Contentious Litigation

As we discussed in the Part One of this article, available at http://bit.ly/1IRj11p, defense attorneys are increasingly finding themselves faced by opposing counsel bent on using any means possible to harass them and their clients, leading to a more contentious litigation environment than is really necessary. We continue herein with a review of some of those tactics, and we consider how they may be addressed.

File First, Investigate Later

Overly-aggressive opposing counsel may show their true colors as early as the pleading stage. Federal Rule of Civil Procedure 11 requires an attorney to conduct an objective and reasonable inquiry into the facts and law before filing a complaint. Consequently, the “Rambo” attorney's complaint lies vulnerable to a motion to dismiss. A fine example of this arose in the Western District of Pennsylvania, where the court dismissed plaintiff's negligence action against multiple pain pump manufacturers as impermissibly speculative because her allegation only stated the “possibility” that her chondrolysis diagnosis occurred after a pain pump was implanted in her shoulder, and the plaintiff did not identify the actual manufacturer or product ID in her complaint. Kester v. Zimmer Holdings, Inc., No. 210-CV-00523, 2010 WL 2696467 (W.D. Pa. June 16, 2010). The Kester court determined that allowing the plaintiff to “file first and investigate later” was contrary to FRCP 11(b). Id. (internal citation omitted).

Courts are becoming less patient with attorneys who do not focus on the merits of their case early in litigation. As recently as 2014, GlaxoSmith Kline (GSK) moved for summary judgment on 115 Multi-District Litigation (MDL) cases, alleging that all claims exceeded the Statute of Limitations in the various states in which they were initiated. In re Avandia Mktg., Sales Practices and Products Liab. Litig., No. 07-MD-1871, 2014 WL 2011239, at *13 (E.D. Pa. May 16, 2014). GSK incurred attorneys' fees in its defense, and the plaintiffs never bothered to respond to their motion. Id. The court was very concerned that the attorneys responsible for filing the complaints may not have complied with Rule 11(b) and held that “[i]n light of the generally professional manner with which counsel have comported themselves throughout this long-running litigation, the Court will not order Plaintiffs' counsel to show cause why sanctions should not be imposed at this time. Nevertheless, if GSK moves for sanctions, the Court will carefully consider whether an award of the fees GSK expended in filing its motion for summary judgment is warranted.” Id .

The U.S. Court of Appeals for the Eleventh Circuit contributed perhaps the most recent egregious example of failing to comply with Rule 11, in the case of In re Engle Cases, 767 F.3d 1082, 1101 (11th Cir. 2014). There, the plaintiffs appealed a trial court dismissal of over 500 claims in an MDL, where most of the plaintiffs were deceased, claims were the result of a clerical error, or claimants were duplicated in multiple suits. Id. Counsel argued that their solicitation resulted in too many claims to conduct a reasonable inquiry, so they filed complaints for every name they had in their possession. Id. at 1114. The court turned its attention to the fact that counsel concealed the mistakes in the complaint for over four years in affirming the lower court's dismissal. Id. at 1115, 1123.

In light of the results in cases such as these, defense attorneys should carefully examine the complaint in each of their cases to determine if plaintiffs have met their obligation under Rule 11. If not, the claims are vulnerable to a motion to dismiss or for summary judgment, and sanctions may be warranted under Rule 11. Defense counsel should also consider requesting Rule 11 certifications, as was done in In re Engle, to deter plaintiffs from filing meritless cases.

Discovery Abuses

A “Rambo” attorney's discovery tactics include requests for over-inclusive information, insulting correspondence, threats of sanctions and Motions to Compel, refusal to disclose necessary information about basic necessities, objecting to basic discovery requests, hiding or failing to produce relevant documents, barraging defendants with repetitive discovery requests, faxing discovery requests at 4:55 p.m. the night before a holiday weekend ' and the list goes on.

Expect the overly aggressive attorney to break into a full-throated battle cry at the deposition. He or she may falsely charge you with criminal or unethical conduct, may coach the plaintiff witness not to answer questions or may constantly interrupt with inappropriate objections.

An attorney's best defense against a plaintiff attorney's abusive tactics in a deposition is to know the rules. See Fed. R. Civ. P. 30; 30(c)(2) (all objections must be “noted on the record” and “stated concisely in a nonargumentative and nonsuggestive manner.”). Further, the deponent must answer all questions unless expressly instructed by counsel not to do so or if counsel has moved to suspend the deposition. Id. Rule 30 also prohibits counsel from intentionally prolonging a deposition. Excessive objections warrant a motion to compel, and may even be sanctionable offenses. Fed. R. Civ. P. 30, Adv. Com. Note (1993 Amendment (Subdivision 30(d)(3)). To combat an attorney attempting to thwart a deposition in this way, confirm on the record opposing counsel's objection, reason for the objection, and state your right to seek judicial relief.

