Opinion
CV 99-177-M-DWM.
January 2, 2003
Michael D. Weisman, Weisman Associates, Boston, MA, Paul C. Meismer, Caarey Meismer, Missoula, MT, Patrick M. Ardis, Wolf Ardis, Memphis, TN, for Plaintiff.
John D. Stephenson, Jardine, Stephenson, Blewett Weaver, Great Falls, MT, Lawrence A. Sutter, Sutter, O'Connell, Mannion Farchione, Cleveland, OH, for Defendant.
ORDER
I. Factual Background
This case arises out of an accident on February 17, 1997 in which Plaintiff Steven Lasar was injured when the 1986 Ford Ranger pickup he was driving rolled several times. Lasar was ejected from the vehicle, suffering severe injuries. He filed suit against Ford Motor Company alleging, in part, that the door latch mechanism on the Ranger was defective, allowing the door to open during the accident and leading to his ejection from the vehicle.
Lasar brought several claims, however, all but his strict liability claim were dismissed upon his own motion.
The case was referred to United States Magistrate Leif B. Erickson for all pretrial proceedings. In response to motions in limine, Judge Erickson ruled that under Montana law, evidence of Lasar's failure to wear a seatbelt was inadmissible at trial. Judge Erickson also ruled that any evidence of alcohol use by Lasar on the day of the accident would be excluded at trial. On the alcohol issue, Judge Erickson found, and Ford has conceded, that there is no evidence to establish a causal link between Lasar's modest consumption of alcohol and the accident. Ford objected to Judge Erickson's rulings, even though Montana law is clear on seatbelt evidence and even though Ford had no relevant proof to support its prejudicial argument that drinking was involved in the wreck. After further briefing, I overruled both objections and affirmed by written order there would be no evidence or inference at trial about seatbelts or alcohol.
Mont. Code Ann. § 61-13-1-6 states
[e]vidence of compliance or failure to comply with 61-13-103 is not admissible in any civil action for personal injury or property damage resulting from the use or operation of a motor vehicle, and failure to comply with 61-13-103 does not constitute negligence.
The only evidence of alcohol use was Lasar's statement in a deposition that he drank a few beers over the course of the day. Tests taken after the accident indicated that Lasar had a blood alcohol concentration well below the level at which a driver in Montana is considered to be impaired. Additionally, testimony of his friends, and testimony from a highway patrol officer that stopped him shortly before the accident indicate that Lasar was not intoxicated.
The case was originally set for trial on February 4, 2002. At that time, Ford was represented by John Stephenson and John Randolph Bibb, the latter having been admitted pro hac vice. Due to other cases on the docket, the February trial date was continued until May 6, 2002. On April 24, 2002, Ford moved to allow Bibb to withdraw and to substitute Lawrence Sutter as counsel. I allowed Bibb to withdraw and, based on the representations in his affidavit, granted Sutter's admission pro hac vice. As it turns out, that affidavit was misleading and failed to inform the Court of Sutter's prior contempt in an Ohio state court. (See Ohio Aff. of Lawrence A. Sutter, attached as Appendix A.)
Though the motion to withdraw and substitute was filed in April 2002, Sutter's affidavit in support of his admission pro hac vice was filed May 7, 2002.
Sutter filed this affidavit with the Ohio court in December of 1999. It is highly improbable that he forgot about having been jailed twice for contempt in the time between December 6, 1999 and May 7, 2002 when he filed his pro hac vice request in this Court. Further, Sutter's pro hac vice affidavit did not state that he had not been held in contempt, but omitted any reference to contempt, though it included all other information required by local rule. Compare L.R. 83.3(e)(3), attached as Appendix B, with Pro Hac Vice Aff. of Lawrence A. Sutter, attached as Appendix C.
In late April 2002, it became apparent that a number of criminal matters would be going to trial at the same time that this case had been set. The Court was again compelled to continue Lasar's case. Trial was rescheduled for October 7, 2002. Before trial, I issued my orders overruling Ford's objections to Judge Erickson's rulings.
At trial, during the Court's voir dire, I made it clear to the jury panel that, if selected as jurors, they could not consider Lasar's use or non-use of seatbelts in rendering a verdict. All jurors agreed that they would follow this direction. The issue and the law had been explained to them and I was satisfied the case could be tried within the constraints of Montana law. The issue of alcohol was not discussed at anytime in voir dire or in Plaintiff's opening statement. It was not an issue, or so I thought.
