Smith v. Kan. City S. Ry.
Co., 87 S.W.3d 266 (W.D. Mo.
2002)
Appellant Rickey C. Smith (hereinafter
"Smith") appeals from a judgment after jury verdict in favor of
respondent Kansas City Southern Railway Company (hereinafter "KCS")
on his claim for personal injuries pursuant to the Federal Employers Liability
Act (FELA), 45 U.S.C. § 51, et seq. Smith raises three points on appeal. First,
he contends that the trial court erred by excluding as a witness a former
employee of KCS because of an ex parte contact with the witness which KCS claimed violated
the rule of professional conduct for attorneys barring contact with represented
parties. . . . We hold that Missouri
Rule of Professional Conduct 4-4.2 did not prohibit contact between Smith's
counsel and the former employee witness. The trial court, therefore, erred in
preventing Smith from calling the witness as a penalty for a perceived
violation of the Rule. Because this point is dispositive
and the other alleged errors are not likely to reoccur upon retrial, the cause
will be reversed on that point alone and remanded for new trial.
On July 8,1998, while
he was in the employ of KCS, Smith was injured as he attempted to open a door
on a ballast car. In his petition,
Smith alleged that KCS should be held liable under FELA because KCS had failed
to: (1) properly maintain, inspect, and lubricate the ballast car doors; and (2) had failed
to promulgate and enforce safety rules, regulations, and bulletins to insure
the proper maintenance and inspection of ballast car doors.
Circumstances
of Smith's Injury
Plaintiff was injured while working as a
trackman for KCS. He was assisting a section gang unload ten cars filled with
ballast near Vivian, Louisiana. Ballast is the rock used to fill voids under
railroad ties and forms part of the foundation for the track. When a repair is necessary, the ballast car
is positioned over the area of track where ballast is needed. The ballast doors are then opened, allowing
the ballast to pour out into the area needing repair.
The series of railroad cars in question had
been retrofitted in 1992 with ballast doors.
These doors, according to the evidence adduced at trial, initially
worked well and could be opened by a single worker using one hand. Over time,
however, as the doors rusted, they would become progressively harder to
open. There was evidence that numerous
complaints were made to the railroad and the workers' union regarding the poor
condition and lack of maintenance of the ballast doors. KCS apparently had no program of inspection
and maintenance for the ballast doors.
The ballast door on the car to which Smith had
been assigned had not been repaired since April 16, 1996. When Smith attempted to open the ballast
door, he was initially unsuccessful.
The door had rusted and deteriorated, leaving the latch stuck. Smith made several attempts to open the door
with an unloading tool, to no avail. He
then called for a co-worker to assist him. Smith and the co-worker together
applied pressure with the unloading tool, in accordance with railroad procedure,
to attempt to force the door open.
Their first attempt failed. On
the second attempt, however, the door opened, and the
unloading tool sprang upward. The
unloading tool lifted Smith. Smith felt
an immediate pain over his back and down the back of at least one of his legs.
Plaintiff's Damages
Smith was forty-six years old at the time he
was injured, and he had been an employee of KCS for over twenty-four
years. At the time of trial, Smith was
living on his family farm. According to
Smith's testimony, the accident rendered him "physically unable to farm,
to maintain his yard and fences, to lift more than twenty-five pounds and to
ride a tractor," as well as making it difficult for him to stand or sit
for long periods.
There was evidence presented at trial on the
issue of whether Smith's damages arose instead from a pre-existing condition or
injury. KCS presented testimony from
one of Smith's treating physicians, Dr. Ridlon, who
had commented in Smith's patient record nine days before the accident that
Smith was "complaining of some chronic low back pain and right
[sciatica]." Dr. Ridlon also noted that Smith "had this [condition] for
years."
Smith has taken courses at a junior college in
an attempt to retrain himself, with the goal of opening a small gun parts
business. He estimates that he was earning roughly a third of the wages he
earned while employed by KCS. There was expert testimony that Smith would not
be able to return to work for KCS. The expert also testified that the nature of
Smith's injury may preclude him from successfully functioning at less strenuous
employment such as retail sales or office work. Evidence was also presented by Smith that he
had suffered a net loss of earnings capacity in an amount between $783,653 and
$584,884, reduced to present value.
