Cameron v. District Court In and For First Judicial Dist.

• Decision Date: 06 June 1977
• Docket Number: No. 27596,27596
• Citation: 193 Colo. 286,565 P.2d 925
• Parties: , 11 A.L.R.4th 1236 Roland Dale CAMERON, Petitioner, v. The DISTRICT COURT IN AND FOR the FIRST JUDICIAL DISTRICT of the State of Colorado, and the Honorable George G. Priest, one of the Judges thereof, Respondents.
• Court: Colorado Supreme Court

Page 925

565 P.2d 925

193 Colo. 286, 11 A.L.R.4th 1236

Roland Dale CAMERON, Petitioner, v. The DISTRICT COURT IN AND FOR the FIRST JUDICIAL DISTRICT of

the State of Colorado, and the Honorable George G.

Priest, one of the Judges thereof, Respondents.

No. 27596.

Supreme Court of Colorado, En Banc.

June 6, 1977.

Levine, Pitler & Westerfeld, P.C., Robert L. Pitler, Denver, for petitioner.

George G. Priest, pro se.

ERICKSON, Justice.

This is an original proceeding seeking relief in the nature of prohibition. C.A.R. 21. The petitioner is the plaintiff in a personal injury action which is pending before the respondent court. He filed a products liability claim alleging that a defective tire proximately caused the personal injuries which he suffered. In the course of a hearing on a defense request for a protective order, the trial judge entered an order which denied the plaintiff the right to conduct certain "destructive" tests upon the allegedly defective tire. We issued a rule to show cause. We now make the rule absolute and remand with directions.

The complaint alleges that the plaintiff purchased a retreaded tire and elected to mount the tire by himself, using equipment at a service station. While attempting to seat the tire bead, he inflated the tire and the bead ruptured. As a result of the rupture, the tire literally exploded off the metal wheel, and the plaintiff suffered severe, disabling, and permanent injuries.

The carcass of the tire in question was originally manufactured by Uniroyal, Inc. Thereafter, the tire was sold by Uniroyal to National Cooperative, which, in turn, distributed the tire through an unknown dealer. The tire was then purchased at retail and used by some unknown persons until it was acquired by the Kearns Tire Company for retreading as a snow tire. Kearns Tire Company retreaded the tire and sold it to the Direct Sales Tire Company, which subsequently sold it to the plaintiff.

The plaintiff asserted a claim for personal injuries against Kearns Tire Company and the Direct Sales Tire Company as defendants. The defendants joined Uniroyal and National Cooperative as third-party defendants. Thereafter, the defendants and third-party defendants had the tire examined by various experts who expressed conflicting opinions as to the cause of the tire failure. All of these experts employed x-ray and other "non-destructive" testing techniques.

To prepare for trial, the plaintiff sought an order which would permit his expert to cut out certain portions of the tire so that the characteristics of the inner wire strands on both sides of the break could be examined and tested by metallurgical means. The defendants sought a protective order to prevent "destructive" testing because the procedure would alter the appearance of the ruptured area and seriously hamper further tests upon the tire. The plaintiff contended that the proposed metallurgical tests were necessary and provided his only means for proving that the tire was defective. The trial court denied the plaintiff's request for destructive testing and granted the defendants' motion for a protective order.

I. Review by Original Proceeding

It clear that the trial court did not act in excess of its jurisdiction in denying the plaintiff's request or entering the protective order in this case. See Curtis, Inc. v. District Court, 186 Colo. 226, 526 P.2d 1335 (1974); C.R.C.P. 26, 34. The mere fact that an error by the trial court, acting within its jurisdiction, may later be corrected on appeal is not dispositive of this court's original jurisdiction, however. See Weaver Construction Co. v. District Court, Colo., 545 P.2d 1042 (1976); cf., Denver & Rio Grande W. R.R. v. District Court, 141 Colo. 208, 347 P.2d 495 (1959). In particular, significant cases of where the posture of the litigation is such that no adequate remedy exists, may justify this court's invocation of its supervisory powers by means of original jurisdiction. See Weaver Construction Co. v. District Court, supra; Lucas v. District Court, 140 Colo. 510, 345 P.2d 1064 (1959). Accordingly, an original proceeding provided the only means for review of the order which is before us in this case.

