981 F.2d 377 (8th Cir. 1992), 91-3428, Hofer v. Mack Trucks, Inc.

Docket Nº:91-3428.
Citation:981 F.2d 377
Party Name:Gaylon HOFER, Appellant, v. MACK TRUCKS, INC., Appellee.
Case Date:December 14, 1992
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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981 F.2d 377 (8th Cir. 1992)

Gaylon HOFER, Appellant,


MACK TRUCKS, INC., Appellee.

No. 91-3428.

United States Court of Appeals, Eighth Circuit

December 14, 1992

        Submitted June 11, 1992.

        Rehearing and Rehearing En Banc

        Denied Feb. 2, 1993.

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        Gerald L. Reade (argued), Yankton, SD, James R. Harr (on brief), Tripp, SD, for appellant.

        Michael J. Schaffer (argued), Sioux Falls, SD, Marie E. Hovland (on brief), Sioux Falls, SD, for appellee.

        Before BOWMAN and LOKEN, Circuit Judges, and LARSON, [*] Senior District Judge.

        LARSON, Senior District Judge.

        In this diversity case, Gaylon Hofer ("Hofer") brought suit against Mack Trucks, Inc. ("Mack"), alleging negligence and strict liability in the design, manufacture, testing, and marketing of a Mack truck and seeking punitive damages. Hofer appeals the judgment, entered upon a jury verdict that Hofer is not entitled to any recovery, and from the district court's 1 denial of Hofer's Motion for a New Trial. On appeal, Hofer asserts that the court erred with regard to a discovery ruling and several evidentiary rulings, in its refusal to submit the issue of punitive damages to the jury, and in its refusal of certain proposed jury instructions. Hofer further asserts that the closing argument of counsel for Mack was prejudicial. We affirm the judgment of the district court.



        Hofer was rendered a paraplegic as a result of the rollover of a newly designed, 1985 Mack truck on October 11, 1985. The sleeper compartment mattress sits on two removable base panels which are not secured; under each base panel is a storage compartment, designed to allow inside access from the sleeper compartment. Hofer was asleep in the sleeper compartment of the cab, face down with his head behind the

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driver's seat, when the truck left the highway, rolled onto its right side and skidded to a stop. At trial, Hofer presented the theory that the mattress and the left base panel dislodged during the accident, allowing a heavy tool box to eject from within the storage compartment into the sleeper compartment, striking Hofer in the chest, and causing a cord lesion and the resultant paralysis.

        Mack presented evidence refuting Hofer's causation theory. Mack argued that Hofer flew off the mattress and fell seven to ten feet to the right side of the truck, landing on his buttocks. The force exerted on his spine caused a compression fracture and, as he then flexed forward, the spine was severed, causing paralysis. Mack further contended that the mattress was between Hofer and the storage compartment, shielding him from the toolbox.



Predecessor Truck Designs

        The subject Mack truck was a Model MH. Hofer sought discovery relating to predecessor designs (specifically Models F and W) manufactured since 1975, citing numerous design and materials changes. Hofer desired to discover information which would support a showing that Mack departed from a prior, safer design, the reasons for the departures, and any comparisons by Mack of the crashworthiness and safety of the models. Hofer's motion to compel was denied by the district court, which essentially stated that the requested materials were neither relevant nor discoverable.

        Rule 26(b) of the Federal Rules of Civil Procedure is widely recognized as a discovery rule which is liberal in scope and interpretation, extending to those matters which are relevant and reasonably calculated to lead to the discovery of admissible evidence. Kramer v. Boeing Co., 126 F.R.D. 690, 692 (D.Minn.1989) (and cases cited therein). While the standard of relevance in the context of discovery is broader than in the context of admissibility (Rule 26(b) clearly states that inadmissibility is no grounds for objection to discovery), Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978), Culligan v. Yamaha Motor Corp., USA, 110 F.R.D. 122 (S.D.N.Y.1986), this often intoned legal tenet should not be misapplied so as to allow fishing expeditions in discovery. Some threshold showing of relevance must be made before parties are required to open wide the doors of discovery and to produce a variety of information which does not reasonably bear upon the issues in the case.

