Brandt v. Vulcan, Inc.
| Decision Date | 18 August 1994 |
| Docket Number | No. 93-2761,93-2761 |
| Parties | Harry BRANDT, Plaintiff-Appellant, v. VULCAN, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Bob L. Perica, Hoeffert & Perica, Alton, IL (argued), for plaintiff-appellant.
Michael J. Nester, Charles L. Joley (argued), Donovan, Rose, Nester & Szewczyk, Belleville, IL, for defendant-appellee.
Before POSNER, Chief Judge, BAUER, Circuit Judge, and ASPEN, District Judge. *
Having fallen off of a portable scaffold known as a "Titzel Tower," Harry Brandt filed suit against the companies he believed responsible for the equipment's design and manufacture. After years of litigation, culminating in a trial and a verdict for defendant Vulcan, Inc., Brandt, in post-trial motions, charged Vulcan with discovery fraud and also complained that insufficient evidence and erroneous rulings by the District Court warranted either judgment in his favor as a matter of law, or a new trial. The District Court disagreed and denied Brandt's motions. This appeal followed.
Sometime in the 1960's, Granite City Steel contracted with Koppers, Inc. for the building and installation of a basic oxygen furnace ("BOF"). Koppers, in turn, subcontracted with Titzel Engineering, Inc. ("Titzel") for a portable scaffold that would allow bricklayers to move up and down the brick-lined BOF. Installed in 1967 or 1968, the scaffold became known as the "Titzel Tower" or "Titzel elevator."
In 1970, Titzel merged into Vulcan, Inc. and operated as Vulcan Engineering, a division of Vulcan, Inc., until 1983. That year, Vulcan, Inc. sold Vulcan Engineering and all of its assets to UMEC Corporation. By agreement, UMEC assumed virtually all of Vulcan Engineering's liabilities.
On June 23, 1982, Brandt, a longtime bricklayer for Granite City Steel, was working on the Titzel Tower relining the BOF with 70-pound bricks. A section of grating, generally held in place by tabs that inserted into adjoining grates, apparently broke while Brandt was standing on it, causing him to fall. The actual grating was not saved and, consequently, never examined. 1
Following the accident in 1982, Brandt sued Titzel and Vulcan, Inc. in state court. After being dismissed for want of prosecution, Brandt refiled in 1988 and Vulcan removed the case to the District Court for the Southern District of Illinois. Early on, Brandt served a number of interrogatories upon Vulcan asking the company to divulge what it knew about the design and manufacture of the Titzel Tower. Vulcan indicated that it did not know when the Titzel Tower was designed or manufactured and declared that R. 161 at pp 2, 3, and 21. Similarly, in response to Brandt's request for production of documents, Vulcan stated that it was "unable to provide any of the items requested ... for want of sufficient information as to the brick elevator and scaffold Plaintiff was on at the time of his alleged injury in 1982, and consequent lack of knowledge of this Defendant as to what to search for, as to whether any such records, in fact, ever existed and/or ever had reason to be in this Defendant's possession." Notice of Compliance, R. 86 at Exh. A. However, Vulcan did indicate the following:
Titzel was merged in 1970 into Vulcan, Inc. The business relationship was that after 1970 Titzel was being operated as Vulcan Engineering, Division of Vulcan, Inc., until that division and its assets were sold in 1983 to UMEC Corporation, a Pennsylvania Corporation, with an assumption by UMEC of all liabilities, if any, outstanding.
R. 161 at p 7. In the face of these responses, Brandt neither sued nor directed discovery toward UMEC, nor did he ever seek to depose any Vulcan officers or employees. 2
On March 19, 1990, Brandt filed a motion to compel, stating that "Plaintiff believes that the Defendant has the information requested in said discovery material." R. 46 at p 4. The District Court informed Brandt that his motion was improperly vague and directed him to supply the court with a list of the items sought. Although Vulcan responded to the motion, detailing the corporate transformations of Titzel and denying any further information regarding the scaffold, there is no record that Brandt ever remedied his deficient motion. On April 16, 1990, the District Court denied Brandt's motion to compel.
In 1991, after the parties completed further discovery, Vulcan moved for summary judgment, arguing that Brandt's suit was barred by statute of limitations. Vulcan relied on an Illinois statute providing that tort or contract actions based on negligent design, planning, supervision, and/or construction of an improvement to real property must be brought within ten years. In arguing that Brandt's claim fell within the purview of the statute, Vulcan asserted:
Plaintiff has also failed to provide any supporting evidence that 'defendant's participation in the case was limited to simply manufacturing the portable scaffold that was later used on the property of Granite City Steel.' The 'Titzel Tower' was not simply manufactured by Titzel and later 'used on the property of Granite City Steel' but was designed by Titzel Engineering, at the request of Kopper's Company, Inc. to meet particular specifications. The 'Titzel Tower' was designed by Titzel Engineering for use exclusively in the BOF at Granite City Steel. (Please see Koppers Company, Inc. purchase order previously attached to Defendant, Vulcan, Inc.'s Motion for Summary Judgment.) 3
Brandt charged that Vulcan's newest assertions contradicted its prior sworn discovery responses. As proof, Brandt attached a copy of the Notice of Compliance in which Vulcan swore it could not provide requested documents and lacked the information with which to obtain relevant records. Vulcan defended its actions by claiming that, in its summary judgment motion, it was relying on deposition testimony and documents turned up during discovery. Although Brandt did not file a motion to compel or seek sanctions in response to Vulcan's brief, it submitted requests for updated discovery responses. Vulcan denied having any additional information.
