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In re Complaint of PMD Enterprises Inc.

August 26, 2002


The opinion of the court was delivered by: Brown, District Judge



This matter comes before the Court sua sponte upon the Court's receipt of a letter from counsel for PMD Enterprises, Inc., alleging various ethical violations on the part of counsel for the Estate of McLaughlin, Marvin I. Barish, arising from his investigator's alleged improper contact with John Graziosetta, a material fact witness and designated member of PMD's litigation control group. The Court has jurisdiction over this admiralty action pursuant to 28 U.S.C. § 1333(1). For the reasons discussed below, Mr. Barish's pro hac vice admission in this Court is hereby revoked.


A. Procedural History

The background and procedural history are sufficiently set forth in this Court's October 19, 2001 Memorandum Opinion and will not be repeated herein except as necessary.

This action arises from the sinking of the clamming vessel, the Beth Dee Bob, on January 6, 1999, approximately fourteen miles off the coast of New Jersey. The Captain, Edward McLaughlin, and three crew members, Jay P. Bjornestadt, Grady Gene Coltrain, and Roman Tkaczyk, died as a result of the accident. PMD Enterprises is the registered owner and operator of the Beth Dee Bob and the employer of its crew members. The Beth Dee Bob left Point Pleasant on January 5, 1999. As scheduled, the vessel began heading back to port on the afternoon of January 6, 1999 carrying a full load of seventy cages of clams. At 5:40 p.m., the crew made a distress call that the vessel was taking on water. The vessel apparently capsized or sank quickly enough so as to prevent further communication from the crew and to prevent them from boarding a liferaft. The cause of the accident is disputed by the parties.

Plaintiff filed a wrongful death action in her representative capacity in the Eastern District of Pennsylvania against PMD on March 31, 1999. PMD subsequently filed a petition for limitation of liability in the Eastern District of New York pursuant to the Limitation of Liability Act, 46 U.S.C.App. §§ 181 et seq., thereby staying all individual actions against PMD. The limitation action was transferred to the Eastern District of Pennsylvania and consolidated with the wrongful death action against PMD. All four deceased crew members filed wrongful death claims. *fn1

The Eastern District dismissed McLaughlin's complaint against PMD for lack of personal jurisdiction and transferred the PMD limitation action and the Cape May Foods action to the District of New Jersey. On December 1, 1999, McLaughlin filed a separate wrongful death action against Peter Lamonica in the District of New Jersey generally alleging Lamonica's negligence was the cause of Captain McLaughlin's death. The action against Lamonica was transferred to this Court and consolidated with the limitation action and the action against Cape May. PMD subsequently sought and was granted leave to file a counterclaim sounding in negligence against Captain McLaughlin for the loss of the Beth Dee Bob.

Dispositive motions were decided on October 19, 2001. The parties filed motions in limine and the Court reserved decision as to McLaughlin's motion to dissolve the injunction and PMD's motion to strike McLaughlin's jury demand. On January 30, 2002, Magistrate Judge Wolfson denied McLaughlin's application to reopen discovery and ordered the parties to submit pretrial orders by February 8, 2002.

On February 6, 2002, this Court received a letter from counsel for PMD containing allegations of improper contact with a witness and witness tampering by counsel for McLaughlin, Marvin I. Barish. PMD alleges that Barish, through his investigator Raphael Juliano, improperly contacted John Graziosetta, a member of PMD's litigation control group and a key fact witness of PMD, and offered to hire him at a rate of $100/hour to review and organize certain documents and records pertaining to the repair and maintenance of the Beth Dee Bob. On February 8, 2002, the Court entered an Order scheduling an evidentiary hearing for February 15, 2002 to consider PMD's allegations. *fn2 The Court now makes the following findings of fact.

B. Findings of Fact

1. On February 15, 2002, the Court heard testimony from John Graziosetta and Raphael Juliano regarding the alleged improper contact and heard argument from the parties. To the extent that the testimony of the witnesses conflicts, this Court finds the testimony of Graziosetta to be credible as the Court can conceive of no reason or motivation for Graziosetta to be untruthful. The Court finds Juliano's testimony to be self-serving and simply not believable on several points which will be discussed more fully below. Moreover, Juliano's testimony was often inconsistent and his demeanor during his testimony often bordered on belligerent.

