626 F.2d 784 (10th Cir. 1980), 78-1636, Smith v. Ford Motor Co.

Docket Nº:78-1636.
Citation:626 F.2d 784
Party Name:John H. SMITH, Plaintiff-Appellee, v. FORD MOTOR COMPANY, Defendant-Appellant.
Case Date:July 17, 1980
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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626 F.2d 784 (10th Cir. 1980)

John H. SMITH, Plaintiff-Appellee,


FORD MOTOR COMPANY, Defendant-Appellant.

No. 78-1636.

United States Court of Appeals, Tenth Circuit

July 17, 1980

Argued Jan. 24, 1980.

Rehearing Denied Sept. 16, 1980.

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Edward P. Moriarity of Spence, Moriarity & Schuster, Jackson, Wyo. (G. L. Spence and Robert P. Schuster of Spence, Moriarity & Schuster, Jackson, Wyo., and John R. Hursh, Central Wyoming Law Associates, Riverton, Wyo., with him on the brief), for plaintiff-appellee.

Gordon G. Greiner of Holland & Hart, Denver, Colo. (G. G. Greenlee of Murane & Bostwick, Casper, Wyo., with him on the brief), for defendant-appellant.

Before BARRETT, DOYLE and SEYMOUR, Circuit Judges.

BARRETT, Circuit Judge.

The basic controversy in this case has been previously before this Court, and our opinion is reported in Fox v. Ford Motor Company, 575 F.2d 774 (10th Cir. 1978). Both the prior case and the present one arose from an automobile collision which occurred on January 29, 1973. The plaintiff, John H. Smith, was riding as a front-seat passenger in a 1970 Ford, four-door Thunderbird. Driving the car in which the plaintiff was riding was Mr. Fox, who was a plaintiff in the prior case, and who obtained a judgment for a loss as a result of the death of his wife. Their wives were passengers in the back seat of this car and both were killed.

John H. Smith, plaintiff herein, filed this action on July 30, 1976. He alleged that he suffered personal injuries as a result of defective safety belts and seats; that the defective conditions were the result of negligence in the design, installation, construction, inspection and testing of the seat belts, the seat tracks, dashboard and windshield. There were claims which alleged strict liability and breach of warranty as well.

The January 29 headon collision resulted from a pickup truck crossing the center line into the plaintiffs' lane on the opposite side of the highway. The Smiths and the Foxes had been driving in an opposite direction and so the almost headon impact was a heavy one. Even though neither vehicle was moving at high speeds, the vehicular damage and the personal injuries were of great magnitude. The approximate speed of each vehicle was 25 to 45 miles per hour just before the impact.

The main action against Ford is based upon the alleged negligent design of the seats and the seat belts, together with the subsequent negligence in failing to correct some of these conditions after having discovered the defects. All of the passengers wore lap seat belts. The Messrs. Fox and Smith had shoulder belts available, but they were not using them. Smith's injuries were more severe than those of Fox. There is, of course, no contention that any defect in the vehicle itself caused the headon collision. The contention is that the injuries of Smith were greatly aggravated due to the defects in design of the lap belt and the manner in which it was anchored so that it could not protect passengers in a heavy impact.

Plaintiff Smith, whose case is before us, incurred very serious permanent internal injuries. Included were injuries to his spleen and pancreas, as well as to his intestines and face. The spleen had to be removed as a result of the injuries incurred, and subsequently a pancreatic condition developed. Smith's complaint was that he had suffered a great amount of pain and would suffer future consequences which allegedly included impairment of his eating ability, diarrhea, possible diabetes and future surgery from the pancreatitis. Also alleged was the risk of blindness, stroke, cancer, heart disease, impotency and amputation. From the removal of the spleen it was alleged that phlebitis, pneumonia, clotting, pulmonary infarctions and susceptibility to infection had occurred.

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The cause was tried to a jury, and following a 10-day trial, a verdict in the amount of $800,000 was returned. Ford seeks review and reversal of the judgment based upon this verdict. Motions for judgment notwithstanding the verdict, for new trial, and remittitur were filed and denied. Various issues are raised on appeal. However, our determination that the District Court erred in receiving the testimony of a crucial expert witness is dispositive.


Ford strenuously asserts that the District Court abused its discretion in allowing Dr. James W. Freston to testify, over objection, that Smith's internal injuries were significantly enhanced as a proximate result of the unreasonably dangerous passenger restraint system employed in the Fox vehicle. Ford contends that Smith's failure to disclose the substance of such testimony (1) violated the Court's pretrial order; (2) violated Smith's duty to provide supplemental responses to interrogatories pursuant to Rule 26(e), Fed.Rules Civ.Proc., 28 U.S.C.A.; and, (3) prejudiced Ford's ability to counter such evidence.

