American Motors Corp. v. Ellis

Decision Date12 August 1981
Docket Number80-1025 and 80-1026,80-770,Nos. 80-767,s. 80-767
PartiesAMERICAN MOTORS CORPORATION, Appellant/Cross-Appellee, v. William Howard ELLIS, Jr., and William J. St. John, Appellees/Cross-Appellants.
CourtFlorida District Court of Appeals

James E. Tribble of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, and Sanders, McEwan, Mims & McDonald, Orlando, for appellant/cross-appellee.

David B. King of Peed & King, P. A., Orlando, for appellees/cross-appellants.

COBB, Judge.

American Motors Corporation (AMC), defendant below, appeals from judgments in favor of plaintiffs Ellis and St. John, entered pursuant to jury verdicts. Ellis and St. John have cross-appealed from a directed verdict in favor of AMC on the issue of punitive damages and on various evidentiary rulings made during trial.

On December 10, 1976, Ellis was driving his father's 1974 AMC Ambassador east in the righthand lane of Interstate Highway 4 in Orange County with St. John as a passenger in the front seat. As they came over a hill, Ellis noticed traffic congestion ahead where an entrance ramp merged into the right lane of I-4. Since he planned to exit shortly, Ellis stopped his vehicle in the righthand lane rather than attempting to pass the congestion. At about this time, Gerald Rausch was driving his vehicle on the entrance ramp to I-4. When he saw the traffic congestion, Rausch attempted to by-pass it, cutting directly onto I-4 behind the Ambassador. As he moved a few feet onto I-4, he saw a tractor-trailer coming over the hill toward him. Rausch then veered back into the entrance lane, which at that point ran parallel to the right lane of I-4.

John McGuirt, the driver of the tractor-trailer, which was loaded and weighed about 74,000 pounds, was travelling in the right lane of I-4. As he started down the hill at an estimated speed of 45 to 50 miles per hour, he noticed the traffic congestion ahead and saw Rausch's vehicle heading into the right lane. McGuirt tried to move into the left lane but could not as another vehicle was there. When McGuirt looked back to the road in front of him, he saw that he had passed Rausch's car, but that the Ambassador was directly ahead "sitting in the road." McGuirt applied his brakes and turned sharply to the left. As he was turning, the right front portion of the tractor collided with the left rear of the Ambassador, crushing the rear four-and-one-half feet of the car and propelling it forward for more than one hundred feet. The tractor-trailer continued to veer off to the left, collided with the median barrier and rolled over on its side.

The tractor was fueled by two one-hundred-gallon diesel saddle tanks connected by a fuel line running from one to the other. Each tank was about half full. At some point during the accident, the right tank separated from the tractor-trailer, allowing diesel fuel to escape. After the Ambassador came to rest, a fire started, consuming the vehicle and causing severe burns to Ellis and St. John. The exact point at which the tank separated and whether the fire was caused by the diesel fuel or the gasoline from the ruptured fuel lines of the Ambassador were points in dispute at trial.

Ellis and St. John filed suits against McGuirt and his insurer, and Rausch, his employer and his insurer. Claims against these defendants were later settled. An amended complaint then was filed naming AMC as a defendant. The claims against AMC were based on negligence and strict liability stemming from an allegedly defective design of the Ambassador's gasoline tank and filler system. The asserted defect was that the gasoline tank and filler system were located beneath the trunk floor at the rear of the car, rather than in an upright position in the "kick-up area," which is the space above the rear axle and beneath the package shelf just behind the rear seat. A claim for breach of warranty was voluntarily dismissed at the outset of trial, and a directed verdict was entered in favor of AMC on the plaintiffs' claim for punitive damages.

AMC relied on several theories of defense. It contended the kick-up area was not a preferable location for a gas tank, that AMC's fuel system did not leak as a result of the impact, and that the fire was started as the result of spillage of diesel fuel from the tractor-trailer onto the car, which had caused the gasoline still contained within the tank to ignite. AMC also contended that if there were gasoline leakage, it was the result of a tremendous impact which no reasonably designed fuel system could be expected to withstand.