The
Contact with the Former Employee
Billy Wayne House (hereinafter
"House") was formerly a roadmaster (field
supervisor) with KCS. House retired from KCS on June 30, 1998, roughly one week
before Smith's accident. During his
tenure with KCS, House had daily supervisory contact with Smith. KCS' counsel advised Smith's counsel on
October 6, 2000, that House would testify that Smith had serious back problems
long prior to the July 8,1998, injury. Three days afterwards, House spoke directly
to Smith and advised Smith that KCS had asked him to testify to that effect,
but that House did not believe it to be true.
Smith's counsel claimed that House, concerned for himself and his son
(who still worked for KCS), asked Smith if he would have his attorney contact
him. House testified that he did not
recall doing so.
Later, on October 9, 2000, Smith's counsel
called House. House advised that he
would testify that he never observed Smith having significant back problems,
and agreed to sign a written statement to that effect. That written statement was obtained by
Smith's counsel on October 12, 2000, and then provided to KCS' counsel on
October 13, 2000. After an exchange of
correspondence, KCS filed a motion with the trial court seeking sanctions
against Smith, arguing that Smith's counsel violated Rule 4-4.2 in making ex parte
contact with House.
The trial court sustained KCS' motion, finding
that Smith's counsel had violated Rule 4-4.2, because House had been employed
in a management level position, and House's duties related to the situation
involved in the pending litigation. The
trial court further held that 45 U.S.C. § 60 did not override Rule 4-4.2, because
the federal statute did not evidence a clear intent to displace state
regulation of attorney conduct in this area.
The trial court, consequently, excluded House's testimony from trial.
Smith made an offer of proof regarding House's
excluded testimony. The relevant portions of House's testimony are as
follows. House resided several miles
from Smith and has known him for over twenty-three years. House had supervised Smith from 1993 until
House retired in 1998. House stated
that Smith had suffered a prior back injury several years earlier, which had
apparently caused Smith some problems for a time. However, House stated that in the years
prior to the accident, Smith had not missed work or avoided work complaining of
back problems. At no point, House
stated, did any other employee "carry" Smith or try
to cover for him during the time that he had supervision over Smith. House also discussed the failure of KCS to
maintain the dump doors on ballast cars.
At trial, KCS offered the videotaped
deposition testimony of T.L. Scott, who replaced House as Smith's supervisor
after House retired. Scott's deposition
testimony stated that House had informed him that Smith had had prior back
problems. House, during the proffer,
indicated that he may have mentioned the early 1990's back injury, but denied
telling Scott that Smith had any continuing back problems. Smith objected to
the admission of Scott's testimony as prejudicial given the court's ruling
excluding House's testimony, as Smith was left unable to rebut Scott's
testimony.
Standard
of Review
Smith suggests that the proper standard of
review is that applied to the imposition of sanctions for a violation of the
rules of discovery, i.e. an
abuse of discretion standard. State ex rel. Pitts v. Roberts, 857 S.W.2d 200, 202 (Mo. banc
1993). Smith also points out,
however, that when the imposition rests upon a misapplication or
misunderstanding of the applicable law that we review that legal basis de novo.
Ryan v. Ford,
16 S.W.3d 644, 648 (Mo.App.2000). Technically this is not a case involving a
violation of the rules of discovery.
And although Pitts does
deal with Rule 4-4.2, the legal question in that matter was whether the
statement taken from the employee was required to be produced under Rule 56.01
as a statement of a party. Pitts did not involve the issue of
what sanctions, if any, should be imposed upon the party because of his
counsel's violation of Rule 4-4.2 by taking a statement from a party deemed
represented by the corporation's counsel.
Nevertheless, we believe that the same standards of review are
applicable in this different procedural posture. We review de novo the trial court's interpretation of Rule 4-4.2, and if
we agree that there has been a violation of the Rule, we will review the
propriety of the sanction imposed upon an abuse of discretion standard.
