NORA BARRY FISCHER, District Judge.
Presently before the Court is Defendants' Motion for Sanctions against Plaintiff's counsel Lawrence H. Fisher, Esq. ("Fisher"). As the nature of the Motion demands a review of the entire record, the Court first sets forth a detailed overview of the proceedings. See, e.g., Baker Indus., Inc. v. Cerberus Ltd., 764 F.2d 204, 209 (3d Cir. 1985) (reviewing the entire record in affirming the district court's finding of bad faith).
This civil rights action was brought pursuant to 42 U.S.C. § 1983 by Plaintiff David Wise ("Wise" or "Plaintiff") against Washington County, Captain Michael King ("King"), and various Washington County Correctional Facility ("WCCF") correctional officers and nurses, alleging that they violated his Eighth Amendment right of protection from cruel and unusual punishment and his Fourteenth Amendment Equal Protection rights. (Docket No. 1). Plaintiff also set forth assault and battery claims against certain of the officers and nurses. (Id.). The parties agreed that Wise's seizure disorder, which he has had since he was approximately five years old, constituted a serious medical need. (Docket No. 103 at 14); (Docket No. 308-1 at 8-10, 15).
Wise did not take his medication as prescribed on September 13, 2006. (Docket No. 228 at 3). Consequently, he had a seizure while driving and caused an accident killing a passenger in another car. (Id.); Commonwealth v. Wise, CP-63-CR-0001211-2009 (Ct. Comm. Pl. Wash. Cnty.).
With this backdrop, Wise alleged that he received inadequate medical care for three seizures he suffered at WCCF, with the first occurring on May 15, 2010. (Docket No. 29, passim); (Docket No. 103 at 2). He maintained that he had a second seizure on May 26th; however, Defendants disputed same. (Docket No. 103 at 4). He then had a second or third seizure on July 16, 2010. (Id. at 6-7). Theodore Melencheck ("Melencheck") and Robert Fields ("Fields"), also WCCF inmates, reportedly heard and saw the events surrounding this seizure. (Id. at 6-9).
Wise also alleged that he was assaulted and battered by WCCF personnel. (Docket No. 29 at 14-15). Additionally, he made complaints that the correctional officers and nurses taunted and mocked him. (Id. at 12); (Docket No. 81-4 at 105:10-106:5).
On release, Wise sought legal representation. Akman & Associates, who had previously represented him in Social Security and criminal matters, referred him to Fisher, who at that time was an employee of Cohen & Willwerth, P.C.
Upon receiving the referral and medical records from Akman & Associates, Fisher reviewed the file and evaluated the claim. (Docket No. 273 at ¶ 13). He then hired a private investigator
Service was made on King and Washington County on December 27, 2010, and on Kelley and Lehr on January 6, 2011. (Docket Nos. 2-5). After being granted a month-long extension, (CM/ECF, Text Order, Mar. 8, 2011), Defendants' counsel, Edmond R. Joyal, ("Joyal"), filed their Answer on April 7, 2011, (Docket No. 7). The Answer claimed, among other defenses, that punitive damages were not recoverable against the individual Defendants in their official capacities and Washington County and the Complaint failed to state a claim upon which relief could be granted. (Id.). Defendants also opted to have this case randomly assigned to a district judge. (Docket No. 9). The matter was then randomly assigned to this Court, with then Chief Magistrate Judge Lisa P. Lenihan referred. (CM/ECF, Text Order, Apr. 14, 2011).
Consistent with the Federal and Local Rules,
Plaintiff's Amended Complaint, filed June 30, 2011, set forth Eighth Amendment and Equal Protection claims against Washington County, correctional officers: King, Adam Lehr ("Lehr"), and Kelley, and nurses: Victoria Goroncy ("Goroncy"), Autumn Loughman ("Loughman"), Luanne Rossi ("Rossi"), and Jill Nixon ("Nixon") at Counts 1 and 2. (Docket No. 29). At Counts 3 and 4, he pled assault and battery claims against King, Kelley, and Rossi. (Id.). The punitive damages claim remained against all Defendants at Counts 1 and 2. (Id.). Defendants again raised various defenses in their Answer, including that the Defendants in their official capacities and Washington County, as a municipal defendant, were not subject to punitive damages and were entitled to qualified immunity. (Docket No. 31).
On July 12, 2011, the parties engaged in ENE before Judge Benson. The case did not resolve, and it was returned to Judge Lenihan for further proceedings. (Docket No. 30).
Additional discovery motions followed.
Throughout discovery, Judge Lenihan repeatedly reminded counsel of the Local Rules' meet and conferral requirement and the Rules of Professional Conduct.
Akin to discovery, there were numerous requests for extensions of time during this stage of the litigation. There were some joint motions, but Joyal filed the majority of these requests. (See Docket Nos. 6, 11, 78, 88, 104, 115, 146).
Defendants moved for partial judgment on the pleadings, arguing that Plaintiff failed to state a claim for conspiracy and any Equal Protection violation. (Docket No. 65). Additionally, they argued that the Amended Complaint failed to state any claim against the individual Defendants in their official capacities. (Id.). During Wise's deposition the next day, Fisher agreed to stipulate that the Equal Protection claim should be dismissed. (Docket No. 81-4 at 1); (Docket No. 81-5 at 181:17-21). The claim was formally conceded two weeks later vis-à-vis the Proposed Order attached to Plaintiff's Response in Opposition to the Motion for Judgment on the Pleadings. (Docket No. 67-1). In the proposed Order and brief, Plaintiff also agreed that punitive damages were not recoverable against the County. (Docket Nos. 67-1, 68 at 3-4). Finally, he asserted that he did not plead a conspiracy claim, despite the following language that appeared twice in his Amended Complaint: "[t]hese Defendants, individually, and in a conspiracy with each other, violated Wise's rights. . . ." (Docket No. 29 at ¶¶ 20, 42); (Docket No. 68 at 7).
After considering the parties' briefs, (Docket Nos. 64, 68), Judge Lenihan issued a Report and Recommendation ("R&R"), (Docket No. 74), which was adopted as the Opinion of this Court, (Docket No. 77). The Motion was granted as it related to any alleged conspiracy claim, Equal Protection Claim and claim for punitive damages against Washington County and the individual Defendants in their official capacities. (Id.). It was denied as to the claim for punitive damages against the individual Defendants in their personal capacities. (Id.).
Subsequently, Defendants moved for summary judgment, which was opposed. (Docket Nos. 80, 85). Judge Lenihan ultimately issued an R&R, which was also adopted as the Opinion of this Court. (Docket Nos. 103, 108). All claims against Nixon, Loughman, and Lehr and the assault claim against Kelley were dismissed. (Docket No. 108). The Motion was denied in all other respects. (Id.).
Judge Lenihan next convened a final Status Conference. (Docket No. 109). Therein, she raised the possibility of settlement negotiations, but Defendants were not willing to make an offer. (Id.). The case was then referred to this Court for trial. (Docket No. 110). A Pretrial Order was entered, setting jury selection and trial for July 10, 2013. (Docket No. 111).
In light of Joyal's unopposed request for an extension of time to file proposed jury instructions and motions in limine, (Docket No. 115), the Court convened a telephonic status conference to reset deadlines and address other pretrial issues, (Docket No. 116). The Court also ordered counsel to submit confidential settlement positions. (Id.). After receiving a demand for $1.3 million,
Two days later, the Court held a final pretrial conference with counsel for both parties in attendance as well as Plaintiff, his wife, and Defendants King and Goroncy.
Defendants argued that Fisher should be disqualified for his failure to return a memorandum
Previously, in February and March of 2012, Judges Kelly and Lenihan, respectively, directed Joyal to file a motion to claw back the disputed memorandum. (Docket No. 163 at 7); (Docket No. 66). Joyal did not do so. Instead, he set forth argument based on the alleged inadvertent disclosure more than a year and a half later in his Motion to Disqualify Fisher. (Docket No. 163 at 7). Finding this to be an "inexcusable delay," the Court found that Defendants waived the privilege and, accordingly, denied the Motion in this respect. (Id.).
Defendants' second argument for disqualification of Fisher was based on his relationship with Melencheck. (Docket No. 157). They argued that he was a potential witness due to Fisher and Melencheck's 2011 correspondence about Wise's seizures and Defendants' treatment of circumstances as outlined in Defendants' Response. (Docket Nos. 140, 141). same at WCCF. (Docket No. 165 at 3-6). Initially, Fisher sent Melencheck a blank affidavit for him to complete with details about his observations. (Id. at 2-3). Fisher then approached Joyal and requested "proper assurances" that inmates who were willing to testify about their observations of the alleged improper treatment of Wise would not "suffer retribution from jail personnel." (Id. at 4). In doing so, Fisher arguably was acting as an advocate for Melencheck and Wise contemporaneously. As counsel were unable to agree as to whether this request for assurances was valid, Fisher filed a Motion for Protective Order. (Id.). Judge Lenihan granted the Motion to the extent that the identities of potential witnesses would only be disclosed to the WCCF warden and deputies, and that those individuals were prohibited from disclosing the identities to the corrections officers. (Id.); (Docket No. 28).
Given the apparent quid pro quo relationship between Fisher and Melencheck, Joyal argued that Fisher should not examine Melencheck at trial. (Docket No. 157 at 14). He also claimed that, if the Court would permit same, Fisher would be in a position to testify as to his relationship with Melencheck without being subject to cross examination. (Id.). The Court denied the Motion to Disqualify on this basis, but prohibited Fisher from examining Melencheck at trial, leaving Kevin Tucker, Esq. ("Tucker"), his co-counsel, to handle that task. (Docket No. 165).
