Klorczyk et al v. Sears, Roebuck & Co. et al
ORDER DENYING DEFENDANTS' MOTION TO PRECLUDE TESTIMONY OF ROGER CLAYPOOL. For the reasons set forth in the attached ruling, defendants' motion to preclude the testimony of Roger Claypool (Doc. # 228 ) is DENIED. It is so ordered. Signed by Judge Jeffrey A. Meyer on 8/1/2017. (Levenson, C.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
FREDERICK KLORCZYK, JR., et al.,
No. 3:13-cv-00257 (JAM)
SEARS, ROEBUCK & CO., et al.
RULING DENYING DEFENDANTS’ MOTION
TO PRECLUDE TESTIMONY OF ROGER CLAYPOOL
Before the Court is defendants’ motion to preclude the testimony of plaintiffs’ witness
Roger Claypool. Defendants contend that Claypool is an improperly paid fact witness who
disclosed confidential and privileged information to plaintiffs. For the reasons explained below, I
will deny defendants’ motion.
Plaintiffs Frederick and Lynne Klorczyk brought this wrongful death action under
Connecticut’s products liability statute against the alleged sellers, manufacturers, and distributors
of a jack stand following the tragic death of their son, Christian Klorczyk. Plaintiffs allege that
Christian was using the jack stand to raise the front end of his car while he performed an oil
change at plaintiffs’ home in March 2011. The jack stand allegedly failed and collapsed, causing
the car to fall on Christian and crush him to death.
Plaintiffs claim that the jack stand was defective in its design or manufacture, and also
that defendants are liable for failure to provide adequate instructions or warnings. The five
defendants include Sears, Roebuck & Co. (“Sears”), from whom the Klorczyks purchased the
jack stand; Wei Fu (Taishan) Machinery & Elec. Co., Ltd. (“Wei Fu”), a Chinese corporation
that allegedly manufactured the jack stand; MVP (HK) Industries, LTD (“MVP”), a Hong Kong
corporation that allegedly distributed the jack stand to Sears; Shinn Fu Company of America,
Inc. (“SFA”), a Missouri corporation that was allegedly involved in the development, design,
manufacture, testing, inspection, distribution, and sale of these jack stands, as well as in drafting
warnings concerning their use; and Shinn Fu Corporation (“Shinn Fu”), the Taiwan-based parent
company of SFA, MVP, and Wei Fu.
Defendants have moved to preclude the testimony of plaintiffs’ witness Roger Claypool,
a former SFA employee. Claypool worked for SFA from 1987 until his voluntary separation in
December 2008, more than two years before Christian’s death. His duties included investigating
and processing claims, as well as ensuring that products—including jack stands—complied with
safety standards. Toward the end of his tenure, Claypool worked closely with SFA’s in-house
counsel, Arthur Chaykin.
Claypool first became involved in this case when Rick Heath, an engineering expert hired
by plaintiffs, retained him as an independent contractor at a rate of $120 per hour to help Heath
identify jack stand serial numbers. Plaintiffs’ attorneys later contacted Claypool about his work
at SFA. Claypool was ultimately deposed by plaintiffs in August 2016. In addition to being paid
for his work helping Heath to identify jack stand serial numbers, Claypool was paid at the same
$120 per hour rate for his time spent consulting with plaintiffs’ counsel, preparing for his
deposition, traveling, and testifying in his deposition. He was also reimbursed for his travel
expenses, including airfare and lodging. According to plaintiffs, Claypool has received a total of
$8,191.89 in connection with this case. Doc. #245 at 18.1
As defendants have noted, plaintiffs earlier claimed in their interrogatory responses that as of August
2016, they had paid Claypool over $16,000. See Doc. #228-2 at 12. Although plaintiffs have not explained this
discrepancy, the difference in amount is not material to my ruling in this case.
At his deposition, Claypool testified that SFA had knowledge of several prior similar
claims of jack stands suddenly collapsing; that defendants knew there was a risk that the jack
stands could suddenly collapse due to a phenomenon called false engagement; and that SFA
considered alternative designs but rejected implementing them partly because of cost. See Doc.
#231-2 at 18–23. Plaintiffs allege that Claypool’s deposition testimony is particularly important
because it contradicts earlier discovery provided to plaintiffs by SFA, in which SFA denied
having had knowledge of prior similar claims, false engagement, or alternative safer designs. See
Doc. #245 at 17.
According to defendants, the Court should preclude Claypool’s testimony or otherwise
impose sanctions for two independent sets of reasons: (1) plaintiffs’ payments to Claypool, a fact
witness, were improper, unreasonably high, and biased his testimony, and (2) Claypool had
access to and improperly disclosed SFA’s confidential and privileged information.