The
Provisions of Rule 4-4.2
Rule 4-4.2 states:
In representing a client, a lawyer shall not communicate about the
subject of the representation with a party the lawyer knows to be represented
by another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.
This provision is
essentially identical to ABA Model Rule 4.2. [FTNT - The American Bar
Association House of Delegates modified Model Rule 4.2 in August 1995, by
changing the word "party" to "person" to make it clear that
the Rule applies to a broader class than just parties to litigation. Weider Sports
Equip. Co. v. Fitness First, Inc., 912 F.Supp. 502, 506 (D.Utah 1996). ] Organizations such
as corporations, of course, can only communicate or be communicated with by and
through their agents and employees. See Globe Indem. Co. v. First Nat'l Bank in St. Louis, 133 S.W.2d 1066, 1071 (Mo.App.1939). Application of Rule 4-4.2 to organizational
parties, therefore, requires some additional interpretation of the term
"party." The Official Comment
to the Rule provides guidance:
In the case of an organization, this Rule prohibits communications by a
lawyer for one party concerning the matter in representation with person having
managerial responsibility on behalf of the organization, and with any other
person whose act or omission in connection with the matter may be imputed to
the organization for purposes of civil or criminal liability or whose
statements may constitute an admission on the part of the organization.
This comment has
been said to be the "most concise and helpful statement in this
regard." Pitts, 857 S.W.2d at 202. Again, the relevant sections of the comment
to ABA Model Rule 4.2 are essentially identical to the official comment to Missouri
Rule 4-4.2.
Analysis
In Pitts, the Supreme Court construed Rule
4-4.2 in the context of two individuals contacted ex parte by counsel while they were
still employees of the organizational party.
Id. at
201. The Court adopted the
Comment to the Rule and its three category test for determining which employees
will be considered a party and, therefore, not generally subject to contact by
opposing counsel without consent of the organization's
lawyer:
This test focuses neither upon a bright line hierarchical structure nor
a bright line temporal distinction regarding which employee shall be treated as
a party, but instead sets out a functional approach designed to be sensitive to
the practical considerations of the real world.
Id. at 202. The
three categories of employees covered by Rule 4-4.2 are: (1) persons having managerial responsibility
on behalf of the organization; (2) persons whose act or omission in
connection with the matter may be imputed to the organization for purposes of
civil or criminal liability; and (3)
persons whose statement may constitute an admission on the part of the
organization. As Pitts makes clear, the prohibition
against contact with an organization's employees does not apply to all current employees but instead
only to those employees who fall within one of the functional categories set
forth above:
[T]he goal [of Rule 4-4.2] is to allow the organization such treatment
regarding these interests as will practically protect its legal interests,
without allowing the organization the ability to stonewall its adversary's
attempts to investigate the facts and/or deny the adversary the benefit of its
work product.
Pitts, 857
S.W.2d at 202. The Rule is,
therefore, not intended to thwart the search for truth but to balance a party's
rights to investigate his claim only to the extent necessary to protect the
organization's legal interests. [FTNT - We are also mindful that "any
shift away from informal information gathering toward formal discovery
increases costs and reduces judicial efficiency." Polycast Tech. Corp. v. Uniroyal, Inc., 129 F.R.D. 621, 628 (S.D.N.Y.1990).]
Although Pitts considered only contact with current employees, KCS urges
that the Supreme Court indicated an intent to apply Rule 4-4.2 to former as
well as current employees citing the following statement: "Whether an employee, past or present, is considered within
the perimeters of the term 'party' when the actual party litigant is an
organization has been the source of confusion and considerable
litigation." Id. at 201 (italics added). In addition to the fact that the Court was
only considering the situation of current employees, we view the quoted
statement as doing no more than making a general observation about the nature
and extent of the larger issue as it was being raised and litigated at the time
both in Missouri and elsewhere. We do
not interpret that passage as indicating an intent to
extend the Court's analysis to former employees of an organizational party.
