Mullaney v. Aude

ADKINS, Judge. This case involves the adversarial use of gender bias in the discovery process. James L. Mullaney, Esq. and Allan E. Harris, Esq., appellants, appeal from the imposition, pursuant to Maryland Rule 2-433, of attorneys’ fees incurred in obtain ⁶⁴⁴ ing a protective order against them. Appellants ask us to determine whether: 1) the attorneys’ fee award was invalid because it was imposed after a final judgment in the underlying tort action was entered; 2). appellants’ conduct during pretrial discovery warranted a protective order on grounds that it was racist, sexist, or encumbered discovery; 3) the evidence was sufficient to support the dollar amount of the award ($1,500); and 4) a procedural irregularity in the court’s granting of the original protective order invalidated the subsequent fee award.

FACTS AND PROCEDURAL BACKGROUND Betty Sue Aude, appellee, brought a tort action for fraud, negligence, intentional infliction of emotional distress, and battery against Mr. Mullaney, alleging that he infected her with genital herpes. Susan R. Green, Esq. and Gary S. Bernstein, Esq. represented Ms. Aude. Mr. Mullaney was represented by Mr. Harris and Benjamin Lipsitz, Esq. After a trial, the jury found that Mr. Mullaney negligently infected Ms. Aude with genital herpes, but that Ms. Aude was contrib-utorily negligent.

Accordingly, judgment was entered in favor of Mr. Mullaney on December 10,1996. Appellants’ Deposition Conduct During the course of pre-trial discovery, Ms. Aude was deposed. At the deposition, she was asked about a document that she failed to bring with her. As Ms. Aude was leaving the room to retrieve that document, Mr. Harris remarked that she was going to meet “[ajnother boyfriend” at the car.

Ms. Green and Mr. Bernstein quickly told Mr. Harris that his comment was in poor taste and asked him to refrain from making further derogatory comments. The following ensued: MR. MULLANEY: It’s going to be a fun trial. MR.

HARRIS: It must have been in poor taste if Miss Green says it was in poor taste. It must have really been in poor taste. MS. GREEN: You got a problem with me? ⁶⁴⁵ MR.

HARRIS: No, I don’t have any problem with you, babe. MS. GREEN: Babe? You called me babe?

What generation are you from? MR. HARRIS: At least I didn’t call you a bimbo. MR.

LIPSITZ: Cut it out. MS. GREEN: The committee will enjoy hearing about that. MR.

BERNSTEIN: Alan, you ought to stay out of the gutter. Appellants’ Interaction With Experts Following the deposition, 1 in November 1994, appellee filed a motion to require a physical examination of Mr. Mullaney and the court ordered him to submit to an exam. Specifically, he was ordered to have his blood drawn and tested at a lab at the University of Maryland School of Medicine. Pursuant to the order, Mr. Mullaney presented himself, accompanied by Mr. Harris, to Dr. Laure Aurelian, the plaintiffs expert witness in virology and the herpes simplex virus.

Apparently, his experience at the hospital was not a pleasant one. Within a week of this visit, on March 28, 1995, Mr. Mullaney wrote to James Ralls, Program Administrator of the Complaint and Quality Assurance Unit of the Office of Licensing and Certification Programs at the Maryland Department of Health and Mental Hygiene. His letter and accompanying affidavit complained about Dr. Aurelian, Dr. Shinichi Imafuku, the individual who attempted to draw blood from his arm, and the cleanliness of the facility. 2 In his letter, he emphasized ⁶⁴⁶ that “what is the most disturbing is that this woman [referring to Dr. Aurelian] is referred to as ‘doctor’ ” when she “has a doctorate in philosophy.” In fact, Dr. Aurelian holds a Ph.D. from Johns Hopkins University in microbiology, and specialize es in the field of virology, holding the positions of Professor in the Department of Pharmacology and Experimental Therapeutics, and Director of the Virology/Immunology Laboratories, at the University of Maryland School of Medicine. Mr. Mullaney also complained that Dr. Aurelian was “using state facilities, equipment and time to prepare a ... private civil case where she is being paid as an expert witness.” In May, Mr. Mullaney complained about Dr. Aurelian to the President of the University of Maryland School of Medicine, and sent to him a copy of his letter and affidavit previously sent to Mr. Ralls.

