UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                            No. 91-3090



BILLY G. BUFFORD and CHERYL BUFFORD,
                                               Plaintiffs-Appellants,


                              versus


ROWAN COMPANIES, INC. and NELSON
VIDRINE,
                                               Defendants-Appellees.




          Appeal from the United States District Court
              for the Eastern District of Louisiana

                          (June 16, 1993)


Before POLITZ, Chief Judge, REYNALDO G. GARZA and WIENER, Circuit
Judges.

POLITZ, Chief Judge:

     Billy Bufford and his wife Cheryl appeal an adverse judgment

on jury verdict and the denial of their post-judgment motion in

their suit for damages for injuries allegedly sustained by Billy

Bufford in the workplace.    Concluding that the Buffords did not

receive a fair trial we reverse and remand for a new trial.




                            Background
     Bufford was employed by Rowan Companies, Inc. as a mechanic on

an oil drilling vessel.     He alleged that his supervisor, Nelson

Vidrine, intentionally pushed him, causing him to fall over a

three-foot railing onto the deck, injuring his neck and back.    The

Buffords brought the instant action for damages against Rowan and

Vidrine.    Vidrine filed a counterclaim contending that the Bufford

claims were fraudulent.

     The case was tried to a jury.    Defendants' theory was that the

Bufford case was a "copycat" lawsuit.       Specifically, defendants

contended that the Buffords got the idea of staging an accident, or

exaggerating a minor mishap, from a former co-worker, Ray Pearson.

Pearson previously had settled a suit against Rowan for on-the-job

injuries.    One of the ways in which Bufford purportedly "copied"

Pearson was by using the same lawyers.        Defendants repeatedly

referred to this fact.

     The jury returned a verdict for the defendants, finding that

Vidrine neither battered Bufford nor negligently injured him and

that the Buffords' claims were fraudulent.       The district court

entered judgment for the defendants on the Buffords' claims but

granted a directed verdict on Vidrine's counterclaim because he

offered no proof of damages.    After their motion for judgment as a

matter of law or a new trial was denied, the Buffords timely

appealed.




                               Analysis


                                  2
     This is one of those rare cases in which the actions of the

trial judge combined with the conduct of defendants' counsel to

impugn the integrity of plaintiffs' counsel in such a way as to

prejudice the plaintiffs' case in the eyes of the jury.                      The

damaging aspersions began with the opening statement and consisted

of more than isolated remarks.       Indeed they were an integral part

of the defense, building toward a crescendo at the end of the

trial,   unfortunately   amplified       by    the   trial   court.     We   are

compelled to the conclusion that plaintiffs' substantial rights to

a fair trial were impaired,1 and that the district court abused its

discretion in denying the requested new trial.

     In his opening statement defense counsel stated that Bufford

engaged the same lawyers as Pearson, and thus completed "the

copycat nature of the claim."         Bufford testified that when his

injuries worsened he asked Pearson for the name of a doctor.

Pearson responded by telling him to contact his lawyers2 for a

medical referral.     On cross-examination, defense counsel made much

of the fact that Bufford had contacted Pearson's attorneys before

he visited a doctor and saw only those doctors to whom he was

referred   by   his   lawyers.       On       cross-examination,      Bufford's

     1
          Improper comments from the bench or by counsel will not
warrant reversal unless they so permeate the proceedings that they
impair substantial rights and cast doubt on the jury's verdict.
Dixon v. International Harvester Co., 

(5th Cir. 1985).

    2
          Pearson actually referred Bufford to Stanley Jacobs. As
the district court explained to the jury, Jacobs worked with
Lawrence D. Wiedemann. Wiedemann was Bufford's lead counsel at
trial and also worked on Pearson's case.


                                     3
orthopedic    surgeon   acknowledged     that      he   had     received   other

referrals from plaintiffs' counsel.          A co-worker testified that

prior to his accident Billy Bufford had said that if he ever needed

a lawyer he would use Pearson's attorney.               Finally, in closing

defense counsel reiterated that the Buffords had used the same

lawyers as Pearson while arguing that their claim was a fraudulent

imitation of Pearson's.

     That a personal injury claim is fabricated or exaggerated is

a perfectly legitimate and valid defense.          The proof of such may be

by direct or circumstantial evidence; defendants are afforded a

broad latitude to attempt to prove this defense.                   What is not

permitted is an unsupported, irresponsible attack on the integrity

of opposing counsel.     When such unprofessional conduct rears its

unethical head in a courtroom, it is the duty of the trial court to

suppress same, quickly and unqualifiedly, and to instruct the

offending counsel to cease and desist.          The court must take great

care not to exacerbate the situation or to give the impression to

2the jury that it approves or condones any unjustified impugning of

the ethical standards or integrity of an officer of the court

practicing before it.

