Cebenka v. Upjohn Co.

• Decision Date: 04 January 1989
• Citation: 559 A.2d 1219
• Parties: Charles CEBENKA and Frances Cebenka, his wife, Plaintiffs Below, Appellants, v. The UPJOHN COMPANY, a Delaware corporation, Defendant Below, Appellee. . Submitted:
• Court: Supreme Court of Delaware

Page 1219

559 A.2d 1219

Charles CEBENKA and Frances Cebenka, his wife, Plaintiffs Below, Appellants, v. The UPJOHN COMPANY, a Delaware corporation, Defendant Below, Appellee.

Supreme Court of Delaware.

Submitted: Jan. 4, 1989.

Decided: April 11, 1989.

C. Waggaman Berl, Wilmington, for appellants.

William Uffelman, Wilmington, pro se.

Richard P.S. Hannum, Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, for appellee.

Before CHRISTIE, C.J., MOORE and HOLLAND, JJ.

HOLLAND, Justice:

This is an appeal from a Superior Court order granting sanctions against the plaintiffs, Charles Cebenka and Frances Cebenka (collectively "Cebenkas"), and their trial attorney, William H. Uffelman, Esquire ("Uffelman"). The order awarded expenses and attorneys fees in the amount of $1,310.00 to the defendant, the Upjohn Company ("Upjohn"). The sanctions were imposed as a result of the Cebenkas failure to produce their expert witness for a deposition scheduled on April 27, 1988, near Philadelphia, Pennsylvania.

In this appeal, Uffelman argues that the Superior Court abused its discretion in ordering sanctions against him and his clients on the grounds that: (1) the imposition of sanctions pursuant to Superior Court Civil Rule 37 requires a finding of "willful or conscious disregard" of the order compelling discovery and/or "bad faith"; and (2) the Superior Court exceeded its power and authority by compelling a party to produce a non-party, nonresident deponent-witness, without a commission from the Superior Court and a subpoena from the state court where the deposition was to be held; and therefore, was without authority to impose sanctions for a violation of that order.

The Cebenkas are represented by independent counsel in this appeal. The Cebenkas join Uffelman in the argument that the element of "willfulness" and/or "bad faith" is required before a sanction can be imposed under Superior Court Civil Rule 37. However, specific to their own defense, the Cebenkas argue that in the interest of fairness, costs should not have been assessed against them. The Cebenkas submit that Uffelman alone directed their litigation. They state that they had "no control over the situation" and had "no active role in the circumstances" which led the Superior Court to impose sanctions.

Upjohn argues that the Superior Court had the inherent power and authority to enforce the pretrial stipulation and order which was entered pursuant to Superior Court Civil Rule 16. In particular, Upjohn argues that since the pretrial order provided that "the parties shall have an opportunity to depose all experts," the enforcement of that provision was within the discretion of the Superior Court, including its decision not to issue a commission and not to require a subpoena for the nonresident deponent. Alternatively, Upjohn argues that the award of expenses and attorney's fees was proper, upon failure to comply with a Court order directing discovery, pursuant to Superior Court Civil Rule 37(b)(2), and that for a sanction of costs, the moving party is not required to show the element of "willfulness" or "bad faith."

We find that the sanctions imposed by the Superior Court in this case are within its inherent power and authority and comport with the spirit and purpose of Superior Court Civil Rule 16. Therefore, in this appeal, it is not necessary to address the parties' contentions with respect to Rule 37.

Facts

On April 19, 1980, the Cebenkas filed a complaint for medical malpractice against several physicians. The essence of the complaint was that the improper injection of a drug had resulted in a serious infection. The physician-defendants filed a third-party complaint against the drug manufacturer, Upjohn, alleging breach of warranty. In July of 1980, the Cebenkas filed an amended complaint against Upjohn, incorporating the allegation of breach of warranty. The Cebenkas ultimately dismissed their complaint against all of the physicians. The case proceeded against Upjohn alone.

The Cebenkas and Upjohn executed a pretrial stipulation. Following a pretrial conference, the Superior Court entered an order based upon the pretrial stipulation. The pretrial stipulation provided inter alia, that the "parties shall have an opportunity to depose all experts." In the pretrial stipulation and order, the key expert witness identified by the Cebenkas in their case against Upjohn was Dr. Karl Abramson ("Abramson").