Improper Payment of Fact Witness
Defendants argue that Claypool should be precluded from testifying because he is a fact
witness who was improperly paid for his cooperation and testimony, in violation of the
Connecticut Rules of Professional Conduct and the Federal Anti-Gratuity Statute, 18 U.S.C.
§ 201. Plaintiffs counter that Claypool is a “hybrid fact witness/consultant,” that he was
reasonably and properly compensated for his time, and that even if Claypool had been
improperly compensated, preclusion would not be the correct remedy. I largely agree with
Rule 3.4 of the Connecticut Rules of Professional Conduct provides that “[a] lawyer shall
not . . . (2) offer an inducement to a witness that is prohibited by law.” Conn. R. Prof. Conduct
3.4; see also D. Conn. L. Civ. R. 83.2(a) (applying Connecticut Rules of Professional Conduct to
lawyers practicing in the District of Connecticut). The official commentary to Rule 3.4 further
provides that “it is not improper to pay a witness’s expenses or to compensate an expert witness
on terms permitted by law. The common law rule in most jurisdictions is that it is improper to
pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a
contingent fee.” Conn. R. Prof. Conduct 3.4 Commentary.
Although the rule at common law prohibited compensating fact witnesses in any manner,
the common law rule has been relaxed over time. The ABA’s Formal Ethics Opinion interpreting
ABA Model Rule 3.4 (which in relevant respects is identical to Connecticut’s Rule 3.4) advises
that non-expert witnesses may be compensated not only for time spent testifying but also for
time spent preparing to testify, as long as payment is not conditioned on the content of the
witness’s testimony and does not violate the law of the jurisdiction. Time spent preparing to
testify can include “pretrial interviews with the lawyer in preparation for testifying,” as well as
“time spent in reviewing and researching records that are germane to [the witness’s] testimony.”
ABA Formal Op. 96-402 (1996). Being compensated for these activities is not improper as long
as the lawyer makes it clear to the witness “that the payment is not being made for the substance
or efficacy of the witness’s testimony, and is being made solely for the purpose of compensating
the witness for the time the witness has lost.” Ibid.
Other courts within the Second Circuit have echoed this position, distinguishing between
acceptable payments, such as those covering “the actual expenses of a witness in attending court
and reasonable compensation for time lost,” and unacceptable payments, such as “the payment of
a sum of money to a witness to testify in a particular way; the payment of money to prevent a
witness’ attendance at a trial; [and] the payment of money to a witness to make him
‘sympathetic’ with the party expecting to call him.” State of N.Y. v. Solvent Chem. Co., 166
F.R.D. 284, 289 (W.D.N.Y. 1996). Indeed, “a witness may be compensated for the time spent
preparing to testify or otherwise consulting on a litigation matter in addition to the time spent
providing testimony in a deposition or at trial.” Prasad v. MML Inv’rs Servs., Inc., 2004 WL
1151735, at *5 (S.D.N.Y. 2004).
Here, there is no evidence that Claypool was paid to testify in a particular way or that his
payment was contingent upon the content of his testimony. Defendants argue that Claypool was
induced to testify falsely and in favor of plaintiffs; as evidence they point out that his deposition
testimony contradicted an email he sent in January 2005 when he was employed at SFA. Doc.
#231-1 at 10–11. I am not persuaded by defendants’ argument that Claypool’s deposition
testimony and the email are necessarily irreconcilable; nor am I persuaded by defendants’
broader argument that Claypool’s testimony reveals his obvious bias. Defendants will have the
opportunity to point out inconsistencies in Claypool’s testimony and to impeach him with prior
inconsistent statements when cross-examining him at trial.
Nor do I find the rate at which plaintiffs paid Claypool—$120 per hour—to be
unreasonable. As defendants point out, this rate far exceeds what Claypool (who is now semiretired) earns in his current part-time job as a community college instructor and also exceeds
what he earned when he worked at SFA. Nevertheless, I find that $120 per hour is not
unreasonable compensation for Claypool’s time, considering his many years of relevant
I am also unconvinced by defendants’ argument that Claypool’s testimony should be
precluded under Federal Rule of Evidence 403. Under Rule 403, the Court “may exclude
relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair
prejudice.” Fed. R. Evid. 403. Defendants urge the Court to adopt the reasoning of Rocheux Int’l
of New Jersey v. U.S. Merchants Fin. Grp., Inc., 2009 WL 3246837, at *1, 3 (D.N.J. 2009), a
case in which the court decided to exclude the testimony of a paid fact witness pursuant to Rule
403. But unlike in Rocheux, where the Court found that the witness’s testimony was “irrelevant”
and that the witness was a disgruntled employee who had initiated contact with plaintiff and
plaintiff’s counsel, Claypool’s testimony appears to me highly relevant and not unfairly
prejudicial. In short, I conclude that there is no merit to defendants’ argument that plaintiffs have
made improper payments to Claypool.
