RUHEL et al v. S.N.M. ENTERPRISES, INC.
MEMORANDUM OPINION re: 64 motion filed by the defendant and joined in by the plaintiff to sanction a non-party plaintiffs expert witness, Michael Panish. Signed by Magistrate Judge Martin C. Carlson on November 28, 2017. (kjn)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
EDWARD RUEHL, Individually
and as Administrator of the Estate
of Shirley T. Ruehl, deceased,
S.N.M. ENTERPRISES, INC.,
Civil No. 1:15-CV-168
(Magistrate Judge Carlson)
Expert witnesses play a unique, and uniquely important, role in our system
of justice. Drawing upon their experience and training, expert witnesses often
provide vitally important testimony which aids judges and juries in navigating the
increasingly complicated and technical issues raised by litigation in our modern
and complex society. In fulfilling this role, expert witnesses enhance the quality of
justice for all who come before the courts.
The role of the expert witness is particularly crucial in complex,
technological tort cases. As we have observed:
Pennsylvania law recognizes that proving the elements of these claims
in complex tort cases often requires presentation of expert testimony.
This requirement is imposed by Rule in professional malpractice
negligence actions and requires a certificate of merit from an expert
witness to sustain such a claim. See Pa.R.C.P. No. 1042.3. In other
complex tort actions, such as product liability cases, courts have also
opined that expert witnesses are often necessary to establish liability.
Further, courts recognize that there are consequences which flow from
a failure to provide such proof. Where a tort action turns on
allegations of a technical nature relating to some alleged defect in a
product, and the Plaintiff has failed to provide expert proof identifying
the defect in the product or drawing a causal connection between that
allegedly defective product and the Plaintiff's injuries, courts have
held that product liability and related negligence claims fail as a
matter of law and must be dismissed. See e.g. Mays v. Gen. Binding
Corp., No. CIV. 11-5836 JBS/JS, 2013 WL 1986393, at *6 (D.N.J.
May 10, 2013), aff'd, 565 F. App'x 94 (3d Cir. 2014); Ellis v.
Beemiller, Inc., 910 F. Supp. 2d 768, 774 (W.D. Pa. 2012); Mracek v.
Bryn Mawr Hosp., 610 F. Supp. 2d 401, 402 (E.D. Pa. 2009), aff'd,
363 F. App'x 925 (3d Cir. 2010); McCracken v. Ford Motor Co., 392
F. App'x 1, 4 (3d Cir. 2010); Koplove v. Ford Motor Co., 795 F.2d 15,
17 (3d Cir. 1986). The only exception to this general rule under
Pennsylvania exists with respect to negligence claims “where the
matter is ‘ “so simple, and (the) lack of skill or want of care so
obvious, as to be within the range of ordinary experience and
comprehension of even nonprofessional persons.” ’ Berman, supra,
205 F.Supp.2d at 364 (citing Brannan v. Lankenau Hospital, 490 PA
588 (1980)).” Hakeem v. Salaam, No. CIV.A. 3:03-0098, 2006 WL
4130488, at *7 (M.D. Pa. July 18, 2006), subsequently aff'd, 260 F.
App'x 432 (3d Cir. 2008).
American Power, LLC., v. Speedco Inc., No. 1:15-CV-2091, 2017 WL
4084060, at *6 (M.D. Pa. Jan. 17, 2017).
Along with this important role come great responsibilities for the ethical
expert witness. At the outset, the ethical expert witness shares a duty with all
witnesses to appear as commanded, and testify truthfully in the time, place and
manner directed by the court in accordance with the law. In addition the ethical
expert witness owes a second, and equally important, obligation to the party that
has retained that expert. For the party who is seeking relief from the courts the
expert’s testimony may be an integral or indispensable element of proof at trial.
Recognizing that the party who has retained an expert is relying upon that expert to
assist in carrying the party’s burden of proof, an ethical expert has a legal, ethical
and moral responsibility to refrain from gratuitously abandoning the party who has
retained the expert’s services.
The instant case, which comes before the court for consideration of a motion
filed by the defendant and joined in by the plaintiff to sanction a non-party
plaintiff’s expert witness, Michael Panish, (Doc. 64), presents the story of a
shocking dereliction of these basic duties owed by an expert to litigants, the court,
and the cause of justice. Accordingly, for the reasons set forth below, we will
GRANT this motion for sanctions.
