Judge Fines SEPTA $1 Million

Pennsylvania - New Jersey - New York - Nationwide

Authority Held in Contempt for Withholding Evidence

By Claudia N. Ginanni
Of the Legal Staff
PHILADELPHIA, DECEMBER 21, 1999

"Even while the child's blood was still wet on the ground, someone from SEPTA was manipulating the physical evidence," Common Pleas Judge Frederica A. Massiah-Jackson said yesterday as she fined the transit authority $1 million for contempt of court for its conduct in the lawsuit brought by Shareif Hall, whose foot was torn off by a SEPTA escalator in November 1996.

SEPTA had offered as a defense exhibit a photograph, taken at the scene of the accident, of the then-4-year-old's black boot with a white shoelace on top of it. The white lace was broken, and SEPTA once claimed that the broken shoelace caused the accident - even though the boot's black lace was still double-knotted when it was retrieved from the escalator pit.

"Although it is uncontroverted that the boot was the most recent item to fall into the escalator pit," Massiah-Jackson said, "SEPTA's photograph shows the white lace on top of the child's boot. Who tied it? Who handled it?"

That was just one of several instances of "willful and deliberate misconduct" cited by the judge in a harsh preliminary memorandum in support of her order finding the authority in contempt of court. The order came after a week of testimony in hearings that grew out of the mid-trial revelation that crucial documents had never been turned over to plaintiff's counsel during discovery.

After the documents began to appear at trial, SEPTA dropped its defense and a countersuit against Deneen Hall, Shareif's mother, which claimed that she had caused the accident by failing to properly supervise her son.

The Halls' lawyer, Thomas R. Kline of Kline & Specter, said yesterday that he plans to file suit against SEPTA on Deneen Hall's behalf for wrongful use of civil proceedings for the agency's suit against her. Both SEPTA's general manager and its general counsel admitted the suit was unfounded during testimony yesterday.

During the hearing, witness after witness showed up in court with documents that supported the plaintiff's negligence case and had never been surrendered to his lawyer.

One witness, former systems safety director Robert B. Allman, produced a memorandum he had written to his file expressing his "extreme displeasure" with the authority's investigation of the accident. According to the memo, crucial physical evidence was withheld from investigators and the "content of the facts surrounding the accident" changed several times.

Massiah-Jackson noted that the "most devastating evidence which remained hidden by SEPTA" until it emerged at trial was a May 4, 1994, memorandum that "demonstrated to the jury that SEPTA had actual knowledge of the deteriorating escalators 2 1/2 years prior to the accident."

At Friday's proceedings, it became clear that multiple copies of this and other damaging documents existed in the files of several SEPTA employees. All of the SEPTA employees who appeared in court with files of such documents - one had responded, at less than a day's notice, with so many papers he used a Macy's shopping bag to carry them - testified that nobody from SEPTA's legal department had ever asked for the documents.

SEPTA Deputy General Counsel Eileen Giordano Katz, who supervises litigation activities, had earlier testified that she never knew such documents existed - even though at least two memoranda bore notations indicating that she had received copies.

After a routing memo showing that both General Counsel G. Roger Bowers and General Manager Jack Leary received copies of one of the key documents emerged, Kline called them both to testify at the sanctions hearing.

Accountability Football
Bowers, SEPTA's chief legal officer, who arrived 40 minutes late for the contempt-of-court proceeding yesterday morning, repeatedly denied having seen key documents and disavowed knowledge of crucial decisions.

He testified that he had heard about the Allman memo for the first time yesterday morning even though it had been reproduced in full in both the Philadelphia Daily News and Philadelphia Inquirer's Saturday editions and was widely reported by local television news programs as well as in The Legal and its online affiliate, PaLAWnet.

He denied ever having received a copy of the accident investigation report relating to Hall's accident, although the routing memo indicated that it had been sent to him. He also denied that drafts of the report had been sent to his deputy, Katz, although her name was listed on the recipient lists for those memos.

Kline pointed out that the other people whose names were so listed had received their copies of the reports; many of them testified in court Friday.

"Wouldn't that tend to show that the memo was distributed to the people on the list?" Kline asked.

