Gerald F. Ragland, Jr.

“ During the est training attended by JACK SLEE the defendants and their employees and agents inflicted intense amounts of physical and psychological stress upon JACK SLEE and the other participants, in reckless and outrageous disregard of the safety of JACK SLEE and the other participants. 24. The infliction of emotional and psychological stress in est trainings is intentional and is designed into the trainings by the defendants. ”

“ 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. ”

“ 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. ”

“ 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. ”