Stopford v. Milton Town School Dist. ( 2017 )

Stopford et al. v. Milton Town School Dist. et al., No. 826-8-15 Cncv (Mello, J., Sept. 22, 2017).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Chittenden Unit Docket No. 826-8-15 Cncv
TRACY STOPFORD, both individually
and as Administratrix of the Estate of her
son, JORDAN PREAVY, and SEAN
PREAVY,
Plaintiffs,
v.
MILTON TOWN SCHOOL DISTRICT
(“MTSD”), JOHN BARONE, SR., in his
official capacity as Superintendent of
MTSD, MILTON TOWN SCHOOL BOARD
(“MTSB”), MILTON HIGH SCHOOL
(“MHS”) BOARD, and ANNE BLAKE, in
her official capacity as MHS Principal,
Defendants.
RULING ON DEFENDANTS’ MOTION FOR SANCTIONS
Defendants have moved for sanctions against Plaintiff’s counsel for his ex
parte contact with Defendants’ expert. The court conducted a hearing on this motion
on May 23, 2017. Pietro J. Lynn and Adrienne Shea, Esqs. represent Defendants,
and Robert J. Appel, Esq. represents Plaintiff.
At the hearing, Plaintiff’s counsel admitted to having purposely contacted
Defendants’ expert and claimed that the contact was “innocent.” He claimed that he
was trying to determine what the expert’s scheduling availability and cost would be.
However, the communication ultimately yielded information upon which Plaintiff
filed a motion to strike Defendants’ notice of expert witness.
The Vermont Rules of Civil Procedure allow for limited discovery of an
opposing party’s expert witness through interrogatories, depositions, and the
production of final reports or written opinions. V.R.C.P. 26(b)(4)(A)(i)–(iii). Like
Federal Rule of Civil Procedure 26(b)(4)(A), this rule serves to limit the permissible
communications between counsel, and by implication, ex parte communication
between an attorney and an expert witness for the opposing party violates the rule.
See Restatement (Third) of the Law Governing Lawyers § 102, Reporter’s Note,
comment d (collecting cases that hold that attorney may not communicate expert
witness assisting opposing counsel).
“Although the Model Rules do not explicitly prohibit ex parte contacts with
an opposing party’s expert witness, a lawyer who engages in such contacts may
violate Model Rule 3.4(c) if the matter is pending in federal court or in a jurisdiction
that has adopted an expert-discovery rule patterned after Federal Rule of Civil
Procedure 26(b)(4)(A).” ABA Formal Op. 93-378. V.R.P.C. 3.4(c), prohibiting lawyers
from “knowingly disobey[ing] an obligation under the rules of a tribunal,” is
identical to Model Rule 3.4.(c). Vermont’s expert witness discovery rule is patterned
after the analogous federal rule to the extent that provides limited discovery of
expert witnesses.
The Court finds that Plaintiff’s counsel knowingly violated the limitations of
V.R.C.P. 26(b)(4)(A) when he engaged in ex parte communication with Defendants’
expert witness. Although Plaintiff’s counsel cited scheduling questions and concern
about costs to be his reason for contacting Defendants’ expert witness, these issues
could have easily been addressed in the customary manner by contact with
Defendants’ counsel. In the course of the impermissible ex parte communication,
Plaintiff’s counsel gleaned information that served as the basis for the subsequently
filed motion to strike. It prejudiced Defendants to be forced to respond to Plaintiff’s
motion to strike that was premised upon the ex parte communication regarding the
state of the expert’s opinion, regardless of whether Plaintiff’s counsel requested that
information. The Court therefore finds that Plaintiff’s counsel acted in bad faith,
and hereby orders him to compensate Defendants for the fees incurred by preparing
and handling their opposition to Plaintiff’s motion to strike. See Lawson v. Brown’s
Home Day Care Ctr., Inc., 2004 VT 61, ¶ 14, 177 Vt. 528 (stating that the court “has
inherent power to sanction an attorney for misconduct, but it must first find the
presence of bad faith or other exceptional circumstances”).
Order
Defendants’ motion for sanctions is granted. Plaintiff shall compensate
Defendants for the cost of preparing and handling their opposition to Plaintiff’s
motion to strike.
Dated this 22nd day of September, 2017.
______________________
Robert A. Mello
Superior Court Judge
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