92 F.3d 425 (6th Cir. 1996), 95-3352, Abrahamsen v. Trans-State Exp., Inc.

Docket Nº:95-3352.
Citation:92 F.3d 425
Party Name:James M. ABRAHAMSEN; James M. Abrahamsen, Executor of the Estate of Gloria Jean Abrahamsen, deceased, Plaintiffs-Appellees, v. TRANS-STATE EXPRESS, INC.; Ronald E. Reagan, Defendants-Appellants.
Case Date:August 12, 1996
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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92 F.3d 425 (6th Cir. 1996)

James M. ABRAHAMSEN; James M. Abrahamsen, Executor of the

Estate of Gloria Jean Abrahamsen, deceased,



TRANS-STATE EXPRESS, INC.; Ronald E. Reagan, Defendants-Appellants.

No. 95-3352.

United States Court of Appeals, Sixth Circuit

August 12, 1996

Argued June 10, 1996.

Richard J. Rinear (argued), Droder & Miller, Cincinnati, OH, Thomas A. Mack (briefed), Cincinnati, OH, Kent O. Stewart, Indianapolis, IN, for James M. Abrahamsen.

Philip John Marsick, Jr. (argued and briefed), McCaslin, Imbus & McCaslin, Cincinnati,

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OH, for Trans-State Express, Inc., Ronald E. Reagan.

Before: MERRITT, Chief Judge, and JONES and SUHRHEINRICH, Circuit Judges.

MERRITT, Chief Judge.

Defendants appeal from the District Court's order granting Plaintiffs' motion for relief from judgment. In this diversity negligence case, Defendants were found seventy percent liable for an accident in which Defendant Reagan (who was employed as a truck driver by Trans-State Express) hit a car which was parked by the side of the highway, killing Gloria Jean Abrahamsen. Reagan testified that he had swerved to the right, hitting the car, because he was attempting to avoid deer that were entering the roadway. He also testified that he had not made any statements to anyone which would contradict this testimony. Mr. Abrahamsen was found thirty percent liable for the accident in contributory negligence. During post-trial discussions, Defendants' attorney Philip J. Marsick told Plaintiffs' attorneys that he was aware that Reagan made a statement to a tow truck driver on the night of the accident in which he admitted that the accident was caused because he "dozed off." The District Court concluded that the Defendants, and their lawyer, Marsick, violated discovery orders by not turning over the statement. The District Court also expressed concern that they had suborned perjury by allowing Reagan to testify that he had never made such a statement. The District Court then concluded that the jury would have found Defendants one hundred percent liable had the statement not been withheld. The District Court vacated both the original judgment and the contribution judgment, ordering that one hundred percent of the damages awarded be paid by the Defendants.

In light of the egregious conduct of Defendants' counsel, Philip J. Marsick, we find that the District Court did not abuse its discretion by vacating the judgment and ordering Defendants to pay the full amount of damages awarded. We therefore AFFIRM the judgment of the District Court.


On May 13, 1988, James Abrahamsen, his wife, and his daughter were traveling on Route 32 in Semon, Ohio. Mrs. Abrahamsen was asleep in the back seat of the car and Mr. Abrahamsen was driving. At around 1:00 am, Mr. Abrahamsen became tired and decided to pull over to the side of the road to rest. He parked his car at the side of the highway, completely off the road, parked the car under a light, and went to sleep. At approximately 2:00 am, Ronald E. Reagan, a tractor-trailer driver working for the Trans-State Express Company, crashed into the back of the Abrahamsen's parked car, killing Mrs. Abrahamsen.

Mr. Abrahamsen brought this diversity action against the driver and Trans-State Express. He sued for personal injuries to himself, as well as for wrongful death damages on behalf of his daughter and his wife's parents. Although aware that the truck driver had stated that he "dozed off at the wheel," the Defendants denied liability and asserted the affirmative defense of contributory negligence. In addition, they countersued Mr. Abrahamsen for contribution.

During discovery, the Plaintiffs, in their interrogatories, asked the Defendants to:

Identify each person by name, address and telephone number, known to you who was an eyewitness to the collision or any aftermath thereof, and for each such person, state whether or not you or anyone acting on your behalf has interviewed such person and whether or not you obtained an oral or written statement and the date and place that the statement was taken, and whether the statement was recorded or handwritten.

Interrogatory 20 (emphasis added). Plaintiffs also requested that,

With respect to each person known to you, not listed in Answer to the preceding interrogatory, who was upon the scene of the collision within two hours after its occurrence, or with respect to any other person who claims to have knowledge of any relevant facts concerning the collision of May 13, 1988, state the name and address of the

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person, whether or not you or anyone acting on your behalf has interviewed the person, the person's location at the time of the collision, the substance of the knowledge the person has concerning the collision, whether an oral, recorded or written statement has been taken from the person, and, if so, the identity of the person who took the statement, the identity of each person present when the statement was taken and the date and place that the statement was taken.

Interrogatory 21 (emphasis added).

At trial, the truck driver testified that he was traveling in the right lane when he suddenly noticed deer in the grass median area moving into the roadway. He steered his truck hard to the right to avoid the deer, and in doing so, struck the Abrahamsen's car. He also testified that he never made any statement to anyone which would contradict this version of events.

The Abrahamsens disputed the driver's story, bringing in substantial circumstantial evidence to refute it. For example, they introduced evidence that the driver did not apply his brakes until he was "practically on top of this car," a fact inconsistent with the driver's story. Joint Appendix ("J.A.") at 220. They also pointed to the fact that deer were not mentioned in the official police report of the accident. They appear only in a second, unsigned report. J.A. at 222.

The jury, unaware of the false testimony given by the truck driver, found the Defendants negligent, but found them only seventy percent responsible for the accident. Mr. Abrahamsen was found contributorily negligent and held thirty percent responsible for the accident. Damages were apportioned as follows:

James Abrahamsen, individually: $ 5,000 James Abrahamsen's wrongful death damages: $501,000 Elizabeth Abrahamsen's wrongful death damages: $350,000 Mr. and Mrs. Raymond Cecrle's damages (Mrs. Abrahamsen's parents) wrongful death: $ 50,000 burial expenses: $ 3,880 ___________ TOTAL $909,880.00

As a result of this information, the Plaintiffs immediately filed a motion for relief from judgment under Fed.R.Civ.P. 60(b). The Court granted the motion, based on 60(b)(2) (newly discovered evidence) and 60(b)(3) (fraud). 1 The District Court found that defense counsel, by not turning over the statement, had abused the discovery process. At the hearing, the Judge also expressed his concern that the defense had suborned perjury

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by allowing Reagan to testify that he had never made a statement which contradicted the story about the deer. The District Court granted Plaintiff's 60(b)...

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