An attorney who repeatedly failed to respond to opposing counsel’s discovery demands must pay the resulting sanctions himself without turning to his client because "he alone" was responsible for any added costs to his adversary, a federal judge has ruled.
Jonathan Fairbanks told Northern District Judge Gary Sharpe (See Profile) that personal problems caused his failure to comply with the discovery schedule.
"Recently my emotional and psychological problems came to a [head] and for reasons that I do not understand focused most exclusively on my failure to timely address this specific case," Fairbanks told the court. "I believe this Court should not dismiss this action because of my failures."
Judge Sharpe agreed that dismissal of the wrongful death suit against the federal government would be "too harsh," but concluded that sanctions against the attorney were warranted.
"It is clear the government has, or soon will, suffer pecuniary harm as a result of Fairbanks’ disregard for the discovery schedule. Accordingly, it should be Fairbanks, and he alone, who reimburses the government for the expenses it incurs as a result of his conduct," Sharpe wrote in an Aug. 23 ruling in Toborg v. United States, 1:11-CV-150.
Fairbanks, of Zwiebel & Fairbanks in Kingston, Ulster County, represents Jean Toborg, who claims the Stratton Veterans Administration Medical Center in Albany was negligent in the care it provided to her husband, who suffered various injuries, including a fractured hip and bedsores, which she claims contributed to his death in 2009.
Following a June 2011 conference setting discovery deadlines, Fairbanks failed to provide disclosure of his expert witness, respond to discovery demands, schedule depositions or "prosecute this matter in any fashion," according to the government’s motion for summary judgment.
In a May 4 motion, Assistant U.S. Attorney Diane Cagino said the government hadn’t been in contact with Fairbanks since the 2011 conference and that Fairbanks hasn’t responded to five letters. Cagino asked the court to dismiss the case, writing that Toborg can’t proceed to trial under New York law without a medical expert supporting her case.
By the time Fairbanks filed his response on May 30, he said he had served the government with reports of two medical experts and served all outstanding discovery responses. He asked the judge to amend the discovery schedule to allow depositions to proceed.
"The last several years have been the most difficult of my life and were significant factors in the failure to comply with the discovery schedule," he said in an affidavit accompanying his opposition to the government’s summary judgment motion.
He said he has suffered medical issues, most of which were acute and have been resolved, and he recently went into treatment for a "chronic issue" that contributed to his failure to respond.
Fairbanks said his mother died within the last year after a long illness and over the last two years, his wife suffered from orthopedic injuries, requiring his assistance.
His law firm, he said, is "in a period of transition" after closing its Albany office and reorganizing all operations in its Kingston location. His firm lost two associates and hired two new attorneys who have required much training, he said, adding that he was placed under additional pressure when his partner, Alan Zwiebel, partially retired.
Although Fairbanks claimed his adversaries were not prejudiced by the delays, Cagino argued that the government never had the opportunity to have its own expert review plaintiff’s expert reports and that it will be costly to pay an expert to now review and rebut those reports.
"The taxpayers of the United States should not have to pay for plaintiff’s delays," wrote Cagino.
"First, sympathetic though attorney Fairbanks may appear, he has provided no good reason for his complete non-compliance with the Federal Rules or with this Court’s straightforward scheduling order, nor for his failure to respond to the defendant’s letters or to timely seek consideration from this Court for an extension of time or substitution of counsel," Cagino said.
In the absence of a persuasive showing, "it is simply unacceptable" to allow a litigant to evade the consequences of her attorneys’ handling of the suit," Cagino contended. She did not ask for monetary sanctions, but instead asked for dismissal.
In his Aug. 23 ruling, Sharpe wrote, "While Fairbanks’ personal circumstances are unfortunate…his conduct here is part-in-parcel to a well-known pattern of behavior recognized in the professional and judicial community."
In a footnote, the judge said this was not the first time Fairbanks has used personal circumstances "to excuse similar behavior."
But Sharpe noted that if the court were to dismiss Toborg’s complaint, "it would be only she who suffers the consequences of her attorney’s shortcomings."
He directed the government to submit an affidavit outlining the expenses it has incurred as a result of Fairbanks’ delays, any outstanding discovery requests and a proposal for further discovery and related costs, and an amended discovery schedule.
Sharpe said Toborg may address the timing of discovery or the imposition of sanctions against her attorney. Magistrate Judge Randolph Treece (See Profile) will review the government’s request and recommend sanctions.
Cagino declined to comment.
Thomas Spina, chief of the Civil Division of the Northern District’s U.S. Attorney’s Office, said the office is still reviewing the order and determining the costs. Spina said he hadn’t come across a ruling such as this before.
"It’s out of the ordinary," he said.
Fairbanks did not return messages seeking comment.
@|Christine Simmons can be contacted at email@example.com.