In this letter he said: “I can only reemphasize my views and complaints against the non-medical person using the facilities of your hospital for such purposes.” Motion For Protective Order In response to appellants’ actions previously described, Ms. Aude filed a motion for a protective order on August 15, 1995. In addition to describing the behavior at the deposition, appellee alleged that appellants verbally abused her expert witness, Dr. Aurelian, by contacting her, her associates, her supervisors, and various professional and regulatory agencies in the field of medicine. It was also alleged that Mr. Mullaney knew that Dr. Aurelian was not a medical doctor because her full curriculum vitae was attached to the motion asking the court to order the blood test. Appellee also contended that appellants caused an investigation of Dr. Aurelian by Senior Counsel for the University of Maryland which caused “great embarrassment, and harassment and humiliation____” Appel-lee argued in the motion that Mr. Mullaney’s conduct was “designed solely to harass, annoy, embarrass and intimidate Plaintiffs designated expert to preclude her from testifying.” ⁶⁴⁷ Appellee also alleged that Mr. Mullaney “made racist remarks about [Dr. Imafuku] indicating he looked like he should be working in a Chinese restaurant____” Appellee asserted that Dr. Imafuku was a medical doctor, even though not licensed in Maryland.

Appellee requested the following relief in the motion: A. That the Court order the Defendant and his family members to cease all contact with the Plaintiff and her family absent participation of all counsel. B. That the Court order the Defendant and his counsel to cease and desist any further contact with Dr. Laure Aurelian, her associates, [and] The University of Maryland .... C. That the Court order Mr. Harris and the Defendant to refrain from further use of racist or sexist language in dealing with anyone associated with this case. D. That the Court [s]anction the Defendant and Mr. Harris for their actions and impose a monetary [s]anetion to compensate Dr. Aurelian for the endless hours of aggravation she endured in having to defend these spurious allegations.

E. That the Court [s]anction the Defendant and Mr. Harris for their actions and impose a monetary sanction to compensate Plaintiffs counsel for the hours spent responding to the unprofessional and inappropriate behavior of Defendant and counsel Mr. Harris demanding he refrain from sexually harassing the undersigned counsel and her employees, as well as numerous letters and telephone calls regarding the Complaints and harassment of [Dr.] Laure Aurelian, Plaintiffs expert. F. That the Court Order the Defendant and Mr. Harris to pay for the attorneys [sic] fees and costs of the filing of this Motion and for the hearing of this matter. Judge William O. Carr ruled, in a letter order, that appellants were to have no contact with the “Plaintiffs expert, the expert’s employer or with any professional body or regulatory agency regarding the Plaintiffs expert” unless expressly per ⁶⁴⁸ mitted by the court. Judge Carr also prohibited appellants’ contact with Ms. Aude or her family.

The court reserved judgment on appellee’s request for attorneys’ fees. Sanctions Hearing and Order Judge Stephen M. Waldron presided over the jury trial. On December 12, 1996, two days after judgment was entered in the underlying tort action, Ms. Green wrote a letter to Judge Waldron requesting a ruling on her previous request for attorneys’ fees made in the motion for a protective order. As a result of Ms. Green’s letter, Judge Waldron held a hearing on May 13, 1997.

In February 1998, the court issued a Memorandum Opinion and Order. In the order, the court explained that it excluded as a basis for an award any claimed conduct that “did not interfere with discovery or fit within the purview of activity meant to be protected by Maryland Rule of Procedure 2-403.” The court determined that $1,500 was the reasonable attorneys’ fees incurred in preparing the protective order and attending the hearing. It awarded $1,500 for attorneys’ fees to appellee and entered judgment in that amount against Mr. Mullaney and Mr. Harris, jointly and severally. This appeal followed.

DISCUSSION I. Background Law of Discovery and Standard of Review The discovery process is an important and valuable process for all participants in a legal action. See U.O. Colson Co. v. Goff, 204 Md. 160, 162-63 , 102 A.2d 548 (1954). “[AJmple discovery before trial, under proper regulation, accomplishes one of the most necessary ends of modern procedure[.]” Id. at 162 , 102 A.2d 548 . As former Chief Judge Murphy said for the Court of Appeals in Klein v. Weiss, 284 Md. 36 , 395 A.2d 126 (1978): One of the fundamental and principal objectives of the discovery rules is to require disclosure of facts by a party litigant to all of his adversaries, and thereby to eliminate, as ⁶⁴⁹ far as possible, the necessity of any party to litigation going to trial in a confused or muddled state of mind, concerning the facts that give rise to the litigation. Id. at 55 , 395 A.2d 126 .