In 1993, the case went to trial. Several events of note occurred during the trial. First, Brandt highlights several developments that allegedly confirm Vulcan's discovery fraud. While cross-examining Vulcan's expert witness, Brandt's attorney discovered that, by way of preparation, Vulcan had provided its expert with a copy of the original contract regarding the Granite City Steel plant ("contract 2275"). Contract 2275, in turn, contained the Titzel Tower specifications, including the exact dimensions of the allegedly inadequate tabs, and had not been produced by Vulcan during discovery. Next, Brandt's counsel travelled to Madison County, Illinois to examine discovery material disclosed by defendants Titzel, Vulcan Engineering, and Vulcan, Inc. in a separate case. Among other things, Vulcan Engineering and Titzel (but apparently not Vulcan, Inc.), represented by the Rose, Nester, Donovan & Szewczyk law firm, 4 had produced an Inquiry Record kept by Vulcan, Inc. during its ownership of Titzel to track all complaints received about its equipment. The record revealed that a company, Weirton Steel, had lodged a complaint about the Titzel Tower in 1978.
According to Brandt, the trial also included several erroneous rulings. Specifically, the District Court prohibited Brandt from presenting evidence of modifications Granite City Steel made to the Titzel Tower subsequent to the accident. Furthermore, the court used a modified form of Illinois Pattern Instruction 12.05, rather than 12.04, concerning proximate cause. The instruction given reads:
If you decide that the sole proximate cause of the injury to the plaintiff was something other than the conduct of the defendant, then your verdict should be for the defendant.
Finally, having previously granted Brandt's motion in limine precluding the mention of pension benefits, the District Court permitted Vulcan to cross-examine on the issue of his retirement benefits once Brandt testified on direct that he retired on disability.
Before the case was submitted to the jury, Brandt moved for judgment as a matter of law, arguing that Vulcan's alleged discovery fraud deprived him of a fair trial and that there was no legally sufficient basis from which a jury could find for Vulcan. The District Court denied the motion. After the jury found for Vulcan, Brandt renewed its motion for judgment as a matter of law and sought a new trial based on (1) the purported discovery fraud and (2) the court's assertedly erroneous rulings. The District Court again denied Brandt's motions. This appeal followed.
Invoking Federal Rule of Civil Procedure 37, Brandt asked the District Court (first at the jury instruction conference and then again after the verdict) to sanction Vulcan's alleged discovery fraud by striking Vulcan's answer and awarding Brandt judgment as a matter of law. 5 Federal Rule 37(b)(2) provides:
If a party ... fails to obey an order to provide or permit discovery, ... the court in which the action is pending may make such orders in regard to the failure as are just....
Fed.R.Civ.P. 37(b)(2). At the outset, we observe that the District Court made no finding one way or the other as to whether Vulcan actually perpetrated discovery fraud. Instead, the court concluded that Rule 37(b)(2) did not apply because (1) Vulcan did not violate any discovery orders, and (2) Brandt's motion was untimely. As a result, unless the District Court erred in its interpretation of the scope of Rule 37 or abused its discretion in finding Brandt's motion untimely, we need not...
To continue reading
Request your trial
-
In re EI du Pont de Nemours and Co.
...Steak, 793 F.2d 1529 (11th Cir.1986); Carlucci v. Piper Aircraft Corp., Inc., 775 F.2d 1440 (11th Cir.1985); Brandt v. Vulcan, Inc., 30 F.3d 752, 757 n. 7 (7th Cir.1994); Properties International Ltd. v. Turner, 706 F.2d 308 (11th Cir.1983); Southerland v. Irons, 628 F.2d 978 (6th Cir.1980)......
-
Tow v. Henley (In re Henley)
...on the opposing party's failure to fully answer interrogatories). In sum, the Debtors argument is untimely. See Brandt v. Vulcan, Inc., 30 F.3d 752, 756 (7th Cir.1994) (holding that unreasonable delay may render a motion for discovery abuse untimely). For all of the reasons set forth above,......
-
Shamis v. Ambassador Factors Corp.
...within which a motion for sanctions must be filed, unreasonable delay may render such motions untimely. See e.g., Brandt v. Vulcan, Inc., 30 F.3d 752, 757 (7th Cir. 1994) (unreasonable delay rendered motion for sanctions untimely where plaintiff had notice of Defendant's possible discovery ......
-
Lancaster v. Independent School Dist. No. 5, s. 97-5063
...after entry of judgment. However, a Rule 37 motion for sanctions should be filed without unreasonable delay. Cf. Brandt v. Vulcan, 30 F.3d 752, 756 (7th Cir.1994) (party bringing motion for sanctions under Rule 37(b)(2) must do so without unreasonable delay). Defendants filed their motion a......
-
CHAPTER 14 - 14-2 Motions for Sanctions or Order Compelling Discovery
...for discovery and because the movant "had more than ample time to conduct discovery" before filing motion); cf. Brandt v. Vulcan, Inc., 30 F.3d 752, 756 (7th Cir. 1994) ("Although [Federal] Rule 37(b)(2) does not establish any time limits within which a motion for sanctions must be filed, B......