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Klorczyk v. Sears, Roebuck & Co.

United States District Court, D. Connecticut

August 1, 2017

FREDERICK KLORCZYK, JR., et al., Plaintiffs,
SEARS, ROEBUCK & CO., et al., Defendants.


          Jeffrey Alker Meyer United States District Judge

         Before 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 defendants' motion.


         Plaintiffs 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.

         Plaintiffs 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.

         Defendants 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.

         Claypool 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 at 18.[1]

         At his 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.


         According 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.

         Improper Payment of Fact Witness

         Defendants 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 with plaintiffs.

         Rule 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.

         Although 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 ...

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