Further, because ‘the sound and expeditious administration of justice’ is served when all parties are aware of and acknowledge all ‘relevant, pertinent, and non-privileged facts, or the knowledge of the whereabouts of such facts’ and are able thereby to prepare their cases properly and efficiently, the discovery rules are intended to be liberally construed. North River Ins. Co. v. Mayor and City Counsel of Baltimore, 343 Md. 34, 83-84 , 680 A.2d 480 (1996). Our system of comprehensive discovery would be meaningless without some manner of enforcement.

Accordingly, the discovery rules allow sanctions for non-compliance. See Md. Rule 2-433. Imposition of attorney’s fees is a sanction that may be imposed under Rule 2-433: (c) Award of expenses. If a motion filed under Rule 2-432 or under Rule 2-403 is granted, the court, after opportunity for hearing, shall require the party or deponent whose conduct necessitated the motion or the party or the attorney advising the conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

The Court of Appeals has explained, referring to a predecessor rule, that the sanctions provided for in the Rules are intended to insure that litigants comply with the discovery rules. See Kelch v. Mass Transit Admin., 287 Md. 223, 229 , 411 A.2d 449 (1980). It is well settled in Maryland that the trial judge, who is entrusted with the role of administering the discovery rules, is vested with broad discretion in imposing sanctions when a party fails to comply with discovery rules. See, e.g., Starfish Condominium Ass’n v. Yorkridge Serv.

Corp., Inc., ⁶⁵⁰ 295 Md. 693, 712 , 458 A.2d 805 (1983). A court’s decision to impose a sanction will not be disturbed unless there has been a clear abuse of discretion. See, e.g., Mason v. Wolfing, 265 Md. 234, 236 , 288 A.2d 880 (1972).

II

Jurisdiction to Sanction Appellants’ first contention is that the trial court lost its jurisdiction to rule on the issue of sanctions after it entered the final judgment in the underlying tort action. They claim that it was error for the trial judge to rule on a “prejudgment” motion in a “post-judgment” order. We disagree. Generally, jurisdiction of a trial court with regard to a specific case ends upon enrollment of a final judgment, which occurs thirty days after its entry.

See Chapman v. Kamara 118 Md.App. 418, 433 , 702 A.2d 977 (1997), cert. granted, 349 Md. 236 , 707 A.2d 1330 (1998); Eisenbeiss v. Jarrell, 52 Md.App. 677, 685 , 451 A.2d 940 (1982), cert. denied, 295 Md. 301 (1983). This rule does not, however, preclude a trial court from entertaining a collateral or independent matter. See Dent v. Simmons, 61 Md.App. 122, 129 , 485 A.2d 270 (1985). “Only those ... orders which affect the ‘ “meat,” or subject matter of [the case]’ have been prohibited.” Id. at 130 , 485 A.2d 270 (quoting Lang v. Catterton, 267 Md. 268, 285 , 297 A.2d 735 (1972) (citation omitted)). In Dent , we considered whether a trial court could enter a judgment awarding attorneys’ fees more than thirty days after it had entered a final judgment in the underlying action.

The underlying action was on appeal to this Court. We held that the circuit court could enter such judgment because it “raised legal issues collateral to the main cause of action” which would “not affect the subject matter of the appeal____” Id. In Legal Aid Bureau, Inc. v. Farmer, 74 Md.App. 707 , 539 A.2d 1173 (1988), we analyzed whether an award against an attorney was a collateral matter, There, a sanction was awarded under Rule 1-341 against counsel. To determine ⁶⁵¹ whether we had jurisdiction to review the sanction, we first had to find whether the issue was collateral.

We held, with regard to an award against counsel, that “a judgment entered by the circuit court against the attorney is sufficiently collateral to the underlying action as to fall within our baliwick.” Id. at 712 , 539 A.2d 1173 . We also viewed an award for attorneys’ fees as a collateral matter in Johnson v. Wright, 92 Md.App. 179 , 607 A.2d 103 (1992). There, the trial court entered a final judgment by dismissing a counterclaim, which was the last unresolved claim. At the time of dismissal, a request for sanctions under Rule 1-341 was pending.

The court eventually denied the request and the plaintiffs filed an appeal based on the merits of the case. The appeal was filed more than thirty days after the entry of judgment in the underlying case, but within thirty days from the denial of sanctions. We dismissed the appeal, explaining that “[t]he pendency of the collateral motion for attorneys’ fees did not stay or enlarge the time for taking an appeal from the judgment.” Id. at 182 , 607 A.2d 103 . The Court of Appeals, when analyzing a claim for attorneys’ fees under 42 U.S.C. § 1988 in County Exec. of Prince George’s County v. Doe, 300 Md. 445 , 479 A.2d 352 (1984), similarly held that a claim for attorneys’ fees is a collateral matter.

