Caron v. General Motors Corp.

• Decision Date: 27 February 1995
• Docket Number: No. 92-P-420,92-P-420
• Court: Appeals Court of Massachusetts
• Parties: Gregory H. CARON v. GENERAL MOTORS CORPORATION & another. 1

Page 471

643 N.E.2d 471

37 Mass.App.Ct. 744

Gregory H. CARON v. GENERAL MOTORS CORPORATION & another. ¹

No. 92-P-420.

Appeals Court of Massachusetts,

Franklin.

Argued March 24, 1993.

Decided Dec. 22, 1994.

Further Appellate Review Denied Feb. 27, 1995.

Louis Kerlinsky, Springfield, for plaintiff.

Richard P. Campbell, Boston, for defendants.

Before ARMSTRONG, BROWN and PORADA, JJ.

ARMSTRONG, Justice.

The plaintiff, Gregory H. Caron, was injured when, intoxicated and navigating his 1975 Buick LeSabre automobile at fifty to fifty-five miles per hour through dense fog by following the white line in the road, ² he failed to negotiate a turn and drove the car down an embankment, striking a culvert, a small tree, a parked car, and ultimately a large tree after the car had rolled over. His two companions, neither seriously injured, were able to crawl out the rear windshield hole. Caron was trapped in the car, one leg caught between the driver's door and the car frame, the door apparently having opened at some point before jamming shut, either in the roll or on final impact with the large tree.

On May 12, 1986, Caron brought this action against the manufacturer of the car, General Motors (GM), and the vendor, Lorenz Company, alleging that his injuries resulted from, or were made more severe as a result of, a design defect in the 1975 LeSabre. Discovery in the case was protracted and divisive, including more than seventy-five discovery requests, eighteen motions to compel, and five motions for protective orders. Through discovery, it became apparent that the plaintiff would rely on three claims of defect: (1) that a defective door latch caused the driver's door to come open during his accident; (2) that insufficiently rigid materials in the car body caused it to crush excessively during the accident; and (3) that the Buick's interior was insufficiently padded to protect the occupants. ³ A scheduling order, entered in January, 1988, required that discovery be completed by March 31, 1988, with the case scheduled for trial in May. ⁴

In order to show that a design defect caused or contributed to his injuries, Caron relied on evidence from two sources: requests for admissions which he had sent to the defendants, and which he claimed should be deemed admitted pursuant to Mass.R.Civ.P. 36(a), 365 Mass. 795 (1974); and the deposition testimony of John M. Noettl, an Arizona-based expert in automotive safety, who Caron claimed was unavailable to testify in person at trial. The trial judge excluded Noettl's deposition testimony, and granted the defendants relief from some but not all of the proffered admissions. At the close of the plaintiff's case, the judge directed verdicts for both defendants on the ground that Caron had not shown that his injuries were caused or worsened by a design defect.

Caron appealed and argues that the judge erred in granting relief from the admissions, in excluding the deposition of the plaintiff's auto safety expert, and in directing verdicts for the defendants. We hold that any error made by the judge was harmless, and that the verdicts were properly directed.

1. Requests for admissions. Among the many discovery disputes, there was contention regarding the literally hundreds of requests for admissions filed by the plaintiff in January and February, 1988, shortly before the discovery cutoff date. See Mass.R.Civ.P. 36, 365 Mass. 795 (1974). Rather than piecing through the requests to make the individual admissions, denials or objections envisioned by rule 36, GM and Lorenz moved to strike the requests, contending that they were vague, overbroadly worded, and unduly burdensome to the defendants. Argument on those motions and one by the plaintiff to compel production of documents was heard on March 17, 1988. The judge denied the plaintiff's motion to compel but never acted on the defendants' motions to strike the admissions requests. At trial, the plaintiff moved that the facts set forth in those requests be deemed admitted, pursuant to rule 36(a), and sought to read certain of the requests to the jury. The defendants argued in opposition that the time for answering the requests had been tolled by their motions for protective orders, and, in the alternative, they moved for permission to file late responses. A complete set of responses to the requests was filed along with the defendants' motions.

The trial judge, assuming that "the burden [had been] on the defendants to press their motion or get an extension of time within which to answer the requests," held that the facts asserted in Caron's requests were deemed admitted. Nonetheless, the court granted relief from some of the deemed admissions, pursuant to rule 36(b), finding that many of the requests were "not truly requests for admission," and that the defendants should be permitted to amend the admissions, in order to advance the presentation of the merits. See Reynolds Aluminum Bldg. Prod. Co. v. Leonard, 395 Mass. 255, 260, 480 N.E.2d 1 (1985).

