Lumber Liquidators Holdings store in San Francisco. (Photo: David Paul Morris/Bloomberg)

 

Toxicology expert William Sawyer had just begun a deposition in a case involving formaldehyde exposure when the questions started to get hostile.

The defense lawyer, Robert Redmond, a partner at McGuireWoods, “became abusive,” leaning into Sawyer's face with “an outstretched neck” and at one point threatening to call the judge, according to an affidavit Sawyer filed last month. After about four hours, Sawyer, an expert for the plaintiff, abruptly left the Aug. 20 deposition, which took place at the Hampton Inn & Suites on Fort Myers, Florida, across the bridge from Sanibel Island, home to Sawyer's company, Toxicology Consultants and Assessment Specialists LLC.

A few days later, Sawyer wrote a letter to the plaintiffs attorneys, both in Santa Ana, California, stating he had withdrawn from the case, one of a handful of personal injury lawsuits remaining against Lumber Liquidators over its laminate wood flooring. Redmond's “rude and unprofessional conduct,” he said, had exacerbated a previous medical condition.

“I felt like a prisoner before a Nazi-administered trial and became seriously concerned and stressed about what was happening,” he said in the affidavit. “I could feel/hear my heart echoing within my ears and simultaneously could feel my heart pounding with palpitations within the chest. At this time I realized that I was at risk of another serious cardiac arrhythmia.”

Sawyer, who testified for the plaintiff in a trial that landed a $289 million verdict about a week earlier over Monsanto's Roundup herbicide, said in his affidavit that he had never experienced such “aggressively malicious” conduct in more than 200 depositions in his 30-year career. “I truly believe that corrective discipline should be administered with respect to Mr. Redmond's unprofessional courtroom conduct,” he wrote.

Sawyer did not respond to calls and emails for comment. But in a phone interview with Law.com, McGuireWoods' Redmond called the accusations overblown. “There's absolutely no evidence that I did anything untoward in the deposition other than ask him questions that he was uncomfortable with,” he said.

On Sept. 18, a federal magistrate judge allowed plaintiffs attorneys to replace Sawyer but ordered them to pay Lumber Liquidators for the costs of his deposition. Redmond that noted the judge, who did not review the videotaped deposition, based his ruling “solely on the underlying health issues” that Sawyer raised—not his conduct. “That clears me as far as I'm concerned,” he added. “The court's lack of interest in that issue is indicative of the fact the court was not persuaded in the least with what happened in that deposition.”

In court documents, Redmond called Sawyer's medical issue “a pretext” because Sawyer and Thomas Chambers, the plaintiffs lawyer who was at the deposition, had initially agreed to reschedule the deposition. “It had nothing to do with arrhythmia or anything like that,” Redmond told Law.com. “It's hard for me to understand how someone who's having a serious medical condition precipitated by the conduct of counsel would offer to reschedule at the time. That struck me as odd.”

The case involves Cami Stein and her daughter, Tiffany Stein. Cami Stein alleged that Lumber Liquidators flooring had caused her respiratory illness and her daughter, who had cystic fibrosis, more severe health problems. The case is one of a handful of personal injury lawsuits excluded from a $36 million class action settlement approved last week.

More than 100 lawsuits were filed against Lumber Liquidators after a “60 Minutes” exposé in 2015 found that it mislabeled the safety of its flooring, which violated California emissions standards. The settlement offered a $22 million cash fund and $14 million in vouchers to a class of 760,000 customers seeking economic damages. It resolved two multidistrict litigation dockets: one involving claims that Lumber Liquidators failed to disclose the formaldehyde exposure in its flooring and another alleging that its flooring was defective.

Lawyers with personal injury lawsuits claim that lead counsel in the class actions, who got more than $11 million in fees, cut them out of settlement negotiations. Last year, they convinced Judge Anthony Trenga of the U.S. District Court for the Eastern District of Virginia to create a separate discovery track for the personal injury lawsuits. Many of the cases have since settled.

But about a half-dozen remain. Plaintiffs lawyers in the Stein case insisted in court papers filed last month that Redmond's deposition tactics are part of a litigation strategy in which Lumber Liquidators has aggressively fought their discovery requests.

In a declaration filed last month, Thomas Chambers, associate at Chambers & Noronha, wrote: “Out of the approximate 30 years of litigation practice, I would rate the aggressiveness of defense counsel's questioning towards the top of the list.”

Chambers did not return calls for comment, though he wrote in his declaration that he had been previously unaware of Sawyer's medical issues and objected to several questions. At one point, he asked Sawyer to step out of the room “in an effort to calm the situation.”

Another plaintiffs attorney in the case, John Adams of Hunt & Adams, was not at the deposition but reviewed a portion of the videotape. “The deposition videotape and transcript is here, if anybody wants to go through and see whether he was too hard or not hard enough,” Adams told law.com. “I haven't rendered an opinion. Dr. Sawyer certainly did.”

In court filings, Adams chalked up the dispute to a “failure to communicate” because Lumber Liquidators had agreed to pay deposition costs for three hours, not a full day. “Plaintiffs' counsel has never had this occur in over thirty eight years of litigation practice, and plaintiffs are not aware of any way to compel Dr. Sawyer to continue as plaintiffs' expert against his will and at risk to his serious cardiac condition,” he wrote in an Aug. 28 response to a Lumber Liquidators' notice about rescheduling Sawyer's deposition. “This expert problem is in no way the fault of plaintiffs, nor could it have been reasonably anticipated by plaintiffs.”

He and Adams are fighting a demand from Lumber Liquidators for nearly $68,000 in deposition costs. They insist that Sawyer's withdrawal was unpredictable. Sawyer also withdrew from at least two other cases against Lumber Liquidators, prompting plaintiffs lawyers in those cases to replace him.

But Redmond has a different reason for Sawyer's quick departure from the deposition.

“So this is the worst form of sandbagging,” Redmond said, according to the transcript. “We object to it. I agree I cannot physically restrain the witness here and won't. But it's on the record that this was never agreed that this was going to be a half day deposition.”

Sawyer had “avoided, obstructed and refused to answer basic questions,” Redmond said.

In his interview with Law.com, Redmond suggested that Sawyer wanted to avoid questions about his credentials. According to an Oct. 10 filing by Lumber Liquidators in support of its fees, Sawyer had failed the American Board of Toxicology exam, and his certification came from the American Board of Forensic Medicine, a “certification mill of questionable viability.”

“Frankly, I think the deposition probed into areas he hasn't had probed into—namely, his certifications,” Redmond told Law.com. “And I think he was uncomfortable with that, and he was uncomfortable with the level of scrutiny of his qualifications that I was giving during the deposition.”

Adams, however, called that “pure speculation,” disagreeing that Sawyer “refused to go forward for any reason other than what he stated.”

Then, last week, Adams and Chambers filed a notice stating that Tiffany Stein died on Oct. 7. While her mother's claims remain as to her own illnesses, Tiffany Stein's case “dies with her,” Adams said, unless her family decides to bring a wrongful death lawsuit.

“That's changed dramatically the nature of the litigation,” he added.