A prominent New Jersey construction expert witness has reached a settlement that will vacate the court order that would have required him to pay over $22,000 for his refusal to be videotaped during a deposition.
The Refusal to Be Videotaped
Michael Panish was retained as a critical liability expert by the Ruehl family after Mrs. Ruehl’s family claimed that she had been struck by a sliding door, which caused her to fall and eventually die. The Ruehl family hired Panish as an expert in multiple construction and building disciplines; specifically as an expert in the field of automated sliding glass door technology. Panish had indicated that he had served as an expert witness in over 1,000 past cases.
During discovery, the defendant wanted to take a videotaped deposition of Panish. Panish refused, citing a clause in his expert witness contract. The court ordered Panish to comply with the request.
When the Ruehl family’s attorneys, Bordas & Bordas, told Panish about the order, he said, “I don’t care about you or her [the decedent Plaintiff, Shirley Ruehl] or some asshole judge.” He also scheduled a deposition with the defendants and charged them for attending, but did not show up for it. He claimed to have been stricken with laryngitis.
The defendants requested that the court sanction Panish for his conduct. The court awarded $22,270.30 in sanctions. Panish fought back and appealed his case to the U.S. Court of Appeals for the Third Circuit.
Expert Witness’s Defense
Panish said that he told the Bordas firm at least 18 times that he would not agree to be videotaped. Panish’s attorneys said, “Mr. Panish does not permit videotaped depositions of himself, except under very limited circumstances, to protect his professional reputation and image. … Mr. Panish does not permit his picture to be taken for professional purposes and does not even use his picture on his website.”
“It is unconscionable that the Bordas law firm allowed the issue to fester until March 2017 when the firm could have, and should have, secured a substitute liability expert early in the case or seek permission from the Court to extend discovery to do so,” Panish’s lawyers wrote.
Panish’s attorneys argued that he was not subpoenaed by the defendants to testify at deposition and noted that the Bordas law firm withheld defendant’s notice to take Panish’s deposition for three weeks before providing him with the notice. They wrote, “It is reasonable to infer under the circumstances that the Bordas law firm wanted to avoid confronting the reality of the fact that it had known for three years that Mr. Panish would not permit his deposition to be videotaped.”
Panish’s attorneys also noted that “neither Plaintiff nor Defendant moved for an order compelling Mr. Panish to testify at deposition. Even if either party had done so, it is respectfully submitted that this Court could not compel Mr. Panish’s deposition as his engagement with the Bordas law firm set forth the terms and conditions of his retention.”
The parties have since filed a joint motion to settle the matter as long as the court orders of sanctions were vacated. Additional terms were not disclosed.