Sanderson v. Boddie-Noell Enterprises, Inc.

227 F.R.D. 448, 2005 WL 1271932
CourtDistrict Court, E.D. Virginia
DecidedMay 26, 2005
DocketNo. CIV.A. 3:04CV888
StatusPublished
Cited by1 cases

This text of 227 F.R.D. 448 (Sanderson v. Boddie-Noell Enterprises, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sanderson v. Boddie-Noell Enterprises, Inc., 227 F.R.D. 448, 2005 WL 1271932 (E.D. Va. 2005).

Opinion

MEMORANDUM OPINION

PAYNE, District Judge.

This matter is before the Court on the defendant’s Motion For Sanctions (Docket No. 23). According to the motion, plaintiffs counsel, Joel Bieber, initiated improper ex parte communications with the employer of the defendant’s expert witness for the purpose of preventing the expert from testifying at trial. The defendant contends that plaintiffs counsel has violated Fed.R.Civ.P. 26(b)(4); and, therefore, that the Court should exercise its inherent authority to impose sanctions, asserting that dismissal of the action is the only appropriate sanction.

The parties briefed the motion, and the Court conducted an evidentiary hearing. Upon the completion of the hearing, the Court took the matter under advisement. The matter is now ready for decision.

BACKGROUND

In this slip and fall case, the plaintiff, Ronnie Sanderson, alleges that the defendant, Boddie-Noell Enterprises, Inc., was negligent in failing to clear ice and snow from the sidewalk leading to its Hardee’s restaurant. Sanderson alleges that as a direct and proximate result of this negligence, he fell and suffered permanent injuries to his ribs, back and abdomen.

In defending against the negligence claim, the defendant contends that, at the time the alleged slip and fall occurred, precipitation in the form of freezing rain, sleet, and/or snow was falling. This assertion could be dispositive on the issue of liability because, under Virginia law, a defendant’s duty to remove snow and ice from its premises does not arise until “a reasonable time” after the storm has ended. FAD Ltd. Partn. v. Feagley, 237 Va. 413, 377 S.E.2d 437 (1989).

On March 4, 2005, in anticipation that the defendant would present the testimony of an expert meteorologist to establish that the storm was still underway at the time of the plaintiffs fall, the plaintiff designated an expert meteorologist, Dr. Raymond Lee, to testify that the storm had ended by that time.1 Apparently, Dr. Lee was Mr. Bieber’s second choice. Shortly before designating Dr. Lee as his meteorology expert, Mr. Bieber, who regularly advertises on WRIC Channel 8, a local ABC affiliate in Richmond, Virginia, telephoned Richard DePilla, the advertising manager at the station2 and inquired wheth[450]*450er WRIC would allow one of its meteorologists to serve as an expert witness in a pending civil case. HT at 14. Mr. DePilla was not familiar with the station’s policy on that point, and he presented the question to WRIC’s general manager, Mr. Robert Peterson, who advised that the station would not allow one of its meteorologists to serve as an expert witness. See id. Subsequently, Mr. DePilla passed that information along to Mr. Bieber.

On April 1, 2005, the defendant designated John Bernier, the chief meteorologist at WRIC, as its expert meteorological witness.3 Mr. Bernier has been a meteorologist at WRIC since 1984 and has appeared on the station’s local news broadcasts more than 9,000 times. Shortly after the defense counsel disclosed the identity of Mr. Bernier and served Mr. Bernier’s expert report, Mr. Bieber again telephoned Mr. DePilla, and informed him that, contrary to what Mr. DePilla had said in early March about the station’s policy, the party opposing Mr. Bieber in a civil case had hired Mr. Bernier as its expert witness. Mr. DePilla immediately informed Mr. Peterson about his conversation with Mr. Bieber. Thereupon, Mr. Peterson instructed the WRIC station manager, Matthew Zelkind, to instruct Mr. Bernier not to testify. According to Mr. Peterson’s testimony, he informed Mr. Zelkind to tell Mr. Bernier:

That it was my policy, station policy, that no one could accept outside employment, under contract could accept outside employment without our express permission, that I didn’t think it was appropriate for our employees to be accepting outside employment as professional — expert professional witnesses — and, therefore, that we would deny his request to — or it wasn’t a request — but we’d deny him the ability to serve as an expert witness.

Id. at 21.4 Mr. Zelkind confronted Mr. Bernier later that afternoon, as the weatherman was preparing to go on the air for the evening newscast. Mr. Zelkind told Mr. Bernier that the station had received a call from Mr. Bieber that morning informing them that Mr. Bernier was to testify as a witness against his client in an upcoming case. After Mr. Bernier acknowledged that he had been retained for that purpose, Mr. Zelkind told Mr. Bernier that the station would not permit him to testify. Id. at 36-38. Mr. Zelkind further admonished Mr. Bernier that he was violating the terms of his employment contract with WRIC by working as an expert witness, and that the station could fire him for this breach.5 See id. Mr. Bernier initially protested, pointing out to Mr. Zelkind that he had testified numerous times as an expert over the past twenty-one years, and that no one at the station previously had voiced an objection.6 However, Mr. Zelkind persisted, and Mr. Bernier acquiesced and agreed not to testify. Subsequently, Mr. Bernier informed counsel for the defendant that he would be unable to testify for the defendant at trial.

Counsel for the defendant immediately called Mr. Bieber to complain about Mr. Bieber’s interference and threatened to seek sanctions. In an apparent attempt to rectify the problem and thus to preclude the need for any sanctions against him or his client, Mr. Bieber sent a letter to Mr. Peterson in which he made it clear that he would not object if Mr. Bernier was allowed to testify for the defendant in this case. Mr. Bieber [451]*451subsequently reaffirmed this position on the record in this matter.

At the hearing on May 16, the Court attempted to undo the damage by suggesting to WRIC’s counsel that the appropriate recourse might be to allow Mr. Bernier to testify in this case without any threat of adverse employment action or retaliation. Considering that Mr. Bernier had been allowed to testify more than a dozen times over the past twenty-one years notwithstanding the preclusive language of his contract, the Court suggested that the station might consider allowing him to testify in this case, especially since the station’s intervention had not occurred until after Mr. Bernier had been designated as an expert witness and had tendered an expert report. The Court took a recess in order to afford counsel for WRIC an opportunity to discuss the suggestion with WRIC’s management.

After discussing the matter with management, counsel for WRIC advised that Mr. Bernier would not be fired if he testified in this matter, but that WRIC would reserve the right to take other disciplinary action, ranging from admonition to suspension. Mr. Bernier subsequently advised defendant’s counsel that he would testify if the Court instructed him to do so. However, because Mr. Bernier faced the possibility of disciplinary action (other than termination) if he continued to work on this case, the defendant decided not to press for Mr. Bernier’s testimony.

The defendant argues that, because the plaintiffs counsel’s ex parte

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Bluebook (online)
227 F.R.D. 448, 2005 WL 1271932, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sanderson-v-boddie-noell-enterprises-inc-vaed-2005.