From Gunn Hill Dairy v. L.A. Dep’t of Water & Power (Utah Dist. Ct. May 5, 2014), posted by Joe Patrice (Above the Law) (some paragraph breaks added):
During the testimony of [expert witness] Dr. Meliopoulos, [lawyer] Mr. Howarth engaged in behavior which Defendants “IPP” describes as lacking in candor, and which Plaintiffs, “Dairies” describe as aggressive cross-examination of the expert witness. IPP requests that the court find Mr. Howarth violated the Rules of Practice 3.3, and as a sanction revoke his pro hac vice privileges in this case….
1. Dr. Meliopoulos was an expert witness, called by IPP to testify before this court.
2. During Dr, Meliopoulos’ testimony, Mr. Howarth intentionally handed Dr. Meliopoulos an electronic device disguised as a retractable pen, and Mr Howarth represented it to be a pen.
3. The electronic device is sold as a novelty item and is designed to give unsuspecting individuals an electric shock if they press the button to extend or retract the pen cartridge.
4. The pen came in a package with warnings on it including:
a. The user “gets a harmless powerful shock,["]
b. It is not recommended for children under 12 years of age,
c. It is not recommended for adults over 60 years of age,
d. It is not recommended for anyone with poor health.
5. Dr. Meliopoulos is over 60 years of age.
6. Mr. Howarth made no inquiry into Dr. Meliopoulos’ age or the condition of his health before inviting him to activate the device.
7. Mr. Howarth did not disclose to the witness, the court, or to opposing counsel that the pen was a novelty which would deliver a shock to Dr. Meliopoulos.
8. When he handed the pen to Dr. Meliopoulos, Mr. Howarth knew that upon depressing the button on the top of the pen, Mr. Meliopoulos would receive an electrical shock without warning.
9. Mr. Howarth asked the following questions and made the following representations to Mr. Meliopoulos to encourage him to depress the button and receive the electrical shock:
a. “Sir, you just told the jury that if you completed the circuit with this AAA battery, you wouldn’t even feel it, right?”
b. “Sir, in this pen, I put a AAA battery. The circuit will be completed when you press the back of the pen. Would you like to see whether you can feel the AAA battery, Sir?”
c. “[g]o ahead and push the back of the pen and tell the jury whether you feel it or not.”
10. Dr. Meliopoulos complied with the request and received a strong electric shock which caused his body to jerk and to drop the pen.
11. The pen did not contain only a 1.5 volt AAA battery.
12. The pen contained a 1.5 volt battery and a transformer that converts the battery’s DC current to AC current, and transforms the 1.5 volts supplied by the battery up to several hundred volts.
13. Shock pens like the one Mr. Howarth had Dr. Meliopoulos operate, can generate up to 750 volts, enough to cause death in people with health conditions.
14. Shock pens can malfunction, and deliver hundreds of volts continuously for a relatively long time, which can injure a person.
15. Shock pens should not be used on people who have pacemakers or other electronic devices in their body, are not recommended for people with heart problems or epilepsy, can deliver painful and aggravating shocks, and the electrical current they generate can interfere with medical treatment and further exacerbate medical conditions.
16. Mr. Howarth did not inquire to see if Dr. Meliopoulos had a pacemaker or other electronic devices in his body, nor if he had heart problems or epilepsy or another medical treatment or condition that could be effected by the electrical shock.
17. After Dr. Meliopoulos received the shock, Mr. Howarth failed to disclose the electronic devices contained within the pen, or how the electricity created by the AAA battery was amplified.
18. Mr. Howarth tried to prohibit Dr. Meliopoulos from explaining the additional contents of the pen and how they amplified the current.
19. No issues in the case addressed the application of and amplified AC current to humans or to cattle.
Lack of Candor to the Tribunal.
As a matter of law the court finds Mr. Howarth’s examination exceeded the bounds of aggressive cross examination and constituted a lack of candor to the tribunal …. Even if Mr. Howarth decided to adopt a strategy of keeping back some information from a witness when testing the witnesses knowledge, qualification or bias, he went beyond that acceptable form of questioning. He demonstrated evidence in the presence of the judge and jury which he knew to be misleading.
The demonstrative evidence he presented was not related to the facts of the case. No allegation was made by any party that an increased level of current was at issue, or that the small level of DC current at issue was amplified by a transformer before being detected on the dairies, or that the current tested for was converted from DC to AC. The demonstration was intended to mislead.
After achieving his desired effect, Mr. Howarth failed to make disclosures or any effort to mitigate the misrepresentation. His actions undermined the integrity of the adjudicative process. The court concludes that Mr. Howarth intentionally mislead the jury, the court and Dr. Meliopoulos during the trial and made no sufficient effort to correct the misrepresentation….
Battery of a Witness.
Separate from the concerns about a lack of candor with the court, it is concerning to the court that Mr Howarth intentionally caused a harmful or offensive contact with the person of Dr. Meliopoulos. It is within the court’s inherent authority to sanction any attorney who causes harmful or offensive contact with a witness. A witness is entitled to be safe and protected from assaults or physical intimidation.
Had Mr. Howarth disclosed his intent to deliver a shock to Dr. Meliopoulos, the court would not have allowed it. Witnesses are not familiar with trial procedure or the expectations of attorneys. They are called up to answer questions testing their qualifications, memory, and truthfulness, to recall their prior testimony and explain any inconsistencies. To add a requirement that they do this in a physically hostile environment where they may be subjected to electrical shocks without warning is far removed from the decorum and professionalism required by attorneys, and has no place in a court room.
IPP asks the court to revoke Mr. Howarth’s pro hac vice status and prohibit him from participating further in the trial based on a lack of candor to the tribunal. The court declines to grant this type of sanction….[Instead], the court orders the following sanctions:
1) Mr. Howarth’s participation in this case is limited. He may not cross-examine any of IPP’s expert witnesses at the next trial.
2) Within forty-five (45) days Mr. Howarth shall pay a sanction in the amount of $3,000. Of that amount $2,000 shall be paid to IPP through their attorneys, as a sanction for interfering with the conduct of the trial and for causing IPP’s attorneys and expert witness to divert from their trial preparations to spend time and energy to address and mitigate misrepresentations caused by Mr. Howarth’s use of the shock pen on the witness dwing the trial; and, $1,000 shall be paid to Dr. Meliopoulos through IPP’s attorneys, for causing Dr. Meliopoulos to receive the electrical shock while testifying….
Thanks to Tom Rowland for the pointer.