Does
Rule 4-4.2 Apply to Former Employees?
Looking to Formal Opinion 91-359 issued by the
ABA's Committee on Ethics and Professional Responsibility for guidance, nearly
all commentators upon Model Rule 4.2 agree that the Rule itself does not
expressly address the issue of whether a former employee of an organization can
fall under the Rule. See, e.g.,
Susan J. Becker, Conducting Informal
Discovery of a Party's Former Employees:
Legal and Ethical Concerns and Constraints, 51 MD. L.REV. 239,
285 (1992); Michelle
A. Kaminsky, Comment, A Call for Clarity: Pennsylvania Should Uniformly Allow Ex Parte Contact With Former Employees Of A Represented Party
Under PRPC 4.2, 73 TEMPLE L.REV. 1095, 1098 (2000).
Formal Opinion 91-359 indicates that Model Rule 4.2 was applicable only to
individuals who were currently
employed by the organizational party.
While the Formal Opinion mentioned that some jurisdictions had extended
the application of Model Rule 4.2 to former employees, the committee took the
position that such interpretations had no support either explicitly or implicitly
in the text of the rule or the official comment. The Committee even conceded that there are
substantial public policy concerns that would support such an extension. Nevertheless, that approach was rejected by
the Committee as unsupported by the text of the Rule and Official Comment. In
the view of the Committee, had the drafters of the Model Rule intended to
extend the Rule's prohibition to former employees, they could have expressly
done so within either the Rule or the Official Comment. Upon that basis, the Formal Opinion
concludes that an attorney may engage in ex
parte contact with a former employee of an
organization without fearing that his action might violate Model Rule 4.2.
The majority of states that have addressed
this question have followed the approach of Formal Opinion 91-359 and taken the
position that Rule 4.2 does not apply with regard to former organizational
employees. See generally, Benjamin J. Vernia,
Annotation, Right of Attorney to
Conduct Ex Parte Interviews with Former Corporate
Employees, 57 A.L.R. 5th 633 (1998).
There is also momentum to amend the Official Comment to Model Rule 4.2,
making explicit the exclusion of former employees from the protection afforded
by the rule. AMERICAN BAR ASSOCIATION,
COMMITTEE ON EVALUATION OF THE RULES OF PROFESSIONAL CONDUCT, REPORT WITH RECOMMENDATION
TO THE HOUSE OF DELEGATES (August 2001) (available at
http://www.abanet.org/cpr/e2k-rule42.html) ("Consent of the organization's
lawyer is not required for communication with a former constituent [of the
organization].")
The
Missouri Informal Advisory Opinion
The Missouri Chief Disciplinary Counsel in
Advisory Opinion Number 970214 indicated that ex parte contact with former
organizational employees may be barred by Rule 4-4.2. The advisory opinion
states in part:
If the employee is one whose acts can be imputed to the employer or who
can make admissions which will be binding on the employer, Attorney may not
make contact with that employee without going through the employer's attorney
or another attorney who represents the employee in that matter. Attorney also may not directly contact
current or former management employees who had management duties related, in
any way, to the situation involved in the matter.
The trial court specifically relied upon this
advisory opinion and found that, while employed by KCS,
House "held a management level position and was Plaintiff's immediate
supervisor for a period of time."
KCS, on appeal, also relies upon the advisory opinion and Pitts as discussed above.
In arguing that Pitts and the advisory opinion support the trial court's ruling,
counsel for KCS, with commendable candor, acknowledges that he cannot conceive
of a scenario by which a former employee (at the time of ex parte
contact) may make an admission binding upon the organization. Likewise, KCS acknowledges that no acts or
omissions of House form the basis for Smith's liability claim against the
railroad. Therefore, the only possible
basis for exclusion of House's testimony under Rule 4-4.2 would be House's
"managerial status."
We agree with the overwhelming majority of
other states that Rule 4-4.2 and its respective counterparts simply does not apply to former employees who are not expressly
represented by their own counsel or counsel for the organization. See
generally, Vernia, supra. KCS does advance
valid arguments for some restriction on the ability to contact former
managerial employees. For example,
managerial employees may have had access to confidential organizational
information or privileged communications between the organization and its
attorneys. Both ABA Formal Opinion
91-359 and the proposed revisions to Model Rule 4.2 suggest that an attempt to
obtain such information from a former organizational employee may violate Model
Rules other than Rule 4.2 (such as Rule 4.4, which concerns the rights of third
parties). To the extent that other Rules or laws are in place
that protect the organization's interest in preventing disclosure of
privileged or otherwise confidential information, there may be no need to
resort to Model Rule 4.2. In any event,
that issue is not before us, as KCS makes no claim that House was privy to such
information.
KCS claims that Smith's counsel violated other
rules because KCS' counsel had spoken to House and Smith's counsel asked about
those conversations. KCS misunderstands
the principle cited above which is directed at ex parte contracts with former
employees who before ending their employment have become privy to confidential
material or who in a special situation remain involved in the management of
litigation after the end of employment and thereby acquire privileged
information. Because in our analysis
House was not part of the organization for attorney-client privilege purposes
any privileged information he received after he left the organizations'
employment would be unprotected or the privilege considered waived. In any event, that issue is not before us,
as KCS makes no claim that House was privy to such information.
Informal Advisory opinions are not
binding. Rule 5.30(b). And in this instance Opinion Number 970214 is
not persuasive as a valid interpretation of the ABA Model Rule or Missouri's Rule
4-4.2. Nor do we agree that the Pitts
decision, with its great reliance placed upon the Official Comments to the
Model Rule, would compel or permit the conclusion sought by KCS. There is,
again, nothing in the Rule or Comment suggesting, by the words chosen, any
intent to cover former employees. There
is substantial merit in reasonably consistent rules regulating professional
conduct throughout the states. This is
true particularly when lawyers, organizations and their employees (current and
former) may operate or be located in various states. No persuasive argument is made that Missouri
should stand virtually alone in applying Rule 4-4.2 to former employees.
Even assuming that Pitts indicates some intent to apply Rule 4-4.2 to former
employees, the only basis for KCS' argument and the trial court's ruling was
that House was a "managerial employee" under the Rule. KCS argues
that this court's decision in State ex
rel. Atchison, Topeka & Santa Fe R.R. v.
O'Malley, 888 S.W.2d 760 (Mo.App.1994), supports the trial court's order
excluding any testimony from House.
That case involved an order from the circuit court permitting contact
with any railroad employee upon the theory that 45 U.S.C. § 60 (applicable only to FELA cases)
superseded Rule 4-4.2 in such type of cases.
This court entered an order of prohibition barring the completely
unfettered ex parte
contact with railroad employees. It is
true as KCS argues that we referred to Pitts
and its language concerning "managerial employees." We did not, however, offer any definition of
that term. In fact we specifically
contemplated that the trial court might subsequently make further orders
allowing ex parte
contact but guided by the provisions of Rule 4-4.2 rather than § 60 of the federal law. Id. at 762 n. 2. O'Malley, therefore, provides no
guidance on the issue at hand.
Smith argues that Rule 4-4.2 does not apply to
low level managers such as House. The
Rule itself does not define the term "managerial employee." Although
KCS argues that the prohibition should apply in effect to any and all managers
of any type, that contention is neither supported by the underlying purposes of
the Rule, by most commentators, or by the overwhelming weight of decisions from
other jurisdictions. Charles Wolfram
has described the purposes of the Model Rule:
The objective of the anticontact rule is to
prevent improvident settlements and similarly major capitulations of legal
position on the part of a momentarily uncounseled,
but represented, party and to enable the corporation's lawyer to maintain an
effective lawyer-client relationship with members of management. Thus, in the case of corporate and similar
entities, the anticontact rule should prohibit
contact with those officials, but only those, who have the legal authority to
bind the corporation in the matter or who are responsible for implementing the
advice of the corporation's lawyer or any other member of the organization
whose own interests are directly at stake in a representation.