This sanctions motion arose out of a technological tort case filed in this
court. With respect to this underlying tort case, the pertinent facts are that in
August of 2013, an elderly couple, Shirley and Edward Ruehl, traveled to
Gettysburg, Pennsylvania on a sightseeing vacation trip. At Gettysburg, the Ruehls
checked into the Hampton Inn operated by the defendant, SNM Enterprises. The
Hampton Inn’s main entranceway was marked by automated sliding glass doors,
which operated on electronic sensors, opening and closing as persons approached
the door and entered or exited the hotel.
On the afternoon of August 13, 2013, Shirley Ruehl attempted to pass
through these sliding glass doors. Mrs. Ruehl then fell outside the hotel, within
several feet of the sliding glass doors, striking her head and fracturing her skull.
The parties hotly disputed what caused Mrs. Ruehl to fall. For its part, SNM’s desk
clerk on duty has described Mrs. Ruehl as exhibiting a “steady, slow paced” gait,
which made the clerk “nervous,” and SNM posited that Mrs. Ruehl simply lost her
balance and fell as she left the hotel. In contrast, the Plaintiff cited the statements
of another hotel guest, Brian Leposki, who reported that Mrs. Ruehl fell when she
was struck on her right side by the closing automatic door as she was entering the
hotel. According to Mr. Leposki, the force of this blow caused Mrs. Ruehl to lose
her balance and fall, landing in a seated position. Mrs. Ruehl’s momentum then
carried her over into a prone position and she struck her head upon the concrete.
(Id.) Thus, the Plaintiff asserted that the negligent operation and maintenance of
the automatic doors caused Mrs. Ruehl’s fall.
With the issues framed in this fashion, the plaintiffs sought out Michael
Panish as an expert witness in this case. At the time that the plaintiffs contacted
Panish he held himself out as an expert in multiple construction and building
disciplines, and specifically asserted that he was a premier expert witness in the
field of automated sliding glass door technology. Panish also asserted that he had
served as an expert witness in over 1,000 cases, an attestation which if credited
would mean that Panish was thoroughly conversant with his legal and ethical
obligations as an expert witness.
Relying upon Panish’s representations, the plaintiffs retained him in April of
2014 to perform an expert analysis in this case, and ultimately paid Panish more
than $20,000 for his expert services in this litigation. With the clarity of hindsight,
Panish’s April 2014 contract with plaintiffs’ counsel concealed within it the seeds
of this dispute, since that contract indicated that “Mr. Panish retains the right to
approve video deposition,” (Doc. 76-1), although nothing in this agreement
foreshadowed the curious and categorical refusal of Panish to comply with court
orders, or attend videotape depositions.
Panish, however, now attests that he has a longstanding, if odd, speculative,
and categorical approach to what is a commonplace practice that is specifically
authorized by the Federal Rules of Civil Procedure—videotaped depositions of
witnesses, including expert witnesses. Indeed, according to a declaration filed by
Panish he generally refuses to allow videotaped depositions but has on one
occasion allowed such a deposition provided that “my face was not shown.” (Doc.
85-1, ¶6.) As it has been explained to the court in prior proceedings, this singular
circumstance, an expert witness who refuses to allow his face to be seen on video,
apparently stems from some concern on Panish’s part that unknown and unnamed
persons will digitally alter the video in ways that will be detrimental to Panish. In
nearly four decades of legal practice devoted exclusively to federal court litigation
we have never encountered such an idiosyncratic view by any lay or expert
witness, and we credit the plaintiffs’ counsel’s testimony that the stridency of Mr.
Panish’s eccentric views was entirely unknown to them when they first contracted
with him to perform expert services in this case in April of 2014.
Instead, it appears that plaintiffs’ counsel received their first direct notice of
the adamancy of Panish’s opposition to being videotaped some two years later, in
the Spring of 2016. At that time, Mr. Panish appears to have communicated to
plaintiffs’ counsel that he would resist any effort to take his testimony through a
videotaped deposition. Panish’s announcement at this late date in the litigation
created a dilemma for plaintiffs’ counsel, who had retained Panish, and paid him
considerable sums only to now have these additional conditions imposed upon
them as absolute prerequisites for Panish’s continued cooperation in this litigation.
