Erickson v. Newmar Corp.

• Decision Date: 18 June 1996
• Docket Number: No. 94-15726,94-15726
• Citation: 87 F.3d 298
• Parties: 96 Cal. Daily Op. Serv. 4324, 96 Daily Journal D.A.R. 7041 Donald C. ERICKSON, Plaintiff-Appellant, v. NEWMAR CORPORATION, Does I through X and Doe Corporations I through X, inclusive, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 298

87 F.3d 298

96 Cal. Daily Op. Serv. 4324, 96 Daily Journal

D.A.R. 7041

Donald C. ERICKSON, Plaintiff-Appellant, v. NEWMAR CORPORATION, Does I through X and Doe Corporations I

through X, inclusive, Defendants-Appellees.

No. 94-15726.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 20, 1995.

Decided June 18, 1996.

Donald C. Erickson, Moapa, Nevada, in pro. per., for plaintiff-appellant.

E. Leslie Combs, Jr., Combs & England, Las Vegas, Nevada, for defendant-appellee.

Appeal from the United States District Court for the District of Nevada, Lloyd D. George, District Judge, Presiding. D.C. No. CV-91-00968.

Before: FERGUSON and HAWKINS, Circuit Judges, and NIELSEN, District Judge. ^*

FERGUSON, Circuit Judge:

Pro se plaintiff, Donald Erickson, brought suit against Newmar Corporation, claiming that his motor home, which was manufactured by the defendant, was defective. Erickson alleged violations of the Consumer Product Warranty Act ¹ and supplemental state law claims including breach of the implied warranty of merchantability, fraud, negligence, and breach of the implied covenant of good faith and fair dealing. After a bench trial, the district court ruled in favor of Newmar on all claims. Erickson appeals pro se and raises numerous issues, including an allegation that defense counsel tampered with his expert witness.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and reverse on the grounds of witness tampering.

BACKGROUND

On June 22, 1990, Donald Erickson, a retiree, purchased a 1989 London Aire motor home from R.V.'s Unlimited, Inc. in Las Vegas, Nevada. Erickson paid $75,000 for the motor home, which was manufactured by the defendant, Newmar Corporation. Shortly thereafter, Erickson noticed cracks and bubbles in the fiberglass sidewalls, ill-fitting doors, and bowing and sagging of the motor home's frame.

Repairs were attempted on the motor home on nine occasions, beginning with the first repair in July of 1990. Four of those repair attempts were approved by Newmar and covered under the warranty. In the other cases, Newmar determined that the flaws Erickson complained of were not defects which required repair under the warranty. Erickson was dissatisfied with the attempted repairs and came to believe that the motor home was a lemon. Therefore, Erickson demanded that Newmar take back the motor home and refund the purchase Plaintiff's claim of witness tampering arose at the defendant's depositions of Erickson's metal expert, Dr. Steven Grimm, and his chassis expert, Gary Bennett. On the morning of September 2, 1993, Erickson and Dr. Grimm went to the office of defense counsel, Leslie Combs. Before the deposition had begun, Combs asked Dr. Grimm if he would evaluate a lock which was an important piece of evidence in an unrelated case that Combs was handling. ³ Combs offered to compensate Dr. Grimm at the rate of $100.00 per hour. Erickson was present during this conversation between Combs and Dr. Grimm. When Combs asked Erickson if there was a problem with the arrangement, Erickson said that it was not up to him to decide.

                price.   Newmar refused, and Erickson filed his action against Newmar and R.V.'s Unlimited. 2
                

After Combs deposed Dr. Grimm, Combs escorted Dr. Grimm to another room in the office suite to view a videotape and photographs of the lock. Later that afternoon, Erickson confronted Combs regarding his offer of employment to Dr. Grimm. Erickson informed Combs that during the lunch break he researched whether Combs' offer was proper and discovered that Combs had violated the law in making an offer to Dr. Grimm. Combs and Erickson had a heated argument. Erickson asked Combs to stipulate that he would not tamper with his next expert witness, Gary Bennett. When Combs refused to agree to such a promise, Erickson canceled the afternoon deposition of Bennett.

The next day, Erickson filed a "Motion for Judgment Against Newmar for Tampering with a Material Witness." On that same day, Dr. Grimm resigned from his job with Combs. Even though Dr. Grimm was no longer working as an expert for Combs, Erickson fired Dr. Grimm because Erickson did not know if he could trust him. In addition, Erickson's chassis expert, Bennett, refused to be an expert for Erickson because he did not want to be involved in a case where "the attorneys [were] bothering the witnesses."

On October 27, 1993, the district court denied Erickson's motion for judgment against Newmar. Five days later, Erickson went to trial without his expert witnesses. The district court conducted a bench trial and thereafter entered judgment in favor of Newmar.