As noted earlier, Smith's theory of liability was tied to Ford's alleged breach of its duty to "design and construct automobiles in a reasonable and prudent manner so that failures of the parts of the automobile will not cause (enhanced personal) injuries to the occupants when a collision occurs." Chrysler Corp. v. Todorovich, 580 P.2d 1123, 1129-1130 (Wyo.1978). Proof of liability under such a theory requires the plaintiff to establish that the defective nature of the passenger restraint system proximately caused "damage or injury . . . over and above the damage or injury that probably would have occurred as a result of the impact or collision absent the defective design." Larsen v. General Motors Corp., 391 F.2d 495, 503 (8th Cir. 1968); Fox v. Ford Motor Co., supra. Almost invariably, such proof entails the presentation of expert testimony. See Randolph v. Collectramatic, Inc., 590 F.2d 844 (10th Cir. 1979).

Pretrial Background

During the discovery phase of the case, Ford propounded a series of interrogatories requesting, among other things, the following information:

23. For each expert witness, including physicians, which you may call at the trial of this matter, state:

(a) His name and address;

(b) A brief description of his testimony;

(c) Any opinions which he may be called upon to give;

(d) The facts upon which he will base such opinions.

(R., Vol. I, p. 13).

In response, plaintiff identified Dr. Brohm, Dr. Ferris, Dr. Gullickson, Dr. Axthelm and Professor Crawford as expert witnesses, described the opinions of each and set forth the basis for those opinions. In addition, Smith responded:

As the case develops, and detailed examination continues, further testimony may be required and the essence of same will be provided as required by the Rules of Civil Procedure.

(R., Vol. I, p. 19).

Plaintiff did indeed supplement this interrogatory with additional information about Professor Crawford, but failed at any time to mention Dr. Freston.

The first notice of plaintiff's intention to call Dr. Freston as an expert witness at trial occurred on January 24, 1978 less than two and one-half months before trial. Plaintiff's supplemental pretrial submission, filed that date, contained the following:

The Plaintiff, as of the date of the Supplemental Pretrial Submission, intends to call the following witnesses:

8. Dr. Freston, University Hospital, Salt Lake City, Utah, will testify as to his medical treatment of the Plaintiff, as well as to his prognosis.

(App., Vol. I, pp. 71-72).

This identification was in response to an earlier court order that "the parties may

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call additional witnesses . . . on the condition that at least five (5) days prior to the supplemental pretrial conference they furnish opposing counsel with the names and addresses of the additional witnesses, together with a brief summary of the testimony they are expected to give." (App., Vol. I, p. 61).

At the supplemental pretrial conference, held January 27, 1978, the parties were given until March 6, 1978, to designate additional witnesses expected to be called at trial. Although plaintiff earlier anticipated no need to call additional witnesses (App., Vol. I, p. 72), he subsequently designated fourteen other witnesses for use at trial. (App., Vol. I, pp. 114-116). Among these witnesses were Drs. Volk and Gainsford of Salt Lake City, Utah, "listed in the medical records of the plaintiff (who) may be called to testify as to the role they played in the care and treatment of the plaintiff." (App., Vol. I, p. 114). Ford also designated three additional witnesses. Both parties' motions to strike the testimony of certain of the recently named individuals on the grounds of inadequate time to conduct discovery prior to trial were denied by the Court on March 15, 1978. (App., Vol. I, p. 136). Ford did not move to strike the testimony of Drs. Volk and Gainsford.

Ford earlier deposed several other doctors designated by Smith as experts likely to be called at trial including Drs. Brohm and Gullickson. Both of these physicians were designated in plaintiff's supplemental pretrial submission as experts who would testify about medical care given to the plaintiff, as well as his prognosis. Each of these witnesses was specifically asked in deposition whether he had any opinion regarding the relationship of plaintiff's injuries and the alleged deficient design or manufacture of the automobile. Each was also asked whether he had made a study of the seat belt syndrome or read any literature in the area. Each replied in the negative to these questions. (Gullickson dep., R., Vol. XVIII, pp. 21-22; Brohm dep., R., Vol. XXI, pp. 12-15). Dr. Freston was not deposed.

Trial Background

On March 29, 1978, plaintiff called his first witness...

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