Failing to properly vet his client’s case has landed a Pittsburgh lawyer with a $20,000 sanction from a federal judge.
Although Jason Schiffman, of Schiffman & Wojdowski, told the court that he had reasonably relied on his client and brought a case under the mistaken belief that he could rely on the product malfunction theory in a case stemming from an allegedly malfunctioning gun, the judge disagreed.
“Counsel’s errors are more troubling than his characterization suggests and his conduct can be described more accurately as that of an attorney who ignored red flags surrounding the veracity and plausibility of his client’s story, lodged allegations without having reasonable belief that they were well-grounded in fact and with evidentiary support, and persisted with a claim that he was unable to obtain evidentiary support for, despite having more than enough time and opportunity,” said U.S. District Judge Alan N. Bloch of the Western District of Pennsylvania in Ellis v. Beemiller.
Schiffman brought the case in 2009 after Regis Ellis claimed that a Hi-Point C9 9 mm pistol, which was made and distributed by Ohio-based Beemiller, exploded in his hand. Ellis later changed his testimony, after Schiffman had gotten an expert based on the initial allegations, and Schiffman didn’t properly alert the expert, named Lester Roane, to the changes in the facts alleged by Ellis, according to the opinion.
Without knowing that there had been changes, Roane gave a deposition during which he said that Schiffman hadn’t discussed the new version of the story with him and that it would change his opinion about the cause of the explosion, according to the opinion.
Schiffman’s decision to continue the case after that deposition was the biggest contributing factor to the judge’s finding that sanctions are appropriate, Bloch said.
“It was counsel’s decision to continue representation after Roane’s deposition that constitutes his most significant misstep because by the end of his deposition, all counsel was left with was an unsupported allegation based on an impossibility,” Bloch said.
The judge later referred to the fact that, ultimately, the experts for both the plaintiff and the defense agreed that the incident couldn’t have physically happened the way that Ellis claimed, saying of Schiffman, “instead of abiding by his duty under Rule 11 to not persist with the claim, counsel proceeded with the case and filed the amended pretrial statement.”
That amended pretrial statement “represents a memorialization of counsel’s conscious decision to take to trial a mere allegation which lacked objective evidentiary support and was only corroborated by (1) the self-serving and speculative testimony of his client who he knew had already testified untruthfully at his deposition and would be testifying similarly at trial, and (2) pictures of the incident gun which reflects damage so suspiciously similar to a gun that had been altered that his own firearms expert with over 40 years of experience could not distinguish between the two,” Bloch said.
Before declaring that the situation did warrant sanctions in the form of attorney fees to the defendant in order to have a deterrent effect, discouraging similar attorney behavior in the future, Bloch said, “Regardless of whether counsel believed it reasonable to proceed after Roane’s deposition based on his understanding of the malfunction theory, he was unreasonable in his belief that he could establish liability under this theory by allowing his client to provide testimony that he either knew or strongly suspected would be untruthful and that made it impossible for the gun to have ‘malfunctioned’ the way his client said it did.”
Although the defendant asked the court to award it all of the attorney fees and costs associated with the case, for a total of $172,349, the judge noted that case law dictates that attorney fees given in Rule 11 violation cases cover only those fees directly related to the violation. Bloch stressed that Rule 11 sanctions are not to be used as a fee-shifting method.
Bloch agreed with Schiffman that the best date from which to start would be November 17, 2011, the date on which he filed the amended pretrial statement and was served by the defendant with a motion for sanctions.
The court calculated the actual lodestar for the defendant from November 17, 2011, to be $35,849, but awarded $20,000 — $15,000 to be paid by Schiffman’s firm and $5,000 to be paid by Schiffman himself.
“The court must bear in mind that a Rule 11 sanction need only be the ‘minimum that will serve to adequately deter the undesirable behavior,’” Bloch said, quoting the U.S. Court of Appeals for the Third Circuit’s 1996 opinion in Zuk v. Eastern Pennsylvania Psychiatric Institute.
Schiffman declined to comment and Gregory Scheuring of Zimmer Kunz in Pittsburgh, who represented Beemiller, couldn’t be reached for comment.
(Copies of the 36-page opinion in Ellis v. Beemiller, PICS No. 13-0472, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •