Nemir v. Mitsubishi Motors Corp.

Decision Date20 August 2004
Docket NumberNo. 02-1780.,No. 03-1228.,02-1780.,03-1228.
Citation381 F.3d 540
PartiesMichael A. NEMIR, M.D., Plaintiff-Appellant, v. MITSUBISHI MOTORS CORPORATION; Chrysler Corporation, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Appeal from the United States District Court for the Eastern District of Michigan, John Feikens, J.

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Craig E. Hilborn (briefed), Hilborn & Hilborn, Birmingham, MI, Mark R. Bendure (argued and briefed), Bendure & Thomas, Detroit, MI, for Plaintiffs-Appellants in 02-1780, and 03-1228.

David R. Kelly (argued and briefed), Bowman & Brooke, Minneapolis, MN, Fred J. Fresard (briefed), Gretchen A. Colter (briefed), Bowman & Brooke, Troy, MI, for Defendants-Appellees in 02-1780, and 03-1228.

Before: COLE and GILMAN, Circuit Judges; SCHWARZER, Senior District Judge.*

OPINION

COLE, Circuit Judge.

This case reaches us for the fourth time. See Nemir v. Mitsubishi Motor Sales of Am., Inc., 6 Fed. Appx. 266 (6th Cir.2001) (unpublished) (per curiam) ("Nemir I"); In re. Michael A. Nemir, No. 01-2260 (6th Cir. Oct. 12, 2001) ("Nemir II"); Nemir v. Mitsubishi Motor Sales of Am., Inc., No-02-1780 (6th Cir. Feb. 3, 2003) ("Nemir III"). Plaintiff-Appellant Michael A. Nemir brought a diversity products liability suit against Defendants-Appellees Mitsubishi Motors Corporation and its parent company, Chrysler Corporation, alleging that his seatbelt's failure to latch caused injuries that left him brain-damaged and paralyzed following a car accident. After the jury rejected Nemir's claims, the district court entered judgment for, and awarded costs to, Mitsubishi, and Nemir appealed both decisions. For the following reasons: (1) the district court's judgment for Mitsubishi is REVERSED and the case is REMANDED for a new trial; (2) the district court's award of fees to Mitsubishi is VACATED; and (3) the case is to be assigned to a different district judge.

I. BACKGROUND

Given this case's dense history and its relevance to today's appeal, we will narrate the background in some detail. On December 14, 1993, near his home in Maryland, Nemir drove his car into a tree on the side of the road, causing his head to strike a pillar on the car's passenger side. He was found lying in the car's backseat, and the driver's side seatbelt was unlatched. The accident damaged Nemir's brain stem, leaving him wheelchair bound, cortically blind, and unable to continue practicing medicine. On November 22, 1996, Nemir filed suit against Mitsubishi, the maker of the 1991 Dodge Stealth that Nemir was driving, and Chrysler, of which Mitsubishi is a subsidiary. (For simplicity's sake, we will refer to the defendants collectively as "Mitsubishi.")

Nemir's complaint alleged that at the time of the accident, he had been wearing his seatbelt—the Takata 52—but that it had only "partially latched," such that it appeared to be properly fastened when in fact it was still prone to unlatching. Seeking both compensatory and punitive damages, Nemir asserted that the seatbelt was defectively designed because of its potential to unlatch, and because of the vehicle's failure to alert the driver that the seatbelt was not fully latched. The failure to warn and punitive damages claims were subsequently dismissed, and we affirmed those dismissals in Nemir I, 6 Fed.Appx. at 277.

Prior to trial, Nemir retained an expert witness, Dr. Thomas Horton, the former Director of Engineering for Takata, Inc., the seatbelt's manufacturer. Horton planned to testify that Nemir's seatbelt suffered from a design defect, known as "partial-latching," which caused the seatbelt to unlatch during the accident. However, the district court ruled that Horton was unqualified to testify as an expert witness, due to purported deficiencies in his methodology.

In December 1994, based on complaints it had received, the National Highway Traffic Safety Administration (NHTSA) opened an investigation into "[a]lleged defect[s] of Takata seat belt buckles includ[ing] failure to latch, unlatch, or remain latched." NHTSA requested information from Chrysler, including complaints received from its customers, pertaining to "all model years 1986 through 1991 Dodge Colt[s] and any other passenger motor vehicles equipped with Takata [52] series." (In 1996, owing to a manufacturing defect, some Takata 52 seatbelts—but not the seatbelt at issue in our case-were recalled.)