On August 20, 1987, Richard P.S. Hannum, Esquire ("Hannum"), Delaware counsel for Upjohn, wrote to Uffelman for the purpose of scheduling Abramson's deposition. When the Abramson deposition had not been scheduled by March 30, 1988, Hannum again contacted Uffelman's office. Hannum reiterated Upjohn's desire to depose Abramson in a letter dated March 31, 1988. ¹ On April 4, 1988, Hannum and Uffelman orally agreed that Abramson's deposition would be scheduled by April 8, 1988. When this did not occur, Hannum filed a notice of Abramson's deposition and a motion to compel his appearance.

On April 19, 1988, the Superior Court held a hearing on Upjohn's motion to compel. At the hearing, Hannum requested that the Superior Court order the Cebenkas to produce Abramson for a deposition, under the penalty of having him stricken as a witness at trial. Uffelman explained that Abramson was uncooperative in scheduling his deposition because of an outstanding fee dispute between Abramson and the Cebenkas. ^{2 2} Uffelman described the dilemma as an "impasse."

The Superior Court advised Uffelman that since Abramson was the Cebenkas' expert witness, the impasse was his "clients' problem and not the defendant's problem." Uffelman requested a subpoena in light of the uncooperative nature of his expert nonresident witness. In response to that request, the Court stated that a subpoena would be "a little bit strained ... [in that] [t]he pretrial order ha[d] a stipulation that each side [could] depose the other's expert." The Court stated further that "in this case [the expert] will be cooperative if he got paid.... [I]t's up to the plaintiff to see he cooperates."

The Superior Court granted Upjohn's motion to compel and ordered Abramson's deposition for April 27, 1988, at 10:00 a.m., at a place mutually convenient to the parties or Dr. Abramson. Before the hearing adjourned and an order to compel was actually entered, Hannum advised the Superior Court and Uffelman that Upjohn's trial counsel and his associate were coming from Kansas City, Missouri, to take the Abramson deposition. Accordingly, Hannum requested adequate notice from Uffelman in the event that there was going to be a problem with Abramson's appearance. Uffelman agreed. Uffelman assured the Superior Court that adequate notice of a problem with Abramson would be given to Hannum and that a provision for such notice need not be a part of the order.

On April 26, 1988, Uffelman filed a motion to continue the Abramson deposition and also the trial. In the alternative, Uffelman moved to withdraw as counsel for the Cebenkas. According to the motion, Abramson refused to be deposed on April 27, 1988, because in the absence of an assurance about his fee, he had not prepared for the deposition.

In the motion for a continuance, Uffelman represented that he had contacted Abramson about the April 27 deposition on April 21, 1988. The motion stated that during a telephone conversation with Uffelman on April 21, 1988, Abramson demanded assurances in writing from Upjohn that his fee for the April 27 deposition would be paid. The motion stated that Uffelman received a hand-delivered letter from Upjohn containing such assurances on April 25, 1985. However, according to the motion, Abramson had not received his copy of the letter, as of April 26, 1988, when Uffelman called him.

A hearing was held on Uffelman's motion to continue Abramson's deposition. Hannum objected to a continuance on the grounds that Upjohn's trial counsel had already arrived from Kansas City, Missouri, had prepared for the deposition, and had expended funds for travel. The Superior Court found that Upjohn's request for sanctions by either dismissal of the case or an order precluding Abramson's testimony at trial were too extreme. The Superior Court granted Uffelman's motion for a continuance of the deposition. It held that the appropriate sanction would be the reimbursement of expenses and fees incurred because of the cancellation of Abramson's deposition, upon application by Upjohn. ³

On June 2nd and 3rd, 1988, the Superior Court received testimony on the Upjohn motion for fees and expenses. ⁴ Additional facts surrounding the April 27, 1988 deposition were presented. In response to questions by Upjohn's counsel, Abramson testified that according to his personal notes, the first time he was informed by Uffelman about the deposition scheduled for April 27, 1988, was on April 25, 1988, at 4:10 p.m. Abramson testified that prior to this time he had not heard from Uffelman for several years. However, in response to questions by Uffelman, Abramson admitted that "maybe" he also had a conversation with Uffelman regarding the deposition on April 22, 1988.

Uffelman testified that the on-going prior fee dispute with the Cebenkas was originally the primary barrier to Abramson's full cooperation on the April 27 deposition. Uffelman stated that the dispute with the Cebenkas existed, in part, because they thought Abramson's fee for prior services was exorbitant and unfair. ⁵ Uffelman testified that he met with the Cebenkas on April 21, 1988, and that they finally agreed to pay the full outstanding fee to Abramson ($5,500.00). Uffelman testified that he called Abramson on April 21, 1988, and informed him of the promised payment.

Uffelman testified that it was during this conversation that Abramson insisted on a written assurance from Upjohn that it would pay his fee for the upcoming deposition. Uffelman testified that he received Upjohn's assurance in a...