Because we hold that the facts set out in the requests should not have been deemed admitted, we need not pass on the propriety of the relief granted by the judge. Deemed admissions result only when the party from whom admissions are sought fails to serve upon the requesting party, within thirty days after service of the request, "either (1) a written statement signed by the party under the penalties of perjury specifically (i) denying the matter or (ii) setting forth in detail why the answering party cannot truthfully admit or deny the matter; or (2) a written objection addressed to the matter, signed by the party or his attorney." Mass.R.Civ.P. 36(a). The parties cite no Massachusetts authority on the question whether a motion for a protective order with respect to the request for admissions constitutes the "written objection" required by rule 36(a). The bulk of authority under the cognate Federal rule holds that a motion for a protective order which states reasons which can be considered grounds for objection ⁵ is sufficient to protect the objecting party's rights. See J.R. Prewitt & Sons, Inc. v. Willimon, 20 F.R.D. 149, 150 (W.D.Mo.1957); In re Milwaukee Crate & Lumber Co., 206 F.Supp. 115, 117 (E.D.Wis.1961); 8 Wright & Miller, Federal Practice and Procedure: Civil § 2262 at 733, 735 (1970) ("there is so little practical difference between an objection and a motion for a protective order that it is probably not worth the effort to attempt to maintain a clear distinction between the two"). See also Smith & Zobel, Rules Practice § 36.7 (1975) (motion for protective order is alternative to specific objections).

Caron argues that the defendants waived their objection (if any) by failing to secure a determination on their motion to strike the requests. But rule 36 places the burden of moving to determine the sufficiency of an objection on the requesting party, not on the objecting party. See ibid. See also United States v. Taylor, 100 F.Supp. 1016, 1019 (1951). ⁶ Since Caron failed to pursue a motion to determine the sufficiency of the defendants' objections, the facts asserted in his requests were never deemed admitted, and the answers filed by the defendants at trial were timely. ⁷

2. Expert testimony offered by deposition. Caron's attorney offered in evidence the discovery deposition of his expert, John M. Noettl, who was deposed by the defendants on March 22, 1988, after the plaintiff had designated Noettl as his expert witness for the trial. The admissibility of depositions at trial is governed by rule 32, which provides, in part (a)(3)(B), that a deposition may be used in lieu of live testimony when the court finds "that the witness is out of the Commonwealth, unless it appears that the absence of the witness was procured by the party offering the deposition." Mass.R.Civ.P. 32(a)(3)(B), as amended, 392 Mass. 1105 (1984). Caron, citing Noettl's deposition testimony to the effect that he resides in Arizona, argued that the judge was required by the rule to admit Noettl's deposition.

The judge gave two reasons for denying admission of the deposition: first, that he was not satisfied that Noettl was "out of the Commonwealth," by which we assume he may have meant (since it was not contested that Noettl lived in Arizona) that he was not satisfied that Caron's counsel had made an effort to arrange for Noettl's appearance at trial; and, second, that the deposition was inadmissible in any event because Noettl had lacked a sufficient basis for his conclusions.

(a) Duty to arrange for expert's appearance at trial. The cognate Federal rule to Mass.R.Civ.P. 32(a)(3)(B) is Fed.R.Civ.P. 32(a)(3)(B), which allows the admission of a witness's testimony by deposition if "the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition." As to ordinary witnesses, whose testimony is admissible because they have personal knowledge of facts in the case, the Federal courts are relatively uniform in allowing depositions to substitute for the testimony of distant witnesses. "Procuring" a witness's absence means more than simply failing to secure his attendance at trial. "[P]rocuring absence and doing nothing to facilitate presence are quite different things ..."; and the deposition will be admitted unless the party offering it "actively took steps to keep the deponents from setting foot in the courtroom." Houser v. Snap-On Tools Corp., 202 F.Supp. 181, 189 (D.Md.1962).

As to expert witnesses, however, the Federal authorities are split. Unlike fact witnesses, who are determined by their personal knowledge of relevant facts, regardless of where they live or work, a party normally has broad latitude in selecting his expert witnesses. By selecting an expert from Arizona, the plaintiff's counsel "procured" the absence of his expert from the Commonwealth...