CHARLES W. WOLFRAM, MODERN LEGAL ETHICS § 11.6.2, at 613
(1986). Various courts have similarly
defined the purpose but also have found an intent to
protect the corporation against intrusions into the confidential relationship
between lawyer and client. See, e.g., Curley v. Cumberland Farms, Inc.,
134 F.R.D. 77 (D.N.J.1991) (applying New Jersey law) (rule designed to protect
privileged information of the corporation within a manager's knowledge). Other courts have held that protection of the
attorney-client privilege is not one of the purposes of Model Rule 4.2 itself
but is covered by other provisions of the ethics code. See,
e.g., P T Barnum's Nightclub v. Duhamell, 766
N.E.2d 729, 737 (Ind.Ct.App.2002) (noting that Rule 4.4 prohibits counsel from
attempting to obtain privileged information from a former employee). Regardless
of which view is applied, there is no evidence or suggestion that House was in
possession of (or asked by Smith's counsel about) any privileged information.
Courts in various jurisdictions have developed
a number of tests to determine whether an organizational employee is a
"manager" within the meaning of the various states' equivalent of Rule
4-4.2. The *276 two most widely
utilized are the "managerial-speaking agent test" (see Wright by Wright v. Group Health Hospital,
103 Wash.2d 192, 691 P.2d 564 (1984)) and the "control-group test"
(see Fair Automotive Repair, Inc. v.
Car-X Service Systems, Inc., 128 Ill.App.3d 763, 84 Ill.Dec.
25, 471 N.E.2d 554 (1984)). Other cases
discussing these tests can be found at 57 A.L.R.5th 633. The common thread of the majority of these
cases is the view that managers are not protected by the anticontact
rule merely because they have some supervisory responsibility in the
organization. In particular, low level
supervisors are not protected simply because they are managers unless their
acts are imputable to the organization or they can make admissions that are binding
on the organization. This approach is quite consistent with the Court's
explanation in Pitts that it
did not wish to employ a strictly hierarchical test.
There is no indication in the record that
House's position would satisfy any of these tests. He was not Smith's supervisor at the time of
the accident nor was he responsible for the maintenance of the equipment that
Smith contended to be unsafe. Nor did
House have management control over any litigation, let alone the litigation at
hand. Nor did he consult with the
organization's attorney while in its employment about litigation matters or
have any responsibility for creating company policy.
Finally, this limited approach to who
constitutes a manager under Rule 4- 4.2 is consistent with the draft proposed
revisions by the ABA to Model Rule 4.2.
Acknowledging criticism of the phrase in the current comment to Rule 4.2
of "persons having a managerial responsibility on behalf of the
organization" as vague and overly broad, the proposed new comment to Rule
4.2 states, in part: "[t]his Rule
prohibits communications with a constituent of an organization who supervises,
directs or regularly consults with the organization's lawyer concerning the
matter or has authority to obligate the organization with respect to the
matter...." A restrictive view of the term "managerial
responsibility" is consistent, as well, with the twin objectives of the
ethics rule to protect the rights of a represented litigant from unfair dealing
and, at the same time, not to unduly restrict informal fact investigation. Such a view also discourages improper use of
the ethics rules by an organization in an attempt to hide or conceal
information.
Therefore, we hold that
even if Rule 4-4.2 could be construed to apply to former managerial employees,
witness House would not fit within that classification. Because we find that the ex parte
contact did not violate Rule 4-4.2, the trial could not properly strike his
testimony under that provision.
[FTNT - Even if a violation
of Rule 4-4.2 was committed, it is unclear what, if any, sanctions may be
sought against a party. There is no
express authority within the Supreme Court Rules themselves that grants trial
courts the discretion to impose litigation sanctions for most violations of the
Rules of Professional Conduct. This, of
course, is not true for other sections of the Rules. For example, trial courts are vested with
discretion in granting sanctions against parties and their attorneys for
violations of the rules of discovery. Ballesteros v. Johnson, 812
S.W.2d 217, 224 (Mo.App.1991).
