Judge Wasn't Just Wrong,
 He Was Downright Rude, Lawyer Says

By Janet L. Conley
Daily Report
New York Lawyer
January 10, 2008

ATLANTA -- Michael D. Allweiss, a Florida lawyer representing plaintiffs in a wrongful death case stemming from a Lake Lanier boating accident, said he has never talked about any judge in this manner.

But when it comes to Senior U.S. District Judge William C. O'Kelley, Allweiss said the judge treated his side "disrespectfully and rudely."

At one hearing, Allweiss said, when he was trying to make a point to the judge, "I thought his head was going to explode."

O'Kelley made his feelings clear about the case in two orders issued last month.

The judge said that the plaintiffs' expert had disassembled the boat involved in the accident and cut the legally relevant mechanical part into six pieces, which were too small to meet nationally recognized testing standards.

"Plaintiffs' lawyers directed the spoliation of some evidence and failed to prevent the spoliation of other, more critical, evidence," wrote O'Kelley, of the Northern District of Georgia's Gainesville Division.

"The court," the judge added, "will not tolerate litigants tampering with the very component they contend is defective."

As a result, the judge on Dec. 20 sanctioned the plaintiffs and declared that if the case proceeded to trial, all evidence related to certain tests performed by their expert would be excluded. The judge also said that the jury would be instructed to draw a negative inference from the plaintiffs' disassembly of part of the boat's mechanical system.

The next day, on Dec. 21, O'Kelley granted summary judgment in favor of the defendants, Baja Marine Corp. and Brunswick Corp., the manufacturers of the boat.

To Allweiss, of St. Petersburg, Fla., O'Kelley's blast was just the latest insult from the judge in the hard-fought case, which has involved more than a dozen experts and about 40 depositions.

"Being from out of town, I don't think we were treated professionally or very rightly by this court," said Allweiss.

Beyond his feelings about the judge, Allweiss said O'Kelley got the facts and the law wrong. Allweiss promised to appeal to the 11th U.S. Circuit Court of Appeals.

Allweiss' team also included Fredric S. Zinober of Buckley & Fudge in St. Petersburg; Nathan M. Berman of Zuckerman Spaeder in Tampa, Fla.; and local counsel Barry Goodman of Goodman & Goodman in Atlanta. Goodman and Berman referred calls to Zinober. Zinober could not be reached.

O'Kelley, through his assistant, declined to comment on Allweiss's remarks.

The winning lawyer, Douglas G. Scribner of Alston & Bird, said the plaintiffs were "absolutely" treated fairly by the judge.

Damaged boat, no body

According to O'Kelley's statement of the facts, the case originated on the waters of Lake Lanier during a late spring afternoon in 2004 when Michael Maldonado, who was operating his 25-foot high-performance boat, a Baja Outlaw, met an untimely—and apparently unwitnessed—death.

According to O'Kelley's statement of the facts, Maldonado had spent part of the afternoon at Cocktail Cove, a "notorious party spot" on Lake Lanier where boats congregate.

Maldonado, the judge said, was seen drinking from a flask and holding a can of beer. Allweiss disputes this, saying that Maldonado may have had a drink at lunch, hours before the accident, and that the contents of a flask floating nearby never were tested.

According to the court, sometime between 6 and 6:30 p.m., Maldonado and his friend Brian Ruggerio—each in his own boat—raced back toward Ruggerio's lake house at speeds between 50 and 60 miles per hour.

Ruggerio, in a more powerful boat, eventually left Maldonado behind. About an hour later, at 7:30 p.m., another boater discovered Maldonado's unmanned craft and noticed it was taking on water from the stern. Despite an extensive search, no body ever was found.

The probate court of Forsyth County issued a death certificate for Maldonado on Aug. 31, 2005.

With no eyewitnesses to the accident or the death, the damaged boat and its component parts became crucial pieces of evidence in a suit against the boat manufacturers by the administrator of Maldonado's estate and Maldonado's daughter, who is now 18.

What caused Maldonado's death centers around something called a gimbal housing, which was on his inboard/outboard motor boat. A gimbal housing, in the simplest terms, is a die-cast aluminum part on the back of a boat that keeps the propeller attached to the boat and lets the operator steer it.

The plaintiffs contend that the boat's gimbal housing fractured as the result of a manufacturing defect that made the metal too brittle, and that the boat spun out of control and threw Maldonado to his death.

The boat manufacturers theorize that Maldonado was at fault, hitting a wake at too great a speed, taking the boat airborne. When the boat landed, the gimbal housing broke because of the impact and Maldonado went overboard.

Brittle metal

In attempting to determine whether there was a defect in the gimbal housing, plaintiffs hired an expert metallurgist, Brian Rampolla, to perform some tests prior to filing suit. And here's where the real dispute begins.