Courts have dismissed cases with prejudice, required counsel to pay attorneys' fees, and mandated CLE courses over discovery abuses. In 2011, multiple cases in a medical malpractice MDL were dismissed with prejudice when counsel violated numerous court orders by failing to disclose medical records, make himself available for depositions, obtain non-medical authorizations from clients, or respond to interrogatories. In re Neurontin Products Liab. Litig., No. 05-CV-10834-PBS, 2011 WL 1326407, at *6 (D. Mass. Apr. 5, 2011). Counsel was also required to pay defense attorneys' and paralegal fees incurred in preparing the motion to compel. Id. In, another case, counsel was required to attend professionalism CLE courses and pay attorneys' fees when he exhibited inexperience and bad judgment by not fully investigating and dropping frivolous claims during the discovery process. No. CIV.A. 10-1677, 2015 WL 1757730, at *37 (W.D. Pa. Apr. 17, 2015). That attorney was also required to complete the professionalism course because his behavior toward opposing counsel was offensive throughout litigation. Id.

Defense counsel can also take smaller steps to navigate through uncalled-for discovery tactics, such as picking up the phone and discussing issues and then memorializing them in writing after the fact; driving the case forward to keep plaintiffs' counsel on his or her toes; and advising their clients to not be afraid to be appropriately assertive.

The Finale

Overly aggressive attorneys are not likely to back down from their tactics, even at the final stage of litigation, such as at a settlement conference or trial. They may interrupt your argument, block your view of exhibits, state that exhibits have been entered when they have not, coach experts to speak outside of disclosure designations, and even raise their voices to the judge.

Although they sometimes get away with improper conduct, courts have held such counsel accountable for their aggressive actions. Schutter v. Soong, 76 Haw. 187, 209, 873 P.2d 66, 88 (1994) (remanding the case for re-sentencing of counsel's two counts of contempt and stating, “[w]e cannot fathom any situation that would warrant counsel yelling at the court or blatantly stating, in the presence of the jury, that the court is working with opposing counsel. These are simply contemptuous acts that we find to be inexcusable.”).

Improper conduct can also result in sanctions. In O'Donnell v. Pennsylvania Dep't of Corr., the plaintiff requested sanctions against defendants and their counsel to recover attorneys' fees and costs incurred for preparing two separate settlement conferences, and participating in one, unnecessarily. No. 3:09-CV-1173, 2011 WL 398399, at *1 (M.D. Pa. Feb. 4, 2011). The court there stated that “Defendants, on multiple occasions over an extended period of time, failed to abide by this Court's orders, and exhibited a troubling and persistent failure to communicate with clarity and candor with opposing counsel and the Court regarding multiple mediation proceedings that have been scheduled.” Id. The court then imposed sanctions on the plaintiff under Rule 16, which demands candor of parties. Fed. R. Civ. P. 16.

Courts have even set aside jury verdicts based on counsel's inappropriate conduct in court. For example, a California appeals court overturned a jury verdict due to egregious misconduct by a lawyer who portrayed an injured motorcyclist as a low-life Nazi biker, in direct defiance of the court's in limine ruling. Martinez v. State of California Dept. of Transportation, No. G048375 (4th Dist., June 12, 2015, certified for publication July 7, 2015).

When faced with the outrageous presentation tactics of opposing counsel, poise and preparation go a long way. For every dirty tactic employed by opposing counsel there should be a calm response, sometimes with appropriate body movements, and sometimes with words. Defendants' counsel should remember that the jury is always watching, and use this fact to their advantage.

Conclusion

A good defense attorney must resist the lure of uncivil behavior. Defense attorneys can work to head off the antics of “Rambo” litigators by preparing their litigation strategy and being proactive in moving the case forward. By embracing civility and strategic cooperation when beneficial to the client, a good defense attorney will prevail.

Lori G. Cohen, a member of this newsletter's Board of Editors, is Chair of Greenberg Traurig, LLP's national Pharmaceutical, Medical Device & Health Care Litigation and Trial Practice Groups. Ritu Kelotra is an associate in the Atlanta office.