Oncken
WINFIELD – Putnam Circuit Judge Ed Eagloski chased a Texas lawyer back to the Lone Star State for misbehaving in a deposition.
At a hearing May 11, Eagloski vacated an order allowing Kevin Oncken of San Antonio to defend Putnam General Hospital in malpractice suits.
"He was degrading, demeaning and completely unprofessional," said Eagloski, who had seen tape of Oncken deposing a plaintiff.
Eagloski said Oncken told Charleston attorney Richard Lindsay that if he wanted to talk to him, he should put on lifts. Oncken stands about 10 inches taller than Lindsay.
Eagloski said he would refer Oncken to the West Virginia Bar, and he said he would send the tape to the Bar. He also said he could also take privileges away from Oncken's partner, Jeffrey Uzick.
"But I think he will take the warning of this court appropriately," Eagloski said. "Will you do that, sir?"
"Yes sir," Uzick said.
About a dozen other attorneys witnessed the drama on behalf of parties in Putnam General Hospital malpractice cases. Eagloski told them all to take his ruling as a road map for decorum in depositions and in court.
Oncken blew his fuse Feb. 8, deposing a Lindsay client named Mayfield. After the deposition, Lindsay moved for sanctions.
At the hearing, Lindsay said Oncken harassed Mayfield and threatened both Mayfield and himself with financial penalties.
Lindsay said he was in his fourth decade practicing law and nothing like this had happened before.
"It's crossing all civil boundaries," he said.
He said Oncken's colleague, Scott Johnson, laughed at Mayfield.
"It was clearly intimidating and troubling to Mr. Mayfield," Lindsay said.
He said at the end Oncken told him he would file a motion for sanctions the next day. He said that did not happen.
Oncken then began his explanation. He said the court had a tape. Eagloski said he had viewed it in its entirety.
Oncken said his comments at the start were based on Johnson's deposition of a plaintiff named Wilfong. He said Johnson had told him how Lindsay coached Wilfong.
The Scott Johnson here is not the Scott E. Johnson who works at Steptoe & Johnson in Charleston.
Oncken said he read the deposition and recognized that it would be difficult to get straight answers. He said Mayfield exaggerated his claims and denied culpability for his alleged injury. He said Mayfield was in a fist fight after surgery on his knee.
He said three doctors told him there was grave risk, but Mayfield left against their advice. He said his opening exchange was directed at Lindsay, not Matfield.
Eagloski said it was a mistake to bring up sanctions at the beginning.
Oncken said he didn't, but Eagloski said that on page five Oncken said there could be a penalty of $250 per violation.
Oncken started to answer, but a strange sound filled the room. Eagloski wailed a short "a" sound at high pitch. The pitch fell and the sound changed as he said, "Aah I hear you. Go ahead."
Oncken said if he had a regret, it was that it should have been done behind closed doors.
He said Johnson did not snicker.
"Mr. Mayfield apparently read something into Mr. Johnson's presence and raised a question about it in an adversarial manner," Oncken said.
He said Lindsay got on his feet, raised his voice and pointed.
"Things got heated at that point, judge," Oncken said. "I said things I shouldn't have said."
He said he apologized to Lindsay in an e-mail. He said he asked Lindsay if he apologized for referring to him as a thug.
"I didn't get a response," Oncken said. "He just set the motion for hearing."
He asked Eagloski to appreciate the magnitude of the litigation.
"It is extraordinarily tense," Oncken said. "It is extraordinarily high pressure. It is extraordinarily high stakes.
"I regret the statement I made at the end of the deposition."
He said he assumed Lindsay apologized for calling him a thug.
"Sometimes the tongue moves faster than the mind," Oncken said.
He said he made a remark at the end about moving for sanctions but he stepped away from the emotional moment and conferred with lawyers.
"We let the emotion pass and we decided –- I decided -- that it did not further the goal of the litigation," he said.
Lindsay responded that hard work was no reason to abuse a witness.
"My client should not be punished because they say they're tired," Lindsa said.
He also said he never called Oncken a thug. He said he told him if he acted like a thug, the deposition would be over.
He said Oncken apologized to him but not to his client. He said Oncken just called his client a liar.
"This is the way he practices," Lindsay said.
Plaintiff attorney John Curry of Charleston said Oncken and Uzick signed affidavits that did not list all their admissions to West Virginia courts.
"We can't believe what we are being told," Curry said. "Even under oath, we can't believe what we are being told."
Oncken said he received no notice of the exhibits.
Eagloski asked if he signed them under oath. Oncken said yes.
Oncken said the affidavits were forwarded to them. He said he did not know why some cases were not listed. He said being portrayed as rogues struck deep at their integrity.
"You don't like it, do you, when somebody goes after your integrity?" Eagloski asked, to which Oncken replied no.
"I have worked hard to develop a reputation as a first rate trial lawyer and a man of integrity," Oncken said.
Curry then said, "Putnam General has plenty of attorneys. This one should not be allowed to practice because of what has occurred."
Johnson said, "May I make a brief response?" Eagloski said no.
Eagloski said Oncken violated canons of conduct.
"Referral will be made to the State Bar regarding his actions," Eagloski said, adding that Oncken stated that Lindsay did not know how to practice law.
"It is a personal attack in front of his client," Eagloski said.
He said Oncken told Lindsay, "If you are going to talk to me, put on your lifts."
"That is not tolerable by this court," Eagloski said.
He said it was not the first time the court talked to Oncken about integrity. He said Oncken alleged that Curry paid someone to be his client and that the court reprimanded Oncken.
He said professional rules allow no conduct in a deposition that would not be appropriate in front of a judge. He said Oncken's behavior exceeded any reasonable degree of civility.
He said Oncken could attend depositions if he attended as an agent of the defendant.
He told Uzick that Oncken's actions impinged on him. He told Uzick he deposed plaintiffs when he should not have been there.
"But your actions are not personal regarding another person or party to this action," Eagloski said.
Johnson said he would seek a writ of prohibition.
"You may file your writ, of course," Eagloski replied. "Anything further?"
No one spoke, and the hearing ended.