Case Name: Dennis Radder v. CSX Transportation
Date Decided: December 30, 2009
Court: Supreme Court, Appellate Division, Fourth Dept., New York
Judge: Judge Hurlbutt, Judge Smith, Judge Centra, Judge Green, Judge Pine
Citation:  2009 WL 5127938 (N.Y.A.D. 4 Dept.)

Background:
Plaintiff, Dennis Radder, filed this action under the Federal Employers’ Liability Act, FELA, seeking damages for injuries sustained during the course of employment for defendant, CSX Transportation.

While Radder’s action was pending, another CSX employee was injured and retained the firm of Radder’s counsel to represent him.

Shortly before Radder’s case went to trial, the other employee disclosed to his attorneys, and CSX’s attorneys, that he had forged an inspection report related to the piece of equipment that had caused Radder’s injuries.

CSX moved to preclude the second employee’s testimony contending that the law firm, employed by plaintiff, had violated disciplinary rules by interviewing the second employee. The Supreme Court denied that motion, and a motion for a mistrial, and CSX’s motion for a new trial.

The jury ultimately returned a verdict in favor of Radder awarding him $550,000 for past pain and suffering, and $1million for future pain and suffering to cover 24.1 years. The Court then reduced the future pain and suffering to $650,000.

CSX appealed the court’s ruling that the law firm, K & G, did not violate Disciplinary Rules.

Issue:
Did the trial court err in holding that K & G did not violate Disciplinary Rules by interviewing the second injured employee?

Held:
CSX contended that K & G violated Rules that warranted suppression of the information improperly obtained by Radder’s attorneys.

Under DR 7-104(a), provided that during the course of representation, the lawyer shall not , communicate or cause another to communicate on the subject of representation with a party the lawyer knows to be represented by a lawyer in a matter unless they have prior consent. However, this Court found, that at the time of Radder’s accident, the other employee was an employee deemed to be represented by the attorneys for CSX.

However, at the time of his interview, the second employee was no longer an employee of CSX. Therefore, there was no violation of DR 7-104(a)

CSX further argued that K & G violated former DR 5-105(b) – (d) because it was representing two claims with differing interests. This Court found, however, had there been an impermissible conflict of interest, it would be a breach of duty to K & G’s clients.

Finally, CSX contended that the award for damages for past and future pain and suffering should be reduced because they deviate materially from what would be reasonable compensation.

However, the federal standard, applied to FELA cases, mandates that a jury award shall be upheld unless it is so excessive as to “shock the judicial conscience”. Here, this Court found that Radder’s award did not do that.

Accordingly this Court upheld the award and judgment in favor of Radder.

Comment
Generally, absent some constitutional, statutory, or decisional authority mandating the suppression of evidence, it will be admissible even if procured by unethical means. Here, the attorneys for K & G arguably damaged the credibility of their own client to bolster the case of Radder, their first client. However, this Court found that if any, there would be a breach of duty to the plaintiff completely separate of this current action.

As such the Court upheld the suppression of the second plaintiff’s testimony.   

Steve Gordon