During Defendant's opening statement, Sutter decidedly made the following prejudicial assertions:
Let me give you a few more details.
At about 5:00 that morning, Mr. Lasar got out of bed and went hunting for the morning. Some time in the afternoon, he met up with some of his friends and spent the day playing pool, visiting some local establishments. Somewhere around 10:00 that night, he made the decision to drive himself home. He got into his car and he began his way back to his homestead.
. . .
Now, inside the vehicle, something else was going on; Lasar was what we call a free-floating body. His body was banting (sic) about inside the car as it was rolling over. And because of what happens during the rollover, something all of us learned in high school and most of us tried to forget, centrifugal force. All that is, is something spinning around like a yo-yo on a string; it wants to keep going outward.
Partial Tr. of Sutter's Opening Statement, Docs. 170, 171 (emphasis added).
As I noted at the time I ruled on the mistrial, the cold record cannot capture the tone, the inflection, and the deliberate message Sutter intended, and communicated in his irrelevant and prejudicial statements.
Immediately following Sutter's opening statement, counsel for Lasar requested a side bar. I denied the request and told counsel that any issues would be dealt with at a later time. Furthermore, the order in limine protected Lasar's record on the violation of the Court's orders. When given an opportunity, counsel for Lasar strenuously objected to Sutter's opening to the extent it implied that Lasar was intoxicated or that he was not wearing a seatbelt at the time of the roll-over. While Lasar initially asked for a curative instruction, it was clear that Sutter's deliberate violation of the Court's orders in limine would prevent a fair trial.
I ultimately granted a motion by Lasar for a mistrial. Given the egregiousness of the violation, I determined an award of sanctions would be appropriate. Ford and Sutter were given notice of my intentions and the remedies and sanctions being considered. On October 10, 2002, a hearing was held at which I addressed three issues: (1) the amount and nature of sanctions to be imposed; (2) whether Sutter could show cause why he should not be held in contempt; and (3) whether Sutter should have his admission to practice pro hac vice revoked.
After considering the evidence presented at the show cause and contempt hearing, I have concluded that Lawrence Sutter and Ford should be sanctioned for Sutter's deliberate violation of the orders in limine. I have concluded that Sutter is in contempt of court for violating the order prohibiting him from suggesting alcohol was an issue when he knew there was no proof to support the prejudicial inference and suggestion, and when he knew the proof from the Highway Patrol, friends, and medical evidence was contrary to what he implied to the jury. Finally, I find that Lawrence Sutter deliberately misled the Court in his application to appear in this case pro hac vice. His deceit was compounded by further misleading statements about his prior contempt in Ohio and his relativist ethics in trying to rationalize his admitted efforts to stay within his perception of the letter of a court order, while blatantly violating the intent and spirit of the order. In short, Lawrence Sutter lacks the candor and integrity to appear in this Court pro hac vice. There is no room in this Court for lawyers who do not abide by the rules of court and the orders entered in a case. My reasoning is set forth below.
II. Authority for Contempt and Sanctions
The Court's power to impose sanctions on Ford Motor, Sutter or both derives from three places: (1) the Court's inherent authority; (2) 28 U.S.C. § 1927; and (3) Local Rule 83.14(b) (c). The Court's inherent authority also allows it to hold Sutter in contempt for violating a specific court order. It is within my discretion to determine upon which ground I will rely when imposing sanctions. Fink v. Gomez, 239 F.3d 989, 994 (9th Cir. 2001). In this case, I rely upon my inherent power in resolving the issues before me.
Section 1927 allows counsel to be held liable for conduct that "multiplies the proceedings in any case unreasonably and vexatiously." In such a case, the Court may order counsel to pay "excess costs, expenses, and attorneys' fees reasonably incurred" because of the conduct. Liability under this statute is limited to counsel and cannot be imposed on the party. Additionally, the range of sanctions is limited to excess costs and fees and is not as broad as the sanctions allowed under the Court's inherent authority. I am not relying on this statute in the orders I am entering in this case.
