Madison - St. Clair Record

Friday, October 18, 2019

Product liability case sets stage for angry exchange between Cook and opposing counsel

By Record News | Sep 20, 2017

BENTON – Belleville law firm leader Bruce N. Cook called opposing counsel a “cheating self important prig” by electronic mail, and later told him almost everything he does or says is deceitful. 

The object of Cook’s anger, John Socolow of White Plains, N.Y. filed these and other messages as exhibits in a discovery dispute at U.S. district court. 

Cook represents former Thornton Auto Crushing worker Richard Clark, who fell from a machine while lubricating it in 2013. 

Joseph Bartholomew of Cook’s firm filed the suit for Clark and wife Jennifer Clark in 2015, in St. Clair County Circuit Court.  

He sued River Metals Recycling first, as owner of the machine. He also sued Sierra International Machinery, as “owner and/or leasor.” 

Defendants removed the suit to federal court. 

Socolow entered an appearance for Sierra in May 2016. 

In December, Colleen Jones of Cook’s firm entered an appearance for the Clarks. 

Sierra moved for summary judgment this June 5, claiming the Clarks couldn’t establish that a design defect caused the injury. 

“Plaintiffs cannot establish causation and are in any event barred by Richard Clark’s assumption of risk,” Socolow wrote. 

Cook entered an appearance on July 3, with trial approaching on Oct. 30. 

On July 10, Cook moved to extend the deadline for a response to Sierra’s motion. 

He wrote that Sierra “seemingly deliberately compounded the misdirection of its answers to interrogatories relating to the manufacture of the machine.” 

He wrote that he believed Sierra deliberately attempted to suppress the truth. 

Magistrate Judge Reona Daly heard the dispute and signed an order on Aug. 15, granting the Clarks a round of limited discovery and a deposition.

“The ambiguous terminology used by the parties rests at the center of this dispute,” Daly wrote. 

She wrote that the product sold by Sierra consists of a baler and a crane that sits on top of a trailer.

“Plaintiffs represent that they understood the term ‘baler’ to encompass the product as a whole, while defendant Sierra represents that it understood the term as referring solely to the baler component of the product,” she wrote. “The parties also failed to reach a consensus on the definition of manufacture.” 

She wrote that Illinois law considers assembly a form of manufacturing. 

“Although this suggests that the omission regarding the attachment of the trailer to the baler was material, the contrast between the legal definition and the plain language definition of the term also underscores the ambiguous nature of the questions posed by plaintiffs,” she wrote.

She wrote that Sierra should have disclosed the attachment of the trailer, but that it didn’t intentionally conceal or misrepresent information. 

She wrote that plaintiffs didn’t explain why they failed to recognize the omission before the discovery deadline. 

On that date, Socolow told Cook he needed formal written discovery demands. He wrote that Sierra would produce its witness in Bakersfield, Calif. 

Cook replied that he was interested in invoices, receipts, and specifications for the trailer, and in assembly records including names of those who assembled it. 

He asked for records on a diesel engine, correspondence between Sierra and machine handler Tabarelli, and operation and maintenance manuals for the trailer, the hydraulic system, and the engine. 

He told Socolow he was welcome to suggest a date and place for the deposition. 

Socolow’s reply didn’t appear among the exhibits, but Cook apparently didn’t like it. 

On Aug. 16, Cook wrote, “I understood that the deposition would be in Bakersfield - where and when were another matter. I was attempting to be collegial which is sometimes difficult for me, particularly when I think an opposing attorney, or his client, has behaved improperly.” 

Cook wrote that he would schedule the deposition in Bakersfield at a time and place convenient for him. 

He excused an email lapse by writing, “Computers, but not deceptive product liability defendants and their lawyers, are a mystery to me.” 

On Aug. 18, Socolow proposed to discuss discovery at a settlement conference on Aug. 22. 

On Aug. 20, Cook replied, “I believe if you had answered my informal request to provide the actual documents relating to the design, selection, order and assembly of the trailer in question, and the Sierra/Tabarelli customary practice in those regards, we might have been able to forego what promises to be a difficult deposition and the loss of our trial date.” 

On Aug. 21, Cook told Socolow he set the deposition for Oct. 2, with Sept. 25 open as an alternative. 

Socolow replied that he wasn’t available on either day.

Cook replied, “What would be considered civil in Illinois would be if you are not available on a date, would be for you to inform me when you might be.” 