The defendants, O'Kelley noted in his Dec. 21 order, moved for summary judgment, alleging that Rampolla was unqualified and substantially unreliable and that his testimony should be excluded.

"For the most part, the court agrees," wrote O'Kelley, who went on to pick apart Rampolla's opinion.

The judge found that Rampolla was well educated and had years of experience doing failure analyses for the U.S. Navy. But, O'Kelley added, Rampolla lacked experience not only with the type of metal and the mechanical parts at issue, but also with the alleged "root cause" of the gimbal housing's failure.

Rampolla misidentified the problem, O'Kelley found, noting that in a draft report, Rampolla wrote that the metal became too brittle because of "cold flakes" — bits of steel from the die that entered the metal during the casting process.

O'Kelley added that Rampolla then consulted with another expert by e-mail—then quickly altered his opinion to match that of the other expert. That expert had said that rather than cold flakes, the metal contained beta phase platelets, iron-rich particles which in too great a number or at too great a size also can make metal too brittle.

Rampolla essentially then did a search-and-replace in his report, said Scribner, an issue also raised by the court, swapping the words "cold flake" for "beta phase platelet."

But Allweiss, the plaintiffs' lawyer, said the difference between cold flakes and beta phase platelets is "a distinction without a difference."

"Both of those things turn a non-brittle material brittle," he said.

Citing Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), O'Kelley excluded Rampolla's testimony and granted summary judgment to the boat companies.

Allweiss's reaction: "If he [Rampolla] is good enough for the Navy, he should be good enough for O'Kelley."

Spoiled evidence?

O'Kelley's problems with Rampolla went far beyond his qualifications or his analysis—regardless if he replaced some of his findings with those of another metallurgist.

O'Kelley's Dec. 20 order said that the plaintiffs' experts disassembled the boat's steering and throttle systems and its transom assembly—which includes the allegedly defective gimbal housing. Rampolla later cut the fracture surface of that housing into six pieces and, the order says, "destructively tested" them.

Despite the importance of the boat evidence, O'Kelley wrote, "some of it has been irrevocably altered and destroyed."

Scribner, the Alston & Bird lawyer who represented the boat manufacturers, said, "When we first were allowed to inspect the boat … what we saw at the warehouse amazed us.

"This boat was completely disassembled. … The gimbal housing … had been obviously and plainly subject to destructive testing."

He added, "Any lawyer who works in the product liability arena knows full well that you cannot conduct destructive testing without providing notice to the other side."

But the boat manufacturer's lawyers were not notified, and, as a result, they asked for sanctions.

O'Kelley agreed, writing that the destruction of evidence "substantially prejudiced defendants and unfairly favored plaintiffs" because the defendants didn't have the same testing opportunities, and because the plaintiffs' tests didn't comport with American Society of Testing Materials standards and it is now "impossible" to conduct compliant tests.

The order also noted that the defendants were prejudiced because plaintiffs' experts removed or disassembled part of the boat's throttle system and an after-market flame arrester that defendants allege could have interfered with the throttle cable connection and contributed to Maldonado's accident.

"It is difficult to imagine any evidence more practically important than the altered housing, and, to some extent, the throttle system," O'Kelley wrote.

Asked about O'Kelley's finding that Rampolla spoiled the evidence, Allweiss, the plaintiffs' lawyer, said, "Absolutely, 100 percent, no."

He also compared the flame arrester, in terms of significance in the instant case, to the hood ornament on a car. The adverse inference O'Kelley would instruct a jury to draw based on the spoliation of that flame arrester, Allweiss said, is "completely irrelevant."

Neither O'Kelley nor the boat companies' expert understood boats, Allweiss said. He added that he spent five years as the chairman and CEO of the American Power Boat Association, personally overseeing, along with local and federal law enforcement, investigations of more than 35 power boat accidents, some of them involving fatalities.

"This was a very simple case of a bad part breaking over a normal load," he said.

A defense expert, on the other hand, theorized that the accident was caused by the wake of another boat. There was no evidence of another boat in the area, and the expert simply "made up" the theory about the boat wake, according to Allweiss.

But when he attempted to explain this — and here Allweiss adopts a Southern drawl in imitation of O'Kelley — the judge said, "Son, do you have any idea the size wake that one of these cigarette boats makes?"

Allweiss said that when he attempted to tell the judge that given his credentials, he indeed understood cigarette boat wakes, "I thought his head was going to explode."

"He didn't like what he was hearing," said Allweiss.

Allweiss said he's never spoken about a judge like this before, but that given the merits of the case and the youth of his client, Maldonado's daughter, he feels he must stand up to the system.

The case is Graff v. Baja Marine Corp., No. 2:06-cv-68.

[Index to Articles]