Recent Verdicts and Settlements (Continued from page 39)


sonable control to stop it in time or di- rect it in such a way to avoid colliding with plaintiff’s vehicle.


Injuries/Damages: Plaintiff sustained a comminuted intra-articular displaced dis- tal radius fracture resulting in a 35% permanent impairment to her right wrist. Medical damages totaled $37,000. Plain-


tiff is a wife and mother and had no lost wage claim.


Plaintiff ’s Experts: Michael McClinton, M.D. (Orthopedic surgeon) Charles L. Simpson, Jr. (Accident Reconstructionist)


Defense Experts: Paul Apostolo, M.D. (Orthopedic surgeon) Gregory Manning (Accident Reconstructionist)


Verdict/Settlement: $175,000


Leveling the Playing Field (Continued from page 11)


the Defendant were still not all of the documents which were in the Defendant’s custody and control, the Defendant pro- duced twenty videotapes and more than 2,900 additional pages of documents re- sponsive to Plaintiff ’s discovery requests. The Court was so disturbed by the lack of diligence of the Defendant in produc- ing documents, that it required the Defendant to submit affidavits with re- gards to the search efforts.


Another example which the Court


gave of Defendant’s lack of diligence was with regards to advertising and promo- tional materials. In response to the Plaintiff ’s request with regards to this matter, the Defendant produced a single brochure. The Plaintiff filed a motion to compel further production on the basis that “it was inconceivable that Textron had only used a single brochure to adver- tise its golf cars.” After the Court granted the Plaintiff ’s Motion to Compel and or- dered the Defendant to conduct a more thorough investigation of its documents, Textron produced 229 additional pages of advertisements and promotional ma- terials. Apparently, Defendant’s counsel had not previously asked the manager of Textron’s Commercial and Media Rela- tions Department concerning the existence of any advertising and promo- tional materials.


Another example of the Defendant’s


improper discovery responses was the Defendant’s response to requests for docu- ments regarding testing. After Plaintiff filed a motion to compel concerning the documents produced by the Defendant, the Defendant made the extraordinary statement that “Plaintiff may not like the amount of Textron’s document produc- tion, but she (sic) has all of the requested documents that Textron has.” However, after the Court ordered additional inves- tigation to be done, the Defendant produced a list of thousands of tests which


40 Settlement:


Adjustor: Burleigh Turner


Insurance Company: Royal Insurance Company


Plaintiff ’s Counsel: Kathryn Miller Goldman (MTLA member) and Jonathan Monheit, Astrachan, Gunst, Goldman & Thomas, PC


Defense Counsel: Randall F. Smouse, Esquire, Owens & Smouse, LLC


it had performed, many appearing to be relevant to the case. The Court was also upset that these documents were not pro- duced until after the discovery deadline. The Court was also highly critical of


Defendant’s selection of a representative at the Rule 30(b)(6) depositions. The Court emphasized that the individuals to be deposed at such depositions are re- quired to testify as to the knowledge of the corporation, not merely the knowl- edge of the individual. The Court gave several illustrations of the Defendant not producing an individual with knowledge of the subject matter at issue in the Rule 30(b)(6) deposition. The Court was also incredulous that the corporate designee of the Defendant did not know the name of former counsel in the products liabil- ity litigation. In determining that an award of rea- sonable attorneys’ fees and costs was the appropriate sanction, the Court made sev- eral statements regarding discovery which are helpful to Plaintiff ’s counsel. In re- viewing all of the facts, the Court stated that:


This is clearly not a situation where justice should be tempered by mercy, given the comparative resources of the plaintiff and defendant and the inescap- able conclusion that


Textron’s


stone-walling on discovery played on that disparity.


The Court further commented regard-


ing the reality of the impact caused by the belated production of documents and in- formation:


The Court recognizes there is an unquantifiable but real prejudice to plain- tiff in the motions practice that Textron’s conduct necessitated and the litigation disadvantages of the delayed and staged receipt of discovery that was its conse- quence. For example, depositions are taken without the benefit of later-received discovery. That later received discovery might have eliminated whole areas of in- quiry or suggested entirely different questioning at deposition. In that situa-


Trial Reporter


tion, a lawyer is faced with the dilemma of whether to spend the time and expense to seek another deposition session or “to make do.” Or, belatedly received infor- mation may impact on an expert’s opinion, requiring additional analysis and a further report and even a further depo- sition.


The Court denied the Plaintiff ’s re- quest for entry of default judgment, due to the fact that the Defendant had not violated any Court Orders and the Court had not made a finding that Textron or its counsel acted in bad faith. The Court also recognized, paradoxically, that given the wealth and resources of the Defen- dant, any sanctions award is “more symbolic that retributive.” Nevertheless, the Court determined that an award of sanctions was necessary as a reminder to counsel of their duty of integrity to the judicial process. In determining the amount of the counsel fees to be awarded, the Court con- sidered four factors: 1) the reasonableness of the opposing party’s attorney’s fees; 2) the minimum to deter; 3) the ability to pay; and 4) the factors relating to the se- verity of the violation. The Court reviewed the contemporaneous time sheets of Plaintiff ’s counsel and also con- sidered the hourly rate charged in the legal community for services of like kind and quality. The Court gave particular weight to the Rules and Guidelines For Deter- mining Lodestar Attorney’s Fees in Civil Rights Discrimination Cases of this Court, which are located in Appendix B of the Local Rules of the District Court of Maryland. The total monetary sanc- tion, which was awarded jointly and severally against Defendant and Defendant’s counsel, was $37,258.39.


IV. CONCLUSION Despite the disadvantages that Plaintiffs


face in proceeding in Federal Court, the attitude of the Bench in curbing discovery abuse significantly aids Plaintiffs and their counsel in their quest for justice.


Winter 2001


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