B. Inherent Authority
Under its inherent authority, the Court, acting on motion or sua sponte, has the power to sanction bad faith conduct, even where that conduct is sanctionable under other rules or statutes. In re Itel Securities, 791 F.2d 672 (9th Cir 1986). To impose sanctions, the Court must make a finding in the record that Sutter acted in bad faith or that his conduct was "tantamount to bad faith." Fink, 239 F.3d at 994. While recklessness alone is not enough to impose sanctions under the Court's inherent authority, recklessness coupled with an improper purpose justifies sanctions. Id. (holding that reckless misstatements of law or fact made in an attempt to influence or manipulate proceedings to gain a tactical advantage are sanctionable). See also, id. at 992 (relying onItel and noting that "sanctions are justified when a party acts for an improper purpose — even if the act consists of making a truthful statement or non-frivolous argument or objection" (emphasis in original)).
Under its inherent authority, the Court has broad discretion in the types of sanctions imposed, including attorney's fees and costs, disciplining the attorney, giving a warning of default or dismissal, and/or a fine payable to the Court. The purpose of a fee award is to compensate the innocent party, vindicate an affront to the Court, and to ensure abuses are not repeated. Chambers v. NASCO, Inc., 501 U.S. 32, 56-57 (1991). The award of fees is not limited to excess fees, as in § 1927; however, any sanction imposed must relate to and be appropriate to the bad faith conduct involved. Additionally, unlike sanctions under § 1927, sanctions under the Court's inherent authority can be imposed against the attorney, the client or both. See Cannon v. Loyola University of Chicago, 784 F.2d 777, 782 (7th Cir. 1986); Rutter Group Practice Guide, Federal Civil Procedure Before Trial, 17:5(a), 17:133. Again, I am relying on my inherent authority in entering the orders in this case that follow.
C. Local Rules
Local Rule 83.14(b) (c) allows the Court to sanction an attorney for violating any court order. Possible sanctions include suspension, restitution, and fines or assessment of costs.
D. Civil Contempt
The Court's inherent authority includes the power to hold a party or an attorney in contempt of court. The contempt power includes the power to impose sanctions, and is intertwined with the powers discussed above.
Civil contempt occurs when there is a clear and definite order, the contemnor knows of the order, and he or she violates the order. United States v. Powers, 629 F.2d 619, 627 (9th Cir. 1980). Unlike criminal contempt, civil contempt does not require a willful violation and good faith is not a defense. Id. Attorneys are bound to obey court orders, even when they believe the orders are clearly erroneous. Chapman v. Pacific Telephone and Telegraph Co., 613 F.2d 193. 197 (9th Cir. 1979).
A sanction for contempt is civil if the purpose of the sanction is to coerce compliance or to compensate an innocent party for the contemnor's violation. F.J. Hanshaw Enterprises, Inc. v. Emerald River Development, Inc., 244 F.3d 1128, 1137-38 (9th Cir. 2001). The order imposing civil contempt must contain clear justification for the purpose and amount of any sanctions imposed. O'Connor v. Midwest Pipe, 972 F.2d 1204, 1211 (10th Cir. 1992). Additionally, the record must reflect consideration of the following factors:
(1) harm from noncompliance;
(2) probable effectiveness of the sanction;
(3) contemnor's financial resources and burden sanctions may impose; and
(4) contemnor's willfulness in disregarding the court's order.United States v. United Mine Workers of America, 330 U.S. 258, 303-304 (1947).
III. Analysis
A. Sanctions
In this case, an award of sanctions under my inherent authority and L.R. 83.14(b) (c) is appropriate. Sutter's conduct has resulted in unnecessary multiplication of proceedings and undue expense to Lasar, his counsel, and the Court. In listening to Sutter's opening statement, it is obvious that it was well-planned and that he chose his words carefully. I believe his deliberate effort to circumvent the two orders in limine was done intentionally and in bad faith. Sutter, without using notes or other cues, referred to trial exhibits as they appeared on the courtroom screens, though he could not see the screens. His presentation was polished and careful; his tone, his pacing, his inflection, and his body language were all observed by the jury and the Court and were obviously intended to leave the jury with the following message: Lasar spent the day drinking, decided to drive himself home, did not wear his seatbelt, then rolled his truck and is now claiming it is Ford's fault! Based on this, the only conclusion I can reach is that Sutter intended to poison the jury by intimating that Lasar was drunk at the time of the accident and that he was not wearing a seatbelt. This was a willful and bad faith violation of both the orders in limine of Judge Erickson and of this Court.
In preparing this case for trial on October 7, 2002, Lasar incurred many expenses. The two weeks leading to trial are critical in the time, effort, and expense necessary to prepare. Many costs, including some expert fees, attorneys' fees, travel expenses, and other expenses will be repeated by virtue of Sutter's unprofessional conduct at trial.
