A federal judge has ruled in a personal injury lawsuit against US Airways over injuries sustained during turbulence that an attorney who spoke to flight attendants without prior permission will not be removed from the case.
According to the opinion of U.S. District Judge Jan E. DuBois of the Eastern District of Pennsylvania, attorney Alisa Brodkowitz’s ex parte contact with two flight attendants—which U.S. Airways claimed violated attorney ethics rules—did not harm the defendants and her pro hoc vice status would not be revoked.
“US Airways did not allege or provide evidence of repeated violations by Brodkowitz and it suffered no actual injury as a result of the ex parte communication,” DuBois said. “Under the circumstances, revocation of Brodkowitz’s pro hac vice admission is not an appropriate sanction. However, the court concludes that admonishment for violating Rule 4.2 is warranted.”
Pennsylvania Rule of Professional Conduct 4.2 prohibits a lawyer from communicating “about the subject matter of the representation with a person the lawyer knows to be represented by another lawyer in the matter,” DuBois noted in his opinion.
The case stems from plaintiff Regina Raub’s turbulent flight from Cancún to Philadelphia on Oct. 25, 2016. The Boeing 757 hit a patch of rough air that threw Raub out of her seat and caused her to strike her head on the overhead compartment. She sustained a concussion and neck injuries, and alleged that a defective seat belt failed to keep her in her seat.
On July 28, 2017, US Airways filed a motion for sanctions, alleging Brodkowitz’s interview of the two flight attendants was improper. In addition to demanding her pro hac vice admission be removed, the airline asked the court produce any information she obtained from the interview and prohibit the introduction of any evidence obtained during her communications with the flight attendants.
DuBois ultimately admonished Brodkowitz, by way of writing his opinion, but declined to go any further, pointing to the airline’s admission of liability in the case.
“US Airways failed to provide any evidence of prejudice resulting from Brodkowitz’s communications with the two flight attendants. US Airways has stipulated to liability; evidence presented will thus be limited to damages,” DuBois said.
Brodkowitz declined to comment for this article, however, a prior court filing in the case provides additional context to the dispute. In court papers filed in response to the airline’s motion for sanctions, Brodkowitz—who routinely sues US Airways—accused the airline of withholding evidence as well as attempting to punish her with sanctions for attempting to conduct discovery, while later offering to drop the sanctions motion if Raub settled her case.
“US Airways waited well-after it knew about the contact with the flight attendants to file its motion. By lying in wait, it waived its objections to the contact and showed that its motion was strategically, not ethically, motivated,” Brodkowitz wrote. “Finally, the timeline shows a defendant threatening sanctions to obtain settlement, gain advantage, delay or harass opposing counsel, all of which amount to an improper use of the rules of ethics and such motions.”
US Airways’ attorney, J. Denny Shupe of Schnader Harrison Segal & Lewis, could not be reached for comment.