With the matter being set for trial the following week and counsel's failure to agree on joint exhibit binders per this Court's Order, (Docket No. 145), another telephonic status conference took place on December 5, 2013, (Docket No. 176). During same, Fisher informed the Court and defense counsel that he learned the previous day that Wise suffered a seizure earlier that week and remained in critical care. (Id.). Accordingly, the Court continued the trial date from December 9, 2013 to April 7, 2014. (Docket Nos. 180, 181, 182).
In preparation for trial in April, there was yet another Pretrial Status Conference.
Counsel for the parties engaged in additional pretrial motions practice relative to stipulations, motions in limine, and Wise's medical records. (Docket Nos. 205, 210, 224, 227, 233). Given Plaintiff's hospitalization, the Court ordered Fisher to produce his post-incarceration medical records. (Docket No. 191). Fisher moved for an in camera review of said records, arguing that they were privileged and unrelated to the instant matter. (Docket No. 196). The Court granted the motion, (Docket No. 199), and issued an Order on several pretrial issues, noting that Defendants had not raised a Daubert challenge and the time for same had passed. (Docket No. 197).
Fisher then filed a Motion for a Jury View of WCCF, asserting that Melencheck testified that defense photographs did not accurately portray what he could see from his jail cell. (Docket No. 202 at 3). These photographs had been taken by Martin Murphy ("Murphy"), a professional photographer retained by the defense. (Docket No. 285 at 8). Fisher also argued that the photographs were manipulated. (Docket No. 202 at 3-4). In light of these arguments, Fisher averred that the jury should be able to observe the view from Wise's cell to Melencheck's cell and weigh the pertinent testimony. (Id. at 4).
While Defendants did not oppose the Motion, per se, they noted WCCF's security procedures and other restrictions that govern such a site visit. (Docket No. 204). In light of said scheduling and security concerns, Fisher withdrew the Motion.
The Court then addressed the use of Wise's February 21, 2012 deposition at trial. (Docket No. 209). Given Wise's continued ill health, Fisher was ordered, at his expense, to begin to undertake the required editing of Wise's deposition taken by Joyal, incorporating the Court's rulings. (Id.). Several times in the Order, the Court pointed to Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993) treating deposition conduct, (Docket No. 209), as the transcript was replete with arguments, objections, and unprofessional and often hostile remarks between counsel. (Docket Nos. 81-4, 81-5, passim).
Plaintiff moved to exclude reference to Wise's conviction at trial, arguing that its violent nature was highly prejudicial. (Docket No. 205 at 3). The Court ruled, inter alia, that it would inform the jury of his conviction for vehicular homicide and issue a limiting instruction. (Docket No. 228). Also, Defendants would be permitted to reference said conviction in their opening statement, but any further reference would be limited, depending on the evidence elicited at trial. (Id.).
Having convened another Telephonic Status Conference upon review of pertinent medical records and treating physician Dr. Karen Tobin's ("Dr. Tobin") medical report, the Court found that Plaintiff was unavailable, as contemplated by Federal Rule of Civil Procedure 32(a)(4)(C), for trial and for a videotaped deposition for use at trial. (Docket Nos. 233, 234, 245). Thus, the Court ordered Fisher to produce a copy of the edited deposition to Defendants and the Court on April 3, 2014, which he did. (Docket No. 234).
Two days later, the Court held another Telephonic Conference, during which Joyal provided an update on the status of the subpoenaed medical records
Jury selection commenced on April 7, 2014. (CM/ECF, Minute Entry, Apr. 7, 2014). That day, Defendants filed a Motion to Dismiss Based Upon Federal Rule of Civil Procedure 36(b), arguing that they were prejudiced as a result of Fisher's disobedience of the Court's discovery Orders and his failure to supplement and/or amend Plaintiff's initial disclosures and responses to interrogatories to include Wise's additional treatment providers. (Docket No. 241). Fisher responded that he had fully complied with the Court's discovery orders and produced all necessary documents to Defendants. (Docket No. 242). The Court heard argument and considered all of the discovery issues throughout pretrial proceedings, up to and including Fisher's failure to comply with the December 13, 2013 Order requiring counsel to secure and provide all medical records created between Wise's release from WCCF and the date of trial. (CM/ECF Minute Entry, Apr. 9, 2014). The Court granted the Motion to the extent that it limited Plaintiff's damages claim for emotional/mental distress to his time at WCCF and any immediate hospitalization thereafter.
Plaintiff presented medical testimony from WCCF physician Dr. John David Six ("Dr. Six")
The Court heard oral argument from Joyal, Tucker, and Fisher on April 11, 2014 as to the remaining aspects of the Motion. (CM/ECF Minute Entry Apr. 11, 2014). After the defense rested and the Court heard additional argument on the 14th, the Court dismissed the assault claim against King and the battery claim against Kelley. (Docket No. 251); (Apr. 14 Morning Trans. at 70-72).
Thus, the Eighth Amendment claim against King based on alleged delay and the failure to train and/or supervise claim against Washington County were the only claims remaining when the case went to the jury. (Docket No. 253). The jury rendered a defense verdict on April 14, 2014, finding that King did not violate Plaintiff's Eighth Amendment right to adequate medical care. (Id.). No post-trial motions challenging the verdict were filed.
On April 12, 2014, Defendants moved for attorneys' fees and costs under Federal Rules of Civil Procedure 37(b), 37(c)(1)(A), and 26(g) and 28 U.S.C. § 1927 for reimbursement of the costs they spent in securing Wise's subpoenaed medical records, consistent with this Court's prior Order, (Docket No. 187).
Defendants then moved for an extension of time to file a Motion for Costs and Fees pursuant to 28 U.S.C. § 1927, Federal Rule of Civil Procedure 11, and the Court's inherent authority. (Docket No. 260). The Court granted said Motion, and ordered same to be filed not more than twenty days after the Court ruled on the then-pending Motions. (Docket No. 261).
Plaintiff filed a Sur Reply to Defendants' Motion for Attorney Fees, and attached thereto an Affidavit from Fisher. (Docket No. 262, 262-1). In his Affidavit, Fisher set forth the efforts he made prior to filing the Complaint in this action, his review of the medical records in this case, and his visit with Wise while he was hospitalized on December 5, 2013. (Docket No. 262-1). Tucker also filed an Affidavit explaining his role and exposure to the then-pending Motions before the Court. (Docket No. 263).
On May 28, 2014, the Court convened a Hearing and Oral Argument on Defendants' Motions, (Docket Nos. 248, 255), which was continued, as neither Tucker nor a representative of Cohen & Willwerth P.C., Fisher's former firm, appeared, (Docket No. 270). Defendants filed supplemental exhibits demonstrating their costs in subpoenaing Wise's medical records. (Docket No. 272). Fisher filed a Supplemental Affidavit addressing his evaluation of the claim, his fees, and his demand, (Docket No. 273), as well as a Brief arguing that he did not engage in bad faith and that the sanctions sought were inappropriately based on personal animus, (Docket No. 274).
Defendants then filed a Motion requesting that Judge Benson issue a report of his participation in the ENE, providing his opinions as to the strengths and weaknesses of the case. (Docket No. 275). Plaintiff did not oppose same, (Docket No. 276); however, the Court denied the Motion for various reasons outlined in its July 11, 2014 Memorandum Opinion and Order, (Docket No. 284), and discussed, infra.
The Court heard additional argument from both counsel at the June 9, 2014 Hearing before ordering Fisher to file evidence concerning his relationship with Cohen & Willwerth. (Docket No. 276). Subsequently, defense counsel and Cohen & Willwerth reached a settlement agreement, and Defendants withdrew the Motions for fees and sanctions on June 30, 2014 in their entirety. (Docket Nos. 282, 283).
However, within the twenty-day time frame set forth in this Court's prior Order, (Docket No. 261), Joyal filed a Motion seeking sanctions against Fisher, only, pursuant to 28 U.S.C. § 1927, Federal Rule of Civil Procedure 11, and 42 U.S.C. § 1988, (Docket No. 285), as well as a Motion for Attorneys' Fees, Expenses and Costs pursuant to 42 U.S.C. § 1988 and Federal Rule of Civil Procedure 54(d), (Docket No. 288). Fisher responded to both Motions, arguing that they were perfunctory in that they did not specify the harm caused by the conduct to be sanctioned or claim the requisite bad faith. (Docket Nos. 289, 290). The Court ordered Fisher to file a supplemental response, as he did not have immediate access to Joyal's billing records, which were filed under seal in support of his motions. (CM/ECF Text Order, Aug. 5, 2014). Joyal produced the records to Fisher, who then responded, (Docket No. 291), per the Court's Order. Fisher claimed that the records were insufficient proof under § 1988, as they did not denote exactly how much time was spent in defending the alleged frivolous claims and the claims that survived summary judgment but did not reach the jury. (Id. at 5-6).
During the Hearing, the Court questioned the timeliness of the Rule 11 Motion, and Joyal immediately responded that he would withdraw the motion.
A week later, Fisher filed his pre-filing billing records, under seal. (Docket No. 296). The following day, Defendants filed their Supplemental Brief in support of their Motion for Sanctions, arguing that sanctions were appropriate here because Fisher pursued frivolous claims without any credible evidence to support the damages and liability aspects of the case. (Docket No. 297). In part, Joyal relied on Zabresky v. Von Schmeling, discussed infra. 2014 WL 2450950, at *9 (M.D. Pa. May 28, 2014); (Docket No. 297). Despite Fisher's billing records being sealed, Joyal referred to them in his brief on the public docket. (Docket No. 297). Hence, the Court removed Joyal's brief from public view. (CM/ECF Text Order Oct. 15, 2014).
Fisher also filed a blank copy of the Akman & Associates Questionnaire. (Docket No. 303-1). Defendants replied, requesting that the Court order Fisher to produce his notes from his November 18, 2010 meeting with Wise and Akman & Associates to confirm that it no longer maintained any files regarding Wise. (Docket No. 304). Fisher responded that he did not have said notes and that no jurisdiction existed over Akman & Associates. (Docket No. 305).