The dilemma created by Panish’s conduct then came to a head in March of
2017, when the defendant scheduled a videotaped deposition of Panish, something
they were entitled to do under the Federal Rules of Civil Procedure. For his part,
Panish appears to have demanded, and accepted, a pre-payment of his expert
witness fees in the amount of $3,050 from the defendant for sitting for this
deposition. (Hearing Exhibit D-1.) However, even as he accepted this money from
the defendant, Panish was apparently notifying plaintiffs’ counsel that he would
not voluntarily agree to participate in this deposition. Presented with this notice of
deposition, and confronted with Panish’s curious reluctance to consent to a
videotaped deposition, plaintiffs’ counsel acted in a scrupulous fashion, bringing
this dilemma to the court’s attention and vigorously advocating on Mr. Panish’s
behalf. However, despite counsel’s advocacy on behalf of Mr. Panish, following a
conference with counsel on March 17, 2017, we entered an order in this matter
which provided in clear and precise terms as follows:
Recognizing that the defendant has a right to record Mr. Panish’s
deposition by video, and finding that the plaintiff has not
demonstrated sufficient good cause for the issuance of a protective
order, IT IS ORDERED THAT the plaintiff’s request for a protective
order to preclude the video recording of Mr. Panish’s deposition is
DENIED. The defendant shall be permitted to record Mr. Panish’s
deposition by video and stenographic means.
In order to address Mr. Panish’s concerns, however; and to
memorialize the defendant’s representations regarding the intended
use of the video recording of the deposition, IT IS FURTHER
ORDERED THAT the parties shall use Mr. Panish’s recorded
deposition only for purposes of defending or prosecuting the claims in
this litigation, and shall not disseminate the recording outside of these
proceedings in the absence of a Court order.
(Doc. 57, p. 6.)
Thus, our order directed a videotaped deposition of Mr. Panish, but
thoroughly addressed Panish’s odd and speculative concern that his visage and
words would be digitally altered by unknown sinister actors by setting strict
limitations on the dissemination of the video.
Our March 17 order gave Mr. Panish a few clear choices. He could comply
with the order. He could seek timely reconsideration of the order. He could through
separate counsel file his own motion for protective order, or motion to quash the
deposition subpoena that the defendant was attempting to serve upon him. The one
thing he could not do, however, was to engage in some unilateral passiveaggressive course in which he ostensibly agreed to schedule a deposition, while
privately evading his basic obligation owed by all witnesses by failing to appear
for that deposition.
Yet this is precisely the path that Panish chose.
Mr. Panish responded to this clear direction from this court, and the plain
dictates of the Federal Rules of Civil Procedure, in a fashion which was deceptive,
occasionally profane, highly unprofessional, contumacious and sanctionable. At
the outset, according to the testimony and contemporaneous notes of plaintiffs’
counsel which we find to be entirely credible, when notified by plaintiffs’ counsel
following the court’s conference call with the parties that the court had denied his
request for a protective order which would have forbidden this videotaped
deposition Mr. Panish replied: “I don’t care about you or her [the decedent
plaintiff, Shirley Ruehl] or some asshole judge.” (Doc. 86-1.)1 Indeed, when
plaintiffs’ counsel appealed to Panish’s conscience by noting that the family of the
deceased plaintiff, Shirley Ruehl, was counting upon his testimony and assistance,
Panish responded in a manner that was cold, calculating and cruel, reportedly
stating that: “ Nothing will bring her back so who gives a shit.” (Id.)
Curiously, at the same time that Panish was presenting his refusal to
participate in a videotaped deposition in profane terms as some matter of principle,
he was also willing to forego that principle for a price. Specifically, Panish
ability to engage in this profane exchange with plaintiffs’ counsel
following the entry of our March 17 order is itself something of a mystery since
Panish cancelled the deposition that was scheduled in this case for March 20, 2017,
claiming that he had suddenly contracted laryngitis, but apparently felt well
enough to contemporaneously tell plaintiffs’ counsel over the telephone that he did
not “give a shit” about his client, Shirley Ruehl, who had allegedly died as a
result of injuries suffered in this accident. Presented with this minor mystery, we
are left to conclude that Panish’s laryngitis, like his loyalty to his own client, was
fleeting and episodic.