Aware of this investigation, Nemir sought discovery from Mitsubishi of "[a]ll documents containing, referring to, or relating to any claims, assertions, or reports by an individual or entity that any Dodge vehicle using the same or similar seatbelt system wherein a front seat belted passenger received a serious or fatal injuries." On October 31, 1997, Mitsubishi responded that it "has no documents responsive to this request." On September 11, 1998, Mitsubishi reaffirmed that it "currently is unaware of any materials responsive to this request." When Nemir further pressed the issue at a hearing held on November 17, 1998, Mitsubishi insisted that "[w]ith respect to all of the requests that are contained in the order, we produced what documents exist and what documents were able to be located. . . we searched, as we did for all of the other requests, and found nothing that was responsive to the request."

Nemir eventually filed a Freedom of Information Act request with NHTSA, and subsequently obtained 200 to 300 complaints of partial latching in Mitsubishi and Chrysler automobiles. The documents included evidence of "[Mitsubishi's] own employees going out and confirming partial latch in the field." When asked by the district court whether Mitsubishi had any additional documents similar to the ones that Nemir obtained from the NHTSA, Mitsubishi's counsel told the court that "I don't know of any other documents, Your Honor."

The district court ordered Mitsubishi to search again for additional complaints in its possession. On April 13, 1999, Mitsubishi admitted that it possessed, but had not previously disclosed, approximately 4,000 customer contact reports documenting complaints, along with approximately 25,000 warranty claims about the partial latching of the seatbelts. Mitsubishi—who claimed to have previously withheld these documents because "they do not show claims that partial latching occurred in the manner alleged to have occurred in this case"—continued to maintain that the documents should not be disclosed to Nemir.

Although the district court disagreed, it also prohibited Nemir from "conduct[ing] further discovery by attempting to interview or contact complainants listed in these documents." Moreover, the district court scheduled argument on Mitsubishi's motion for summary judgment for May 21, 1999—just seventeen days after the 29,000 documents were ordered disclosed. On July 30, 1999, the district court granted summary judgment to Mitsubishi, holding that Nemir had failed to present evidence by which a reasonable jury could find (under Maryland law, which the parties agree controls) that the buckle suffered from a design defect. Nemir v. Mitsubishi Motors Sales of America, 60 F.Supp.2d 660, 673-77 (E.D.Mich.1999).

In Nemir I, we reversed. First, we noted that the district court had erroneously stated that Horton had not examined the actual buckle in Nemir's seatbelt—an omission that the district court had dubbed "inexplicable"—when in fact the record revealed that Horton had testified that he had examined the actual buckle and that it had partially latched twice out of twenty attempts. Id. at 274. Second, we held that the district court erroneously excluded the entirety of Horton's testimony, and specifically held that "Horton could use [the abovementioned testing] to testify that the partial latch of Dr. Nemir's seatbelt caused the damage in question." Id. at 275. Third, we held that Nemir had produced sufficient evidence for a jury to conclude that a design defect rendered the buckle unreasonably dangerous. Id. at 277. We remanded for trial.

We also ordered the district court to afford Nemir sufficient time and opportunity to investigate the consumer complaints that Mitsubishi had turned over at "the eleventh hour." Id. at 275. Although Mitsubishi argued that none of the consumer complaints contained the words "partial latch," and thus were not discoverable, we rejoined that "the term `partial latch phenomenon' is a term of art employed by engineers, seatbelt designers, and lawyers. The layman with a concern that his seatbelt will not remain fastened will not use this term." Id. at 276. After reviewing the sample of 188 complaints that Nemir had included in the appellate record, we noted that "[a] complete review of the record indicates that phraseology analogous to `intermittent partial latching' occurred 188 times in the customer complaints submitted as evidence. To summarily dismiss this evidence without affording the plaintiff time to investigate and further elicit information regarding the exact nature of these incidents is clear error." Id.

On remand, the district court issued a new protective order. The order limited Nemir's discovery to "the 188 complainants referred to by" our decision in Nemir I. Although Nemir argued to the district court that Nemir I singled out 188 complaints only because that was the number of complaints that had been included in the appellate record—in other words, that we had not manually sifted through each and every of the 29,000 complaints and determined that only 188 were relevant—the district court nonetheless refused to allow Nemir to investigate the other 28,000—plus complaints, insisting that "I'm going to stay literally with what the panel said."

In addition, the order prohibited Nemir from directly contacting any of Mitsubishi's consumers outside of defense counsel's presence. Of the 188 customers that Nemir was permitted to...

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