Counsel for Lasar, at the Court's direction, submitted affidavits and documentation seeking a total of $193,966.53 in costs as sanctions against Ford and Lawrence Sutter. Both Ford and Sutter had this information before the October 10, 2002 hearing. Based upon the affidavits filed by Lasar, and Ford's counter-arguments, I have determined that Lasar is entitled to an award of sanctions totaling $61,397.50. This amount is assessed jointly and severally against Ford and Lawrence Sutter. Ford shall pay an additional $5,496.15 to the Clerk of Court for the cost of empaneling the jury. A breakdown of the sanctions is set forth below.
No sanction is imposed on John Stephenson, Ford's Montana counsel. Nothing in this Order is intended to reflect on the character or professionalism of Mr. Stephenson.
1. Attorneys' Fees
Lasar asks for attorneys' fees totaling $99,478.43. The submission includes time for five attorneys and six paralegals with attorney time calculated at $250.00 per hour. While Lasar should be awarded fees for the time attorneys Michael Weisman, Paul Meismer, and Pat Ardis spent preparing during the two weeks before trial, no fees are awarded for paralegal or associate time. Weisman, Meismer, and Ardis were lead counsel and they will need to expend a similar amount of time preparing for a later trial. The two associates and six paralegals were not lead counsel and, had they not been working on this matter, they would have been paid for other work. I am mindful that Lasar has employed the lawyers through a contingent fee.
Lasar bases his fee calculation on a rate of $250 per hour for attorney time. His lawyer has candidly stated that the case is not so complex as to require specialized skill or knowledge. Counsel for Ford indicates that his normal hourly rate is $140.00 per hour, while Meismer indicates that he normally charges $150.00 per hour when performing mediation. Lasar's $250.00 per hour calculation is based in part on the risk associated with taking a contingency fee case. However, the award of fees as sanctions is guaranteed; because the matter is not unusually complex, the lower $150.00 per hour rate is reasonable. Thus, Lasar will be awarded attorneys' fees calculated at $150.00 per hour for the time of Weisman (118.8 hours), Meismer (87.0 hours), and Ardis (57.15 hours). Total attorneys' fees in the amount of $39,442.50 are assessed.
2. Costs for Dr. Rudy Limpert, Dr. Martha Bidez and Andrew Gilberg
Lasar seeks reimbursement of expenses totaling $7,271.00 for Dr. Limpert, $18,026.00 for Dr. Bidez, and $12,055.50 for Andrew Gilberg. Each is an expert witness retained by Lasar and each traveled to Missoula in anticipation of testifying at trial. The invoice submitted on behalf of Dr. Limpert indicates expenses of $971.00 and fees of $6,300.00. Dr. Limpert was the only expert to testify before I declared a mistrial. His invoice includes 1 1/4 days of preparation and one day of testimony, which includes travel time. Ford objects to an award of fees for the preparation time. However, this is time Dr. Limpert will again expend in preparing for the next trial. Therefore, the full $6,300.00 in fees is reasonable. Because Ford does not object to the expenses incurred by Dr. Limpert, Lasar is entitled to an award of $7,271.00 for the fees and expenses of Dr. Limpert.
Dr. Martha Bidez also traveled to Missoula, however, she did not testify. Lasar seeks a total of $18,026.00 for Dr. Bidez' services, including $16,000.00 in fees and $2,026.00 in expenses. Ford argues that this amount is unreasonable, as it amounts to five twelve hour days at her stated rate of $250.00 per hour.
The Court agrees with Ford on this issue. Dr. Bidez did not testify, but she was required to travel to Missoula and sit outside the courtroom on the first day of trial. A reasonable expense for purpose of sanctions is eight hours at $250.00 per hour, plus her expenses of $2,026.00, for a total of $4,026.00.
Likewise, Andrew Gilberg traveled to Missoula but did not testify. Lasar seeks a total of $12,055.50 on his behalf, including $9,377.50 in fees and $2,678.00 in expenses. Like Dr. Bidez, a reasonable expense for purpose of sanctions is eight hours at Gilberg's stated rate of $275.00 per hour, plus the $2,678.00 in expenses, for a total of $4,878.00.
