BENTON - Senior U.S. District Judge Phil Gilbert tried to reduce friction between the Rich, Rich and Cooksey firm of Belleville and the Chartwell firm of St. Louis County in a crash suit and the lawyers quarreled again.
Rich, Rich and Cooksey represents David Canania of Pevely, Missouri, and the Chartwell firm represents Steven Dippold of Farina and his trucking company.
Dippold’s truck struck the rear of Canania’s truck on Interstate 55 in Collinsville in 2022.
Canania claims he suffered disabling injuries and will lose $1.5 million in earnings.
Gilbert resolved three disputes on Aug. 28 and reminded counsel of their ongoing duty to litigate in good faith and avoid the temptation to descend into obstructionism.
“When counsellors refuse to compromise, when their knee jerk reaction is to deny all requests from opposing counsel, and when unwillingness to see reason on even the minute details requires the court’s fastidious attention, everyone loses: the attorneys, the legal profession, the court and critically, their clients," Gilbert wrote.
He wondered if Rich, Rich and Cooksey meant to conduct discovery not to help their client but to sell information to other firms.
In spite of his admonition a dispute arose on Sept. 18 when a doctor working for Rich, Rich and Cooksey moved to quash a subpoena for his financial information.
Gilbert had allowed Rich, Rich and Cooksey to discover similar information from another doctor.
Lawrence Hall of the Chartwell firm opposed the motion to quash on Sept. 20 and stated he didn’t waive an argument regarding failure to disclose the doctor as a retained expert.
Gilbert has set trial to start Dec. 9.
Michelle Rich filed the complaint in October 2022 for David and wife Cheryl Canania, who alleged loss of consortium.
This May, neurosurgeon Robert Bernardi of St. Louis County moved to quash a subpoena from Rich, Rich and Cooksey seeking eight years of financial information.
His counsel James Nowogrocki of St. Louis County claimed third party status is significant in determining whether a subpoena imposes undue burden.
He claimed a court may limit discovery to protect a party or person from annoyance, embarrassment or oppression.
He claimed the subpoena sought vast amounts of information that had nothing to do with issues before the court.
He claimed Bernardi was involved in a worker compensation matter which had vastly different legal standards compared with personal injury law.
He claimed a procedural rule requires a retained expert to provide four years of history.
He claimed if plaintiffs wanted to argue bias by the compensation Bernardi earned as an expert they could multiply the number of his testimonial cases by his fee schedule.
He claimed that would be less intrusive than eight years of records involving unrelated patients, firms and insurers.
On the same day Lippold moved to strike an expert report of Tim Kaver.
Hall claimed plaintiffs disclosed Kaver as a medical provider 77 days late and he wasn’t a medical provider of any kind.
He claimed Kaver was a job placement and training director, a vocational evaluator and counselor, and an expert witness at England and Company.
He claimed the report indicated Kaver did not provide vocational services to Canania.
He claimed plaintiffs failed to provide Kaver’s qualification, cases in which he testified in four years, and a statement of compensation.
He claimed Lippold chose not to retain a vocational rehabilitation expert due to plaintiffs not disclosing their own.
He claimed Lippold would need to review the report, find and consult an expert, depose Kaver, and determine whether to retain an expert.
At a hearing on July 8 Gilbert said Bernardi would produce four years of information.
He said Kaver could testify and Dippold could disclose a vocational rehabilitation expert.
He stated an order would follow.
On July 12, Nowogrocki moved for an order to protect the privacy of Bernardi’s information.
He claimed Bernardi sought the same safeguards as plaintiffs and defendants.
On July 25, Hall moved to compel an independent physical and psychological examination of Canania by vocational rehabilitation counselor Matthew Purinton of Philadelphia.
Hall claimed spinal surgeon Kevin Rutz of St. Louis County performed lumbar fusion on Canania in May 2023.
He claimed Rutz testified in a deposition that 80 to 90% of his patients returned to work after lumbar fusions.