concedes that he told plaintiffs’ counsel that he would surrender his principles on
this score if they provided him a $10,000,000 indemnity bond from Lloyds of
London. Plaintiffs’ counsel understandably discounted this bizarre and extortionate
Yet at the same time that Panish was privately voicing his complete disdain
for this court’s order and his own client, he was ostensibly complying with the
order by making scheduling arrangements for this deposition in April of 2017. In
fact, the email communications between counsel and Panish’s office manager,
Sharon Darian, reveal that the April 18, 2017 deposition date and location was
specifically selected by, and approved by, Panish. As this deposition date
approached, the defendant made several unsuccessful efforts to serve a deposition
subpoena upon Panish, both in New Hampshire and in California. Moreover,
plaintiffs’ counsel reached out to Panish on a number of occasions through his
office manager, Sharon Darian, by email to confirm and prepare for this
deposition. Thus, it is clear beyond any question that Panish’s office manager, who
identified herself to the parties as Sharon Darian, had a month’s advance notice of
this deposition date and time, and had agreed to that date for this deposition. We
impute this knowledge to Panish himself since we learned at the sanctions hearing
in this case that Sharon Darian is actually Sharon Panish, Michael Panish’s
Panish also retained the $3,050 advance he had received from the
defendant as payment for this deposition, keeping and using those funds for his
own benefit for some eight months before surrendering these funds which he had
obtained on the pretext that he would undergo a deposition on the eve of the
sanctions hearing set in this case. Moreover, even the belated surrender of these
funds by Panish came only after the court entered an order explicitly instructing
him to return this money. Further, having scheduled this deposition at his
convenience on April 18, 2017 in Manchester, New Hampshire, Panish caused the
parties to incur additional substantial expenses associated with the deposition,
expenses which a moment’s candor and honesty on Mr. Panish’s part could have
On April 18, 2017, Panish failed to appear for this deposition without any
prior explanation or excuse from the court, or counsel. Panish’s failure to appear,
and his apparent disregard of this court’s explicit instructions, had a series of
adverse consequences for the plaintiffs who had retained him. First, the plaintiffs
are also constrained to note that Mrs. Panish has filed an affidavit with the
court denying receipt of some email messages relating to the scheduling of this
deposition. (Doc. 85-1.) In light of the evidence presented at the sanctions hearing-which conclusively demonstrated that all of the emails were sent to the same
email address, an address provided by the Panishes and an address from which
Sharon Panish had routinely replied to emails in the past—we do not credit this
assertion by Mrs. Panish which is contradicted by all of the objective evidence in
were placed in the difficult position of trying to defend Panish’s indefensible
conduct, filing pleadings seeking to set aside our March 17 order, an order Panish
had effectively ignored. (Docs. 62 and 63.) The plaintiffs were also compelled to
negotiate a settlement of this lawsuit from a highly disadvantageous position, since
Panish’s abandonment of the plaintiffs and refusal to cooperate in this deposition
greatly undermined their case. Panish’s course of conduct also had an adverse
impact upon the defendant, who were denied information relevant to their defense
of this case, expended thousands of dollars to schedule this deposition, and paid
$3,050 to Panish for his services, money that Panish retained for months despite
never living up to his obligations as a witness.
It is against this backdrop that the defendant moved to sanction Panish.
(Doc.64.) The plaintiffs have now joined in this motion, (Doc. 76), and after
unsuccessful efforts by the parties to serve Panish,3 the court through the U.S.
Mr. and Mrs. Panish deny
evading service of process, (Docs. 85-1 and 85-2), but
the facts belie these assertions since the defendant has credibly alleged that: “We
had hired process servers who made four unsuccessful attempts at various times of
day, between August 24th and August 28th, to serve Mr. Panish at his last known
address in New Hampshire; and six unsuccessful attempts at various times of day,
between August 23rd and September 2nd, to serve Mr. Panish at his other last
known address in Southern California.” (Doc. 80.) Mr. and Mrs. Panish, who
represent that they have participated in more than 1,000 lawsuits in Mr. Panish’s
capacity as an expert witness, would be well advised to keep in mind the
fundamental truth that there is often little to be gained, and much to be lost, by
needlessly evading and avoiding service of process.
Marshal’s Service effected service upon Panish. Panish then filed a response to this
motion, along with a demand that the plaintiffs’ law firm be sanctioned. (Doc. 85.)
Panish’s accusations against this law firm, in turn, compelled the plaintiffs’
counsel to submit a reply, a reply which revealed in specific detail Panish’s stated
contempt for the court and indifference to his own professional obligations to Mrs.
Ruehl, his client who had lost her life, as to whom Panish is reported to have said:
“Nothing will bring her back so who gives a shit.” (Doc. 86.) We have also
conducted a hearing in this case, giving all parties a full opportunity to be heard on
Having conducted these proceedings and carefully weighed the arguments of
all counsel, the parties’ motion for sanctions will be GRANTED and Panish’s
request for sanctions is DENIED.
Panish was represented by recently retained counsel at this hearing. While our
decision in this matter is necessarily, and we believe justifiably, critical of Panish’s
conduct prior to retaining the services of his counsel, nothing in this decision
should be construed as criticizing the performance of Panish’s counsel. Quite the
contrary, in a difficult setting counsel acquitted himself well, displaying candor
and diligence, while zealously advancing his client’s interests.