A week later, Defendants requested that Fisher produce records from the initiation of the litigation or an appropriate affidavit, (Docket No. 306), which request the Court granted, (Docket No. 307). Fisher then filed an Affidavit stating that, prior to filing the Complaint, he had his initial notes, the Questionnaire, Wise's medical and criminal records, information from WCCF's website, the transcripts of Wise's preliminary hearing and sentencing in the criminal case, and the original file from Wise's criminal attorney. (Docket No. 308). Supporting exhibits were attached to the Affidavit. (Id.). In terms of the Amended Complaint, Fisher also had all of the previously-described records as well as the jail records provided by Defendants, their initial disclosures, Melencheck's records, and the ambulance records. (Id.). Fisher claimed that he had since lost many of the records during a move. (Id.).
Defendants subsequently moved for another Hearing on the Motion for Sanctions. (Docket No. 309). Fisher opposed, (Docket No. 310), and Joyal replied, (Docket No. 314), setting forth the specific evidence he wished to introduce at such a Hearing. Fisher then filed a Sur Reply maintaining that Joyal failed to substantiate Defendants' request for a hearing and questioning whether same was made in good faith. (Docket No. 315 at 2). As the Court believes it has more than a sufficient basis to rule, it denied Defendants' Motion for a Hearing on November 18, 2014. (Docket No. 316).
Given the Court's suggestion to counsel to negotiate their dispute, (Docket No. 300 at 52:11), a Telephonic Status Conference was held on March 12, 2015, during which counsel advised that they had engaged in settlement negotiations. (Docket No. 318). However, negotiations had failed. (Id.). Six days later, Fisher emailed the Court's clerk advising that counsel were unable to resolve this matter as they could not agree on confidentiality as a term of any release and settlement agreement.
Based on the Court's inquiry and following email correspondence with counsel and Murphy about Murphy's appearance at trial, Fisher filed an Affidavit about his process in subpoenaing Murphy. (Docket No. 320); See Section IV.C.2.e, supra. Joyal has not replied to same as of this writing. The Court now turns to the Motion at hand, and writes in support of its Order dated March 31, 2015. (Docket No. 321).
Title 28 U.S.C. § 1927 provides:
28 U.S.C. § 1927. "Section 1927 is a fee shifting statute which provides that attorneys may be liable for the excess costs, expenses and fees reasonably incurred because of such bad faith conduct." E.E.O.C. v. U.S. Steel Corp., 877 F.Supp.2d 278, 287 (W.D. Pa. 2012) (citing Sutton v. American Fed'n of State, County and Mun. Workers, Local 1510, 1997 WL 34663, at *7 (E.D. Pa. Jan. 28, 1997). Further, "[i]t limits attorney sanctions to situations in which an attorney has `(1) multiplied proceedings; (2) in an unreasonable and vexatious manner; (3) thereby increasing the cost of the proceedings; and (4) doing so in bad faith or by intentional misconduct.'" Ferguson v. Valero Energy Corp., 454 F.App'x. 109, 112 (3d Cir. 2011) (quoting In re Schaefer Salt Recovery, Inc., 542 F.3d 90, 101 (3d Cir. 2008)) (internal quotation marks omitted). Indeed, ". . . an attorney's conduct `must be of an egregious nature, stamped by bad faith that is violative of recognized standards in the conduct of litigation.'" Id. Interpreting In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 278 F.3d 175 (3d Cir. 2002), the United States Court of Appeals for the Third Circuit explained that a district court may sanction attorneys under its inherent power when the conduct is egregious or where the statutory provision is inadequate. Ferguson, at 114.
The Third Circuit guides that § 1927 sanctions are intended to deter an attorney from intentionally and unnecessarily delaying judicial proceedings, and they are limited to the costs that result from such delay. LaSalle Nat'l Bank v. First Connecticut Holding Grp., LLC., 287 F.3d 279, 288 (3d Cir. 2002) (citing Zuk v. E. Pa. Psychiatric Inst. of the Med. Coll. of Pa., 103 F.3d 294, 297 (3d Cir. 1996)).
To that end, the Court is mindful of the admonition of the Supreme Court of the United States:
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22 (1978). Accordingly, the Third Circuit has held that district courts should impose § 1927 sanctions sparingly. See In re Orthopedic Bone Screw Products Liab. Litig., 193 F.3d 781, 796 (3d Cir. 1999)) (sanctioning powers should be used sparingly in order to avoid chilling novel legal or factual arguments from counsel). It also cautions that, "courts should exercise [this sanctioning power] only in instances of a serious and studied disregard for the orderly process of justice." LaSalle Nat'l Bank, at 288-89 (citations and quotations omitted). Further, it notes that the power to sanction under § 1927 necessarily "carries with it the potential for abuse, and therefore the statute should be construed narrowly and with great caution so as not to stifle the enthusiasm or chill the creativity that is the very lifeblood of the law." Id. (quoting Mone v. Commn'r of Intern. Revenue, 774 F.2d 570, 574 (2d Cir. 1985); see also Ford v. Temple Hosp., 790 F.2d 342, 349 (3d Cir. 1986) ("The uncritical imposition of attorneys' fees can have an undesirable chilling effect on an attorney's legitimate ethical obligation to represent his client zealously."); Baker Industr. Inc, 764 F.2d at 208 ("Th[e] bad faith requirement is . . . necessary to avoid chilling an attorney's legitimate ethical obligation to represent his client zealously[.]"). Prior to sanctioning an attorney, a court must provide the party to be sanctioned with particularized notice of and some opportunity to respond to the charges. Jones v. Pittsburgh Nat. Corp., 899 F.2d 1350, 1357 (3d Cir. 1990).
As such, absent a finding that counsel's conduct resulted from bad faith, rather than misunderstanding, bad judgment, or well-intentioned zeal, the Court may not impose sanctions under § 1927. Grider v. Keystone Health Plan Cent., Inc., 580 F.3d 119, 142 (3d Cir. 2009). A finding of bad faith is required to impose liability; otherwise, "an attorney who might be guilty of no more than a mistake in professional judgment in pursuing a client's goals might be made liable for excess attorneys' fees. . . ." Baker Indus., 764 F.2d at 209; see also Gaiardo v. Ethyl Corp., 835 F.2d 479 (3d Cir. 1987) (holding Section 1927 requires a finding of counsel's bad faith as a precondition to the imposition of fees) (citing Baker); Macheska v. Thomson Learning, 347 F.Supp.2d 169, 180 (M.D. Pa. 2004) (citing Hackman v. Valley Fair, 932 F.2d 239, 242 (3d Cir. 1991)).
A showing of bad faith requires clear and convincing evidence that counsel or a party intentionally advanced a baseless contention for an improper purpose. E.E.O.C. v. U.S. Steel Corp., 877 F. Supp. 2d at 291-92. Bad faith is plain when the "claims advanced were meritless, that counsel knew or should have known this, and that the motive for filing the suit was for an improper purpose such as harassment." In re Prudential, 278 F.3d at 188 (quoting Smith v. Detroit Fed'n of Teachers Local 231, Am. Fed. of Teachers, AFL-CIO, 829 F.2d 1370, 1375 (6th Cir. 1987)). Bad faith may be inferred where a party pursues clams that are clearly frivolous. Johnson v. Smithkline Beecham Corp., 2015 WL 1004308, at *7 (E.D. Pa. Mar. 9, 2015) (citing In re Prudential); see also Matthews v. Freedman, 128 F.R.D. 194, 206-07 (E.D. Pa. 1989), aff'd, 919 F.2d 135 (3d Cir. 1990) (plaintiff's counsel acted in bad faith by litigating time-barred claims). On the other hand, bad faith is not found where motions, discovery requests, and discovery costs are multiplied when they are utilized by counsel to support colorable claims. See, e.g., Reeves v. Dauphin Cnty., 2008 WL 2054006, at *1 (M.D. Pa. May 13, 2008) (citing and quoting Mazzone v. Grant Wilfley Casting, 2008 WL 1803513, at *2 (D.N.J. Apr. 21, 2008) (citation omitted) and In re Prudential Ins. Co., 278 F.3d at 188).
The Third Circuit has recently affirmed the bad faith requirement in the bankruptcy context where counsel's bribery tactics, inter alia, demonstrated nefarious motives. In re Prosser, 777 F.3d 154, 163 (3d Cir. 2015) ("[A]lthough the Bankruptcy Court's reasons for its finding of bad faith could have been more explicit, its finding was supported by both `the entire record' and its use of `the very words of the statute.'") (citing Baker Indus., 764 F.2d at 209).
Although not controlling, the Court also notes the Ninth Circuit's definition of bad faith:
Haeger v. Goodyear Tire & Rubber Co., 906 F.Supp.2d 938, 974 (D. Ariz. 2012) (alterations in original).
In judging whether an attorney's conduct constitutes bad faith or intentional misconduct, the Court is also mindful of the Pennsylvania Rules of Professional Conduct:
Pa. RPC 3.1. Pennsylvania courts have explained that Rule 3.1 requires that, where "a lawyer knows that his or her client's case lacks any legal merit, the lawyer is not only justified in refusing to represent the client but also mandated to do so." Seilhamer v. Pa. Bd. of Prob. & Parole, 996 A.2d 40, 45 (Pa. Commw. Ct. 2010) (quoting Peace v. Dept. of Pub. Welfare, 501 A.2d 1164 (Pa. 1985). In that vein, "[t]here is a presumption that an attorney licensed to practice law in this Commonwealth, who acts as an officer of the court system, has acted in good faith upon signing a document filed with the court." Eiser v. Brown & Williamson Tobacco Corp., 938 A.2d 417, 428 (Pa. 2007) (Baldwin, J., plurality) (citing Rule 3.1).
