Robinson v. Audi Nsu Auto Union Aktiengesellschaft

• Decision Date: 19 July 1984
• Docket Number: 82-1495,Nos. 82-1480,s. 82-1480
• Parties: 16 Fed. R. Evid. Serv. 622 Kay Eloise ROBINSON; Eva May Robinson; Harry Robinson; and George Samuel Robinson, Plaintiffs-Appellants, v. AUDI NSU AUTO UNION AKTIENGESELLSCHAFT and Volkswagen of America, Inc., Defendants-Appellees. to 82-1497.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1481

739 F.2d 1481

16 Fed. R. Evid. Serv. 622

Kay Eloise ROBINSON; Eva May Robinson; Harry Robinson and George Samuel Robinson, Plaintiffs-Appellants, v. AUDI NSU AUTO UNION AKTIENGESELLSCHAFT and Volkswagen of America, Inc., Defendants-Appellees.

Nos. 82-1480, 82-1495 to 82-1497.

United States Court of Appeals Tenth Circuit.

July 19, 1984.

Jefferson G. Greer, Greer & Greer, Tulsa, Okl. (Norman Gilder, Greer & Greer, Tulsa, Okl., with him on brief), for plaintiffs-appellants.

Bert M. Jones, Rhodes, Hieronymus, Jones, Tucker & Gable, Tulsa, Okl. (Richard M. Eldridge and R.P. Redemann, Rhodes, Hieronymus, Jones, Tucker & Gable, Tulsa, Okl. and Myron Shapiro, Herzfeld & Rubin, P.C., New York City, with him on the brief), for defendants-appellees.

Before BARRETT, DOYLE and McKAY, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

The appeal before us involves a products liability action, in which the plaintiffs-appellants, all members of the Robinson family, sued the defendants, the manufacturer, the importer, the distributor and the retailer of their Audi automobile, for damages arising out of a rear-end collision. They were struck by a car that was moving at an estimated ninety miles per hour, whereas their car was only moving an estimated fifty-five miles per hour. This all happened on an Oklahoma highway when their car was struck by a Ford Torino which was not only being driven at a high speed, but also by a drunk driver who was not a party to the action. The impact of the crash, in view of the speed of the driver of the Torino, was severe, and the rear end of the car was crushed up to twenty-four inches, and the car doors were wedged shut. The impact also punctured the fuel tank, a so-called "drop-in" type, which was so placed in the back of the car so that it could serve as the floor of the trunk of the car. The car burst into flames and plaintiffs were severely burned.

Plaintiffs brought an action which alleged that the Audi was defective and unreasonably dangerous because the gas tank as placed was easily punctured by the contents of the trunk when impacted from behind.

The United States Supreme Court released the distributor and retailer for lack of personal jurisdiction. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). The remaining defendants, Volkswagen of America (the importer) and the Audi Company (the manufacturer), the appellees herein, removed the action to the United States District Court for the Northern District of Oklahoma. This was based on diversity of citizenship.

The matter was tried to a jury, which entered a verdict for the defendants. Plaintiffs moved for a new trial, and the court denied the motion. Thereupon, plaintiffs appealed.

A number of errors are set forth in the briefs and they are relied on for reversal. We will describe the errors in connection with the discussion which follows.

The first question is whether the defendants were guilty of discovery abuses as alleged that so prejudiced the plaintiffs as to deprive them of a fair trial.

The allegation is that there were a number of abuses of the discovery process. The contention of the plaintiffs is that the defendants ignored the two pretrial orders requiring them to present their expert witness, Derwyn Severy, for deposition by plaintiffs even though the expert was available to be deposed. Plaintiffs did not depose Severy until twelve days into the trial, after the plaintiffs had completed their case-in-chief. Thus plaintiffs were unable to take defendants' theory of the case into account when presenting their case-in-chief. Furthermore, plaintiffs allege that defendants failed to exchange exhibits with plaintiffs' counsel before they were offered. This allegedly deprived plaintiffs of an opportunity to develop objections or rebuttal testimony. According to plaintiffs defendants' pattern of deception violated the clear purposes of the federal discovery rules to facilitate fact finding and prevent unfair surprise. Fed.R.Civ.P. 26 and Advisory Comm. Notes; Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 391, 91 L.Ed. 451 (1947). Plaintiffs note that even the trial court commented on the defendants' behavior. Plaintiffs claim that because of the defendants' "willful failure" to obey the discovery rules, certain evidence should have been excluded and sanctions should have been imposed under Fed.R.Civ.P. 37(d).