Socolow replied, “There was nothing uncivil about my response. I am simply not available on those dates and I don’t even know who the witness will be yet.” 

Cook replied, “The hell there isn’t, it is customary and considered civil in Illinois that if you have a conflict that requires emergent discovery to be cancelled to identify the conflict. Our client who has no income has lost his trial date because of you and your client’s misconduct.” 

On Aug. 22, the settlement conference failed.  

On Aug. 23, Cook wrote to Socolow, “We didn’t get to finish our conversation. The way I perceive this case is that your client, whomever that may be, now isn’t that a hell of a thing, I don’t know who you represent, has been guilty of misconduct and has at this juncture hornswoggled one of my partners preying on her inexperience in handling product cases with national counsel.

“I strongly suspect that you were a willing participant in flummoxing her.

“Additionally when others were in high school I was an enlisted man serving with the marines and the navy and have a harsh resentment of authority, particularly apparent authority.

“So when some cheating self important prig tells me they are not available, a half truth at best, they best be telling the whole truth. You were not.” 

Socolow replied that the day before, he said Oct. 3 was available. 

Cook replied, “What you have not done, again, is to inform me exactly why you are not available on the 2nd. Bocche ball? Golf?” 

He wrote that two in his firm would miss three days of work for a deposition “which is caused by your client’s, and arguably your own, misconduct.” 

Socolow replied, “I’m going to ask you again to stop the personal attacks.” 

He wrote that they were at an impasse and he had no choice but to move for a protective order. 

Cook replied, “Those aren’t personal attacks, they are merely observations about what I perceive as a disregard for the truth by you.”

“You have refused to tell me, despite repeated requests, why your witness is not available on the 2nd. Golf game, tennis. Since you haven’t given me a reason despite an apparent need I assume that your conduct in this regard, like your interruption in the Torres deposition, is to promote deceit. File your motion.” 

Socolow replied, “I guess we will have to agree to disagree on what constitutes a personal attack. Due to a personal religious obligation on Sept. 30, not golf or tennis as you seem to believe, I can’t even fly to Los Angeles, and then drive from there to Bakersfield, until Sunday, Oct. 1.” 

He wrote that he needed to prepare the witness, which would likely include meeting other Sierra employees. 

Cook replied, “Is there some reason why you cannot fly to Bakersfield on Friday the 29th?” 

Socolow replied, “I have a court appearance on the 29th, and as I mentioned below, I have explained why I am not going anywhere on the 30th.” 

Socolow moved for a protective order on Aug. 28, to set the deposition Oct. 3. 

He asked Daly for an order preventing the Clarks from questioning the witness to the extent that their topics are outside the scope of her order. 

On Sept. 5, Cook opposed the order but wrote that he agreed to the setting. On Sept. 8, he moved for a second deposition of Sierra witness Antonio Torres.

“It appears to plaintiffs that Sierra and Mr. Socolow participated in an attempt to deceive the parties as to the origin of the design and manufacture of the machine in question, and that Sierra replied to the interrogatories of plaintiffs with a misleading answer,” Cook wrote. 

He wrote that Sierra conspired to keep the truth from plaintiffs until the discovery cutoff had passed. 

Socolow opposed the motion on Sept. 11, writing that Torres corrected his testimony with the agreement of Jones from the Cook firm. 

“Mr. Torres’s testimony was never an issue until yet another lawyer for the plaintiffs, Mr. Cook, became involved on or about June 3, 2017,” Socolow wrote.

“Since then, plaintiff’s counsel have been engaged in an incessant, almost daily campaign claiming that there is a conspiracy and that they have somehow been deceived by Sierra’s counsel.

“Nothing could be further from the truth. Long ago they had the documents regarding the fact that the baler was mounted to the trailer.

“They never expressed any concern about the issues they now raise, which are not even germane to Sierra’s motion for summary judgment, until Mr. Cook became involved in this case, one week before their opposition to Sierra’s motion for summary judgment was due.” 

He attached email from Cook, on Sept. 7, stating, “You should be ashamed of yourself. Almost everything you do or say is deceitful.” 

Socolow replied, “Once again, I ask you to stop the accusations.” 

Daly heard Sierra’s motion for a protective order and Cook’s motion to redepose Torres on Sept. 11, and took them under submission. 

River Metals Recycling has also moved for summary judgment.

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Organizations in this Story

Cook, Ysursa, Bartholomew, Brauer & Shevlin River Metals Recycling - Newport location