was being helped
up, or even afterward. The District Court, therefore,
properly rejected Mackay's reports.2

The only other evidence Saldana points to regarding the
amount of time the wax was on Kmart's floor is her
observation of dust on the puddle after she fell. We note,
however, as did the District Court, that Saldana offered no
evidence of how much dust was found, how long it would
have taken for dust to accumulate, or whether the dust was
picked up off the floor by the spreading wax or the force of
Saldana's fall. Standing alone, the mere presence of dust on
the wax after Saldana's fall does not inform any decision as
to the amount of time the wax was on the floor before the
fall.

We, therefore, find that Saldana's case rests solely on
speculation that events unfolded in such a way as to render
Kmart negligent.3 There was a complete absence of relevant
_________________________________________________________________

2. Because we find all of the pour tests irrelevant, we need not decide
whether the District Court abused its discretion in excluding evidence of
tests conducted after the deadline for producing expert reports. We also
note that the June tests, which purport to measure the amount of time
wax takes to pour out of bottles lying flat on the ground, involved
emptying only half the wax out of the bottle. Saldana, however, claims
that the bottle at the time of her fall was empty. Reply Br. at 19
(calling
the evidence that the bottle was completely empty an"un-controverted
fact, indeed an admission.").

3. Saldana argues that a jury could find that either Williams or a second
Kmart employee working behind a nearby counter negligently failed to
keep a proper lookout. A jury might, indeed, find that constructive notice
requires a shorter amount of time when a spill occurs in an area of the
store near an employee rather than in some remote aisle far from
workers' eyes. Because Saldana does not allege that Kmart had actual
notice of the spill, however, the relevant question continues to be
whether the wax was on the floor long enough that some Kmart
representative should have known about it.

                               7
evidence -- from either side -- on the critical question of
how long the wax was on the floor, and the mere possibility
that something occurred in a particular way is not enough,
as a matter of law, for a jury to find it probably happened
that way. See Fedorczyk v. Caribbean Cruise Lines, 

, 75 (3d Cir. 1996) (applying New Jersey law); Lanni v.
Pennsylvania RR, 

, 111-12 (1952) (finding of
constructive notice impossible where no evidence existed to
show how long oily spot was on the floor); Richardson v.
Ames Ave. Corp., 

, 217 (Neb. 1995)
(holding a store not liable for a customer's slip and fall on
liquid soap where no evidence showed how long spill had
existed).4 As the authors of the Restatement put it in one
particularly pertinent illustration:

       A, a customer in B's store, slips on a banana peel near
       the door, and falls and is injured. The banana peel is
       fresh, and there is no evidence as to how long it has
       been on the floor. Since it is at least equally probable
       that it was dropped by a third person so short a time
       before that B had no reasonable opportunity to
       discover and remove it, it cannot be inferred that its
       presence was due to the negligence of B.

Restatement (Second) of Torts, S 328D, Illust. 7 (discussing
res ipsa loquitur). We find the facts here indistinguishable
from the Restatement example. While a plaintiff need not
prove his or her case by a preponderance of the evidence to
survive summary judgment, Saldana has not met even her
modest burden of showing at least some relevant evidence
that could support her claim. Accordingly, we will affirm
the District Court's grant of summary judgment.
_________________________________________________________________

4. Saldana cites Rhoades v. Kmart, 

(Wyo. 1993) for the
proposition that whether a slippery substance was on the floor and how
long it had been there are questions for the jury to determine. 

. The Rhoades Court noted, however, that the soda cup
lid and straw found at the scene were dry, which would permit an
inference that the soda had been on the floor a sufficient length of time
for constructive notice. 

The Wyoming Court also based its
decision on an "operating methods" doctrine that neither party has
argued applies to the present case. 

(evidence showed that
soda was available in the store, that soda had been spilled before, and
therefore that Kmart might expect soda to be spilled at any time).

                               8
II.

While discovery was taking place in the Saldana case,
Andrew C. Simpson, Esq., then of the firm of Bryant, White
& Barnes, P.C., attorneys for Kmart, moved before the
District Court for sanctions against Saldana's attorney, Lee
Rohn, because of her use of language that he contended, in
somewhat of an overstatement, violated the "fundamental
precepts of legal ethics." App. at 133. As the memorandum
in support of the motion succinctly put it, "[t]he basis for
this motion is Attorney Rohn's repeated use of vulgarity, in
particular the word `fuck,' towards other members of the
bar." 

was prompted by Rohn telling
Simpson, in the course of a disagreement on the telephone
over scheduling depositions, "you know, Andy, go fuck
yourself." 

The memorandum complained that
Rohn "routinely" used the word "fuck" upon disagreeing
with opposing counsel. 