Sanctions Motions—Standard of Review
We are presented in this case with a singular circumstance and one without
precedent in our experience: An expert witness who accepted thousands of dollars
from a defendant to appear for what was later ordered to be a videotaped
deposition, and then retained this money under false pretenses for months after he
failed to appear and testify. We are also presented with an expert witness who
voiced his contempt for the court and his own client in profane terms before he
specifically scheduled, and then failed to appear, for a videotaped deposition that
was ordered by this court.
This extraordinary act, in turn, calls upon us to consider some familiar legal
tenets regarding the power of the It is well-settled that a district court has the
inherent power to sanction parties appearing before it for refusing to comply with
its orders and to control litigation before it.
See, e.g., Tracinda Corp. v.
DaimlerChrysler AG, 502 F.3d 212, 242 (3d Cir. 2007). Indeed, the inherent
power of the Court to act in this area has long been recognized by the United States
Supreme Court, which has held that:
It has long been understood that “[c]ertain implied powers must
necessarily result to our Courts of justice from the nature of their
institution,” powers “which cannot be dispensed with in a Court,
because they are necessary to the exercise of all others.” United States
v. Hudson, 7 Cranch 32, 34, 3 L.Ed. 259 (1812); see also Roadway
Express, Inc. v. Piper, 447 U.S. 752, 764, 100 S.Ct. 2455, 2463, 65
L.Ed.2d 488 (1980) (citing Hudson ). For this reason, “Courts of
justice are universally acknowledged to be vested, by their very
creation, with power to impose silence, respect, and decorum, in their
presence, and submission to their lawful mandates.” Anderson v.
Dunn, 6 Wheat. 204, 227, 5 L.Ed. 242 (1821); see also Ex parte
Robinson, 19 Wall. 505, 510, 22 L.Ed. 205 (1874). These powers are
“governed not by rule or statute but by the control necessarily vested
in courts to manage their own affairs so as to achieve the orderly and
expeditious disposition of cases.” Link v. Wabash R. Co., 370 U.S.
626, 630-631, 82 S.Ct. 1386, 1388-1389, 8 L.Ed.2d 734 (1962).
Chambers v. NASCO, Inc. 501 U.S. 32, 43 (1991).
Decisions regarding how to exercise this inherent power to sanction
misconduct rest in the sound discretion of the court and, if a district court awards
sanctions pursuant to its inherent authority, such an award may only be reviewed
for abuse of discretion, which will be found only where “the court’s decision rests
upon a clearly erroneous finding of fact, an errant conclusion of law or an improper
application of law to fact.” In re Prudential Ins. Co. Am. Sales Practice Litig.
Actions, 278 F.3d 175, 181 (3d Cir. 2002) (quoting In re Orthopedic Bone Screw
Products Liability Litig., 193 F.3d 781, 795 (3d Cir. 1999)).
Yet while this court doubtless has the discretion to order imposition of
sanctions in appropriate cases, the exercise of this discretion is guided by certain
basic principles. Foremost among these principles is the tenet that sanctions should
always be narrowly tailored to meet the misconduct, and should entail no greater
punishment than is reasonably necessary to address the specific wrongdoing that
confronts the court. See Klein v. Stahl, GMBH & Co., Maschinefabrik, 185 F.3d
98 (3d. Cir. 1999).This basic, but pivotal, aspect of the exercise of discretion in this
area, has been voiced in many ways. Thus, it is well established that, “[b]ecause of
their very potency, inherent powers must be exercised with restraint and discretion.
A primary aspect of that discretion is the ability to fashion an appropriate sanction
for conduct which abuses the judicial process.” Chambers v. NASCO, Inc. 501
U.S. at 44-45 (citation omitted). Therefore, in exercising this authority we are
[A] district court must ensure that there is an adequate factual
predicate for flexing its substantial muscle under its inherent powers,
and must also ensure that the sanction is tailored to address the harm
identified. In exercising its discretion under its inherent powers, the
court should be guided by the same considerations that guide it in the
imposition of sanctions under the Federal Rules. First, the court must
consider the conduct at issue and explain why the conduct warrants
Republic of Philippines v. Westinghouse Elec. Corp. 43 F.3d at 74.
[H]aving evaluated the conduct at issue, the district court must
specifically consider the range of permissible sanctions and explain
why less severe alternatives to the sanction imposed are inadequate or
inappropriate. Although the court need not “exhaust all other
sanctioning mechanisms prior to resorting to its inherent power”
(Landon v. Hunt, 938 F.2d at 450, 454 (3d Cir.1991)), the court must
explain why it has chosen any particular sanction from the range of
alternatives it has identified. See Poulis, 747 F.2d at 868 (sanctions
under Fed.R.Civ.P. 16 and 37).