     In the instant case, the underpinning of the "copycat" defense

was that the Buffords' attorneys distorted minor injuries into

major ones and prosecuted baseless claims.              This was the obvious

implication   of   defendants'   use    of   the    fact   of    the   Buffords'

selection of Pearson's attorneys as evidence that the Bufford

claims were fraudulent.    This court addressed a similar situation


                                    4
in United States v. McDonald,3 where a prosecutor offered testimony

and critically commented that defense counsel was present in the

defendant's house for several hours during which the prosecutor

claimed that the defendant was destroying incriminating evidence.

In reversing the conviction, despite the prosecutor's disclaimer of

intent to malign defense counsel, we said:       "Unfortunately, it is

difficult, if not impossible, to sanitize the comments so as to

remove the taint.    Inherent in the comments is the barb that the

lawyer caused, aided in or, at the very least, tolerated the

destruction of evidence."4    A similar, equally improper inference

arose in the case at bar.

       If the defendants had proof that the Buffords' attorneys

fomented fraudulent lawsuits, they were entitled to present it.5

Such proof could include appropriate circumstantial evidence from

which reasonable    inferences   might   be   drawn.   Relying   on   the

identity of counsel as the basis for contending that the Buffords'

claim was fraudulent, however, went beyond the pale of appropriate

trial advocacy.    That unwarranted inference may not be drawn.

       In reversing the conviction in McDonald we warned that "No


       3
           

(5th Cir. 1980).

       

.

   5
          Indeed, if an attorney has unprivileged factual knowledge
that another attorney has engaged in unethical conduct, he is
obliged to report the violation to the proper authorities. ABA
Model Rule 8.3(a); Rule 8.3(a), Louisiana Rules of Professional
Conduct.


                                   5
prosecutor . . . may impugn the integrity of a particular lawyer or

that of lawyers in general, without basis in fact, as a means of

imputing guilt to a defendant."6          We and our colleagues in other

circuits have applied a similar stricture in civil cases.7                By

maligning    opposing   counsel,    defendants   impaired     the   Buffords'

presentation of their case. "[S]uch tactics unquestionably tarnish

the badge of evenhandedness and fairness that normally marks our

system of justice. . . ."8

     We     are   distressed   by   the   fact   that   the    trial   judge

inadvertently exacerbated the situation.          The court appropriately

exercised firm control over the trial.           Comments to counsel were



     

.

     7
          See, e.g., Winter v. Brenner Tank, Inc., 

(5th Cir. 1991); Hall v. Freese, 

(5th Cir. 1984);
Fineman v. Armstrong World Industries, Inc., 

, 207 (3d
Cir. 1992) ("test is whether the improper assertions have made it
reasonably probable that the verdict was influenced by prejudicial
statements" about opposing counsel), cert. denied, _____ U.S.
_____, 

(1993). We must note in passing that the
Fineman panel included the then-longtime chairman of the Committee
on Codes of Conduct of the Judicial Conference of the United
States, Judge Stapleton, and the then most senior member of that
committee in length of service, Judge Fullam. That committee is
charged with the responsibility for rendering advisory ethical
opinions to all judicial officers and judicial employees of the
United States.


     8
          Bruno v. Rushen, 

, 1195 (9th Cir. 1983),
cert. denied, 469 U.s. 920 (1984) (habeas relief granted where the
prosecutor inferred that a witness changed her story to the
defendant's advantage as a result of her meeting with defense
counsel and also hinted that the fact that the defendant had hired
an attorney was probative of his guilt).


                                      6
occasionally somewhat acerbic, but usually were evenhanded.9                The

error occurred when, during a sidebar conference and supposedly out

of   the   hearing   of   the   jury,       the   judge   threatened   to   jail

plaintiffs' counsel for what apparently was considered to be an

inappropriate retort by counsel to the court's admission of certain

evidence.10   According to two affiants, the jail threat apparently

was overheard by the jury.11


     9
          Cf. United States v. Williams, 

(5th Cir.),
rev'd in part on other grounds, 

, cert. denied, 

(1987).