A few preliminary comments. First, we do not condone
Rohn's concededly rather free-wheeling use of the word
"fuck," and nothing that follows should be taken as any
indication that we do. Second, there is no contention that
at any time Rohn used that word or any vulgar language
before the District Court or in any document submitted to
the Court. Third, there is a long and not particularly happy
history between Rohn and at least one other member of the
Bryant firm in addition to Simpson who, we note, rebuffed
Rohn's immediate attempt to apologize after the telephone
incident. This history is not only readily apparent from the
rather scathing submissions made by both sides, but from
the fact that the motion and memorandum, although filed
a mere three days after the fateful telephone disagreement,
included a host of exhibits documenting, among other
things, numerous occasions on which Rohn used the word
between October 1993 and February 1997. This litany of
incidents prompted Rohn to conclude that the firm had
been "accumulating ammo" against her, id . at 190; whether
or not that be the case, the history here certainly permits
the conclusion that the firm's attempt to portray itself as
something akin to a knight in shining armor protecting the
bar and the public from "such conduct" and preventing the
"further degradation of the administration of justice and the

                               9
reputation of the Virgin Island Bar," 

may well
be overstating its case.

Rohn opposed Kmart's motion, and the District Court
held a hearing, which, by order of the Court, was to have
been limited "solely to the issue of Attorney Rohn's behavior
in this case." 

After the hearing commenced,
however, the Court stated that it had not intended by that
order to limit the inquiry to this case but, rather, had
intended to limit the inquiry to Rohn's behavior in District
Court cases, and the scope of the hearing expanded
accordingly. 

496.5 Kmart essentially rested on its
papers and only Rohn testified, apologizing in the course of
her testimony and promising to refrain from use of the
word in the future. The Court, seemingly satisfied that
Rohn had seen the error of her ways, barely touched on the
issue of sanctions but stated that an opinion should and
would issue giving very clear advice to the bar as to how
attorneys are supposed to conduct themselves in and out of
court. 

That opinion issued more than two years
after the hearing when the Court invoked Local Rule 83.2
and, in very strong language, sanctioned Rohn by ordering
her to attend a legal education seminar on civility in the
legal profession, write numerous letters of apology to all
whom "she demeaned and insulted by her vulgarity and
abusive conduct," apologize to the court reporters present
at any of those proceedings, and pay the attorneys' fees and
costs associated with bringing the sanctions motion.

.6

We generally review a court's imposition of sanctions for
abuse of discretion. Chambers v. NASCO, 

, 55
(1991); In re: Tutu Wells Contamination Litigation, 

, 387 (3d Cir. 1997). When the procedure the District
Court uses in imposing sanctions raises due process issues
of fair notice and the right to be heard, this Court's review
_________________________________________________________________

5. We note, without comment, that when the motion was filed, Rohn
sought a continuance so that witnesses to the conduct alleged in the
motion could be available to testify on her behalf. The Court denied the
motion and entered the above quoted order. Thus, when, without notice,
the hearing expanded, only Rohn was there to testify.

6. Those fees and costs were later determined to be $4,542.00.

                               10
is plenary. Tutu 

; Martin v. Brown, 

, 1262 (3d Cir. 1995).

Rohn argues with considerable force that the District
Court violated her due process rights to fair notice by
failing to specify in advance of the hearing that sanctions
would or at least could be premised on Local Rule 83.2.
Generally, "[t]he Due Process Clause of the Fifth
Amendment requires a federal court to provide notice and
an opportunity to be heard before sanctions are imposed on
a litigant or attorney." 

. In
particular, "[t]he party against whom sanctions are being
considered is entitled to notice of the legal rule on which
the sanctions would be based, the reasons for the
sanctions, and the form of the potential sanctions." Tutu

(citing Simmerman v. 

, 64 (3d Cir. 1994)) (emphasis in the original).
"[O]nly with this information can a party respond to the
court's concerns in an intelligent manner." 

words, a party cannot adequately defend himself or herself
against the imposition of sanctions unless he or she is
aware of the issues that must be addressed to avoid the
sanctions. 

83.2, which was adopted by the District Court
in furtherance of the Court's inherent power to supervise
attorney conduct and essentially codifies certain aspects of
that power, was first mentioned by the Court in its opinion
imposing sanctions, when it purported to base its
sanctioning authority on that rule. That notification simply
came too late, however, because Rule 83.2 was never
pressed by Kmart as the basis for sanctions, was never
mentioned at the hearing,7 and no one -- not the Court, not
Kmart, and not Rohn -- ever even alluded to the
procedures of Rule 83.2(b)(5), much less argued why they
should, or should not, be followed.8
_________________________________________________________________

7. The passing reference in a footnote in Kmart's reply to Rohn's
opposition to the sanctions motion to the fact that the Court could "also"
use Rule 83.2 to investigate "all" Rohn's misconduct, App. at 300, is the
only prior reference to Rule 83.2. Thus, the District Court's statement
that Kmart "relied heavily" on that Rule, 

was erroneous.

