97 F.3d 1452 (6th Cir. 1996), 95-3478, Jordan v. Paccar, Inc.

Docket Nº:95-3478.
Citation:97 F.3d 1452
Party Name:Audrey M. JORDAN, Individually and as Administratrix of the Estate of George A. Jordan, Sr., on Behalf of the Surviving Relatives of George A. Jordan, Sr., Plaintiff-Appellant, v. PACCAR, INC., d/b/a/ Kenworth Truck Company, Defendant-Appellee.
Case Date:September 17, 1996
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 1452

97 F.3d 1452 (6th Cir. 1996)

Audrey M. JORDAN, Individually and as Administratrix of the Estate of George A. Jordan, Sr., on Behalf of the Surviving Relatives of George A. Jordan, Sr., Plaintiff-Appellant,


PACCAR, INC., d/b/a/ Kenworth Truck Company, Defendant-Appellee.

No. 95-3478.

United States Court of Appeals, Sixth Circuit

September 17, 1996

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)

On Appeal from the United States District Court for the Northern District of Ohio, No. 90-00600; Sam H. Bell, Judge.



Before: MILBURN and BOGGS, Circuit Judges; and QUIST, District Judge. [*]


Audrey M. Jordan ("Jordan"), the administratrix of the estate of George A. Jordan, Sr., who was killed while driving a Kenworth truck manufactured by Paccar, Inc., is an unsuccessful products liability plaintiff. She appeals from the district court's denial of her Fed.R.Civ.P. 60(b)(3) motion for a new trial based on fraud, misrepresentation, or other misconduct by Paccar. Jordan claims that Paccar wrongfully withheld from pre-trial discovery information about prior similar litigation. We reverse the district court's order and remand for an evidentiary hearing, in light of the interpretation of Rule 60(b)(3) that we set forth below.


We have already examined this case in a prior appeal. Jordan v. Paccar, Inc., 37 F.3d 1181 (6th Cir.1994). We take the background facts given below largely from our previous opinion.

Paccar is a Delaware corporation with its principal place of business in the State of Washington. Paccar designs, manufactures, and sells "Kenworth" tractors and trucks. Its Kenworth W900B tractor was devised with a driver's-cab roof that is distinctive because it is made of a single solid piece of fiberglass, with no steel or metal reinforcement. Virtually all Kenworth tractors have had such a roof design for at least 17 years. The predecessor to the W900B was the W900A, which had the same roof design with "somewhat different" dimensions.

George A. Jordan, Jr. purchased a Kenworth W900B tractor from a dealership in Ohio as a Christmas present for his father, George A. Jordan, Sr., a professional truck driver. In April 1988, George Jordan, Sr. was hauling 36,000 lbs. of reactivated charcoal in a van-type trailer he had loaded in Beaver Falls, Pennsylvania. Ten miles across the border into New York State, Jordan had a fatal accident as he unsuccessfully attempted to negotiate a curving off-ramp. The trailer struck a guardrail and toppled over, tearing out more than 100 feet of guardrail and a number of guardrail posts. As it twisted and swung around, the trailer pulled the tractor with it. The tractor rolled over, plummeting 29 feet. An accident expert testified at trial that the tractor hit the ground below with between 237,400 and 474,800 pounds of force. The one-piece fiberglass cab roof tore to shreds. Jordan was thrown from the vehicle and found dead, apparently from chest injuries sustained when a guardrail and a concrete parapet wall intruded into the driver's cab. Paccar maintains that the decedent would have been killed even if the cab roof had held firm throughout the accident because the force of the crash was immense, because the intrusion of objects that actually caused death came through the windshield and not the cab roof, and because the decedent's unbelted body when he was thrown from the vehicle hit the ground with great impact.

Audrey Jordan, George Jordan, Sr.'s widow, a resident of Pennsylvania, brought a diversity action under the Ohio Product Liability Law, Ohio Rev.Code Ann.§§ 2307.71-.80, claiming a defect in the design of the cab's roof. The case was tried to a jury. It found that Paccar's tractor was not defectively designed. We rejected Audrey Jordan's appeal, which raised the issue of whether the jury instructions given in the case were faulty. Jordan, 37 F.3d at 1183-85.

In discovery before trial, the plaintiff propounded interrogatories 1 to Paccar, certain of which are reproduced below:

21. Has Defendant ever been named as a defendant in any litigation in which any plaintiff alleged any of the following with respect to any of Defendant's trucks:

a. the roof or frame of the cab of the truck was not adequate to protect occupants in a roll-over situation;

b. that the truck should have been equipped with a rollbar or a roll-over protective system or structure....