Rules 3.1 and 3.2, which require attorneys to "make all reasonable efforts to expedite litigation consistent with the interests of the client," go hand-in-hand. Pa. RPC 3.1, 3.2; see Church of the Overcomer v. Cnty. of Delaware, 2013 WL 5942378, at *2 (E.D. Pa. Nov. 6, 2013) ("At oral argument and in subsequent communications, in keeping with the highest professional traditions as embodied in Pennsylvania Rules of Professional Conduct 3.1 and 3.2, Plaintiffs' able counsel—admirably acknowledging the significance of the law against his clients' jurisdictional position—has accepted as much").
Rule 2.1 speaks to an attorney's role as advisor: "[i]n representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation." Pa. RPC. 2.1. Indeed, the Third Circuit has noted that "clients employ counsel to assess whether the goals are indeed worth the risks." Wetzel v. Tucker, 139 F.3d 380, 386 (3d Cir. 1998) (citing Rule 2.1).
Additionally, relative to the claims before the Court, Rule 1.1 requires that a lawyer provide "competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." Pa. RPC 1.1; see also Pa. RPC 1.1 cmt. 8 ("To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, . . . engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject."). "If one is engaged to represent a client in a matter, one is charged with knowledge of the substantive and procedural law necessary to fulfill that representation." In re Lashinger, 1999 WL 409389, at *4 (Bankr. E.D. Pa. June 15, 1999) (citing Rule 1.1).
Moreover, Rule 1.14(a) demands:
Pa. RPC 1.4(a); see Com. v. Wesley, 72 Pa. D. & C. 4th 17, 31 (Com. Pl. 2005) (quoting Rule 1.14 and finding that counsel was "obliged to maintain as normal an attorney-client relationship as possible" even though the client was "a young man deep in the thro[e]s of addiction and depression").
Defendants set forth several arguments as to why § 1927 sanctions are warranted against Fisher. (Docket No. 285). They argue that his conduct throughout the course of the suit and trial impugned the reputation of certain defendants who "clearly had no liability under the law" and resulted in extended motions practice, numerous court hearings and the rescheduling of the trial in this matter on three separate occasions. (Id. at 5). Their arguments are largely premised upon Fisher's alleged lack of reasonable pre- and post-filing investigation. (Id. at 6-9). Specifically, they claim that:
In response, Fisher asserts that the § 1927 Motion is perfunctory, as it neither specifies the harm caused by the conduct to be sanctioned nor does it claim the requisite bad faith. (Docket No. 289 at 14) (citing Docket No. 285 at 15) (complaining merely that Fisher "failed to depose witnesses" and "failed to anticipate his client's possible unavailability"). Further, Fisher argues that the Motion fails to provide particularized notice of which defense billing records pertain to their sanctions claims. (Id.). To this end, Fisher points out that Joyal had months to research, draft, and satisfy the particularized notice requirements. (Id. at 15).
Additionally, Fisher maintains that the motion does not show clear and convincing evidence of his bad faith, because Wise's claims against King and Washington County were submitted to the jury based on Fields' and Melencheck's testimony, the WCCF blue prints and logbooks, and the ambulance records. (Id.). Fisher argues that there was no ulterior motive in this case, and that success on the merits was the sole motivation. (Id.).
At the September 17, 2014 Hearing, upon questioning by the Court as to what evidence of bad faith he had, Joyal conceded that there was no "smoking gun" here. (Docket No. 300 at 5:22-6:3). Joyal continued by arguing that the claims that ultimately went to the jury were an attempt at retaliation at WCCF officials, nurses, and corrections officers by Wise. (Id. at 6:8-10).
Joyal also claimed that Fisher engaged in bad faith by keeping certain individual Defendants in this case until the summary judgment stage on claims which, he alleges, were frivolous and unreasonable. (Id. at 8:12-17). Further, he reiterated his position that Fisher's conduct relative to the inadvertent disclosure of King's memorandum is itself evidence of bad faith. (Id. at 9:10-23). Joyal summarized:
(Id. at 11:3-12:1).
Under Supreme Court precedent, a Plaintiff bringing such an action must prove by a preponderance of the evidence that officials showed deliberate indifference to his or her serious medical needs. Estelle v. Gamble, 429 U.S. 97 (1976); Giles v. Kearney, 571 F.3d 318, 325 (3d Cir. 2009). Here, it was largely conceded that Wise's seizure condition constituted a serious medical need. (Docket No. 103 at 14). Hence, he was required to show that prison or jail officials intentionally denied him access to medical care he requested.
Deliberate indifference may be inferred where the prison official "(1) knows of a prisoner's need for medical treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on a non-medical reason; or (3) prevents a prisoner from receiving needed or recommended medical treatment." Walter v. Pike County, Pa., 544 F.3d 182, 191 (3d Cir. 2008) (quoting Rouse v. Plantier, 182 F.3d 192, 196-97 (3d Cir. 1999)). The Third Circuit has also "found `deliberate indifference' to exist when the prison official persists in a particular course of treatment `in the face of resultant pain and risk of permanent injury.'" Rouse, at 197 (quoting White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990)). "Short of absolute denial, `if necessary medical treatment is . . . delayed for non-medical reasons, a case of deliberate indifference has been made out.'" Petrichko v. Kurtz, et al., 117 F.Supp.2d 467, 470 n.3 (E.D. Pa. 2000) (quoting Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987)). Expert medical testimony is generally not required in the Third Circuit to prove an Eighth Amendment claim alleging deliberate indifference to a serious medical need. Id. at 473-74 (citing McCabe v. Prison Health Serv., 117 F.Supp.2d 443 (E.D. Pa. 1997) and Rizzolo v. Rivas, 1988 WL 50630 (D.N.J. May 18, 1988).
Medical authorities in prisons are "given considerable latitude in the diagnosis and treatment of medical problems of inmates." Estien v. Showalter, 2014 WL 4916333, at *9 (M.D. Pa. Sept. 30, 2014) (citing Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 765 (3d Cir. 1979)). Further, courts will "disavow any attempt to second guess the propriety or adequacy of a particular course of treatment . . . which remains a question of sound professional judgment." Id. (citing Pierce, at 762). Neither allegations of malpractice nor mere disagreement as to the proper medical treatment support an Eighth Amendment claim. Lanzaro, 834 F.2d at 346. Conversely, non-medical authorities are not "chargeable with the Eighth Amendment scienter requirement of deliberate indifference." Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004). In so holding, the Third Circuit reasoned:
Id.
Before and during this litigation, Fisher, as a lawyer and counselor, should have been advising his client in light of the pertinent legal standards for all of his claims. See Pa. RPC Rules 1.1,
Based upon its review of the entire record, the Court queries whether Fisher, consistent with the requirement to render candid advice under Rule 2.1,
Despite what Wise may have perceived as legitimate claims, Fisher should have also recognized the impression that his client could create with the jury. Notably, the very nature of this case permitted the jury to learn that Wise was in jail for vehicular homicide, because he had had a seizure while driving and caused a car accident that killed someone.
Given Wise's health conditions, memory problems, and drug and alcohol issues, a prudent attorney would have recognized that his client may have difficulties remembering or reconstructing events and conducted a more thorough investigation and discovery to ensure that there was sufficient evidentiary support for his claims. See FED.R.CIV.P. 11(b).
Accordingly, Fisher needed documents and/or witnesses to bolster Wise's claims. He decided to rely, in part, on the testimony of Melencheck, who had been convicted of tampering claims, and his credibility [was] thus at issue." (Id. at 6). The Court next noted that the traffic accident underlying his conviction was not at issue in this suit, so any risk of prejudice to this effect did not require its exclusion. (Id.). It also pointed out that the vehicular homicide conviction had probative value, given that the accident was triggered by a seizure, which, to the extent Defendants were aware of same, may have shown their knowledge of Wise's seizure disorder. (Id.). In balancing the Federal Rule of Evidence 403 considerations, the Court acknowledged the potential prejudice if said conviction was given too much consideration at trial, but noted that Plaintiff agreed to the admission of joint exhibits which referenced said conviction. (Id. at 6-7). with jurors.
As noted earlier, there was considerable litigation surrounding Melencheck's credibility. At oral argument on the summary judgment motions, Joyal utilized video
Obviously, it may not be the best strategy to put a convicted felon, who was in jail because he tampered with jurors,
Further, Defendants argue that Fisher should have visited WCCF early in the proceedings. (Docket No. 285 at 9). He did not do so before filing the Complaint, the Amended Complaint, or during discovery. See discussion at Section II.C.3, infra.
Admittedly, Fisher's decision not to investigate the scene in this case is more than puzzling. Consistent with Rules of Professional Conduct 1.1 (Competence) and 3.1 (Meritorious Claims and Contentions), a sensible attorney would have made arrangements to visit the jail prior to filing the action or even after he had deposed Melencheck, especially given the fact that Melencheck had been convicted of a crime which could impugn his credibility.
Similarly, it does not appear that Fisher properly counseled his client as to the attendant risks of this litigation, especially in light of his memory and likely credibility issues. Pa. RPC 2.1 (Advisor). At a minimum, Fisher should have reviewed his client's medical records prior to his deposition, as they demonstrated Wise's drug and alcohol use. (See, e.g. Docket No. 308-1 at 3, 7, 14, 15, 30, 34, 35, 42, 44, 45, 48, 50, 51, 54, 55, 56, 58, 60, 61). In fact, courts have found that a lawyer "has the right, if not the duty, to prepare a client for a deposition." Hall, 150 F.R.D. at 528 (citing Pa. RPC 1.1) Yet, despite this history, Wise specifically denied same during his deposition. (Docket No. 81-4 at 26:17-19) ("Is it in my medical records? No, it's not. I haven't. Like I said, I haven't been doing no drugs."); (Id. at 26:15) ("I'm not doing drugs."). Such testimony, which clearly contradicted the written records, likely hurt Wise's case before the jury.