“Nevertheless Canania has not worked for almost the entire duration since the accident, claims he cannot return to the workforce as a commercial driver, and intends to claim in excess of $1,500,000 in loss of future earnings at trial,” he wrote.
He claimed Lippold requested an examination and agreement could not be reached.
Gilbert heard argument on Aug. 1 and issued an order before the month ended.
He allowed Kaver’s report, finding the deadline for disclosing experts passed but the discovery deadline hadn’t passed.
He found Kaver couldn’t accurately assess Canania until his condition stabilized and plaintiffs provided the report to Lippold almost immediately.
He allowed Purinton’s examination, finding Dippold merely asked for five hours to fill out forms and demonstrate physical ability.
He found Canania’s condition was not merely relevant, it was a core and central issue.
He found plaintiffs sought leave to retain an untimely witness and must accept reasonable consequences of that decision.
“They must take the bitter with the sweet,” he wrote.
He found Bernardi’s finances deserved privacy and he wrote, “Privacy is not secrecy.”
He found plaintiffs quoted the Illinois Supreme Court declaring that the right of access to court records is essential to proper functioning of democracy.
“While judicial transparency is a bedrock principle of the American justice system, it is doubtful that protecting four years of Dr. Bernardi’s financial documents from public dissemination will be the fatal blow that causes the pillars of American democracy to collapse,” he wrote.
“Seeking to protect one’s financial documents, contracts, and medical work from public disclosure is hardly an effort to shroud this litigation in secrecy.”
He found a life can be constructed from bank statements and financial information and it is perfectly reasonable to protect that information from wide and perpetual dissemination.
He wrote that he pressed counsel on their reasons for opposing the protective order.
He wrote that counsel said it would be burdensome to dispose of the records after litigation.
He wrote that counsel said they wished to retain Bernardi’s information to save time and resources in the event that he was an adversarial expert in a future case.
"Neither is convincing,” he wrote.
He found most discovery is electronic and litigators have systems that place documents where they can be easily retrieved.
“Surely if plaintiffs’ counsel can keep the parties’ protected documents secure, they have the capacity and resources to keep a nonparty’s protected documents secure,” he wrote.
He spotted a contradiction that disposing of documents would be burdensome but retention of documents would be of some great value in future litigation.
He wrote that he suspected keeping documents wouldn’t save time or resources.
He found counsel insisted on obtaining and retaining eight years of information so much that it was necessary to hold not one but two hearings.
He found it abundantly clear that counsel placed great emphasis on the documents and there was an open question as to why.
He found some law offices retain expert information to sell or pass on and if that was the reason for opposing a protective order he strongly disapproved.
“Not only does that motive pervert the purpose of discovery, it also places the pecuniary gain of the attorneys above that of their clients who are paying their attorneys to request, review, and litigate over these documents when it has little to no benefit for them," he wrote.
He wrote that he voiced his disapproval of trading information and counsel didn’t object or deny that was their motive.
He wrote that he asked what greater benefit would be gained by reviewing an additional four years and plaintiffs had no satisfying answer.
He found the breadth of the discovery, the fact that the documents were unlikely to be a core issue, and the lack of a satisfying answer began to paint an unsavory picture.
He found the requests might have less to do with gathering information for a legitimate purpose and more to do with some kind of ulterior motive.
He found If future litigants in cases involving Canania’s counsel knew that any experts they hired would forfeit their privacy and have nearly a decade of their records easily and indefinitely accessible on the internet, it would have an extraordinary chilling effect.
“The Plaintiffs’ lack of any satisfying explanation for seeking and retaining this information is troubling,” he wrote.
Then he addressed both sides, stating that some friction is expected.
“Each attorney has a duty to advocate for the best interests of their client,” he wrote.
“However, when relations between counsellors deteriorate into acrimony, they must be cautious to avoid crossing the thin line separating zealous advocacy from obstructionism.”