In the discovery context, a reviewing court may only overturn such
sanctions upon a finding that the trial court abused its discretion. State ex rel. Mo. Hwy. & Transp. Comm'n v. Pully, 737 S.W.2d 241, 245-46 (Mo.App.1987). Even though the case at bar does not concern
a discovery sanction, instead concerning a possible violation of the Rules of
Professional Responsibility, KCS argues that a similar standard of review
should be applied to the sanctions employed by the trial court here. ]
There should be some
initial hesitation before countenancing the entry of sanctions against a party
for its attorney's violation of a Rule of Professional Conduct. As the Eastern District
opined in Terre Du
Lac Prop. Owners' Ass'n v. Shrum, 661 S.W.2d
45, 48 (Mo.App.1983), "[t]he purpose of the Canons of Ethics is to
regulate the conduct of counsel, not a weapon to be used against the attorney's
client." While the quoted language
of the Terre Du
Lac opinion is dicta, it
has been favorably cited as recently as 1999.
See State ex rel. Wallace v. Munton,
989 S.W.2d 641, 645 (Mo.App.1999).
This caution is reinforced by language within the "Scope"
section of Rule 4 that discusses how the objectives of the Ethical Canons
"can be subverted when they are invoked by opposing parties as procedural
weapons." Rule
4. That section further explains that the violation of a disciplinary
rule "does not imply that an antagonist in a collateral proceeding or transaction
has standing to seek enforcement of the Rule." Id.
Courts in other
jurisdictions have held that violations of Model Rule 4.2 are not grounds for
sanctions against a party. For example,
in Plan Committee in the Driggs Reorganization Case v. Driggs,
217 B.R. 67, 72, (D.Md.1998), the court stated that "the appropriate
remedy for any ethical violation [of Rule 4.2] that occurred would be
disciplinary action against [the attorney], not dismissal of the adversary
proceeding, suppression of evidence, or disqualification of counsel." Id. Driggs was cited with approval by the U.S. District
Court for the Western District of Missouri in Calloway v. DST Systems, 98-1303-CV-W-6, 2000 WL 230244, at *3,
2000 U.S. Dist LEXIS 2635 at *11 (W.D.Mo., Feb. 28,
2000) (discussing Missouri Rule 4-4.2).
While not binding on this court, Driggs is nevertheless
persuasive precedent on the issue and its counsel is well taken.
Could
the Trial Court Properly Exclude the Testimony on Another
Basis?
Even though we find that
the trial court could not properly exclude the testimony of House as a sanction
for a violation of Rule 4-4.2, we must, nevertheless, affirm if that exclusion
is proper on some other evidentiary ground.
Mo. Farmers Ass'n v. Kempker, 726
S.W.2d 723, 726 (Mo. banc 1987). During the offer of proof, House's testimony
was taken on two topics. First, House
was asked to testify regarding a statement contained within the deposition
testimony of Scott (Smith's roadmaster at the time of
the accident), who stated that House had told him that Smith had experienced
continuing back problems from his prior injury. Second, House testified regarding KCS' lack
of maintenance regarding the offloading doors on ballast cars. KCS contends on the first topic that House's
proffered testimony is equivocal, ambiguous, and does not clearly rebut Scott's
testimony. With regard to the second
topic, KCS claims that there was no testimony in the offer of proof on the maintenance
issue, thereby waiving that issue on appeal.
Even if the issue was properly preserved, KCS argues that the evidence
was cumulative.
KCS' argument has at least some merit on the
issue of House's testimony. Much of
House's testimony is equivocal, and House did not recall with any certainty
whether he had told Scott about Smith's prior back injury. Nevertheless, House gave unequivocal
testimony that Smith's subsequent work was not impaired by the earlier
injury. Specifically, this exchange
took place during the questioning of House during the offer of proof:
Q: Your statement says, Mr. House, that Rickey
[Smith] worked as hard if not harder than anyone on your territory from 1993 to
June of 1998, is that true?
A: That's true.
Q: To your knowledge, did you or anybody working under you carry Mr.
Smith or in any way try to cover for him during those years from '93 to '98?
A: No.