In sum, Fisher exhibited inexperience and bad judgment in failing to properly counsel his client; fully investigate and discover the case, including his failure to make a site visit at the outset; and completely review and understand his client's medical picture. He was left with little choice as to witnesses, based on his investigator's inability to get potential witnesses to talk and his client's inability to appear at trial, except via the edited discovery videotaped deposition. Such facts and circumstances do not equate to bad faith under the statute. Nor has there been a showing of intentional misconduct by Fisher in these regards.
The Equal Protection allegations in the Complaint and Amended Complaint are verbatim and read as follows:
(Docket No. 1 at ¶ 40(g)); (Docket No. 29 at ¶ 43(g)). Defendants maintain that Fisher's failure to adequately investigate this case caused him to include this claim, which he could not support.
As set forth above, Defendants moved for judgment on the pleadings on February 20, 2012, arguing that Plaintiff failed to show that there were other inmates with seizure disorders who were provided different medical treatment. (Docket No. 64 at 9). During Wise's deposition the next day, Fisher agreed to withdraw this claim. (Docket No. 81-4 at 1); (Docket No. 81-5 at 181:17-21). Consistent with said concession, Fisher explained in his Response, filed on March 6, 2012:
(Docket No. 68 at 7).
In this Court's estimation, this claim was weak from the beginning. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (in a "class of one" action a plaintiff must allege that he has been "intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment"); see also PG Pub. Co. v. Aichele, 705 F.3d 91, 114 (3d Cir. 2013) (same). Despite same, Fisher maintains that he filed the Equal Protection claim because of what his client told him: ". . . Mr. Wise believed there had been another person in the jail with a seizure disorder — and this is what I was informed when I filed that equal protection claim — that another person in the jail had had a similar experience as Mr. Wise and was treated better than Mr. Wise." (Docket No. 300 at 20:3-7).
Given these circumstances, the Court finds persuasive its colleague's sentiment in discussing Rule 11 violations:
Ellis v. Beemiller, Inc., 2013 WL 706227, at *3 (W.D. Pa. Feb. 26, 2013). Likewise, other courts have "made clear that `[b]lind reliance on the client is seldom a sufficient inquiry.'" Brubaker Kitchens, Inc. v. Brown, 2006 WL 3682180, at *3 (E.D. Pa. Dec. 11, 2006), aff'd, 280 F. App'x 174 (3d Cir. 2008) (quoting Mike Ousley Productions, Inc., et al., v. Cabot, 130 F.R.D. 155, 158 (S.D. Ga. 1990) and Southern Leasing Partners, LTD. v. McMullan, 801 F.2d 783, 788 (5th Cir. 1986)).
In determining the reasonableness of an attorney's reliance on his client's statements, the Third Circuit has explained that the "shorter the time [that the attorney has to investigate prior to filing the pleading, motion, or other paper], the more reasonable it is for an attorney to rely on the client or forwarding counsel." CTC Imports & Exports v. Nigerian Petroleum Corp., 951 F.2d 573, 579 (3d Cir. 1991). The statute of limitations for a § 1983 claim in Pennsylvania is two years. Kach v. Hose, 589 F.3d 626 (3d Cir. 2009) (citing 42 Pa.C.S. § 5524(2)). Here, Wise's third seizure occurred on July 16, 2010 and the Complaint was filed on December 15, 2010. (Docket No. 1). Thus, it does not appear that any statute of limitations concerns prevented Fisher from further investigating his client's claims.
It is of note that the Pennsylvania Rules of Professional Conduct "do not make clear to what extent the lawyer must investigate to discover the truth." PENNSYLVANIA ETHICS HANDBOOK 197 (Michael L. Temin and Thomas G. Wilkinson, Jr., eds. 2011). However, the lawyer should be mindful of his duty of competency under Rule 1.1, "which requires thorough preparation reasonably necessary for the representation, including inquiry into the facts, and a lawyer's duty in [Rule] 3.1 to refrain from presenting frivolous issues." Id. at 197-98. Further, "[c]ompetent handling of a particular matter includes inquiry into, and analysis of, both the factual and the legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners." Id. at 34. The lawyer shall also, consistent with Rule 3.2, "make all reasonable efforts to expedite litigation consistent with the interests of the client." Pa. RPC 3.2.
To that end, the Court muses: when the Complaint and the Amended Complaint were filed, did they have support? Fisher's Affidavit claims that he reviewed the file, records and Questionnaire from Akman & Associates, met with Mr. and Mrs. Wise numerous times, and hired an investigator. (Docket No. 273). Yet, as the parties are aware, on February 2, 2012, after the filing of both the Complaint and the Amended Complaint, Fisher emailed Wise various information for his review: jail and medical records; a list of inmates in jail with Plaintiff; initial disclosures; an affidavit; and a log of his efforts to contact cell mates. (Docket No. 273-5). Queries logically follow from this email:
The Court also questions why Fisher did not pursue discovery to confirm his client's claim.
Considering the above facts, Fisher should have conformed his pleadings and/or dismissed the Equal Protection claim in light of the facts that were, or were not, revealed in his investigation and discovery prior to the February 20, 2012 Motion for Judgment on the Pleadings. Same would have limited the motions practice and thus expedited the litigation. Pa. RPC 3.2. In this vein, courts have found that an attorney acts in bad faith in continuing to pursue a meritless claim. Johnson v. Smithkline Beecham Corp., 2015 WL 1004308, at *13, 14 (E.D. Pa. Mar. 9, 2015) (imposing § 1927 sanctions against plaintiffs' firm that "initiated time-barred cases" causing "Defendants and the Court to expend considerable resources on claims the firm should have agreed to dismiss months earlier than it eventually did"); Macheska, 347 F. Supp. 2d at 181 ("By March 1, 2004 however, the underlying suit had been placed in a posture which we believe implicates the sanctions allowed by § 1927. At that point, Jennings clearly knew that his client's case lacked merit. Metaphorically, rather than pulling off of the road or applying the brakes, Jennings allowed his client's vehicle to tumble down a hill towards certain disaster. Sanctions under § 1927 are appropriate to `[D]eter an attorney under from intentionally and unnecessarily delaying judicial proceedings, and they are limited to the costs that result from such delay.'") (quoting LaSalle Nat'l Bank, 287 F.3d at 288)); see also Alphonso v. Pitney Bowes, Inc., 356 F.Supp.2d 442 (D.N.J. 2005) (counsel acted in bad faith in pursuing inflated claim for economic losses and waiting until mid-trial to drop that claim).
Similarly, "even if a lawsuit was initially filed in good faith, sanctions may be imposed on an attorney for all costs and fees incurred after the continuation of the lawsuit which is deemed to be in bad faith." Loftus v. Se. Pa. Transp. Auth., 8 F.Supp.2d 458, 461 (E.D.Pa. 1998); Vandeventer v. Wabash Nat'l Corp. 893 F.Supp. 827, 846 (N.D. Ind. 1995) (citing Dahnke v. Teamsters Local 695, 906 F.2d 1192, 1201, n. 6 (7th Cir. 1990) ("In addition, § 1927 has been interpreted to impose a continuing obligation on attorneys to dismiss claims that are no longer viable."). Further, "[R]ule [3.1] is violated if, after assertion of a fact or claim, the lawyer learns that the assertion has no merit and takes no action to correct the fact or to dismiss the claim or to engage in other remedial conduct." PENNSYLVANIA ETHICS HANDBOOK, 187.
Defendants rightfully brought their Motion for Judgment on the Pleadings, (Docket No. 63), as the "obvious purpose of Rule 12(c) of the Rules of Civil Procedure is to save time and expense in cases wherein the ultimate facts are not in dispute." Kennedy v. Boles Inv., Inc., 2011 WL 2262479, at *5 (S.D. Ala. June 7, 2011) (quoting Ulen Contracting Corp. v. Tri-Cnty. Elec. Co-op., 1 F.R.D. 284, 285 (W.D. Mich. 1940)).
On the other hand, Fisher should have "accept[ed] the facts as they develop[ed]," Hall, 150 F.R.D. at 528, and withdrawn the Equal Protection claim once he realized that he had no factual support for same. Macheska, 347 F. Supp. 2d at 181. While he may have had a good faith belief in this claim, based on his client's statements at the time of the initial Complaint, sanctions are appropriate here, as Fisher continued to pursue this claim without any basis, causing Defendants to bring their Motion. See Loftus, 8 F. Supp. 2d at 461. The Supreme Court has found that, "[f]ee-shifting to recompense a defendant (as to recompense a plaintiff) is not all-or-nothing. A defendant need not show that every claim in a complaint is frivolous to qualify for fees." Fox v. Vice, ___ U.S. ___, 131 S.Ct. 2205, 2214 (2011). While the Court in Fox was referring to § 1988 costs, the same rationale applies here. Accordingly, no later than April 30, 2015, Defendants shall submit to the Court proof of attorneys fees and costs spent in defending against the Equal Protection Claim.
In their initial Answer and the Answer to the Amended Complaint, Defendants correctly maintained that the Defendants in their official capacity and Washington County were not subject to punitive damages. (Docket Nos. 7, 31). To that end, this Court probes Fisher's demand for punitive damages, despite case law clearly holding that same is not recoverable against the government entity and the individual defendants in their official capacities. Newport v. Fact Concerts, 453 U.S. 247, 271 (1981) (holding as a matter of federal law, municipalities cannot be held liable for punitive damages under section 1983); Smith v. Borough of Dunmore, 633 F.3d 176, 183 (3d Cir. 2011) (same); Gregory v. Chehi, 843 F.2d 111, 120 (3d Cir. 1988) ("Punitive damages cannot be recovered from defendants in their official capacities.").
