Gerald F. Ragland, Jr.

“ Even assuming the court grants plaintiff’s request regarding default judgment and issue preclusion, counsel for plaintiff has conducted years of futile discovery because counsel was denied the documentary tools to make that discovery effective as to a central issue in this case, the question of defendants’ infliction of emotional distress and the casualties prior to the death of Jack Slee. ”

“ Jack Slee died of a stress induced cardiac arrest. To the extent that the defendants withheld documentation of prior and severe emotional upsets, the defendants withheld information which would have allowed plaintiff’s counsel to pursue appropriate lines of questioning with lay witnesses, expert witnesses, and which would have affected the preparation of plaintiff’s expert witnesses. The fraud of defendants has persisted through four and one-half years of expensive discovery. ”

“ Failed, despite notice and knowledge of injuries caused by est training, to adequately study defendants’ methods and processes to ascertain the nature and degree of the danger posed by est trainings and to modify techniques and processes used in conducting the est training in order to make est trainings safe for participants; c. Failed to have trained, skilled individuals observing participants during est trainings in order to detect signs of undue mental or physical stress or symptoms of psychological decompensation ”

“ They clearly systematically gather reports and data which enable them to reduce the information to statistical computations by date, place, and trainer. It is inconceivable that such detailed reports could be prepared without a large base of information being gathered routinely as incidents and severe emotional upsets occurred in the est training.
These documents show the falsity of the defendants’ prior representations to this Court that various witness statements taken following the death of Jack Slee were taken solely in anticipation of litigation. ”

“ See Exhibit D. Apparently the defendants statistically analyzed the number of severe emotional upsets before and after the implementation of an informed consent in 1981. Exhibit D shows graphs presenting the incidence of severe emotional upsets per 100 people in the training for various times during the year 1981. Exhibit D also shows a breakdown of severe emotional stress according to trainer. David Norris, the trainer in this case, had people experience severe emotional upsets in trainings which he conducted on 5/18/81, 6/8/81, 7/13/81, 7/21/81, 8/10/81, and 8/21/81. ”

“ Plaintiff, by counsel, hereby moves This Honorable Court for judgment by default pursuant to Rule 37 (b) (2) (c) and for other sanctions against the defendants for failing to comply with discovery, failing to comply with a direct Order of This Honorable Court, and for committing a fraud upon this Court and plaintiff. ”

“ Plaintiff hereby incorporates by reference all previous paragraphs of this complaint as if fully set forth herein.
43. Based upon the facts as set forth herein the defendants are strictly liable to plaintiff for damages flowing from their provision of an inherently dangerous product, service or activity. ”

“ In reply, the defendants identified only the training manual which was later produced.
Last month, plaintiff took the deposition of Dr. Jerry Joiner who had been designated as a witness to replace Dr. Mantos, now deceased. In his deposition, Dr. Joiner identified a variety of materials used to train trainers to deliver the standard est training. On page 13 of his deposition he indicates that the trainers in training usually looked at videotapes of the training. ”

“ Attached as Exhibit B is the cover letter to these documents which is dated June 6, 1989. The writer conveyed documents pertaining to “so-called SEU’s (severe emotional upsets) ”. This person refers to these documents as being “out of date”. Ironically, they concern the years 1981, 1982 and 1983, which are particularly crucial to this case in which the death actually occurred in August of 1983. These documents include, inter alia, an outline of “action taken when an incident occurs”, dated 6/2/83 and authored by Nancy Johnston who is referred to in the letter. ”

“ Since the resolution of this motion will have an effect on the issues to be presented at trial as well as the documentary evidence, it is requested that the present deadline for the filing of the Trial Memoranda Order be delayed from January 31, 1990, until at least two weeks following the disposition of this motion. ”

“ Plaintiff pointed out that defendant was inconsistently denying the existence of such documents in response to Request for Production No. 1, but in response to Request for Production No. 2 were claiming that if they did exist, they were not in control of the parties to this litigation.
Reference to the transcript of this Status Conference at page 32 shows that plaintiff’s counsel inquired of defense counsel as to their position pertaining to the existence of incident reports. Mr. ”