A U.S. District Court judge denied four pretrial motions of a scaffolding manufacturer named in a personal injury suit and upheld a plaintiffs' motion to block trial subpoena for their counsel.
Plaintiffs Matthew Schaefer and Cynthia Schaefer sued Universal Scaffolding & Equipment in 2010, alleging negligence and liability for injuries Matthew suffered in November 2008 while falling from a scaffolding bar. They later named Brand Energy Services and Dynegy Midwest Generation as co-defendants.
The court granted summary judgment to the defendants, thus dismissing Dynegy and Brand Energy Services from the suit.
On March 23, 2017, “the Court heard oral argument on several pretrial motions and issues raised in trial briefs, including the issue of whether defendants would be allowed to call plaintiff’s counsel as a witness for trial and whether plaintiffs’ loss of consortium claim will proceed to trial,” according to court documents.
Both parties also asked that the trial court make a decision on the amount of damages for the negligence claims.
The plaintiffs moved to have the trial subpoenas thrown out. They claim that the counsel’s testimony was not necessary to prove the issues in the trial.
To prove their claims that the subpoena was a burden, the plaintiffs relied on the advocate-witness rule.
This rule “articulates the professional impropriety of assuming the dual role of advocate and witness in a single proceeding,” according to a precedent in United States v. Johnston, 690 F.2d 638, 642 (7th Cir. 1982).
“If the need for his testimony becomes apparent after the attorney has undertaken employment in the case, he must withdraw from the conduct of the trial,” the motion states.
The court concluded that decided that the plaintiffs’ counsel's testimony would be a burden to the plaintiffs, granting the plaintiffs' motion to quash the trial subpoena.
Based on the evidence presented, the court ordered that the defendant’s motions for finding of agency, finding of waiver and judgment on the pleadings were denied, as well as denied the defendant's request on the measure of damages.