A Northern District judge has approved a magistrate judge’s recommendation that an attorney pay the U.S. government $8,359 in sanctions for the lawyer’s failure to comply with the court’s pretrial scheduling order and discovery demands from the government. Chief Judge Gary Sharpe (See Profile) also held that counsel Jonathan Fairbanks must pay the government’s costs associated with deposing two of Fairbanks’ medical experts along with the cost of the accompanying transcripts. Sharpe said costs related to the depositions to Fairbanks are likely to exceed $3,000.
The sanctions against Fairbanks, of the Zwiebel, Fairbanks Law Firm in Kingston, were recommended in a medical malpractice action, Toborg v. United States of America, 1:11-cv-150, by Magistrate Judge Randolph Treece (See Profile). In August, Sharpe ordered Treece to calculate appropriate sanctions (NYLJ, Aug. 29). At that time, the judge said it would be “too harsh” a sanction against Fairbanks to dismiss the suit entirely, as government attorneys requested, or that plaintiff Jean Toborg be denied the opportunity to depose her medical experts because they were not disclosed in accordance with Fed. R. Civ. P. 26(a)(2). Fairbanks acknowledged that Toborg’s failure to comply with governmental disclosure requests was solely the lawyer’s fault.
Toborg is seeking $1.5 million from the U.S. government for treatment that her late husband received at the Stratton VA Medical Center in Albany between June and August 2008. Toborg maintains that her husband’s 2009 death at his Schoharie home was directly related to a broken hip and other injuries he suffered while being cared for at the VA hospital.