Q: As the result of any back problem?
A: No.
Given that House
knew Smith for many years, and was his supervisor for much of that time, his
testimony was highly probative on the issue of whether Smith had prior back
problems that impeded his work for KCS. Even if House could not directly rebut
Scott's testimony regarding the alleged hearsay statement, House's testimony
would still be relevant for rebuttal on the issue of whether Smith truly
suffered from serious back problems prior to the accident.
With regard to the
ballast car maintenance testimony, KCS places great emphasis on the fact that
this testimony was elicited by the trial judge and not Smith's counsel. KCS appears to take the position that this
fact excludes House's response from the offer of proof. If so, then the issue would not be properly
preserved for appeal. KCS presents no
authority in support of their position.
Their position is not consistent with the
rationales underlying offers of proof.
This court recently stated:
The courts have established two purposes for the offer of proof: (1) preserve the record for appeal so the
appellate court understands the scope and effect of the questions and proposed
answers in considering whether the trial court's ruling was proper; (2) it allows the
trial court, once again, to consider the admissibility of the evidence after it
is presented.
Roy v. Mo. Pac. R.R. Co., 43 S.W.3d 351, 368 (Mo.App.2001). Neither of those rationales would limit the
contents of the offer of proof to the responses of a witness made only in
response to questioning by the party making the offer. Instead, all of the matters within the offer
of proof, whether they be questioning by the party, that party's opponent, or
the court, should be considered within the gamut of the offer of proof. Even though the trial court, without
prompting by the parties, raised the discussion of the condition of ballast cars,
it still took place during Smith's offer of proof. As such, House's testimony
on the issue was before that court for its consideration in ruling upon the
motion to exclude his testimony.
Similarly, that proffered testimony is within the record for our
consideration as well. The issue, therefore, has been preserved for appellate
review.
KCS argues that House's
testimony regarding the condition of the ballast cars cumulative. It points out that three current
non-management employees of KCS testified both about complaints about the
operation and maintenance of the ballast doors and Smith's pre-existing back
condition. KCS refers us to the general
rule that the exclusion of evidence that is merely additional evidence of the
same kind bearing upon the same point will not be considered prejudicial error
upon appeal. Sampson v. Missouri Pacific Railroad Co.,
560 S.W.2d 573, 590 (Mo.banc1978).
Smith's reliance upon Smith v.
Wal-Mart Stores, Inc., 967 S.W.2d 198, 207 (Mo.App.1998) and similar cases
is not responsive because those deal with a complaint on appeal that the trial
court erred in admitting
alleged cumulative evidence rather than excluding it. In other words the authority cited by Smith
does not address the issue of prejudice from the exclusion of cumulative
evidence as argued by KCS. Nevertheless
Smith is correct that evidence is not cumulative merely because it is of the
same kind and character. The three
non-managerial employees all testified that after the 1991 injury Smith was able
to return to work fully with no complaints or limitations. This was in direct contradiction of the
statement attributed to House (Smith's pre-jury supervisor) by KCS' witness
T.L. Scott (Smith's supervisor at the time of the accident). House's testimony in this regard was not
therefore merely cumulative of the three co-workers of Smith but was different
in character because it came from a former KCS supervisor and in character
because it contradicted the testimony of witness Scott. Because we do not find the testimony of
House about Smith's physical condition to be cumulative and believe its
exclusion was prejudicial it is not necessary to discuss whether the other
testimony concerning the ballast cars was non-prejudicially cumulative.
Conclusion
Rule 4-4.2 does not create a per se bar against ex parte
contact with former managerial employees of an organizational party. Even assuming that the Rule applies to
former employees, House was not a managerial employee who could not be
contacted. Thus, we conclude that the
trial court abused its discretion in excluding House's testimony. Given that House's testimony is relevant and
admissible for at least one of the two proffered grounds, the trial court
improperly excluded his testimony.
As the above issue is dispositive,
we do not reach Smith's remaining points on appeal, as they are unlikely to
recur upon retrial. The judgment below
is therefore reversed and the cause remanded for a new trial.