921 F.2d 875 (9th Cir. 1990), 88-4234, Jones v. Aero/Chem Corp.

Docket Nº:88-4234.
Citation:921 F.2d 875
Party Name:Rose Maree JONES, Plaintiff-Appellant, v. AERO/CHEM CORP. and Athea Laboratories, Inc., Defendants-Appellees.
Case Date:December 11, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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921 F.2d 875 (9th Cir. 1990)

Rose Maree JONES, Plaintiff-Appellant,


AERO/CHEM CORP. and Athea Laboratories, Inc., Defendants-Appellees.

No. 88-4234.

United States Court of Appeals, Ninth Circuit

December 11, 1990

Argued and Submitted Nov. 3, 1989.

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Alexander Blewett, III and Michael J. George, Hoyt & Blewett, Great Falls, Mont., for plaintiff-appellant.

Jack L. Lewis, Francis X. Clinch, and Susan J. Rebeck, Jardine, Stephenson, Blewett & Weaver, Great Falls, Mont., for defendants-appellees.

Appeal from the United States District Court for the District of Montana.

Before BROWNING and FLETCHER, Circuit Judges and REED, District Judge. [*]


Appellant Rose Maree Jones, formerly a United States Customs Inspector in Montana, appeals from the denial of a motion for a new trial following an adverse jury verdict in her products liability action against Appellees Athea Laboratories and Aero/Chem Corporation (collectively "Athea"), assembler and distributor of the "Curb 20," a hand-held aerosol tear gas spraying device.

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Jones was required to wear the Curb 20 tear gas canister in a holster on her duty belt. While Jones was inspecting a truck, a fold-up armrest fell and struck the top of the Curb 20 unit, discharging the tear gas above her hip. Jones suffered a chemical burn and developed allergic dermatitis which prevented her from returning to work.

The cause went to a jury which returned a special verdict finding "no defect" in the Curb 20. Two days later, counsel for third party defendant Emson Research Company ("Emson"), manufacturer of the component valve and actuator systems, gave counsel for Jones copies of correspondence from Athea to Emson, including a March 20, 1981 letter written by Gary Smith, engineer and Vice President of Athea. Smith's letter indicated Athea considered the actuator system "too sensitive," knew of the possibility of accidental discharge, and discussed remedial measures. 1

The following day, Jones moved for new trial pursuant to Fed.R.Civ.P. 59, asserting: (1) the newly discovered evidence; (2) prejudicial misconduct in failing to produce the documents in discovery; (3) error in admitting testimony of the absence of prior complaints; and (4) error in admitting testimony that California had approved the Curb 20. At the hearing on the motion, the district court indicated it might later hold a hearing to determine whether Athea's failure to produce the documents involved misconduct. However, the district court denied the new trial motion without holding such a hearing. Jones appealed.

I. The "Hidden" Documents

Our review of the record indicates Jones asked the district court to make two determinations: (1) whether a new trial should be granted because the newly discovered evidence would likely have resulted in a different verdict, and (2) whether defendants' actions constituted misconduct and, if so, whether that misconduct denied Jones an opportunity to present her case fully and fairly. 2

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a. Newly Discovered Evidence.

In deciding the Rule 59 motion, both parties argued and the district court applied the test borrowed from cases considering motions under Rule 60(b)(2) for relief from judgment based upon newly discovered evidence. See 11 C. Wright & A. Miller, Federal Practice and Procedure: Civil Sec. 2859 (1973) ("The same standard applies to motions on the ground of newly discovered evidence whether they are made under Rule 59 or Rule 60(b)(2)."); 7 J. Moore & J. Lucas, Moore's Federal Practice p 60.23 (2d ed. 1987) (distinction between evidence warranting Rule 59 and Rule 60(b)(2) relief is one of degree rather than kind; Rule 60(b)(2), allowing a more belated attack on a judgment, may require a stronger showing); Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., 833 F.2d 208, 211-12 (9th Cir.1987).

Under this test the movant must show the evidence (1) existed at the time of the trial, (2) could not have been discovered through due diligence, and (3) was "of such magnitude that production of it earlier would have been likely to change the disposition of the case." Coastal Transfer, 833 F.2d at 211. We review the district court's determination under this standard for abuse of discretion. Id.

The court determined Jones met the first two requirements, but did not satisfy the third. The court concluded it was not likely the documents would have changed the outcome because they only corroborated testimony by Jones' expert. They would have been of de minimis value in light of the theory of defect Jones presented at trial: the Curb 20 was too sensitive in the locked position or moved too easily from the locked to the fire position.

Whether knowledge of the newly revealed correspondence would likely have affected the jury's verdict is a close question. Contrary to the district court's view, we think the letters do more than merely corroborate plaintiff's expert testimony; they demonstrate knowledge by Athea of a potential design problem. An admission by the company engineer that the valve was "too sensitive" is substantively different than testimony to that effect by the plaintiff's own hired expert.

However, the letters are not equivalent to a "smoking gun," as Jones argues. Rather than dictating a different result, they would likely have led Jones to prepare and present a different case--taking additional depositions, presenting other witnesses, and arguing a different theory of defect to the jury. Althea, too, would have defended differently. We are not persuaded, however, that the district court abused its discretion in concluding Jones failed to establish the outcome likely would have been different.

b. Misconduct.

The test to be applied when discovery misconduct is alleged in a Rule 59 motion must be borrowed from cases interpreting Rule 60(b)(3), just as the test applied to a Rule...

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