The first issue appellant raises is whether the trial court's error 1 in refusing to compel disclosure to adverse counsel of a witness statement used by counsel for plaintiffs for cross-examination impeachment constitutes reversible error. We believe that it does under the instant facts. Linda Bates, an eye-witness to the accident, had been listed by the plaintiffs as a potential witness. However, at trial, she was called by AMC and testified that she saw flames on the left side of the crushed vehicle. This testimony lent support to AMC's assertion that the fire was due to spilled diesel fuel from the tractor-trailer. On cross-examination, plaintiffs' counsel attempted to impeach her with a pre-trial statement made to an investigator in the office of plaintiffs' counsel. This statement, which apparently was to the effect that the flames were on the right side of the vehicle, had been protected from discovery by court order under the "work product" doctrine. Counsel for AMC asked to examine the statement; this request was denied by the trial court.

In Dodson v. Persell, 390 So.2d 704 (Fla.1980), the Florida Supreme Court held that the contents of surveillance films and materials are subject to discovery in every instance where they are intended to be presented at trial, either for substantive, corroborative, or impeachment purposes. In other words, if the materials are only to aid counsel in trying the case, they are "work product," but any "work product" privilege that existed ceases once the materials or testimony are intended for trial use.

Thus, even assuming that the witness' statement was privileged under the work-product doctrine, 2 the privilege ceased once the statement was used as impeachment evidence. As counsel for AMC had not seen the document and was taken by surprise, he should have been given an opportunity to review it, during a trial recess if necessary. See Dodson at 708. This opportunity to examine the statement was necessary as counsel is entitled to read relevant portions of the statement to explain the apparent inconsistency in the witness' testimony at trial. Hernandez v. State, 156 Fla. 356, 22 So.2d 781 (1945); Brown v. State, 152 Fla. 698, 13 So.2d 3 (1943). See also King v. Califano, 183 So.2d 719 (Fla. 1st DCA 1966).

The testimony of the witness Bates, called by AMC, related to a crucially important aspect of AMC's defense: that the fire was caused by spillage of diesel fuel rather than by gasoline.

It was clear error, under the circumstances of this case, for the trial judge to refuse to require plaintiffs' attorney to produce the statement of Bates at trial, regardless of whether it was properly immune from pre-trial discovery as work product. Once the statement was disclosed by plaintiffs' attorney in open court, identified by the witness, and used to impeach her, any prior work product immunity terminated.

In United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975), the court held that in a criminal case the defense attorney was properly required to produce at trial a statement taken by a defense investigator when that statement had already been used to impeach the prosecution witnesses and where the defense counsel announced his intention of calling his investigator to the stand. The work-product privilege was held to have been waived because the defendant could not "advance the work-product doctrine to sustain a unilateral testimonial use of work-product materials...." Nobles, 422 U.S. at 240, 95 S.Ct. at 2171, 45 L.Ed.2d at 154. The same general principle is recognized under Florida's view of the work-product privilege.

Under the holding of Dodson, it is highly doubtful whether a pre-trial work-product privilege attached to the statement taken from Bates, since the plaintiffs apparently intended to use it at trial for impeachment. That question need not be addressed, however, because it is abundantly clear that if ever there were a valid privilege, it terminated as soon as the statement was actually used at trial for impeachment. At that time, AMC's counsel was unquestionably entitled to have the entire statement produced for his inspection, for his use in redirect examination of Bates, and for possible introduction into evidence.

Under Florida law, where one party reads selected and prejudicial portions of the other party's deposition for impeachment, it is error to prohibit opposing counsel from reading other portions of the same deposition in an effort to demonstrate "that the 'whole truth' was that the defendant's trial testimony should not be discredited on account of her testimony at the deposition hearing." King v. Califano. The above rule applies with equal force to statements of a witness other than those contained in depositions. For example, see 98 C.J.S. Witnesses § 622 (1957), stating that:

Where, for impeachment purposes, a portion of a statement previously made by a witness and apparently inconsistent with his present testimony is introduced, the entire statement is admissible in rebuttal.

To similar effect is 98 C.J.S. Witnesses § 422 (1957), stating that where a witness has been cross-examined as to part of a statement, the party calling the witness is entitled on redirect examination to elicit the whole of the statement to the extent that it relates to the same subject matter and...

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