Likewise, Rule 37 of the Federal Rules of Civil Procedure also recognizes
and permits imposition of sanctions upon parties and deponents who shirk or
unjustifiably ignore their responsibility to appear as witnesses in civil proceedings.
See Fed. R. Civ. P. 37, Rule 37(b) and (d). Thus, “under Federal Rule of Civil
Procedure 37(b)(1), a deponent may be sanctioned for failure to comply with a
court order. Id. 37(b)(1) (‘If the court where the discovery is taken orders a
deponent to be sworn or to answer a question and the deponent fails to obey, the
failure may be treated as contempt of court.’). The Third Circuit has explained
Rule 37(b)(1) ‘grants a district court the authority to punish a nonparty for failing
to follow the court's directions.’ Gen. Ins. Co. of Am. v. E. Consol. Utilities, Inc.,
126 F.3d 215, 220 n. 3 (3d Cir.1997) (citing Miller v. Transamerican Press, Inc.,
709 F.2d 524 (9th Cir.1983) for the proposition that that Rule 37(b)(1) sanctions
may be available against a nonparty deponent who failed to appear at a deposition
in violation of a court order).” Yarus v. Walgreen Co., No. CIV.A. 14-1656, 2015
WL 4041955, at *3 (E.D. Pa. July 1, 2015). Further, settled case law acknowledges
that “sanctionable misconduct by . . . non-party witnesses can take many forms,
including: failures to appear, General Ins. Co. Of America v. Eastern Consolidated
Utilities, Inc., supra; destruction of evidence; Helmac Products Corporation v.
Roth Corporation, supra; or giving false, misleading and materially incomplete
testimony. Black Horse Lane Assoc., LP v. Dow Chemical Corp., 228 F.3d 275,
300–305 (3d. Cir.2000). In all of its varied forms, this misconduct by non-parties
and witnesses may, and properly should, be the subject of sanctions. Id.” Bartos v.
Pennsylvania, No. CIV.1:08-CV-0366, 2010 WL 1816674, at *5 (M.D. Pa. May 5,
It has long been held that decisions regarding sanctions motions are
Acommitted to the sound discretion of the district court.@ DiGregorio v. First
Rediscount Corp., 506 F.2d 781, 788 (3d Cir. 1974). This far-reaching discretion
extends to rulings by United States Magistrate Judges on discovery matters. In this
District courts provide magistrate judges with particularly broad
discretion in resolving discovery disputes. See Farmers & Merchs.
Nat'l Bank v. San Clemente Fin. Group Sec., Inc., 174 F.R.D. 572,
585 (D.N.J.1997). When a magistrate judge's decision involves a
discretionary [discovery] matter . . . , Acourts in this district have
determined that the clearly erroneous standard implicitly becomes an
abuse of discretion standard.@ Saldi v. Paul Revere Life Ins. Co., 224
F.R.D. 169, 174 (E.D.Pa.2004) (citing Scott Paper Co. v. United
States, 943 F.Supp. 501, 502 (E.D.Pa.1996)). Under that standard, a
magistrate judge's discovery ruling Ais entitled to great deference and
is reversible only for abuse of discretion.@ Kresefky v. Panasonic
Commc'ns and Sys. Co., 169 F.R.D. 54, 64 (D.N.J.1996); see also
Hasbrouck v. BankAmerica Hous. Servs., 190 F.R.D. 42, 44-45
(N.D.N.Y.1999) (holding that discovery rulings are reviewed under
abuse of discretion standard rather than de novo standard); EEOC v.
Mr. Gold, Inc., 223 F.R.D. 100, 102 (E.D.N.Y.2004) (holding that a
magistrate judge's resolution of discovery disputes deserves
substantial deference and should be reversed only if there is an abuse
Halsey v. Pfeiffer, No. 09-1138, 2010 WL 3735702, *1 (D.N.J. Sept. 17, 2010).
Guided by these legal guideposts, we turn to a consideration of Panish’s
conduct in this case.
Panish Has Engaged in Sanctionable Misconduct
Upon a consideration of all of the evidence in this case we conclude that by
failing to appear for the deposition which he specifically scheduled; ignoring the
court’s order directing a videotaped deposition; abandoning and profanely
disparaging his client, an 80 year-old decedent; and for months misappropriating a
$3,050 witness fee tendered to him as payment for the deposition which he
willfully ignored Michael Panish engaged in conduct which was improper,
unethical, contumacious, and sanctionable.