Improper Disclosure of Privileged and Confidential Information
Distinct from the payment issue, defendants contend that Claypool should be disqualified
(a) because of his extensive access to SFA’s confidential and privileged information, and (b)
because he in fact disclosed confidential and privileged information to plaintiffs. I do not agree.
Defendants first assert that Claypool’s exposure to privileged and confidential
information during his tenure at SFA is enough on its own to warrant his disqualification as a
witness. But this argument is hard to reconcile with the separation agreement between SFA and
Claypool, which expressly permits him to consult with parties litigating against SFA and to
testify as an expert against SFA after January 1, 2011.2 Given this explicit agreement, I am not
inclined to find that Claypool is automatically disqualified as a witness based solely on his
exposure to confidential and privileged information.
Defendants additionally argue that plaintiffs violated Rule 4.2 of the Connecticut Rules
of Professional Conduct when they initially contacted Claypool ex parte. Rule 4.2 prohibits a
The separation agreement provides, in relevant part: “Employee will not consult with any Party to
litigation against the Company or testify as an expert against Company for two years starting January 1, 2009 or for
six months after Employee’s last consulting arrangement with Company is completed, whichever is later.” Doc.
#228-2 at 37.
lawyer from communicating about the subject of the representation with an adverse party
represented by another lawyer without the consent of that other lawyer. The rule, however, does
not generally encompass former employees of the adverse party. See, e.g., Saliga v. Chemtura
Corp., 2013 WL 6097100, at *1 (D. Conn. 2013); Data Capture Sols. Repair & Remarketing,
Inc. v. Symbol Techs., Inc., 2008 WL 4681676, at *3 (D. Conn. 2008); Dubois v. Gradco Sys.,
Inc., 136 F.R.D. 341, 346 (D. Conn. 1991) (Cabranes, J.).
Finally, defendants argue that Claypool should be disqualified because he actually
disclosed privileged and confidential information to plaintiffs. As defendants point out, and as
plaintiffs have conceded, plaintiffs failed to instruct Claypool in writing not to disclose attorneyclient communications, and they failed to instruct him either verbally or in writing as to the
definition of work product. But defendants have failed to identify exactly which communications
or documents they contend were improperly disclosed, to sufficiently explain why such
communications or documents were protected from disclosure, or to persuade me that any
disclosures by Claypool have prejudiced defendants.3
Both parties acknowledge that during his time at SFA, part of Claypool’s job was to
investigate and resolve claims; only a subset of these claims ended up in litigation or involved
counsel at all. As I indicated at the hearing, defendants may seek to preclude Claypool from
To the extent that defendants have identified specific information disclosed to plaintiffs by Claypool, this
information does not appear to be protected by the attorney-client privilege or work product doctrine. For example,
defendants contend that a list prepared by Claypool of jack stand claims that Claypool worked on and that ended in
settlement, see Doc. #231-4 at 4–5, is protected by the work product doctrine as a document prepared in anticipation
of litigation. Doc. #231-1 at 16 n.13. But I disagree that such a list, prepared by Claypool after his departure,
constitutes a document prepared in anticipation of litigation. See In re Grand Jury Proceeding, 79 F. App’x 476, 477
(2d Cir. 2003) (“A document is prepared in anticipation of litigation when, in light of the nature of the document and
the factual situation in the particular case, [it] can fairly be said to have been prepared or obtained because of the
prospect of litigation.”). Defendants also contend that Claypool shared information regarding his own purported
deficiencies in drafting product instructions and warnings, but do not adequately explain why such information
would be protected by either attorney-client privilege or work product protection. See, e.g., Thurston v. Okemo Ltd.
Liability Co., 123 F. Supp. 3d 513, 516 (D. Vt. 2015).
testifying concerning specific cases on which he worked in connection with an attorney. But the
fact that Claypool worked at times with an attorney towards the end of his tenure at SFA does
not warrant the preclusion of his entire testimony.
For the foregoing reasons, defendants’ motion to preclude the testimony of Roger
Claypool (Doc. #228) is DENIED.
It is so ordered.
Dated at New Haven, Connecticut this 1st day of August 2017.
/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge
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