8. Under Rule 83.2(b)(5), the Chief Judge, if he deems it appropriate,
shall refer a complaint to counsel to investigate and prosecute a

                               11
While Rohn clearly did not have notice that sanctions
could be imposed under Rule 83.2, she just as clearly did
know that a Court has the inherent authority to impose
sanctions and knew that sanctions up to and including a
suspension of her license to practice were a possibility,
although given the Court's last minute apparent about-face
as to the scope of the hearing, it is less than clear what
conduct she had notice would be considered for purposes of
sanctions. We need not, however, decide whether an
imposition of sanctions can be affirmed even after the
purported basis of those sanctions has been rejected or
whether there was some failure of due process, because we
find that the quality and quantity of the transgressions
found by the District Court -- four uses of the word "fuck,"
two in telephone conversations with attorneys and two in
asides to attorneys during depositions, and a post-verdict
letter in which Rohn concurred with a juror who described
an expert witness as a "Nazi" -- simply do not support the
invocation of the Court's inherent powers. Stated
differently, we agree with Rohn that her use of language,
while certainly not pretty, did not rise to the level necessary
to trigger sanctions, at least under the Court's inherent
powers.9

       "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.
_________________________________________________________________

formal disciplinary proceeding or make some other appropriate
recommendation. The order of reference to counsel, and all further
proceedings until the issuance of an order initiating a formal
disciplinary
action, shall be under seal. A judge would hear the matter and thereafter
submit findings of fact, conclusions of law, and any recommendation to
the full Court for action.

9. Parenthetically, we note, in this connection, our dismay that Mr.
Simpson, in the memorandum in support of this motion, attempted to
portray Rohn's conduct as "far more egregious than that of the attorney
in In re Tutu Wells," App. at 136, a case in which, among other things,
the attorney in question during a status conference before the court
"made an obscene gesture, pantomiming masturbation" while a woman
attorney was making a presentation on behalf of her client. In re: Tutu
Wells, 

, 177 (D.V.I. 1994).

                               12
       Dunn, [

, 227] (1821); see also Ex parte
       Robinson, [

, 510] (1874). These powers are
       "governed not by rule or statute but by the control
       necessarily vested in courts to manage their own
       affairs so as to achieve the orderly and expeditious
       disposition of cases." Link v. Wabash R. Co. , 

, 630-631 (1962).

        Prior cases have outlined the scope of the inherent
       power of the federal courts. For example, the Court has
       held that a federal court has the power to control
       admission to its bar and to discipline attorneys who
       appear before it. See Ex parte Burr, [

, 531]
       (1824). While this power "ought to be exercised with
       great caution," it is nevertheless "incidental to all
       Courts." 

at 43. The Chambers Court also
warned that "[b]ecause of their very potency, inherent
powers must be exercised with restraint and discretion." 

(citing Roadway Express, Inc. v. Piper, 

,
764 (1980). We have, on more than one occasion, repeated
that admonition. See, e.g., Prosser v. Prosser, 

,
406 n.4 (3d Cir. 1999); 

; Fellheimer,
Eichen & Braverman, P.C., v. Charter Technologies, Inc., 

, 1224 (3d Cir. 1995).

The language complained of in this case did not occur in
the presence of the Court and there is no evidence that it
affected either the affairs of the Court or the"orderly and
expeditious disposition" of any cases before it. Moreover, as
the Chambers Court observed, a court should normally look
first to rule-based or statute-based powers and reserve
inherent powers for those times when rule- or statute-
based powers are not "up to the task." 

. As we put it in Martin, "[g]enerally, a court's inherent
power should be reserved for those cases in which the
conduct of a party or an attorney is egregious and no other
basis for sanctions exists," presumably why the Court,
albeit belatedly, purported to base these sanctions on Rule
83.2. 

.

In addition to the fact that were sanctions warranted,
Rule 83.2 would have been "up to the task," nothing

                               13
"egregious" is evident here. Indeed, the District Court
described itself as a "kindergarten cop" refereeing a dispute
between attorneys. 

. The
petty and long-simmering nature of the dispute is, perhaps,
best seen in some of the icing put on the cake: In addition
to using the word "fuck," Rohn allegedly "sucked her teeth"
(whatever that means) at a witness during a deposition,
App. at 136; on another occasion, she used the word
"bullshit," 

she also "frequently raises her voice
to an unacceptable level," 

and once, after getting
an answer she did not like at a deposition, she
"pantomimed a gagging gesture (placing her finger in her
mouth as if triggering the vomiting reflex)," with her side of
the story being that she was trying to remove a splinter
from her finger. 

course, fought back at the
same high level. Within a few days of the filing of the
sanctions motion, for example, she had canvassed other
plaintiffs' counsel and confirmed that "they have had to
hang up on Attorney Simpson due to his rudeness and also
find him rude and obnoxious to deal with." Id . at 125.
Shortly thereafter, Rohn's partner submitted an affidavit
stating that he had "on over a dozen occasions, utilized the
`F ' word in discussions with Attorney Simpson" as well as
in "literally hundreds of phone calls with other lawyers"
without receiving one complaint; he also stated that
"Simpson has similarly utilized the `F ' word." 

We thus return to where we began -- a handful of uses
of the word that supposedly so offended counsel for Kmart
that he felt compelled to move for sanctions under the
Court's inherent powers. Because the District Court abused
its discretion in granting that motion, we will reverse.

III.

For the reasons set forth above, the judgment of
December 20, 1999 will be affirmed in part and reversed in
part.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                14