Judge Eldridge, speaking for the Court, said that “under 42 U.S.C. § 1988 , a claim for an attorney’s fee, while an integral part of the remedy under 42 U.S.C. § 1983 , is viewed as a collateral matter from the § 1983 action; thus the claim for an attorney’s fee may be brought following a final judgment in a § 1983 action.” Id. at 451 n. 4, 479 A.2d 352 . The Court of Appeals revisited the issue in the context of divorce litigation in Blake v. Blake, 341 Md. 326 , 670 A.2d 472 (1996). There, the Court presented the issue as “whether a claim for counsel fees ... should be treated as part of the claim for relief on the merits.... ” Id. at 336 , 670 A.2d 472 . The Court quoted dicta from its decision in Newman v. Reilly, 314 Md. 364 , 550 A.2d 959 (1988), which addressed the issue of whether a Health Claims Arbitration Panel retained jurisdic ⁶⁵² tion to consider a pending sanctions motion after institution of a circuit court action appealing from its decision: ‘If this problem is governed by analogy to actions in courts, we simply observe that, under the majority rule, an appeal from a trial court judgment on the merits does not deprive the judgment-rendering court of jurisdiction to consider an •award of counsel fees.’ Blake, 341 Md. at 336 , 670 A.2d 472 (quoting Newman, 314 Md. at 379 -80 n. 12, 550 A.2d 959 ) (citations omitted).

The Blake Court, citing many of the above cases, held that counsel fees were a collateral matter, even when those fees were awarded pursuant to statutory authority such as that found in Maryland Code (1984, 1991 Repl.Vol., 1995 Cum.Supp.), §§ 11-110, 12-103 of the Family Law Article. It quoted the Supreme Court decision in Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202-03 , 108 S.Ct. 1717, 1722 , 100 L.Ed.2d 178 (1988), holding that “ ‘a decision on the merits is a “final decision” ... whether or not there remains for adjudication a request for attorney’s fees attributable to the case.’ ” The Supreme Court also addressed the issue in Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395 , 110 S.Ct. 2447, 2455 , 110 L.Ed.2d 359 (1990), recognizing that collateral issues — such as costs, attorneys’ fees, and contempt sanctions are under the jurisdiction of a court “after an action is no longer pending.” The Supreme Court further explained: Like the imposition of costs, attorney’s fees, and contempt sanctions, the imposition of a ... sanction is not a judgment on the merits of an action. Rather, it requires the determination of a collateral issue: whether the attorney has abused the judicial process, and, if so, what sanction would be appropriate. Such a determination may be made after the principal suit has been terminated.

Id. at 396 , 110 S.Ct. at 2456 . We see no reason to depart from the rules enunciated in the above cases solely because the award for attorneys’ fees in this case was the result of a discovery sanction under Rule 2-433. The sanction was clearly collateral to the merits of the ⁶⁵³ tort action and the trial court did not surrender jurisdiction to rule on this matter when the final judgment was entered in the tort action. 3 III. Deposition Comments and Conduct of Appellants Appellants next contend that Mr. Harris’s comments to Ms. Green at Ms. Aude’s deposition were not sexist behavior or disruptive to the discovery process.

We unequivocally reject this assertion, and with this decision hope to make it crystal clear how this Court views the exhibition of gender bias by lawyers in the litigation process. A. Strategic Name Calling and Bias The absence of civility and respect exhibited by lawyers towards one another has been for years the subject of significant concern for bar and bench leaders. In the words of Judge Paul L. Friedman of the United States District Court for the District of Columbia: Although the ‘modern age’ of the legal profession has witnessed progress in opening its doors -wider to women and minorities and others who were previously excluded, this age has also opened its doors to the ‘Rambo litigator’ which has spawned a generation of lawyers, too many of whom think they are more effective when they are more abrasive. Hon.