3. Treating physicians
Lasar asks for reimbursement of fees for the services of Dr. Mark Dietz and Dr. Karen Weed, both of whom are treating physicians. Both were expected to testify, though neither one traveled to Missoula. Lasar submitted a bill on behalf of Dr. Weed indicating a charge of $225.00 for trial preparation. Lasar did not submit a bill on behalf of Dr. Dietz, but Weisman indicated in an affidavit that the services of Dr. Dietz would cost $1,125.00.
Both treating physicians will need to review their records prior to the next trial. The amount requested on behalf of Dr. Weed is reasonable, as it is likely she will incur a similar amount in later preparation for trial testimony. The amount requested for Dr. Dietz is based on counsel's knowledge of the work he did in preparing for the trial. In light of the statement submitted on behalf of Dr. Dietz, the Court finds that a reasonable amount for the treating physicians' cumulative preparation time is $1,350.00.
4. Costs for Anne Arrington and Dr. Ronald Dulaney
Ms. Arrington and Dr. Dulaney are experts retained by Lasar who did not testify and did not incur travel expenses. Ford objects to either receiving any payment on this basis. The objection is without merit, as both witnesses had to prepare for trial. Ms. Arrington's invoice indicates ten hours of trial preparation at $85.00 per hour and a testimony cancellation fee equivalent to four hours at $125.00 per hour. Ms. Arrington will spend additional time preparing for the next trial and the cancellation fee is a direct result of Sutter's misconduct. Therefore, ten hours at $85.00 per hour plus the $500.00 cancellation fee is a reasonable fee for Ms. Arrington, and $1,350.00 is included on her behalf in the sanctions award.
Dr. Dulaney's invoice indicates costs of $330.00 to review Lasar's file, $375.00 to update trial exhibits, and a $500.00 scheduling fee, all of which Lasar will incur again when the case goes to trial. Therefore, $1,205.00 is a reasonable fee for Dr. Dulaney's efforts and is included as part of the sanctions award.
5. Litigation Abstracts and Jury Consultants
Lasar requests payment of $4,776.35 for Litigation Abstracts and $1,875.00 for Jury Consultants, Inc. The charges of Litigation Abstracts will not be repeated, as the fruits of those services are useable at the next trial. Contrarily, the work of Jury Consultants, Inc., though optional, will likely be repeated at the next trial. Thus, Lasar is awarded costs of $1,875.00 for Jury Consultants, Inc. and no costs for Litigation Abstracts.
Ford has indicated that it does not object to the charges as unreasonable. While Ford does not concede Jury Consultants, Inc. was a required expense, it is reasonable to expect such costs in a case of this magnitude.
6. Other Expenses
Lasar also asks for reimbursement of $10,875.13 for deposition transcripts and $22,748.00 for copying expenses. These costs were not incurred as a result of Sutter's misconduct or the mistrial. The deposition transcripts and photocopies can be used at the next trial. An award of sanctions for these costs would not be reasonable.
8. Jury Costs
In addition to the expenses incurred by Lasar, the Court was required to pay to empanel a jury that was not used because of Sutter's wrongdoing. The Court must pay these expenses again, making it an appropriate sanction. Empaneling the jury cost a total of $5,496.15, including $9.00 for parking tickets, $1,615.00 for subsistence, $2,080.00 for attendance fees, and $1,792.15 for mileage. This cost is assessed against Ford alone.
9. Conclusion
The purpose of the sanctions imposed is to put the parties where they were two weeks before trial to the extent that is possible. Ford chose Sutter as its attorney and, as a consequence, is equally bound by his bad faith as it is by his success rate. Failure to award sanctions when Ford caused Lasar to lose his "day in court" would force Lasar to reincur many of the costs at a later time, through no fault of his own. The necessary balancing, then, is to determine the amount of sanctions that will fairly compensate Lasar for expenses he would not have incurred but-for Sutter's misconduct, to vindicate Sutter's bad faith affront to the authority of the Court, and to ensure such abuses are not repeated, all while refraining from unnecessarily punishing Ford or Sutter.
Based on the analysis above, sanctions in the amount of $66,893.65 are reasonable. Of these sanctions, $61,397.50 are imposed jointly and severally against Ford and Sutter, with $5,496.15 being imposed against Ford alone. While it was Sutter's conduct that led to the mistrial, he was acting as Ford's agent. Under my inherent authority, I may impose sanctions on the party or its attorney. In this case, I find it is appropriate to hold both responsible for the sanctions.