23. Has Defendant ever received any notices, complaints or claims with respect to any of Defendant's trucks that asserted any of the following:

a. that the roof or frame of the cab of the truck was not adequate to protect occupants in a roll-over situation;

b. that the truck should have been equipped with a rollbar or a roll-over protective system or structure....

If Paccar had answered either of these interrogatories in the affirmative, Interrogatories Nos. 22 & 24, respectively, would have required the company to provide specific information about the "litigation," "notices, complaints or claims" described in Interrogatories Nos. 21 & 23. Paccar originally answered "No" to Interrogatories Nos. 21 & 23. Much later, however, on June 12 or 13, 1992, one of Paccar's outside counsel wrote to the plaintiff indicating that an objection should have been interposed to Interrogatories Nos. 21-24. "It is our position that the existence of other litigation is not discoverable. Without waiving the objection, there have been other 'rollover' suits filed against Kenworth." The plaintiff's attorney then wrote back on June 17, 1992, "To the extent that you desire to interpose an objection two years late, it will always be plaintiffs' position that your objections were waived long ago by your failure to file them in a timely fashion.... You state in your letter that 'There have been other rollover lawsuits filed against Kenworth.' Are there any that have not yet been disclosed to plaintiffs? If so, please let me know immediately." Paccar's outside counsel then responded in a letter dated June 18, 1992, "I cannot answer that question as I do not know what you have been told. If you will tell me the names of the cases of which you are already aware, I can answer the question." The plaintiff's attorney never responded to this letter.

Nevertheless, at some unknown time during the litigation, Paccar informed the plaintiff about nine other suits in which a "Kenworth truck was alleged to be defective as a result of a rollover accident." These nine suits and the date on which they were filed are summarized below, in chronological order:

1. Brown v. Kenworth Truck Co., Harris County, TX (12/13/79)--alleging death caused by rollover resulting from defective materials and design.

2. Sahagian v. J.T. Jenkins, Los Angeles County, CA (1/16/80)--alleging design defect causing a sudden loss of steering control resulting in injuries and damage to property.

3. Schultz v. Paccar, Inc., Fresno County, CA (7/3/80)--alleging design defect causing torsion-bar brackets to crack and break, thereby leading to a rollover.

4. Hodgdon v. Paccar, Inc., Snohomish County, WA (3/20/81)--alleging design defects relating to the steering column causing additional injuries after a rollover, but also alleging that the "cab to the chassis of the said truck-tractor was devoid of any safeguards, reinforcements, stiffening devices or rollbars" and that the "truck-tractor ... collapse[d], giving no protection to the driver-occupant."

5. Sudderth v. Kenworth Motor Truck Co., Los Angeles County, CA (3/15/84)--alleging injuries resulting from rollover caused by design defect related to torsion-bars and the fact that special dangers were present when a tanker being hauled by the Kenworth tractor was filled to capacity.

6. Scott v. Paccar, Inc., Anderson County, TX (2/19/86)--alleging bumper was defective and because of a crash the faulty bumper caused a rollover resulting in death.

7. Nasse v. Stucki, San Bernardino County, CA (10/24/86)--alleging injuries caused in an accident resulting from design and manufacturing defects of an unspecified nature (this suit was filed on a form that simply required checking boxes).

8. Ener v. Kenworth Truck Co., Harris County, TX (1986? 2 )--alleging injuries caused in a rollover accident resulting from a manufacturing defect in the front axle.

9. DuBose v. South Texas Kenworth, Inc., Guadalupe County, TX (2/25/91)--alleging rollover causing injuries resulting from defective design of the air-ride suspension system.

It is not clear from the record whether Paccar told the plaintiff about these nine lawsuits or some subset of them before or after the flurry of letters between counsel in June 1992.

One of Paccar's employees testified in a deposition that Paccar only turned over information related to lawsuits that had concluded less than seven years before the company's first attempt to retrieve the information because documents more than seven years old are destroyed pursuant to a general company policy. Contrary to later representations made to the district court in relation to the plaintiff's motion that is now the subject of this appeal, it appears that Paccar did not inform the plaintiff during discovery that summary computer records existed covering litigation for which there was no longer documentary evidence.

In any event, it is undisputed that the plaintiff was not told before trial by Paccar about one lawsuit in particular, Prewitt v. Paccar, Inc., filed September 13, 1978, in Snohomish County, Washington. The plaintiff's attorney learned about this litigation from a microfiche record in the Snohomish County...

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