The response of the defendants is that the plaintiffs are estopped from claiming unfair surprise because they failed to avail themselves of the opportunity to adequately prepare for trial, and because plaintiffs themselves were guilty of discovery abuses. Moreover, defendants contend, the plaintiffs were not prejudiced by any of the alleged actions, because the trial court excluded some of the challenged evidence, and gave plaintiffs extra time to review and evaluate the challenged evidence actually admitted.

The imposition of sanctions for abuse of discovery under Federal Rule of Civil Procedure 37 is a matter within the discretion of the trial court. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976); Brennan v. Sine, 495 F.2d 875, 877 (10th Cir.1974). Decisions on evidentiary matter are also within the trial court's discretion. Durflinger v. Artiles, 727 F.2d 888, 890 (10th Cir.1984); Mason v. United States, 719 F.2d 1485, 1490 (10th Cir.1983).

We are unable to evaluate the accusations that the parties hurl at each other in connection with the respective discovery practices. However, enough has been presented to indicate it was error to allow the defendants to postpone the presentation of the expert witness until a time long after the trial started. The trial court made an effort to tailor its orders to the individual instances of alleged discovery abuse, and also attempted to make the trial fair in light of the circumstances. We cannot rule that it was reversible error to allow the trial court to refuse to exclude evidence or order sanctions.

The next question which we consider is whether the trial court erroneously admitted into evidence a film or film which depicted rear-end collisions of vehicles and erroneously allowed one of the defendants' experts to testify with reference to the film.

Plaintiffs objected to the introduction into evidence of the film "Cars That Crash and Burn," which depicted a series of rear-end collisions between various different makes of 1973 automobiles. The film, which was prepared by the Insurance Institute for Highway Safety, was originally listed by plaintiffs as an exhibit in their case-in-chief. Defendants objected to the introduction of the film, primarily because they claimed the sound track was prejudicial, and filed a motion in limine to exclude the film. The plaintiffs agreed not to use the film. Defendants thereafter offered the film into evidence over plaintiffs' objections.

Plaintiffs contend that the film is inadmissible because it depicts collisions of 1973 automobiles which were dissimilar from the 1976 Audi involved in this case, and because the conditions under which the filmed collisions occurred do not reflect the conditions surrounding the plaintiffs' accident. Because the filmed collisions do not accurately reflect the conditions existing at the time of the accident in question, plaintiffs therefore claim it was prejudicial error to admit the film into evidence. Plaintiffs also maintain that the defendants' expert, Derwyn Severy, should not have been permitted to refer to the inadmissible film in testimony.

The response is that the film was not offered for the purpose of recreating the actual collision in which plaintiffs were injured, but instead was offered to illustrate the complex laws of physics and mechanical principles inherent in rear-end collisions.

This court has had occasion to take up the present issue in prior cases. See, e.g., Brandt v. French, 638 F.2d 209 (10th Cir.1981); Sanchez v. Denver & Rio Grande W.R.R. Co., 538 F.2d 304 (10th Cir.1976), cert. denied, 429 U.S. 1042, 97 S.Ct. 742, 50 L.Ed.2d 754 (1977). The principles which guide the admissibility of filmed experiments or demonstrations have been addressed by this court as follows:

Admissions of evidence of experiments must be established by showing background proof that the experiments were conducted under conditions that were at least similar to those which existed at the time of the accident. Demonstrations of experiments used to merely illustrate the principles in forming an expert opinion do not require strict adherence to the facts. It is important in that situation, however, that it be made clear to the jury that even though there is not similarity to the events of the accident that the information is received on a theoretical basis for the limited purpose for which it is offered. Where photographs, films and slides are used to demonstrate the experiment, care must be used to point out that they are representative only of what the witness is seeking to establish and they must not be misleading in and of themselves.

Brandt v. French, 638 F.2d at 212 (citations omitted). The purpose of this rule is to prevent confusion of the jury. Jackson v. Fletcher, 647 F.2d 1020, 1027 (10th Cir.1981). Accordingly, when experiments do not simulate the actual events at issue, the jury should be instructed that the evidence is admitted for a limited purpose or purposes. Brandt v. French, 638 F.2d at 212.

We turn now to the actual film "Cars That Crash and Burn." It is clear from the trial transcript that defendants never claimed that the film recreated the circumstances of the plaintiffs' accident. Defendants used the filmed collisions to show the effects of rear-end impact on various kinds of automobile gas tank configurations. The expert, Derwyn Severy, explained the damage sustained in each test-crash, and explained the principles which cause cars to...