II. Destructive Testing

The substantive issue is one of first impression in this jurisdiction. While matters of discovery are generally left to the discretion of the trial court, the special nature of "destructive" testing requires that some standards be established for the guidance of trial courts.

Our discovery rules, patterned after the Federal Rules of Civil Procedure, provide several devices for ferreting out the relevant and necessary facts prior to trial. The purposes behind the discovery rules are to eliminate surprise at trial, discover relevant evidence, simplify the issues, and promote expeditious settlement of cases without the necessity of going to trial. See Curtis, Inc. v. District Court, supra; Lucas v. District Court, supra; Crist v. Goody, 31 Colo.App. 496, 507 P.2d 478 (1972); see generally 4 J. Moore & J. Lucas, Moore's Federal Practice [193 Colo. 290] P 26.02(2) (1976). Consistent with these remedial purposes is the range of discovery available to each party. C.R.C.P. 26(b)(1) provides:

"Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things . . .." (Emphasis added.)

In applying our discovery rules, our courts have consistently adhered to basic principles furthering the broad policies behind the rules. First, the rules should be construed liberally to effectuate the full extent of their truth-seeking purpose. See Crist v. Goody, supra; see generally Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1959). Second, in close cases, the balance must be struck in favor of allowing discovery. See Curtis, Inc. v. District Court, supra. Third, the party opposing discovery bears the burden of showing "good cause" ¹ that he is entitled to a protective order "which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense". C.R.C.P. 26(c). See Curtis, Inc. v. District Court, supra.

In the case before us, the plaintiff is the owner and presumably in custody of the tire upon which he wishes to perform the tests. Ownership is, of course, not a license to alter evidence which may be crucial to both sides in the dispute. ² Here, however, the plaintiff correctly brought the matter before the trial court for a judicial determination prior to administration of the destructive test. While the posture of this case does not fit exactly within the language of C.R.C.P. 34 (production of object for inspection and testing), insofar as the tire was not in the "possession, custody, or control of the (other) party", we hold that the appropriate analysis is parallel to that involved in a conventional request for inspection under C.R.C.P. 34 and a resulting motion for a protective order under C.R.C.P. 26.

Our rules explicitly provide that a party may, within the guidelines noted above, "test . . . any tangible thing." C.R.C.P. 34. Destructive testing, however, is not a matter of right, but lies in the sound discretion of the trial court. See, e. g., Sarver v. Barrett Ace Hardware, Inc., 63 Ill.2d 454, 349 N.E.2d 28 (1976). The dilemma which arises when the proposed test will somehow alter the original state of the object requires that a balance be established based upon the particular facts of the case and the broad policies of the discovery rules. A balance must be struck between the "costs" of the alteration of the object and the "benefits" of ascertaining the true facts of the case. Alternative means of ameliorating those "costs," such as the use of detailed photographs to preserve the appearance of the object, or use of other samples for the test, are relevant to the creation of the balance. Likewise, alternative non-"destructive" means of obtaining the facts should be considered in evaluating the putative benefits of the tests. The problem becomes especially difficult where the object to be tested is unique and one side intends to use it in its "original" state at trial.

The petitioner in this case claimed that under any theory of the case then before the court, the proposed metallurgical test might well be "dispositive," and that metallurgical testing was the only means to determine the facts relevant to his theory of the case. This contention was not questioned below and remains uncontested in this proceeding. Accordingly, we find no basis for discounting plaintiff's contention that the proposed test is reasonable and necessary to proof of his case and would be of considerable utility to all parties in determining the actual cause of the break.

In denying the plaintiff's request for the test, the trial court based its ruling on conclusions that (1) the proposed test would alter the appearance of the break to the detriment of the defendants, and (2) the request was not timely. ³ Under the facts of this case, we find these conclusions insufficient to outweigh the conceded benefits of discovery.

First, the damage or alteration of appearance that would result from the removal of the wires is not clear. ⁴ However, the record establishes that the present condition of the tire has already been viewed and subjected to tests by numerous experts on behalf of all interested defendants in this case. Therefore, any resulting alteration in appearance will not impair the development of expert opinion in this case. The principal argument here appears to go to the appearance of the tire to the trial jury. The fact that the visual appearance of the tire and the details of the break area can generally be captured by competent photography or by other means militates against use of this factor to deny development of...