In our view this conduct is both sanctionable, and particularly egregious for
a number of reasons.
First, the conduct at issue here involved a dual dereliction of the duty of
candor and cooperation that Panish as a witness owed to this court, as well as the
duty of loyalty Panish owed to his clients who had paid him more than $20,000
and were relying upon him to provide crucial expert testimony in this case.
Second, we find that Panish’s excuses for failing to abide by these dual legal
and ethical responsibilities utterly lack credibility. In essence, Panish appears to
justify this misconduct by claiming that his unilateral interpretation of the court’s
order directing a videotaped deposition allowed him the option of completely
abandoning this case. To the extent that Panish implies that this court could not
direct him to participate in a videotape deposition, he is simply wrong. Quite the
contrary, the Federal Rules of Civil Procedure expressly authorize the party
noticing a deposition to choose the manner in which to record the deposition. Fed.
R. Civ. P. 30(b)(3)(A). Courts have for years recognized that audio and visual
recordings of depositions are “routine”. Gillen v. Nissan Motor Corp., 156 F.R.D.
120, 122 (E.D. Pa. 1994). Courts have thus long held that “the use of videotaped
testimony should be encouraged and not impeded because it permits the jury to
make credibility determinations not available when a transcript is read by another.”
Weiss v. Wayes, 132 F.R.D. 152, 155 (M.D. Pa. 1990). In contrast to a written
transcript, a video allows lawyers and factfinders to assess “demeanor and
appearance of the witness,” id., and courts have found that “facial expressions,
voice inflection and intonation, gestures, ‘body language’ . . . may all express a
message . . . .” Fanelli v. Centenary College, 211 F.R.D. 268, 270 (D.N.J. 2002)
(quoting Riley v. Murdock, 156 F.R.D. 130, 131 (E.D.N.C. 1994)). Therefore we
had the right, and duty, to direct Panish to participate in this deposition.
Further, Panish’s suggestion that his actions were an acceptable, and
principled, interpretation of our order directing this videotaped deposition is risible
in light of the undisputed evidence. It is clear that Panish did not approach his
responsibilities in a principled way. Rather, his actions revealed petulance, deceit,
dishonesty, and a fundamental disregard for the rights and interests of others. At
the outset, Panish’s contemporaneous statements, as recorded by plaintiffs’ counsel
in March of 2017 when Panish was notified of this Court’s March 17 order
directing this videotaped deposition, utterly demolish any claim that Panish was
acting in a principled way. Instead, these statements provide graphic confirmation
of Panish’s petulant and contumacious attitude, as Panish declared that “I don’t
care about you or [his deceased client, Shirley Ruehl] or some asshole judge.”
Panish’s claims of principled resistance to a court order are further undermined by
his apparent willingness to sell his principles in return for a $10,000,000 indemnity
bond. Thus, Panish’s pattern of misleading conduct designed to frustrate this
court’s order and the discovery process, coupled with his openly voiced
contumacious disdain for his responsibility to the court and his own client, is
sanctionable as contempt, an intentional “[d]isobedience or resistance to [a] lawful
writ, process, order, rule, decree, or command.” 18 U.S.C. § 401 (3).
Moreover, Panish’s conduct was particularly egregious in two very
fundamental ways. First, Panish harmed and prejudiced the defendant in this case.
Panish denied this party information that may have been integral to its defense of
this lawsuit. Worse, Panish’s deceptive conduct in specifically scheduling a
deposition and then failing to appear for that deposition resulted in significant
litigation expenses for the defense. Worse yet, Panish took an expert witness fee of
$3,050 from the defendant under false pretenses, and then improperly retained that
fee for months after he failed to appear for this deposition.
Bur perhaps most egregious of all is the disservice which Panish did to his
clients, Shirley and Edward Ruehl, an elderly couple who had retained his services
to assist them in this litigation. Panish accepted more than $20,000 in payment for
his professional services, services that were crucial to the prosecution of this
lawsuit. Then once his service as an expert became unpleasant or inconvenient for
Panish he abandoned his clients in ways which severely undermined their case.
Moreover, Panish followed this course with a cruel, calculated disdain for those he
was harming, stating of Shirley Ruehl, his client and an elderly woman who had
died following this incident: “ Nothing will bring her back so who gives a shit.”