     10
            THE COURT: Well, I'm going to permit it. The
            objection is overruled.
            PLAINTIFFS' COUNSEL:   I object, and I think
            it's reversible error.
            THE COURT:   Mr. Wiedemann, I must tell you
            that it's my job to try a case as best and as
            fairly as I can given the issues that are in
            the case. If I commit reversible error, the
            Fifth Circuit will remind me of that, sir, and
            not you. Get back to work.
            PLAINTIFFS' COUNSEL: I'm sure they will.
            THE COURT: Get back to work before you end up
            in jail.
            PLAINTIFFS' COUNSEL: My job is to protect my
            client.
            THE COURT: You have one more warning and then
            you are going to be very sorry.
            PLAINTIFFS' COUNSEL: I'm going to protect my
            client when I have to.
            THE COURT: You may be doing it from jail.
            PLAINTIFFS' COUNSEL: I may be, but I'm going
            to.
            THE COURT: Last time. Now, get back to your
            chair.


      11
          One affiant was attorney Jacobs. The other was an
attorney also seated in the audience.   Both affiants were more
distant from the sidebar conference than the jury and heard the
reference to jail.

                                        7
     We need hardly remind that a trial judge should never sanction

an attorney in the presence of the jury.           The power and influence

of the bench is so pervasive that even a strong display of

displeasure with counsel may create prejudice for the client's

cause.12 Such obviously was not the intent of the judge in the case

at bar for the comment came during a sidebar conference which, by

definition,     normally   is   out    of    the   hearing   of    the     jury.

Unfortunately, here the sidebar comments were not so insulated.

     Viewed against the backdrop of the claim that plaintiffs'

counsel fomented and prosecuted fraudulent claims, the likelihood

that the jury overheard the trial judge threatening counsel with

jail created an unacceptable risk of a tainted verdict.              The jury

may well have thought that plaintiffs' counsel was facing such

punishment for engaging in fraud.             The conclusion necessarily

flowing   therefrom   would     be    that   the   Buffords'      claims    were

fraudulent.13

     The situation was further worsened when the trial court

prevented Buffords' counsel from countering defendants' aspersions.

The most direct response to the challenge to counsel's integrity


    12
          Williams, supra; Newman v. A.E. Staley Mfg. Co., 

(5th Cir. 1981).

    13
          Defendants maintain that we should review for plain error
because plaintiffs' counsel did not object to the court's threat to
jail him.    That contention is frivolous.     Plaintiffs' counsel
objected by stating that he was protecting his client. Defendants,
however, criticize the statement as evidence that counsel was
"irrationally . . . determined to have the last word. . . ." We
are not persuaded.


                                       8
would have been evidence and argument that Pearson had a legitimate

claim. Counsel attempted to so argue during his rebuttal comments,

after repeated references to Pearson's case in defendants' closing

argument. The trial court, however, cut counsel off, announcing in

front of the jury that it was shortening his allotted time to avoid

"the risk of any more intemperance."         In this the trial court erred

for not affording plaintiffs' attorneys a meaningful opportunity to

defend their professional reputations.14

     On remand, we leave to the trial court in the first instance

the decision whether the case should be referred to another judge

for retrial.    Time is a great healer.

     Because of the foregoing disposition we briefly address two

other issues raised on appeal.         With reference to the question of

the admissibility of the tape recording and videotape we invite the

attention of the court and counsel to our intervening decision in

Chaisson v. Zapata Gulf Marine Corp.,15 with the caveat that the

mandate has been stayed and the ultimate disposition thereof should

be noted.

     Finally, the plaintiffs contest the admission of a co-worker's

testimony    that   Billy    Bufford       solicited    his   assistance     in

transporting   drugs.       Fed.R.Evid.      608(b)    forbids   the   use   of

extrinsic evidence of a specific instance of conduct to attack a

     14
          See O'Rear v. Fruehauf Corp., 

(5th Cir.
1977) (error not to allow counsel to rebut false impression created
by opposing counsel in closing argument).

     15
            

(5th Cir. 1993).


                                       9
witness's character for truthfulness.       It does not bar, however,

extrinsic evidence offered to contradict a witness's testimony

about a material issue in the case.16        The co-worker's testimony

therefore   is   inadmissible   unless   defendants   identify   specific

contradictory testimony on a material issue.

     REVERSED and REMANDED.




     16
          See United States v. Lopez, 

(5th Cir.
1992), cert. denied, _____ U.S. _____, 

(May 17,
1993) (No. 92-1624); United States v. Opager, 

(5th
Cir. 1979).


                                   10