Attorneys Push Their Luck, Get Benchslapped For Their Efforts

// Sometimes, you just need to take the W. Discretion is the better part of valor and all that, so when circumstances contrive to hand you a procedural victory, accept the win graciously and don’t try to rub it in — least of all not when there’s a federal judge waiting to slap you back down.

Eastern District of Pennsylvania Judge Chad F. Kenney lashed out at attorneys Robert Sanzo of Litchfield Cavo representing Walgreens and Jacqueline Promislo of Cozen O’Connor repping Bilco Industries over conduct that “evinces bad faith and a profound defection from the standard litigation process.”

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So what happened? Well, it was a personal injury case involving a Bilco manufactured ladder at a Walgreens location. And the Walgreens expert, Jody DeMarco, allegedly lied on the stand about whether the attorneys knew DeMarco was returning to the site of the accident to conduct their own tests. As reported by Law.com:

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While the court struck the testimony, instructing the jury it should not be considered as evidence, “the court was still under the impression that DeMarco proceeded to the site at his own discretion,” which was not true, the opinion said.

“Still, even at that moment while DeMarco was still on the stand, attorneys Sanzo and Promislo had effectively blindsided the court, and in doing so diminished the process and demonstrated their disrespect for the sitting judge,” Kenney said. “It was only after the verdict, and the court review of emails by and between Sanzo and DeMarco, and Sanzo and Promislo, that the court became aware of the full depth of disrespect.”

The plaintiff moved for a new trial, but Judge Kenney denied the motion, saying, the testimony regarding the site visit “was altogether redundant.” The Third Circuit upheld the district court’s decision and only then did plaintiff seek sanctions, which were denied as untimely.

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Rather than take that victory, Sanzo and Promislo tried to play their Uno reverse card and filed their own motion for sanctions and a bill of costs. Given their “demonstrated record of unclean hands,” Judge Kenney was having exactly none of that.

While the defendants were the prevailing party, the court denied the bill of costs over the attorneys’ conduct in the previous suit, finding Sanzo and Promislo “were in flagrant disregard for the Federal Rules of Civil Procedure.”

The attorneys’ representations to the court were evasive and misleading, noting that “at a critical point in the trial defendants failed to provide the bare-minimum respect and candor owed to plaintiff McManus, his attorneys, and this court,” the court said.

“Defendants’ victory in the case and failure to receive sanctions (on procedural grounds) does not expiate their abdication of duty as officers of the court,” Kenney said. “Counsel must ask themselves whether it was worth it. Unfortunately, there are those who would answer that a win is a win no matter how you get it.”

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Not every motion is worth it. While you may think, “what’s the worst they can do? Deny it?” The harsh treatment the attorneys got in this case show — if you value your pride — there’s plenty a judge can do.

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].

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Benchslap, Biglaw, Courts, Cozen O'Connor