While Panish may be completely indifferent to the plight he created for the Ruehls,
we are not. Therefore, in an effort to assist Panish in locating his moral, legal and
ethical compass we will impose the following sanctions in this case.5
For his part, Panish has invited us to sanction plaintiffs’ counsel, suggesting that
counsel was responsible for the debacle created by Panish’s abandonment of the
Ruehls. (Doc. 85.) Finding that Panish’s conduct was wholly unjustified, and that
no counsel could have anticipated the level of unreasonable, intemperate behavior
exhibited by Panish, we decline this invitation. We will, however, consider
Panish’s observations regarding the terms of his contract and the prior notice he
provided to plaintiffs’ counsel of his refusal to submit to videotape depositions as a
mitigating factor when assessing sanctions against Panish.
The Court Will Impose Financial Sanctions Against Panish
for the Expenses Directly Incurred by the Parties as a
Consequence of Panish’s Failure to Appear for this
In determining the appropriate sanctions for this misconduct by Panish we
are mindful that sanctions should always be narrowly tailored to meet the
misconduct, and should entail no greater punishment than is reasonably necessary
to address the specific wrongdoing that confronts the court. See Klein v. Stahl,
GMBH & Co., Maschinefabrik, 185 F.3d 98 (3d. Cir. 1999). Adopting this view,
we conclude that the best, and most appropriate measure of sanctions in this case
would be to compel Panish to reimburse both parties for the direct expenses they
incurred as a result of Panish’s sanctionable decision to forego the deposition that
was rescheduled at his request.
In reaching this conclusion we recognize that the plaintiffs had invited us to
compel Panish to repay his entire expert witness fee of more than $20,000 as a
sanction for his misconduct. We have declined this invitation because we believe
that such a sanction would not be narrowly tailored, as required by law. Several
considerations have led us to this conclusion. First, it is apparent that Panish did
provide some professional services prior to his unjustified failure to attend this
deposition. Therefore, repayment of his entire fee would not be a specific and
narrowly tailored sanction. Further, in our view imposition of a sanction in the
form of a repayment of all expert fees would require us to further foray into the
contractual details of the arrangement between Panish and counsel, an arrangement
that is marked by some conflicts and ambiguities. Since sanctions proceedings are
ancillary to merits litigation, we will decline to engage in this effort which would
needlessly prolong these proceedings.
Instead, as to the plaintiffs’ motion for sanctions, IT IS ORDERED that on
or before December 15, 2017, plaintiffs’ counsel shall submit an itemized
accounting of the expenses incurred by counsel in addressing Panish’s sanctionable
misconduct. This accounting should identify all time and expense incurred by
counsel: (1) addressing Panish’s objections to the notice of deposition which
scheduled this videotaped deposition in March of 2017; (2) all costs, fees, and
expenses incurred by counsel preparing for Panish’s April 18, 2017 deposition; (3)
all costs, fees and expenses incurred by counsel relating to motions practice
undertaken by counsel in an effort to persuade this court to vacate the order which
we have found that Panish disobeyed (Docs.62 and 63) ; and (4) all costs, fees and
expenses incurred litigating this sanctions motion, including costs incurred
rebutting Panish’s own requests for sanctions. Panish may then lodge objections to
any specific items claimed by the plaintiffs’ counsel on or before December 29,
2017. Plaintiffs’ counsel may then submit a reply brief in support of their claims
costs, fees and expenses on or before January 12, 2018.
As for the defendant, the presentation made by the defendant at the sanctions
hearing conducted in this case provides a full and complete basis for awarding as
sanctions costs and expenses that were directly related to Panish’s misconduct.
Therefore, IT IS ORDERED that Panish shall pay the following as sanctions in this
case to the defendants:
$3.050.00 expert witness deposition fee.6
$300.00 March 2017 deposition cancellation fee. (Exhibit D-2.)
$1,045.00 April 2017 deposition fees and expenses, (Exhibits D-4
$481.75 Process service expenses.
Finally, we recognize that Panish’s misconduct may have broader
significance beyond the contours of this case since Panish holds himself out as an
expert witness in a wide array of disciplines, but has conducted himself in an
It has been represented that this money has been reimbursed by Panish on the
date of the sanctions hearing.
unprofessional fashion in this case. Mindful of the need to avoid future risk of
harm to others, we note that Panish has claimed to be licensed by the State of
California as a contractor, and has alleged that he is a member of the American
National Standards Institute (ANSI). Since Panish’s conduct in the instant case
may be relevant to a consideration of his continued licensure by the state and
membership in this professional association, IT IS ORDERED that the clerk will
forward a copy of this decision to the appropriate licensing and professional
association officials for whatever action they may deem appropriate.
So ordered this 28th day of November, 2017.
/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?