        In this case, Hofer articulated two reasons for discovery about Mack's predecessor designs and the departures therefrom. Hofer refers to a nonspecific allegation that the change in overall construction, from reinforced steel and aluminum to fiberglass, affected the general crashworthiness of the model MH truck. More specifically, Hofer states that, "The matter of a departure from a fully enclosed storage compartment in constructing the MH model truck cab was at the core of Hofer's claim." Brief for Appellant at 27.

        First, it is clear that the differences and departures in the design of the storage compartment were fully explored at trial. (It should be noted that Mack did agree to produce the designs, diagrams, and blueprints of the bunk base (storage compartment) portion of the predecessor models. The record reflects this agreement; whether or not the production actually took place is not clear from the record before us.) Second, two of Hofer's experts independently located, examined, and photographed actual F and W truck models. In addition, Hofer's primary expert stated that he saw diagrams of the two predecessor models. The differences in construction were thus examined and analyzed, and were explained to the jury at trial.

        In previous cases, decided in a variety of jurisdictions, the courts have set forth no black letter rule of law regarding discovery of predecessor models in products liability cases, other than to state that discovery of similar, if not identical, models is generally

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permitted. Culligan, 110 F.R.D. at 126. ("Generally, different models of a product will be relevant if they share with the accident-causing model those characteristics pertinent to the legal issues raised in the litigation." Fine v. Facet Aerospace Products Co., 133 F.R.D. 439, 441 (S.D.N.Y.1990).) Rather, the courts have undertaken a fact specific determination of the extent of the similarities or dissimilarities, and have inquired about the basis for the discovery request. We do the same here.

        Sufficient similarities have been found to exist where it was alleged that three-wheel all-terrain vehicles are inherently unstable, Culligan, supra; where a plaintiff maintained that a redesigned motor mount that failed in his car had not eliminated the defects found in earlier models, Swain v. General Motors Corp., 81 F.R.D. 698 (W.D.Pa.1979); and where an airplane engine failure was alleged, the area was highly technical and complex, and the defendant controlled exclusively all access to the technical data, Kramer v. Boeing Co., 126 F.R.D. 690 (D.Minn.1989). See also Josephs v. Harris Corp., 677 F.2d 985 (3d Cir.1982); Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613 (5th Cir.1977), cert. denied, 435 U.S. 996, 98 S.Ct. 1648, 56 L.Ed.2d 85 (1978); Uitts v. General Motors Corp., 58 F.R.D. 450 (E.D.Pa.1972). On the other hand, discovery has been denied where the predecessor models did not share pertinent characteristics with the products at issue. Sufficiently dissimilar characteristics have been found to exist where a plaintiff sought information about a vehicle recall, but the models recalled did not have the same component as the one at issue in the litigation, Uitts v. General Motors Corp., 62 F.R.D. 560 (E.D.Pa.1974), where the court permitted discovery of three model years immediately preceding the model at issue, but denied discovery as to a still earlier model because it was too dissimilar, Prashker v. Beech Aircraft Corp., 258 F.2d 602 (3d Cir.), cert. denied, 358 U.S. 910, 79 S.Ct. 236, 3 L.Ed.2d 230 (1958), and where a plaintiff was not able to make even a threshold showing that airplane bladder tanks or wetwing fuel systems were potential substitutes, or potentially safer than, metal fuel tanks, Fine v. Facet Aerospace Products Co., 133 F.R.D. 439 (S.D.N.Y.1990). See also Butkowski v. General Motors Corp, 497 F.2d 1158 (2d Cir.1974); Frey v. Chrysler Corp., 41 F.R.D. 174 (W.D.Pa.1966).

        In the instant case we are satisfied that the truck models F and W are sufficiently dissimilar in design from the model MH that a burdensome production of documents regarding the design minutiae of those earlier models would not have yielded information which would have...

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