During the March 2015 Status Conference with counsel, the Court also noted that Fisher had brought a § 1983 case in 2006 before the late Honorable Gary Lancaster in which he did not demand punitive damages in the Complaint or Amended Complaint against the municipality. Kach v. Hose, et al., (W.D. Pa. Civil Action No. 06-1216 Docket Nos. 1, 63). Rule 11
Here, the punitive damages claims were disposed of upon Motion for Judgment on the Pleadings. (Docket No. 77). Yet, given long settled law, these punitive damages claims should not have been brought nor pursued. Hence, § 1927 sanctions are appropriate to the extent Defendants incurred costs and fees defending against same. Once again, Defendants are required to submit supporting documentation by April 30, 2015.
As all parties, litigants, witnesses, and personnel associated with this case are more than familiar, Wise had a seizure on December 3, 2013 when this matter was set for trial on December 9, 2013. (Docket Nos. 176, 180, 181, 182). The Court continued the trial to April 2014 and subsequently found Wise to be unavailable for trial or for a deposition for use at trial. (Docket Nos. 181, 235). Accordingly, Fisher was left to rely on his client's February 21, 2012 deposition. (Docket No. 235); FED.R.CIV.P. 32.
After the June 26, 2013 Pretrial and Settlement Conference, wherein Wise was visibly distressed, Fisher should have anticipated that his client could encounter difficulties at trial. Fisher's duty to the Court included assessment of his client's physical and mental conditions and their potential effects on this litigation. See Pa. RPC Rules 1.1, 1.14.
Yet, Fisher did not edit Wise's videotaped deposition for use at trial prior to the December 7, 2013 trial date, despite Wise's condition. (Docket No. 285 at 11). After the trial was continued, the Court ordered counsel to meet, confer and submit a joint status report as to the objections contained in Wise's discovery deposition. (Docket No. 181). While counsel for both parties submitted delineated objections, (Docket No. 185), as Defendants point out, the real burden largely fell on the Court and her law clerk who spent considerable time making significant edits and supporting line-by-line rulings on the transcript before it could be presented to the jury. Thereafter, the Court ordered Fisher to edit the videotaped deposition per the Court's rulings for use at trial at Plaintiff's expense. (Docket No. 209).
In response to the present Motion, Fisher noted that he did not undertake the editing earlier, because "it would have required Attorney Joyal's participation which Attorney Joyal never offered." (Docket No. 289 at 12). Despite same, a conscientious attorney would have undertaken this task much earlier to avoid delay and inconvenience to the Court. Notwithstanding the Court's criticism, Fisher did not engage in bad faith in this context. Instead, he once again demonstrated his inexperience and poor judgment.
Before moving on, this Court would be remiss if it did not address counsel's conduct during Wise's deposition. Therein, Joyal exhibited an aggressive and at times antagonistic tone in questioning Wise while Fisher made repeated speaking objections:
(Docket No. 81-4 at 42:3-43:7). In this vein, the Court once again points to the guidance of the late Judge Robert S. Gawthrop:
Hall, 150 F.R.D. at 530.
Joyal also frequently interrupted Wise and asked repetitive questions. A sample follows:
(Docket No. 81-4 at 106:6-107:12). In this context, the Court points to a recent article providing deposition advice:
Brad E. Haas, Deposition Tips for Earning Respect as a Young Attorney, THE LEGAL INTELLIGENCER, Mar. 12, 2015.
As further support for their argument that this case was brought in bad faith, Defendants argue that the claims against the nurses should not have been pursued. (Docket No. 285 at 11-12). To that end, Defendants highlight that Fisher did not depose all of the individual Defendants. (Id. at 10). As the Court has already set forth, some of the claims against the nurses and corrections officers were dismissed at the time of summary judgment proceedings. (Docket No. 108) (dismissing claims against Nixon, Loughman, and Lehr). Others were dismissed at trial. (Docket No. 247).
At the Sanctions Hearing, Joyal questioned Fisher's motives to "press forward" with claims against the individual Defendants and argued that Zabresky v. Von Schmeling provided guidance.
Id. Wise, like Zabresky, is not expected to know the intricacies of the law. Fisher, as an attorney, however, took an oath to uphold the legal and ethical requirements of both the Commonwealth of Pennsylvania and the United States District Court for the Western District of Pennsylvania. Id. He was thus required to pursue claims with legal and factual support. Id.
The Complaint and Amended Complaint alleged that Defendants' lack of or improper treatment caused him injury, (Docket No. 1 at ¶¶ 13, 17-19); (Docket No. 29 at ¶¶ 20-22). Wise explained in his deposition his claims are not for medical negligence; instead, they revolve around the alleged inhumane treatment he received at WCCF. (Docket No. 81-5 at 126:4-23). Ordinarily, unlike a medical negligence case, expert medical testimony is not required to prove causation of such injuries in a § 1983 case. McCabe, 117 F.Supp.2d 443. However, as will be discussed further, infra,
Fisher had little evidence to prove the nurses' culpability, given that:
Despite same, the Court does not find that it was improper for Fisher to keep the remaining nurse Defendants in the case through his case-in-chief. Fisher's theory was that Defendants exposed Wise to "great harm" in delaying necessary medical care and repeatedly assaulting and battering him. (Apr. 8, 2014 Morn. Trans. at 21:24-22:7). In his opening, Fisher noted Defendants' alleged inability to provide Wise with oxygen and pointed to WCCF logbooks showing that Defendants waited at least fifteen minutes to call an ambulance. (Id. at 23:1-24:10). He submitted that such delay and Defendants' mocking and taunting Wise demonstrated that they intentionally "turned a blind eye" to Wise's serious medical needs. (Id. at 24:5-10). As further evidence of their deliberate indifference, Fisher argued that Defendants accused Wise of faking his seizures. (Id. at 24:23-25:1). In his closing, Mr. Fisher reiterated these points and reminded the jury that this case was about inhumane treatment, not malpractice. (Apr. 14, 2014 Trans. at 45-64).
Even without expert testimony as to the worsening of Wise's condition and/or the appropriate standard of care for such an Eighth Amendment claim, the jury did consider the fairly legible handwritten notes from WCCF nurses and corrections officers, which were presented at trial as Joint Exhibits 1 and 5. (Docket No. 252); (see also Docket No. 308-3 at 43, 54, 57, 59, 60 61, 63, 64, 65, 69, 70, 71, 73, 74, 75, 80, 82). These notes describe Wise's medical treatment in the jail on the following dates in 2010: May 1, 15, 26, 27, 28, 29; June 3; July 15, 16, 17, 18, and 19. (Id.). Specifically, Loughman's report details Wise's May 15, 2010 seizure for which he was taken to the hospital and Goroncy's follow-up call to the hospital two days later. (Docket No. 308-3 at 80). They also detail the July 16th seizure. (Id. at 82).
Further, Dr. Six, in his trial testimony, described his role as one of the WCCF's physicians, and testified about the nurses' notes. Dr. Tobin, who had treated Wise for his seizure disorder for approximately fifteen years, likewise testified about the WCCF treatment notes and Wise's medical records concerning the seizures he allegedly suffered in WCCF. (Apr. 10, 2014 Trans. at 24:22-25:4). And, both physicians were credible witnesses, in this Court's judgment.
As to delay in treatment, Wise testified in his deposition, the video of which was played at trial, that Defendants should have called an ambulance right away, because "if somebody's in a seizure three to five minutes, that's too damn long."
It would have been more prudent for Fisher to have deposed the nurse Defendants or examined them at trial, as he indicated he would. However, his failure to do so does not support a finding of intentional misconduct or bad faith. Again, the nurses' notes were jointly admitted, and the jurors had the benefit of said notes in their deliberation, along with the testimony outlined above. Fisher's delay in treatment theory was supported by testimony concerning delay in providing oxygen and in calling 9-1-1; the time it took for the ambulance to arrive; and, alleged mocking and taunting before Wise's July seizure was addressed. Along with the medical testimony of Drs. Six and Tobin, the jury could have found that the remaining nurse Defendants were deliberately indifferent to Wise's seizure condition vis-à-vis delay or lack of treatment in regard to this seizure.
Yet, Fisher voluntarily dismissed nurses Goroncy and Rossi following Plaintiff's case.
The Court accepts that Fisher's explanation that his decision to keep Gornocy and Rossi in the case was strategic. Notwithstanding any delay or inconvenience attributed to said decision, see Pa. RPC 3.2 (Expediting Litigation), his conduct does not amount to bad faith under § 1927. See Section III, supra.
Defendants argue that Fisher improperly subpoenaed Murphy, the defense photographer, and did not pay him an appropriate witness fee. (Docket No. 285 at 9). Indeed, the subpoena was insufficient, as it was not signed by a process server. (Apr. 8, 2014 Morning Trans. at 6:7-12). It is basic trial practice that any competent attorney should effectuate service of a subpoena properly. Pa. RPC 1.1 (Competence). Yet, upon receipt of said subpoena, Murphy (who had previously appeared in Court) should have recognized that it was insufficient or called Fisher or Joyal to confirm his appearance. Nevertheless, Murphy appeared on the morning of April 8, 2014 and advised that he had a conflict with his schedule and would need to leave by 3:00 p.m. (Id. at 8:6-13). The Court responded that, based on Fisher's representations to the Court, Plaintiff's first two witnesses would be Mrs. Wise and King. (Apr. 7, 2014 Afternoon Trans. at 52:17-20). Given that jury selection had not concluded, both parties had to provide opening statements, and two witnesses had to be called prior to Murphy, it was unreasonable that Fisher did not inform Murphy that his attendance was not needed at the time and date on the subpoena.
