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Bob Carroll
Bob Carroll
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An Evidence-Destroying Expert Witness And Sealed Court Findings

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A Court may seal a file or a portion of a file to prevent it from being viewed by the public. What if it protects the reputation of an expert witness who had been found by the Court to have destroyed evidence? The Sacramento Bee reports on a public interest law firm seeking to unseal a judge’s finding that an automaker’s defense expert destroyed evidence.

A Court has the power to seal a file or a portion of a file to prevent it from being viewed by the public. This power makes sense when it protects an innocent person or truly serves a public interest. But, should it be used to protect the reputation of an expert witness who had been found by the Court to have destroyed evidence?

The way it is supposed to work: Large corporations, in defense of their conduct or products, may hire just about any expert witness they choose. Injured victims have the ability to challenge the integrity and competence of the chosen defense expert witness. The jury gets to decide if the opinion of the defense expert is the conclusion of a credible witness or not.

The Sacramento Bee carries the story of a public interest law firm seeking to unseal a 2002 county judge’s finding that an automaker’s defense expert had destroyed evidence. “Trial Lawyers for Public Justice in Washington, D.C., alleges that the sealed document prevents their clients from challenging the credibility of the expert, who continues to be used as a witness by automakers in other cases.”

A motion filed last week arues that it was an error when the judged sealed a 36-page sanctions order against a defendant, American Honda Motor Co. The order apparently concluded that “Robert Gratzinger, an accident reconstructionist used by Honda’s lawyers, destroyed evidence while the case was still in a jury trial.”

“Because of the tampering, [the judge] awarded the verdict to the woman, Sarah Davis of Auburn, who was left a quadriplegic in the 1999 rollover accident.”

The judge “then ordered the jury to determine the amount of damages to be awarded to her. Before the trial could conclude, however, attorneys reached a settlement, which included Garbolino sealing the sanctions order and restricting the parties from discussing the case.”

“Since then, attorneys for automakers being sued by victims in traffic accidents have continued to hire Gratzinger as an expert witness.”

“But when placed on witness stands, Gratzinger, citing Garbolino’s sealing order, has declined to answer questions about his role in the Davis case or about the judge’s conclusion that he spoiled evidence, Trial Lawyers for Public Justice alleges.”

“This extraordinary secrecy order is being used to stop crash victims from questioning Mr. Gratzinger and challenging his credibility,” said Rebecca Epstein, a staff attorney for the firm. “People left in wheelchairs by crashes must sit in silence while Mr. Gratzinger testifies for Honda and other big automakers.”

“Epstein said judges in other cases have ruled in favor of Gratzinger’s right to remain silent on the Davis case and have refused to allow trial lawyers to bring up the tampering incident in open court.”

“Our case shows the danger of blanket secrecy going unchecked,” Epstein said.

“The 36-page sanctions order in the Davis case was obtained by The Bee on Oct. 9, 2002 – one day before attorneys reached the undisclosed settlement.”

“In his order, [the judge] concluded that during the trial, Gratzinger went to a storage yard where the damaged car was being kept and intentionally used a rag to “obliterate” pre-existing witness marks that had been observed on the latchplate by Davis’ lawyers.”

Honda’s lawyers contended that Davis, who was 17 at the time of the accident, was responsible for her own injuries because she was not wearing the seat belt when the Honda Civic in which she was a passenger went out of control and landed on its top.

“Davis claimed she was wearing the belt and that it failed when the car rolled over into a ditch on Auburn Ravine Road. She also claimed that the roof of the car was weak and defective, causing it to cave in on top of her.”

“The Trial Lawyers group allege that Garbolino’s sealing order harms the public interest. “If the alleged misconduct did take place, the seal of the sanctions decision has allowed Mr. Gratzinger and Honda’s attorney to evade professional accountability for their actions, setting a dangerous precedent for future litigants’ conduct,” the group’s motion reads.”

“The group said California rules of the court state that before a record can be sealed, a judge must find an “overriding interest” that prevents the public from having access to the record.”

In addition, the judge “must specifically articulate the factual findings supporting secrecy,” the group said.

“There is no evidence that the parties brought these rules to the court’s attention, much less satisfied them,” the motion states.

The group said if the sealing order was implemented to conceal the court’s findings of misconduct and preserve the professional reputations of Gratzinger and Honda’s attorneys, “that interest is not a legitimate basis for sealing court records.”