United States District Court, D. Connecticut
RULING DENYING DEFENDANTS' MOTION TO PRECLUDE
TESTIMONY OF ROGER CLAYPOOL
Jeffrey Alker Meyer United States District Judge
the Court is defendants' motion to preclude the testimony
of plaintiffs' witness Roger Claypool. Defendants contend
that Claypool is an improperly paid fact witness who
disclosed confidential and privileged information to
plaintiffs. For the reasons explained below, I will deny
Frederick and Lynne Klorczyk brought this wrongful death
action under Connecticut's products liability statute
against the alleged sellers, manufacturers, and distributors
of a jack stand following the tragic death of their son,
Christian Klorczyk. Plaintiffs allege that Christian was
using the jack stand to raise the front end of his car while
he performed an oil change at plaintiffs' home in March
2011. The jack stand allegedly failed and collapsed, causing
the car to fall on Christian and crush him to death.
claim that the jack stand was defective in its design or
manufacture, and also that defendants are liable for failure
to provide adequate instructions or warnings. The five
defendants include Sears, Roebuck & Co.
(“Sears”), from whom the Klorczyks purchased the
jack stand; Wei Fu (Taishan) Machinery & Elec. Co., Ltd.
(“Wei Fu”), a Chinese corporation that allegedly
manufactured the jack stand; MVP (HK) Industries, LTD
(“MVP”), a Hong Kong corporation that allegedly
distributed the jack stand to Sears; Shinn Fu Company of
America, Inc. (“SFA”), a Missouri corporation
that was allegedly involved in the development, design,
manufacture, testing, inspection, distribution, and sale of
these jack stands, as well as in drafting warnings concerning
their use; and Shinn Fu Corporation (“Shinn Fu”),
the Taiwan-based parent company of SFA, MVP, and Wei Fu.
have moved to preclude the testimony of plaintiffs'
witness Roger Claypool, a former SFA employee. Claypool
worked for SFA from 1987 until his voluntary separation in
December 2008, more than two years before Christian's
death. His duties included investigating and processing
claims, as well as ensuring that products-including jack
stands-complied with safety standards. Toward the end of his
tenure, Claypool worked closely with SFA's in-house
counsel, Arthur Chaykin.
first became involved in this case when Rick Heath, an
engineering expert hired by plaintiffs, retained him as an
independent contractor at a rate of $120 per hour to help
Heath identify jack stand serial numbers. Plaintiffs'
attorneys later contacted Claypool about his work at SFA.
Claypool was ultimately deposed by plaintiffs in August 2016.
In addition to being paid for his work helping Heath to
identify jack stand serial numbers, Claypool was paid at the
same $120 per hour rate for his time spent consulting with
plaintiffs' counsel, preparing for his deposition,
traveling, and testifying in his deposition. He was also
reimbursed for his travel expenses, including airfare and
lodging. According to plaintiffs, Claypool has received a
total of $8, 191.89 in connection with this case. Doc. #245
deposition, Claypool testified that SFA had knowledge of
several prior similar claims of jack stands suddenly
collapsing; that defendants knew there was a risk that the
jack stands could suddenly collapse due to a phenomenon
called false engagement; and that SFA considered alternative
designs but rejected implementing them partly because of
cost. See Doc. #231-2 at 18-23. Plaintiffs allege
that Claypool's deposition testimony is particularly
important because it contradicts earlier discovery provided
to plaintiffs by SFA, in which SFA denied having had
knowledge of prior similar claims, false engagement, or
alternative safer designs. See Doc. #245 at 17.
to defendants, the Court should preclude Claypool's
testimony or otherwise impose sanctions for two independent
sets of reasons: (1) plaintiffs' payments to Claypool, a
fact witness, were improper, unreasonably high, and biased
his testimony, and (2) Claypool had access to and improperly
disclosed SFA's confidential and privileged information.
Payment of Fact Witness
argue that Claypool should be precluded from testifying
because he is a fact witness who was improperly paid for his
cooperation and testimony, in violation of the Connecticut
Rules of Professional Conduct and the Federal Anti-Gratuity
Statute, 18 U.S.C. § 201. Plaintiffs counter that
Claypool is a “hybrid fact witness/consultant, ”
that he was reasonably and properly compensated for his time,
and that even if Claypool had been improperly compensated,
preclusion would not be the correct remedy. I largely agree
3.4 of the Connecticut Rules of Professional Conduct provides
that “[a] lawyer shall not . . . (2) offer an
inducement to a witness that is prohibited by law.”
Conn. R. Prof. Conduct 3.4; see also D. Conn. L.
Civ. R. 83.2(a) (applying Connecticut Rules of Professional
Conduct to lawyers practicing in the District of
Connecticut). The official commentary to Rule 3.4 further
provides that “it is not improper to pay a
witness's expenses or to compensate an expert witness on
terms permitted by law. The common law rule in most
jurisdictions is that it is improper to pay an occurrence
witness any fee for testifying and that it is improper to pay
an expert witness a contingent fee.” Conn. R. Prof.
Conduct 3.4 Commentary.
the rule at common law prohibited compensating fact witnesses
in any manner, the common law rule has been relaxed over
time. The ABA's Formal Ethics Opinion interpreting ABA
Model Rule 3.4 (which in relevant respects is identical to
Connecticut's Rule 3.4) advises that non-expert witnesses
may be compensated not only for time spent testifying but
also for time spent preparing to testify, as long as payment
is not conditioned on the content of the witness's
testimony and does not violate the law of the jurisdiction.
Time spent preparing to testify can include “pretrial
interviews with the lawyer in preparation for testifying,
” as well as “time spent in reviewing and
researching records that are germane to [the witness's]
testimony.” ABA Formal Op. 96-402 (1996). Being
compensated for these activities is not improper as long as
the lawyer makes it ...