Based on Defendants' contention that Fisher did not pay Murphy the requisite witness fee, this Court inquired by email to both counsel and Murphy on March 23, 2015 whether Murphy was paid for his appearance, and if so, by whom. As counsel and Murphy provided conflicting responses, Fisher was ordered to file an Affidavit.
In all, Fisher should have served the subpoena properly and communicated with Murphy, as it was clear that he did not keep him abreast of the trial's progress.
Defendants argue that Fisher should have corroborated his client's claims with liability and damages experts. (Docket No. 285 at 7). Fisher did not directly respond to this argument; instead, he maintains that, because the case went to the jury, it had merit.
Fisher called King, who testified about Wise's May 15th and July 16th seizures, the alleged May 26th seizure, the emergency services training he received at WCCF, the logbooks, the Red Cross skills card, the nurses' response to emergency situations, and Wise's discipline at the jail.
As noted above, Plaintiff bears the burden of proving that the Defendants did not provide him with adequate treatment. Estelle, 429 U.S. at 106; see also Colburn v. Upper Darby Township, 946 F.2d 1017, 1030 (3d Cir. 1991). ("A plaintiff pressing a § 1983 claim must identify a failure to provide specific training that has a causal nexus with their injuries and must demonstrate that the absence of that specific training can reasonably be said to reflect a deliberate indifference to whether the alleged constitutional deprivations occurred.").
While the case law in this Circuit is less than precise, it is clear that a Plaintiff may prove deliberate indifference to a serious medical need without presenting expert testimony if "the seriousness of the injury or illness would be apparent to a lay person."
However, expert testimony would have been necessary to demonstrate Defendants' deliberate indifference caused Wise's condition to worsen. As discussed, supra, and explained in Petrichko, to show that a delay in treatment in fact caused a plaintiff's injury, that plaintiff would need to produce expert medical testimony to prevail at trial. Id. at 474, n.7. To that end, the Court also notes a case which likewise centered on treatment of seizures. In Boomer v. Lewis, the Middle District of Pennsylvania found that, without expert testimony, a reasonable juror could not conclude that certain medical defendants were deliberately indifferent to plaintiff's seizure disorder for the alleged eleven-month delay in medical treatment. 2009 WL 2900779, at *11 (M.D. Pa. Apr. 1, 2009).
Likewise, expert testimony was required to prove "any serious deterioration" in an inmate's heart condition or immune system. Montgomery v. Pinchak, 294 F.3d 492, 504 (3d Cir. 2002). The Circuit has also upheld the trial court's finding that expert testimony was required to prove "the seriousness of the medical consequences and effects of MRSA [methicillin-resistant staphylococcus aureus] and foot ulcers" because "the ability to diagnose a foot infection and determine the proper treatment and medication protocol is not readily apparent to lay persons." Mitchell v. Gershen, 466 F. App'x. 84, 87 (3d Cir. 2011) (affirming grant of summary judgment). It further has held that expert testimony was required for an inmate to prove that the forced administration of antipsychotic medication constituted deliberate indifference to his medical needs. Aruanno v. Glazman, 316 F. App'x 194, 196 (3d Cir. 2009); see also Paith v. Cnty. of Washington, 394 F. App'x. 858, 860 (3d Cir. 2010) ("Whether a medication is ineffective if it is given without food is not readily apparent to a lay person.").
Given these holdings, in this Court's estimation, it would have been better practice for Fisher to use one or more expert witnesses to support his client's claims that his condition worsened.
As discussed earlier, Fisher asserts that his decision to dismiss the remaining nurses was based on conferral with his client and his family, during which they expressed concerns about the impression that was being made with the jury.
The Court now examines Fisher's conduct relative to his view of the merits and value of this case throughout the litigation. Joyal argued that Plaintiff's demand was "outrageous" and "without any thought process whatsoever of a value." (Docket No. 300 at 10:4-5). He further contended that, since the demand included a six-figure attorney fee claim that:
(Id. at 10:21-11:1).
Fisher responded that he extensively relied on the materials from Akman & Associates, interviewed Wise and his wife, and hired a private investigator to support Wise's claims. (Id. at 13:4-14). In an Affidavit, Fisher claimed that his demand was mindful of other jury awards in prisoner cases.
Certainly, the parties had vastly disparate views as to this case's value. Thus, the decision to pursue Early Neutral Evaluation before Judge Benson was appropriate, as it should have provided both parties and counsel with a realistic view of the case, especially given Judge Benson's former service as a Magistrate Judge of this Court and his extensive mediation experience.
This Court and Judge Lenihan also spent considerable time in attempting to resolve this issue, despite the parties' positions. (See Docket Nos. 109, 144). During same, the Court has previously expressed concern about Fisher's posture in negotiating, given his interest in this case versus that of his client. Leading up to the June 2013 trial date, Fisher's demand remained at $1.3 million, while his client had suggested "a very, very modest sum, along with an apology."
(Docket No. 300 at 16:16-17:10); see also (Docket No. 273 at 3-4) ("Following Plaintiff's June 24, 2013 demand, during the June 2[6], 2013 settlement conference held by the Court, Plaintiff indicated that he would accept substantially less than his demand, provided that the Defendants offered him an apology for their conduct as alleged.").
In light of these circumstances, the Court finds it necessary to address the potential conflict which arises where a client's willingness to settle for an amount is in direct contravention to his attorney's desire to recover his fees.
Lloyd B. Snyder, Ethics and the Settlement of Civil Rights Cases: Can Attorneys Keep Their Virtue and Their Fees? 16 N.M.L.REV. 283, 302-03 (1986).
Similarly, in Pennsylvania, "[e]ven where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer's ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer's other responsibilities or interests." Pa. RPC Rule 1.7 at cmt. 8. Other articles have examined this ethical dilemma in civil rights litigation and explained that, "[a]n attorney's entitlement to statutory fees for successfully enforcing congressionally favored rights does not diminish his duty to provide disinterested counsel." Editors, Settlement Offers Conditioned upon Waiver of Attorneys' Fees: Policy, Legal, and Ethical Considerations, 131 U.PA.L.REV. 793 (1983).
This situation may raise a serious ethical concern, as two circuits have cautioned, because counsel would be placed in the position of negotiating a fee ultimately destined for his pocket at the same time that all thoughts ought to be singlemindedly focused on the client's interests.
Obin v. Dist. No. 9 of Int'l Ass'n of Machinists & Aerospace Workers, 651 F.2d 574, 582-83 (8th Cir. 1981) (citing Mendoza v. United States, 623 F.2d 1338, 1352-53 (9th Cir. 1980) disapproved of by Evans v. Jeff D., 475 U.S. 717, 734-35 (1986); Prandini v. National Tea Co., 557 F.2d 1015, 1021 (3d Cir. 1977), disapproved of by Jeff D., 475 U.S. 717; Regalado v. Johnson, 79 F.R.D. 447, 451 (N.D. Ill.1978)).
The Court is certainly mindful that the Supreme Court of the United States in Evans v. Jeff D. did away with the Third Circuit's prohibition on simultaneous negotiations and held that it is not necessarily unethical for a defendant to make an offer to simultaneously settle the plaintiff's claim on the merits and the claim for fees. 475 U.S. 717, 734-35 (1986). The Court explained that a § 1988 claim for fees belongs to the party, not his or her attorney. Id. at 730, n.19. It also held that the fees are considered part of "the arsenal of remedies available to combat violations of civil rights, a goal not invariably inconsistent with conditioning settlement on the merits on a waiver of statutory attorney's fees." Id. at 732. Following same, the Court of Appeals has acknowledged that this holding "may create tensions for counsel for civil rights plaintiffs in negotiating settlements," but, "we, as well as the district courts, are bound by the holding and its rationale." Phillips v. Allegheny Cnty, Pa., 869 F.2d 234, 239 (3d Cir. 1989).
To that end, Pennsylvania Rule of Professional Conduct 1.2 provides: [A] a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. . . .
Pa. RPC 1.2. (emphasis added); see Midiri Models, Inc. v. Expressions Modeling & Talent Agency, Inc., 1990 WL 96663, at *1 (E.D. Pa. 1990) (quoting Rule 1.2); Shelhammer v. Erie Ins. Co., 29 Pa. D. & C. 4th 253, 256 n.3 (Ct. Com. Pl. Allegh. Cnty. 1995) (same).
Additionally, the Court notes that a sister-court in the Third Circuit sanctioned a Plaintiff's attorney under § 1927 for continuing to pursue an inflated economic damages claim in bad faith, despite evidence demonstrating that the amount of loss was trivial, at most. Alphonso, 356 F. Supp. 2d at 454 (District of New Jersey holding: "While Mr. Sandler may not have initiated his client's half-million dollar economic damages claim in bad faith, his relentless pursuit of that claim after the evidence demonstrated, at most, a comparatively trivial amount of loss shows bad faith by Mr. Sandler."). In Alphonso, the Defendants argued that Plaintiff's counsel's decision to drop the economic loss claim mid-trial constituted bad faith. Id. at 454. The Court agreed, finding that the bases for the decision to drop the claim at trial were known to counsel "long before the trial date neared." Id.
While the attorney in Alphonso and Fisher seemingly shared distorted views of the worth of their clients' claims, the Court distinguishes the two. Counsel in Alphonso admitted that he knew before trial that he did not plan on pursuing the economic loss claim, yet he refused to drop it until the last day of Plaintiff's case-in-chief. Id. at 454-55. In this Court's estimation, Fisher's settlement posture was certainly unreasonable, given the facts and the applicable law. Further, the Court had ruled in favor of Defendants relative to reference to Wise's conviction at trial, (Docket No. 228), and, given discovery abuses, precluded his counsel from introducing evidence of Wise's continued seizures, thus limiting his damages claim,
In light of his relative inexperience as a trial attorney in this area, the Court suggests that Fisher could have conferred with another Plaintiff's civil rights attorney to evaluate Wise's case at the outset. Comment 1 to Rule 1.1 notes that whether it is feasible to consult with "a lawyer of established competence in the field in question" is one factor in "determining whether a lawyer employs the requisite knowledge and skill in a particular matter." Pa. RPC 1.1 at cmt. 1. Perhaps, with such guidance, Fisher's zeal would have been tempered and his initial demand would have been more reasonable. Further, when he and his client were clearly at an impasse relative to their settlement positions in June 2013, he could have sought guidance from the Allegheny County Bar Association's and the Pennsylvania Bar Association's ethics hotlines.