Paul L. Friedman, Fostering Civility: A Professional Obligation, http://www.abanet.org/contract/operations/pro ⁶⁵⁴ ceedings/sigdocs/friedmanl3mar98.html (remarks given at an American Bar Association meeting). Clients, not lawyers, are the litigants, and when the ill feeling that may exist between litigants carries over into the conduct and demeanor demonstrated by one lawyer toward another, the legal profession is diminished. See, e.g., Annotation, Attorney’s Verbal Abuse of Other Attorney Action, 87 A.L.R. 3rd 351, 354 (1978) (relying on Canon No. 17 of the Canons of Professional Ethics). 4 Again, we borrow from Judge Friedman: ‘[Sjeorched earth’ strategies, and so-called ‘take no prisoners’ litigators are in vogue____ [J]udges have an obligation to step in and say it is unacceptable; it will not be tolerated. We see it even more frequently in depositions, a forum in which there is no referee, no umpire, no judge to call a halt to the ad hominem attacks, the harassment, the abuse that too many lawyers today think is required in the service of their clients.

Some attorneys engage in actively undermining another attorney’s case by using gender. This strategy has been aptly termed “sexual trial tactics.” Lynn Hecht Schafran, Women as Litigators: Abilities vs. Assumptions, 19 Trial 36, 38 (August 1983) (quoting Jill Wine-Banks, Esq.); see also Kan-dis Kovstenis, Sexual Trial Tactics, 4 Geo. J. Legal Ethics 153 (1990). Schafran observed: Like their male counterparts, women litigators run the gamut from inspired to inept, with styles ranging from understated to flamboyant, from ingratiating to brusque. ⁶⁵⁵ Society, however, is still so steeped in gender-based stereotypes about the ‘true nature’ and ‘proper roles’ of women that it often is difficult for those with whom women litigators come into professional contact to deal with them as individuals, on the basis of ability, rather than on the basis of assumptions.

These assumptions are false, lead to insulting behavior, and directly undermine women litigators’ credibility, professionalism, and ability to represent their clients. Schafran, supra, at 36. Mr. Harris’s behavior with respect to Ms. Aude and her counsel at the deposition was a crass attempt to gain an unfair advantage through the use of demeaning language, a blatant example of “sexual [deposition] tactics.” With respect to the effect on the profession, we think Judge Waldron stated it well when he said: “These actions ... have no place in our system of justice and when attorneys engage in such actions they do not merely reflect on their own lack of professionalism but they disgrace the entire legal profession and the system of justice that provides a stage for such oppressive actors.” Appellants refused to acknowledge, in their brief or at oral argument, that it was derogatory for Mr. Harris to address Ms. Green as “babe,” during a deposition. They unblushingly ask this Court to construe Mr. Harris’s use of the term “babe” as a term of endearment because it is “a nickname for ‘Babe’ Ruth, a towering athletic figure and an American folk hero, and ‘Babe’ Didrickson, an outstanding and multi-talented female athlete.... ” They contend that the term “indicates approval, [and] is a sign of approbation.” Thus, they say, Mr. Harris’s “calling someone ‘babe’ would to him not in any way be a derogatory act, but would at least imply a commendatory opinion of the person so addressed.” We find this argument singularly unpersuasive.

If Ms. Green, when up to bat at the annual Bar Association softball tournament, hit a home run, and in that context Mr. Harris chose to call her “Babe,” this argument might be plausible. In the context of this case, however, we can only characterize the argument as disingenuous. ⁶⁵⁶ Lest there be any doubt about Mr. Harris’s intended meaning when he addressed Ms. Green as “babe,” we need look no further than the transcript of the deposition. When Ms. Green asked him to refrain from the use of that term, Mr. Harris responded: “At least I didn’t call you a bimbo.” To our knowledge, neither Babe Ruth nor Babe Didrickson was endearingly addressed as “bimbo.” Let us move from common sense to the dictionary. The term “babe” is defined as: 1. a baby or child. 2. an innocent or inexperienced person. 3.

(usually cap.) Southern U.S. (used, often before ■ the surname, as a familiar, name for a boy or man, esp. the youngest of a family.) 4. Slang, a. Sometimes Disparaging and Offensive, a girl or woman, esp. an attractive one. b. (sometimes cap.) an affectionate or familiar term of address (sometimes offensive when used to [address] strangers, casual acquaintances, subordinates, etc., esp. by a male to a female).

The Random House Dictionary of the English Language, at 148 (2d ed. unabridged 1987). The term “bimbo” is defined as: “1. a foolish, stupid, or inept person. 2. a man or fellow, often a disreputable or contemptible one. 3. a disreputable woman; tramp; whore.” Id. at 208. When used to address another attorney in the context of a discovery deposition or court proceeding, all of the dictionary definitions of the word “babe” are gender biased and derogatory. 5 To explain further why this conduct is objectionable, we briefly review the study of gender bias in the court