I want to again emphasize that there is no evidence indicating that John Stephenson was in any way involved in violating the Court's orders or that he had any knowledge that Sutter was going to make the statements discussed above. To the contrary, I believe Mr. Stephenson was not involved and is not culpable for Sutter's misconduct. If Mr. Stephenson can be faulted at all, it is for failing to question Sutter about his incomplete application to appear pro hac vice. See discussion, infra. However, it is Sutter's conduct in his opening statement that led to a mistrial being declared, not his incomplete pro hac vice application.
The amount of sanctions represents costs to Lasar and the Court that will be paid as a result of Sutter's misconduct that binds Ford. All of these expenses were incurred in preparing to bring the case to trial and will be reincurred in preparing for the next trial. Accordingly, the expenses are reasonable; were caused by Sutter's bad faith, intentional misconduct; are necessary to reimburse Lasar and the Court; and are necessary to vindicate the Court's authority and to ensure that Ford, through its lawyers, will not disregard or attempt to circumvent court orders in this or any other case.
B. Contempt
In the relevant passages of his opening statement, Sutter set forth a series of facts from which the jury was expected to draw logical inferences. In this case, the only logical inference that can be drawn from Sutter's comments is that Lasar was drinking, or drunk, before his accident and that he was not wearing a seatbelt.
At the time Sutter made his comments, the effect on the jury could not be known. This placed Lasar's counsel in a no-win situation. He could have ignored the reference, hoping against prejudice, yet having no idea how the jury reacted to the comments. Alternatively, he could have asked the Court to admonish the jury that any use of alcohol by Lasar was irrelevant and could not be considered. However, there was great risk that such an instruction would have drawn more attention to the issue and exacerbated what had already fouled the jury. Finally, Lasar's counsel could have attempted to counter the comments by introducing evidence that Lasar was not intoxicated at the time of the accident. This would have put Lasar in the position he sought to avoid through his motion in limine — defending himself against accusations or insinuations that he was drunk at the time of the wreck, an issue that is irrelevant to his legal claim that Ford's vehicle was defectively designed.
Sutter's intentional remarks were designed to inject prejudice and mislead the jury on an irrelevant issue that could not even be proved and are untenable. He maintains that his opening statement was carefully crafted to tell the story of what happened while avoiding any mention of alcohol use or non-use of seatbelts. This justification is disingenuous. Under Sutter's line of reasoning, the only way he would have violated the Court's order would have been by explicitly stating that Lasar was drinking before the accident and that he was not wearing a seatbelt. This ignores the jury's ability to draw logical inferences from his statements. It is also belied by Sutter's initial argument that the order in limine tied his hands and kept the truth from the jury, and his later sworn testimony that in Ohio, the phrase "local establishments" means "restaurants" rather than "bars." (10/10/02 Tr. at 59-60.)
When taking apart Sutter's statement, it is clear that his intent was to poison the jury by implanting in their minds that Lasar was drunk at the time of the wreck. Sutter said that Lasar and friends "visited several establishments." The implication of this is clear — Lasar was with friends visiting and drinking at several bars. There is no other situation, besides "bar-hopping," where a group of people might visit "several establishments." If it were churches, restaurants, or friends' houses, Sutter would have said as much. Despite Sutter's testimony that in Cleveland visiting establishments and playing pool would mean going to restaurants, such is not the case in Montana and everyone in court knew what he meant
That this was Sutter's intent becomes even more clear when examining the last portion of the statement. Sutter said that Lasar "made the decision to drive himself home," which implies that Lasar made a conscious decision to drive even though he knew he was intoxicated. There is no reason for using the phrase "made the decision" unless Sutter was attempting to imply that Lasar made an incorrect decision when he decided to drive home.
That Sutter intended to introduce the notion of alcohol into the jury's mind is even more clear when considering that the issue is irrelevant. Because this is a products liability case, the focus is on the design of the product, not the conduct of the parties. The events occurring two, four, eight or ten hours before the accident are not relevant, absent some causal link between those events and the accident. Ford not only failed to establish any causal link between the accident and any alcohol use by Lasar, it admitted that it did not have any evidence that Lasar was intoxicated. Despite this failure of proof, Sutter tried to back-door the issue to poison the jury, not through evidence, but through careful and intentional "wordsmithing" in his opening speech to the jury.