"She has denied receiving it, and I'm not going to sit here and say she received it," Bowers said.

Saying that the report's finding that the authority had no evidence to suggest that Deneen Hall contributed to the accident by failing to supervise her son properly, Kline asked him about SEPTA's suit against Deneen Hall.

Bowers said he had nothing to do with the decision to sue Hall. He'd seen the preliminary accident report released in November 1996, indicated that Shareif Hall should be given $250,000 - the statutory cap on personal injury liability for commonwealth defendants - and turned it over to others.

Bowers said he had no idea who had made the decision to sue Hall but admitted that given the lack of evidence against her, "it was wrong."

Kline then asked if Bowers planned to call SEPTA's "false claims hotline," which is prominently promoted in buses and subway cars, about the case SEPTA v. Deneen Hall.

"No," Bowers said, "because we'd be calling ourselves."

"But it'd be a good call to make, wouldn't it?" Kline asked.

"Yes, sir," Bowers conceded. 

Who's Asking?
Bowers suggested that the blame for the agency's failure to produce the documents rested on the shoulders of the safety and operations personnel who retrieved the documents from their files for the hearing on Friday.

Prodded by Kline, Bowers acknowledged that Katz, as the authority's in-house counsel overseeing the case, "had an obligation to see to it that the appropriate inquiries were made."

"You've aware that we've had a parade of witnesses who said that nobody ever asked them for those documents?" Kline asked.

"I'm aware they said that; I'm not aware that it's true," Bowers countered.

Several times, Bowers implied that the fault was that of outside counsel Leon A. Williams, a solo practitioner SEPTA hired to try the case.

But Kline showed Bowers a broadly worded letter from Williams, dated three months before trial, asking that Tony Sheridan, an employee of SEPTA's legal department, be sent to tell witnesses that they must produce documentary evidence at trial.

"He was doing his job, wasn't he?" Kline asked.

Bowers acknowledged that SEPTA's conduct in the case was "horrible;" upon further nudging by Kline, he agreed that it could be characterized as "scandalous."

That's why, he said, he had asked SEPTA's inspector general for a thorough investigation.

He defended his own hands-off attitude toward the case by explaining that the authority handles about 2,000 cases per year.

His direct involvement ended, he said, when he "put the cap on it [recommended that SEPTA pay the statutory cap to Shareif Hall]."

General Manager
Leary's testimony, at the end of the day, was a series of admissions of the agency's wrongdoing.

He agreed that the revelations of the past week had "cast shame on the organization," that the documents revealed in the last week "call into question the integrity of the organization to its very core," and that it had violated the rules of the court.

He also agreed that the lawsuit had brought a major public safety issue to light and that the case was "just an example of [the legal department's] failure to follow proper procedures."

He acknowledged that he had seen the accident investigation report, had questioned why it took six months to produce it, and made it the main topic of a weekly staff meeting in which Bowers was a regular participant.

Finally, he offered an apology to the Halls: "My heart goes out to the whole family," he said.

The Ruling
Massiah-Jackson's memo states that "the 'paper trail' which was presented in this courtroom ... established without any doubt that SEPTA management at the highest levels knew of Shareif Hall's accident, knew of the investigation, reports and recommendations, knew of the litigation, and, yet failed to turn over the material to plaintiffs' counsel before or during trial."

Under a section headed "SEPTA Has Shown Gross Indifference To Its Obligations To The Court," the judge wrote:

• SEPTA has demonstrated a cavalier disregard for the court process.
• SEPTA has demonstrated extraordinary bad faith by failing to acknowledge its responsibility to Court Rules of Civil Procedure.
• SEPTA has obstructed the administration of justice and impeded the judicial process.
• SEPTA hindered justice.

She followed with five examples of other problems that "raise grave concerns for this court," including evidence tampering, which she deemed "calculated to subvert the fairness of the judicial process.

Leary said after the hearing that the case was a "wake-up call to SEPTA" and that the agency had heard the call.

He said he would discuss an appeal of the judge's ruling with SEPTA's board.

* This article is republished with permission from American Lawyer Media, Inc. Copyright 1999. ALM PROPERTIES, Inc. All Rights Reserved. Further Duplication Without Permission is Prohibited.