Nevertheless, Wise's Eighth Amendment claims against King and Washington County went to the jury. As such, the Court notes the comments of Judge Terrence McVerry:
Yurisic v. Carter, 2010 WL 3811455, at *3 (W.D. Pa. 2010).
While Fisher's misjudgment of the merits and demerits of this case resulted in an early and long-lasting unreasonable settlement posture until it was too late, his acts and omissions in such negotiations do not amount to bad faith, particularly given Jeff D. and its progeny.
Joyal argues that Fisher acted in bad faith with regard to the inadvertent disclosure of King's memorandum. (Docket No. 300 at 9:10-23). Fisher responds that the Court has already ruled on this issue. (Id. at 25:10-22); (Docket No. 163 at 7). Indeed, in September 2013 the Court denied Joyal's Motion for Disqualification relative to the disclosure, finding that he waived any privilege to the memorandum. (Docket No. 163). As discussed in the Court's ruling and herein, Joyal did not file a motion to claw back the document even though Judges Kelly and Lenihan both advised him to do so. (Id. at 7). The Court agrees that it has already addressed this issue and declines to sanction Fisher on this basis.
As the standard for the present Motion requires this Court to review this litigation in its entirety, see Section III, supra, the Court now comments on counsel's conduct. All too frequently, Fisher's and Joyal's lack of professionalism interfered with their judgment, strategy, and advocacy on behalf of their clients.
Further, their relentless bickering and rancor made this litigation more onerous on the Court.
Indeed, the conduct of both counsel multiplied the proceedings. Pa. RPC 3.2 (Expediting Litigation). Motions practice surrounding the inadvertent disclosure as part of a claim for Fisher's disqualification delayed the litigation, see Section II.C.2, supra. Additionally, Fisher should have arranged for and taken Wise's deposition for use at trial. Instead, the Court spent an inordinate amount of time editing Plaintiff's deposition. (See Docket No. 209). As discussed earlier, Fisher wasted the Court's and Murphy's time when he appeared on April 8, 2014 unnecessarily. See Section IV.C.2.e, supra.
The Court also notes Joyal's last two Motions for Sanctions and Fees, (Docket Nos. 285, 288). The Rule 11, § 1988, and inherent authority claims were withdrawn or denied, given their patent untimeliness. (Docket Nos. 293, 294, 300, 302); Pa. RPC 3.1 (Meritorious Claims and Contentions). Joyal also failed to cite controlling case law or provide supporting citations to the record for the majority of the assertions in their sanctions motions and supporting briefs. (Docket Nos. 285, 288, 304, 306, 314). Further, he did not set forth the specific relief requested in the § 1927 Motion or the proposed order accompanying same. (Docket Nos. 285, 286).
Similarly, Joyal's Motion regarding Judge Benson's ENE was not well-taken. Joyal, as a long-time practitioner in Western Pennsylvania, should have known better. Pa. RPC 3.1 (Meritorious Claims and Contentions). As the Court wrote in its July 11, 2014 Memorandum Order and Opinion:
(Docket No. 284 at 3).
The Court was also burdened by counsel's hostile email correspondence, which were attached as exhibits to various filings in this case. For example, the June 9, 2011 email from Joyal to Fisher attached to Defendants' June 10, 2011 Motion to Compel, reads as follows:
(Docket No. 21-5 at 1). Joyal's email is correct to the extent that counsel's failure to have personal contact during this litigation is unfortunate.
Not to be outdone, Fisher responded to Joyal's email later that day:
(Docket No. 21-7 at 1). Fisher was right to this extent: the parties and the Court were in for a rough road with regard to this litigation. This Court has been made to ride this rough road spanning more than sixty filings over eleven months beyond the jury's verdict.
In this context, courts have expressed their frustration with counsel who did not comport themselves professionally. See, e.g., Marino v. Usher, 2014 WL 2116114, at *7 (E.D. Pa. May 21, 2014) ("Cooperation between opposing counsel is entirely consistent with a lawyer's obligations to his or her client, and ensures the efficient and rational resolution of civil litigation.") (citing Pa. RPC 3.5(g) ("A lawyer shall not engage in conduct intended to disrupt a tribunal"); id. at cmt. 5 ("The duty to refrain from disruptive conduct applies to any proceeding of a tribunal, including a deposition.")); see also Grider, 580 F.3d at 125 ("one expects . . . civility and professionalism" from experienced attorneys during discovery); Huggins v. Coatesville Area Sch. Dist., 2009 WL 2973044, at *4 (E.D. Pa. Sept.16, 2009) ("Treating an adversary with advertent discourtesy, let alone with calumny or derision, rends the fabric of the law."); GMAC Bank v. HTFC Corp., 248 F.R.D. 182, 184 (E.D. Pa. 2008) ("The issue of how to rein in incivility by counsel in depositions has been the subject of considerable interest in the legal profession for some time.").
Upon consideration of counsel's conduct and in line with the Third Circuit's reasoning in Ferguson, this Court departs from the general preference against inherent powers sanctions as it finds that counsel's conduct was egregious. Ferguson, 454 F. App'x at 114 (citing In re Prudential, 278 F.3d at 189); see also Chambers, 501 U.S. at 50 (a district court may rely on its inherent authority when, in its "informed discretion, . . . neither the statute nor the Rules are up to the task"). To that end, "[a]mong the implied and incidental powers of a federal court is the power to discipline attorneys who appear before it." Fellheimer, Eichen & Braverman, P.C. v. Charter Technologies, Inc., 57 F.3d 1215, 1224 (3d Cir. 1995) (quoting Chambers, 501 U.S. at 43) (other quotations and citations omitted).
Given their respective failures in this regard, Fisher and Joyal shall attend a CLE on professionalism by the end of the calendar year. See In re Cendant Corp., 260 F.3d 183, 200 (3d Cir. 2001) (noting that, before invoking its inherent authority, the court shall "ensure that the sanction is tailored to address the harm identified"); see also Johnson, 2015 WL 1004308, at *13 (same).
Finally, counsel are urged to comport with the Code of Civility, particularly Number 5: "[a] lawyer should abstain from making disparaging personal remarks or engaging in acrimonious speech or conduct toward opposing counsel or any participants in the legal process and shall treat everyone involved with fair consideration," in further dealings before this Court. See also Delamater v. Norgren Kloehn, Inc., 2014 WL 671039, at *1 (M.D. Pa. Feb. 21, 2014) (noting the "unusual amount of personal bickering and squabbling between the attorneys in this case.").
Consistent with this Court's March 31, 2015 Order, (Docket No. 321), mindful of the maxim that sanctions should be granted sparingly, In re Orthopedic, 193 F.3d at 796, and after much consideration, Defendant's Motion for Sanctions, (Docket No. 285) is GRANTED, in part, and DENIED, in part. Specifically, the Court finds that Fisher's decision to maintain a punitive damages claim against Washington County and the individual Defendants in their official capacities was in bad faith. Similarly, the Equal Protection claim was maintained in bad faith once Fisher recognized that he could not prove same. The Court will not further sanction Fisher as to the discovery issues raised by Defendants, given the Court's ruling on a related Motion at the outset of trial. See Section II.D., supra. Nor will the Court sanction Fisher for his conduct in failing to depose all of the individual Defendants, in failing to edit Wise's videotaped deposition, in calling Melencheck as a witness, in settlement negotiations, in his conduct relative to the inadvertent disclosure, in failing to visit WCCF, in his dealings with photographer Murphy, in failing to call an expert, or in his late dismissal of two individual nurse Defendants.
No later than April 30, 2015, Defendants shall file an affidavit and supporting documentation setting forth all attorneys fees, costs and expenses incurred in defending the punitive damages claim against Washington County and the individual Defendants in their official capacities and the Equal Protection claims until the time of their dismissal.
Further, Fisher shall attend a CLE program on the trial of a § 1983 case. Fisher and Joyal shall both attend a CLE program on professionalism by the end of calendar year 2015. Proof of such attendance at said CLEs, by way of an Affidavit and certificate of attendance, shall be filed, with the Court, by both counsel by January 4, 2016.
An appropriate Order follows. cc/ecf: All counsel of record
The Official Site: Lawrence H. Fisher, Attorney & Author, available at
(Docket No. 285-1 at 1).
Robert A. Creo, Best Practices for Representing Clients, THE PENNSYLVANIA LAWYER, March/April 2015, at 47.
FED.R.CIV.P. 11. (emphasis added).
Illinois Legal Aid, Federal Court Prison litigation Project Handbook Part II.
(Apr. 11, 2014 Trans. at 80:18-24). Fisher responded, "Correct." (Id. at 80:25).
Court Awarded Attorney Fees, Report of the Third Circuit Task Force, 108 F.R.D. 237, 266 (1985). Similarly, the United States Court of Appeals for the Ninth Circuit noted that, "[i]f fees are unreasonably high, the likelihood is that the defendant obtained an economically beneficial concession with regard to the merits provisions, in the form of lower monetary payments to class members or less injunctive relief for the class than could otherwise have obtained." Staton v. Boeing Co., 327 F.3d 938, 964 (9th Cir. 2003) (citing Court Awarded Attorney Fees, 108 F.R.D. at 266).
Id. at Preamble, § 99.1.
