Posted May 06, 2014 10:30 pm CDT
Updated: Rejecting a call by opposing counsel to rescind a longtime lawyer’s pro hac vice admission for shocking an expert witness with a trick pen, a Utah judge instead imposed what he called “an appropriate sanction” for witness battery.
In an April 26 order, Judge James Brady said California attorney Don Howarth of Los Angeles-based Howarth & Smith must pay $1,000 to the expert, identified as Dr. A.P. Meliopoulos, according to Above the Law. He also restricts Howarth’s future cross-examination privileges at the next trial and orders him to pay another $2,000 to the opposing side.
The ATL post includes a copy of the order in the Juab County case.
Meliopoulos was testifying in Gunn Hill Dairy v. Los Angeles Department of Water & Power. The 10-year-old negligence case involves a dispute over the shocking of dairy cattle, due to stray current in the ground near a Utah power plant that sends electricity to LA, explained Howarth’s co-counsel, Jefferson Gross of Salt Lake City, in an interview with the ABA Journal. Over a dozen farm owners are seeking a total of $200 to $400 million in damages in multiple planned trials.
When Meliopoulos testified for the defense that 1.5 volts, a power equivalent to a AAA battery, could not even be felt by a human, Howarth handed him the pen and asked him to press it, Above the Law reports.
“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?” reads the transcript.
While the pen may have been powered by a 1.5-volt battery, it was capable of giving a much greater shock because of an internal transformer, according to the judge’s order.
“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,” wrote Brady.
Brady also points out that the packaging on the pen said it should not be used for adults more than 60 years old or anyone in poor health; Howarth failed to ask Meliopoulos about his health, the judge said, and Meliopoulos is more than 60 years old.
The complaining party characterized the trick pen incident as lacking in candor, while Howarth’s contingent described it as “aggressive cross-examination,” according to Brady’s order. The judge, who was present in court during the incident himself, brought up the issue of witness battery and pointed out the court’s power to sanction a lawyer for “harmful or offensive contact” with a witness.
“A witness is entitled to be safe and protected from assaults or physical intimidation,” he wrote. “Had Mr. Howarth disclosed his intent to deliver a shock to Dr. Meliopoulos, the court would not have allowed it. Witnesses … 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 courtroom.”
Gross disputed the judge’s conclusion, telling the ABA Journal, “This is a children’s toy, a gag pen … and it’s not capable of doing any damage, even to a 60-year-old.” The pen, he said transmits “a mild shock. It’s more surprising than anything.”
Gross also said the trick pen incident followed a defense demonstration involving a AAA battery placed in the mouth of a lawyer for the power company.
Howarth intends to appeal Brady’s ruling, said Gross, who is a partner at Burbidge Mitchell & Gross.
Opposing counsel did not immediately respond to an ABA Journal request for comment.
Updated on May 7 to add detail and to embed the order and on May 8 to include information from Gross interview.