2. Juliano is a private detective, licensed in Delaware, who has been retained on more than one occasion as an investigator by Marvin I. Barish Law Offices, P.C. Transcript of February 15, 2002 (Trans.) at 40; Juliano Affidavit (Aff.) ¶ 1.

3. Juliano testified that he was instructed by Barish in late December 2001 to obtain information on repairs and services performed on the Beth Dee Bob by various vendors. Trans. at 41; Aff. ¶2. Juliano claims that Barish did not specifically instruct him to contact John Graziosetta. Trans. at 41.

4. In the course of his investigation of the vendor services, Juliano maintains that he spoke with Ski, of Flag Services, regarding certain work performed on the Beth Dee Bob. Juliano inquired as to the meaning of certain invoices. Ski told Juliano that Graziosetta would be able to decipher the documents. Trans. at 42-43.

5. Graziosetta is a former employee of PMD who worked as a port engineer on the commercial fishing vessels, and was primarily responsible for maintaining the engine on the Beth Dee Bob. Id. at 20.

6. Graziosetta is a material fact witness for PMD and has been designated by Barish as a hostile witness. See PMD's February 6, 2002 Letter at 2, exhibit 2.

7. Graziosetta was designated as a member of PMD's litigation control group and identified as such in correspondence from PMD's counsel to Barish. Id. at exhibit 1.

8. Juliano testified that when Ski mentioned Graziosetta he had no idea who he was referring to. Trans. at 44. This assertion is not credible and is directly contradicted by Juliano's subsequent testimony on cross-examination. Juliano previously performed investigative services for Barish with respect to the Beth Dee Bob. Juliano previously attended the Coast Guard hearing on this matter and was present for Graziosetta's testimony. Trans. at 68-69. Juliano admitted that he was aware Graziosetta was represented by PMD's Counsel at the Coast Guard hearing. Id. at 69. Juliano also admitted reading Graziosetta's deposition in the offices of the Barish firm. Id. at 69-70.

9. Juliano claims to have had no knowledge that Graziosetta was a member of PMD's litigation control group or to have any understanding of the term litigation control group. Id. at 70-71.

10. Juliano subsequently went to Eckel's Garage to look for Graziosetta and left a phone number where Graziosetta could reach him. Id. at 45.

11. Juliano told Rob Eckels that he wanted to speak to Graziosetta because he needed some engine work done and he was referred to Graziosetta by Ski. Id. at 23.

12. On February 4, 2002, Graziosetta called Juliano and Juliano admitted that the call was regarding the Beth Dee Bob and that he worked for Barish. Id. at 23-24. Graziosetta stated that Juliano said that Barish would "like you to . . . come up and meet with us and go over some information that we can't decipher or make heads or tails out of as far as different service reports, some technical stuff about the propeller . . . ." Id. at 24. Juliano told Graziosetta that, "this is all up and above board. Mr. Barish asked the Judge and had it okayed with him that we can do this and . . . you'll be compensated for - we'll be hiring you for your time. . . . I'm talking $100/hour for like two weeks." *fn3 Id. at 24. Graziosetta said he would think it over and get back to him. Id.

13. Juliano gives a somewhat different account of his conversation with Graziosetta. Juliano testified that he told Graziosetta that they had some documents that they were trying to decipher and asked him if he could help him to "make some sense out of them." Trans. at 47-49. Juliano offered to compensate Graziosetta for his time expended in reviewing the documents. Id. at 49. Juliano maintains that Graziosetta said that his time was worth $100/hour and Juliano responded by saying, "if that's what your time is, that's what your time is." Id.

14. On cross-examination, Juliano denied having made an offer or having the authority to offer to pay Graziosetta for his time, but on direct Juliano clearly indicated that he made such an offer of compensation and considered it to be commonplace. Id. at 49; 58-59; 61.

15. Juliano testified that Barish was not aware of his attempt to contact Graziosetta until 30 minutes after his conversation with Graziosetta. Id. at 52. This statement conflicts with Juliano's testimony regarding Barish's oversight of his investigation. Juliano testified that the course of his investigation from talking to Eckels Garage, talking to Ski and hearing about Graziosetta, and then going back to Eckels to talk to Graziosetta took about a month and a half. Id. at 45. Juliano testified that during his investigation in December, January and into February 2002, he regularly reported to Barish on the progress of the investigation ...

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