The statements in Sutter's opening regarding alcohol are nothing short of contempt of Judge Erickson's and this Court's orders precluding any mention of alcohol use. His opening was well-crafted and, by his own admission, he chose his words carefully. However, his intent in choosing the words he did was not to tell a story about what happened, as he contends, but to poison the jury by implying that Lasar was drunk. In doing so, Sutter was attempting to gain a tactical advantage by focusing the jury's attention on Lasar's conduct rather than on the design of the product. This not only constitutes bad faith, but is a violation of Sutter's ethical duty and his duty as an officer of this Court.
Likewise, Sutter's conduct constitutes contempt of this Court. Clear and definite orders were entered by Judge Erickson and this Court precluding any evidence or discussion of alcohol. Sutter testified that he had read and understood these orders, yet he violated them in his opening statement. While civil contempt does not require a finding of willfulness, it is clear that Sutter willfully violated the in limine orders and did so in bad faith to gain a tactical advantage. Accordingly, Lawrence Sutter is adjudged to be in contempt of court for violating this Court's in limine order precluding evidence or discussion of Lasar's alcohol use.
I do not find Sutter in contempt for violating the in limine order regarding non-use of seatbelts. While I believe Sutter also intended to violate that order by introducing to the jury that Lasar was not wearing a seatbelt, there had been discussion in voir dire by the Court and by Plaintiff's counsel about seatbelts and the jury had been instructed they could not consider use or non-use of seatbelts in their deliberations. While Sutter's statement about "free-floating bodies" was highly charged and intended to introduce lack of seatbelts to the jury, the violation is not as egregious as that regarding alcohol. An instruction that the jury was not to consider seatbelt evidence would likely have countered any prejudice against Lasar from Sutter's statements. Contrarily, Sutter's statements about alcohol were so prejudicial that a limiting instruction would not have been effective and the jury would have been prejudiced against Lasar. Lasar is entitled to a fair day in court. Sutter cut him off by his wordsmithing in a way that could only be corrected by a mistrial.
C. Pro hac vice
Upon reflection, the egregious nature of Sutter's conduct becomes clear. His testimony at the October 10, 2002 contempt hearing belies his statement that he did not intend to violate the Court's orders in limine and, in fact, indicates a concerted effort, not only to poison the jurors, but to mislead the Court about his standing as an attorney.
On May 7, 2002, Sutter asked for the privilege of appearing in this court pro hac vice. His affidavit begins as follows:
Lawrence A. Sutter, hereby applies to be admitted as attorney pro hac vice in the above-entitled case and states the following facts under penalty of perjury.
Pro Hac Vice Aff. of Lawrence A. Sutter, attached as Appendix C (emphasis added).
When Sutter filed his sworn application, under the Local Rules of Procedure of the United States District Court for the District of Montana, Rule 83.3(e)(3)(E), he was required to state under penalty of perjury:
(E) Whether the attorney has ever been held in contempt, otherwise disciplined by any court for disobedience to its rules or orders, or sanctioned under Federal Rules of Civil Procedure 11 or 37(b), (c), (d) or (g) or their state equivalent; the name of the court before which the proceedings were conducted; the date of the proceedings; and what action was taken in connection with those proceedings. A copy of any such contempt, discipline, or sanction order must be attached to the application.
Sutter did not disclose in his pro hac vice affidavit that he was twice held in contempt by Judge Patricia Cleary during a trial in Ohio state court. Sutter concealed the fact that in 1999, he filed an affidavit in the Ohio Supreme Court that states, among other things, "that [Judge Cleary] twice found affiant Sutter in contempt, ordered him incarcerated for periods of ten and thirty minutes. . . ." In re Disqualification of Cleary, Kaffeman, Exr., et al. v. Maclin, et al., 723 N.E.2d 1106, 1107 (Ohio 2000).
At the hearing in this case to determine whether Sutter should be sanctioned, held in contempt and deprived of his pro hac vice status, Sutter testified about his earlier contempt. First, he testified "I was found in contempt because I tried to make a record in the case and the judge would not let me have access to the record." (10/10/02 Tr. at 42.) When caught in a conflict between the language of L.R. 83.3(3)(E), and the language in the Cleary opinion, Sutter tried to back out of the bind by changing his sworn testimony. "Well, your honor, to be perfectly honest with you, I told John Stephenson two days ago that I had never been held in contempt, and I truly believe that to be true." (Id. at 56 (emphasis added).) Then, referring to the Cleary case, he gave more sworn testimony, this time asserting that ". . . it says in that Opinion that I was held in contempt, and that's the only reason that I said I was held in contempt today." (Id. (emphasis added).) This sworn testimony was given despite the Ohio Supreme Court's reliance on Sutter's own affidavit acknowledging he had been held in contempt twice by Judge Cleary.