DISCUSSION

I. Standard of Review

The district court has the duty and responsibility of supervising the conduct of attorneys who appear before it. Trust Corp. v. Piper Aircraft Corp., 701 F.2d 85, 87 (9th Cir.1983). Since the district court is vested with the power and responsibility of supervising the professional conduct of attorneys before it, the appropriate standard of review is "abuse of discretion." Id.

II. Witness Tampering

In determining plaintiff's "Motion for Judgment against Newmar for Tampering with a Material Witness," the district court interpreted the motion as an attempt by Erickson "to disqualify his own expert witness so that an adverse judgment [could] be imposed on defendant as a sanction for causing the loss of the expert." In denying Erickson's motion, the court relied solely upon cases which involve disqualification of a "switching sides" expert--an expert who is initially retained by one party, dismissed, and employed by the opposing party in the same or related litigation. In "switching sides" cases, courts may grant the original hiring party's motion to disqualify the expert when it is determined that the expert is in possession of confidential information received from the first client. See, e.g., Paul v. Rawlings Sporting Goods Co., 123 F.R.D. 271, 278 (S.D.Ohio 1988) (holding plaintiff's expert The present case, however, does not involve an expert who changed sides and used confidential information. Rather, Dr. Grimm was still retained by Erickson at the time Combs made him an offer of employment. Therefore, the district court erred in its analysis.

witness was not disqualified even though he had previously worked for the defense on a related matter); English Feedlot, Inc. v. Norden Laboratories, Inc., 833 F.Supp. 1498, 1505 (D.Colo.1993) (holding expert witness was not disqualified from working for adverse party because he did not receive any confidences from original hiring party); Conforti & Eisele, Inc. v. Division of Bldg. & Constr., 170 N.J.Super. 64, 405 A.2d 487, 492 (Law Div.1979) (holding expert witness was disqualified from working for adverse party because he had received privileged information from original hiring party).

The present case is about an attorney who offered a monetary inducement to an expert witness prior to the expert giving his testimony. Thus, plaintiff's claim of unethical conduct by defense counsel requires us to decide: 1) whether attorney Combs' offer of employment and subsequent ex parte communication with Dr. Grimm was unethical; and 2) if so, what sanction is appropriate?

A. Unethical Conduct

District courts have clear statutory authority to promulgate rules governing the admission and conduct of attorneys who appear before them. Frazier v. Heebe, 482 U.S. 641, 645, 107 S.Ct. 2607, 2611, 96 L.Ed.2d 557 (1987). In the District of Nevada, where this case arose, attorneys must abide by the Model Rules of Professional Conduct as adopted by the Supreme Court of Nevada. Dist.Nev.Local Rule IA 10-7 (1995). Attorney Combs' offer of employment to Dr. Grimm violates two of these rules of professional conduct: 1) the duty to obey obligations of the tribunal, Rule 173(3); and 2) the prohibition against conduct which is prejudicial to the administration of justice, Rule 203(4). Nev.Sup.Ct.R.Prof.Conduct 173(3), 203(4) (1986).

It is unethical conduct for an attorney to disobey an obligation of the court. Nev.Sup.Ct.R.Prof.Conduct 173(3). ⁴ In federal court, the discovery rules impose obligations on attorneys during the course of litigation. At the time of the present litigation, Federal Rule of Civil Procedure 26(b)(4) provided that a lawyer's permissible contact with an opposing party's expert was limited to interrogatories and, upon leave of the court, depositions. Fed.R.Civ.P. 26(b)(4). ⁵

A leading legal ethics treatise discusses the ethical implications of communications with an adversary's expert witness. 2 Geoffrey C. Hazard & W. William Hodes, The Law of Lawyering § 3.4:402 (2d ed. Supp.1994). The treatise advises that: "Since existing rules of civil procedure carefully provide for limited and controlled discovery of There is a scarcity of case law on the issue of ex parte contact with expert witnesses, possibly because the violation seldom happens. Campbell Indus. v. M/V Gemini, 619 F.2d 24 (9th Cir.1980), discusses the issue in the context of a "switching-sides" expert. In Campbell, the defense attorney engaged in ex parte contacts with plaintiff's expert while the expert was still retained by the plaintiff. Id. at 27. This court admonished the attorney for violating Fed.R.Civ.P. 26(b)(4) and upheld the district court's disqualification of the expert. Id.

                an opposing party's expert witnesses, all other forms of contact are impliedly prohibited."   Id.  Therefore, an attorney who engages in prohibited communications violates the attorney's ethical duty to obey the obligations of the tribunal.   Id.;  see Nev.Sup.Ct.R.Prof.Conduct 173(3) (1986).   Moreover, since the procedure for the discovery of experts is well established, an attorney may also be in violation of the rule prohibiting conduct prejudicial to the administration of justice.   Id.;  see Nev.Sup.Ct.R.Prof.Conduct 203(4) (1986). 6
                

Notwithstanding the lack of case law, two ethics opinions have concluded that an attorney...