Cooper et al v. Meritor, Inc. et al

Filing 841

ORDER denying (823) Motion to Disqualify Counsel in case 4:16-cv-00052-DMB-JMV; denying (503) Motion to Disqualify Counsel in case 4:16-cv-00053-DMB-JMV; denying (505) Motion to Disqualify Counsel in case 4:16-cv-00054-DMB-JMV; denying (505) Motion to Disqualify Counsel in case 4:16-cv-00055-DMB-JMV; denying (502) Motion to Disqualify Counsel in case 4:16-cv-00056-DMB-JMV. Signed by Magistrate Judge Jane M. Virden on 1/4/19. (ncb)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
BRENDA J. COOPER, ET AL.
versus
MERITOR, INC., ET AL.
JOE E. SLEDGE, ET AL.
versus
MERITOR, INC., ET AL.

PLAINTIFFS
Civil Action No. 4:16-cv-52-DMB-JMV
DEFENDANTS
- Consolidated With –

PLAINTIFFS
Civil Action No. 4:16-cv-53-DMB- JMV
DEFENDANTS

- and KATHERINE LONGSTREET COOKE, ET AL.
PLAINTIFFS
versus
Civil Action No. 4:16-cv-54-DMB-JMV
MERITOR, INC., ET AL.
DEFENDANTS
SRA INVESTMENTS, LLC, ET AL.
versus
MERITOR, INC., ET AL.

- and -

PLAINTIFFS
Civil Action No. 4:16-cv-55-DMB-JMV
DEFENDANTS
- and -

FELICIA WILLIS, ET AL.
versus
MERITOR, INC., ET AL.

PLAINTIFFS
Civil Action No. 4:16-cv-56-DMB-JMV
DEFENDANTS

ORDER
This matter is before the Court on Plaintiffs’ Motion to Disqualify Timothy Coughlin as
counsel for Defendants Meritor Inc., The Boeing Company, and Rockwell Automation, Inc. In
support of the motion, Plaintiffs rely on Mississippi Rule of Professional Conduct 3.7. For the
reasons explained below, the motion will be denied.
Rule 3.7 of the Mississippi Rules of Professional Conduct provides, in relevant part:

a) A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary
witness except where . . . 3) disqualification of the lawyer would work substantial hardship on
the client.
First, a lawyer is not “likely to be a necessary witness” where the evidence sought from
the witness is available from another source. See Horaist v. Doctor’s Hospital of Opelousas, 255
F.3d 261, 267 (5th Cir. 2001); United States v. Starnes 157 Fed App’x 687, 693 – 694 (5th Cir.
2005). In the instant case, Plaintiffs assert Mr. Coughlin is the only person available to testify at
trial on the matters he addressed as a witness in an action pending in Oklahoma that concerned
work done by a consulting expert in this action. Specifically, Mr. Coughlin testified in the
Oklahoma action that Lori LaPat was engaged by Meritor in the instant case to perform CSIA
testing; she had the CSIA testing performed by Oklahoma University and issued a report of the
analysis; the Defendants determined not to designate Ms. LaPat as an testifying expert; and
because the CSIA analysis was so complex, if disclosed pursuant to the Oklahoma Open Records
Act, it could be “misused“ by Plaintiffs’ counsel in the instant action or by community activists.
See Oklahoma Hr’g Tr. 149-152, Ex. 12 to Pls.’ Mot. However, though the undersigned by this
order makes no comment on the admissibility of the foregoing at the trial of this matter, it is
plain that Plaintiffs have failed to demonstrate Mr. Coughlin is the only person with this
information. On the contrary, the record reflects that Defendants’ counsel (of which there are a
number), as well as Textron’s counsel, received and reviewed the subject report and/or drafts and
determined not to use Ms. LaPat other than as a consultant. Moreover, all of the information
testified to by Mr. Coughlin in the Oklahoma action is now demonstratively known or knowable
to the world: that testimony was freely given by Mr. Coughlin in open court in Oklahoma, and it
also appears in transcribed format on the public docket in the instant case.

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Next, the undersigned finds that disqualifying Mr. Coughlin at this juncture in this
litigation would unquestionably create a substantial hardship for Defendants. Mr. Coughlin, from
the undersigned’s perspective, has acted as the apparent, if not actual, lead counsel for the
Defendants (other than Textron) in this long-lived and complex litigation. The suggestion that
usurping Defendants of the counsel who, from all appearances, has been the principal architect
and driver of their defense would not impose a substantial hardship on Defendants is without
merit.
For the foregoing reasons the motion to disqualify counsel is denied.
SO ORDERED this 4th day of January, 2019.
/s/ Jane M. Virden
U. S. Magistrate Judge

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