I find this sworn testimony to be a continuation of Lawrence Sutter's deliberate effort to deceive the Court. It is impossible to reconcile his sworn testimony in this Court with affidavits he filed in Ohio. His testimony appears to be a willful deception.
Sutter wasn't finished with his wordsmithing about contempt. Despite testifying on direct examination that "I was found in contempt . . ." (Id. at 40.), he testified in response to the Court's questions as follows:
There was no finding of contempt, there was just a statement that she was throwing me in jail and she put me in the holding cell for ten minutes. The same thing happened a little bit later in that day, there was no contempt hearing, there was no testimony, there was no finding of contempt that I remember from the record whatsoever. So the reason it's not there is very simple. I didn't even know that there was an inclination that was found into contempt until I read the case again last night — yes, last night."
This is what his Ohio affidavit says:
¶ 5. The most obvious hostility was demonstrated by Judge Cleary in the second day of trial when she twice incarcerated defense counsel.
. . .
¶ 7. Defense counsel was found in contempt a second time during the middle of his cross examination of the plaintiff's expert . . . . At that time defense counsel was again found in contempt and placed in the holding cell.
Ohio Aff. of Larence A. Sutter, attached as Appendix A.
Sutter's twisted testimony borders on perjury if it is not. He told the Ohio Supreme Court he was held in contempt twice by Judge Cleary and he did so in a sworn affidavit. He gave sworn testimony in this Court that "I was found in contempt . . . ." When confronted with the notion that he had concealed that contempt finding here, he ended up testifying "I never considered myself to be in contempt in that case —". Sutter's sophistry can be summed up by a singular Latin phrase mertiri splendide , or to deceive magnificently.
Also translated as "to lie magnificently." Another phrase that may apply is nescit vox missa reverti , or think twice before sounding off (literally "a word once uttered cannot be turned back").
The only conclusion that can be reached from this totality of events is that Sutter knew he had been held in contempt by Judge Cleary and consciously decided not to disclose it to this Court because he did not want to risk having his pro hac vice application denied. This fits his pattern, as he did not state in his application that he had never been held in contempt. Rather, he simply omitted any reference to that requirement. This would allow him to argue that he had not lied to the Court. However, upon reviewing the affidavit filed in Ohio and his testimony here, it is clear that Sutter knew he had been held in contempt and omitted any reference to that finding to mislead the Court when it considered his pro hac vice application.
Admission pro hac vice is a privilege this Court grants to out-of-state counsel. In exchange, counsel is expected to abide by the rules and orders of this Court, to behave in an ethical manner, and otherwise act as an officer of the Court. Sutter has not met these standards; his actions were contemptuous, necessitated a mistrial, and caused undue expense and delay to Lasar, his counsel, the witnesses, and the Court. In trying to defend his actions, he has been dishonest, misleading, and evasive. In short, he is not the type of attorney that should be practicing in this Court. At some point, Lawrence Sutter needs to reflect on what it is he does, and what it is he should do. The law has no room for frustrated advocates, motivated by an attitude to win at any cost, who are intent to take matters in their own hands, without regard to the rules or orders of the Court. Accordingly, Lawrence Sutter's pro hac vice status is revoked and he will no longer be allowed to represent Ford in this case or any other case in the Missoula Division of the Montana Federal District Court.
Accordingly, IT IS HEREBY ORDERED that sanctions are imposed against Defendant Ford Motor Company and Lawrence A. Sutter, jointly and severally, in the amount of $61,397.50. An additional $5496.15 is imposed against Ford alone. All sanctions are due and payable immediately, with $61,397.50 to be paid to counsel for Plaintiff and $5,496.15 to be paid to the Clerk of Court, District of Montana. These amounts shall be paid within ten (10) days of the date of this Order.
IT IS FURTHER ORDERED that Lawrence A. Sutter is in contempt of court for violating the Court's order in limine regarding alcohol.
IT IS FURTHER ORDERED that Lawrence A. Sutter's admission pro hac vice is withdrawn, and he is no longer permitted to act as counsel for Ford in this matter.
Time for a status conference in this matter will be set by separate order. The Clerk is directed to immediately notify the parties of the entry of this Order.