Earl v. Gulf & Western Mfg. Co.

• Decision Date: 14 February 1985
• Docket Number: No. 84-959,84-959
• Citation: 123 Wis.2d 200,366 N.W.2d 160
• Parties: Steven EARL and Ella Earl, Plaintiffs-Respondents, v. GULF & WESTERN MANUFACTURING COMPANY, Defendant-Appellant, Safeguard Manufacturing Company, a Connecticut corporation, Universal Safety Equipment Company, an Illinois corporation, Franklin Electric Company, a Wisconsin corporation, and Liberty Mutual Insurance Company, a foreign corporation, Defendants.
• Court: Wisconsin Court of Appeals

Page 160

366 N.W.2d 160

123 Wis.2d 200

Steven EARL and Ella Earl, Plaintiffs-Respondents, v. GULF & WESTERN MANUFACTURING COMPANY, Defendant-Appellant Safeguard Manufacturing Company, a Connecticut corporation Universal Safety Equipment Company, an Illinois corporation Franklin Electric Company, a Wisconsin corporation, and Liberty Mutual Insurance Company, a foreign corporation, Defendants.

No. 84-959.

Court of Appeals of Wisconsin.

Submitted on Briefs Dec. 10, 1984.

Opinion Released Feb. 14, 1985.

Opinion Filed Feb. 14, 1985.

Review and Cross-Review Denied.

Borgelt, Powell, Peterson & Frauen, S.C., Milwaukee, with Frank A. Scherkenbach and Lawrence M. Shindell, Milwaukee, of counsel, for defendant-appellant.

Habush, Habush & Davis, S.C., Milwaukee, with William M. Cannon, Milwaukee, of counsel, for plaintiffs-respondents.

Before WEDEMEYER, P.J., and MOSER and SULLIVAN, JJ.

WEDEMEYER, Presiding Judge.

Gulf & Western Manufacturing Company appeals from a nonfinal discovery order entered in a product liability suit filed against it by Steven and Ella Earl. The trial court ordered Gulf & Western to answer interrogatories propounded by the Earls. It also denied Gulf & Western's motion for a protective order prohibiting the Earls from disclosing the information discovered to persons unconnected with this case. We hold that the scope of the trial court's discovery order was unduly broad and that Gulf & Western may be compelled to answer the Earls' interrogatories only with respect to presses of the model No. 28 1/2. We further hold that because Gulf & Western failed to establish that it was entitled to a protective order, the trial court's refusal to grant such an order was not a misuse of discretion. We therefore affirm the trial court's order in part and reverse it in part.

Steven Earl was injured on February 2, 1981, when his hand and part of his arm were amputated by a punch press he was operating. The press, a model No. 28 1/2 multipurpose open-back inclinable press, was manufactured in 1944 by E.W. Bliss Company, a subsidiary of Gulf & Western. The press was manufactured and shipped without guard or safety devices to prevent an operator's hands from being caught in the press when it cycled. At the time of Earl's injury, the press had been equipped with a "pullback" device, not installed by Gulf & Western, which was designed to remove the operator's hands from the die pinch area during operation.

The Earls filed suit against Gulf & Western claiming negligence and strict liability for failing, among other things, to provide reasonable safeguards on the press. They served interrogatories on Gulf & Western seeking information on (1) injuries sustained by other individuals operating power presses; (2) current litigation against Gulf & Western stemming from accidents with power presses; and (3) with respect to any power press shipped to Germany, Sweden, Great Britain, or any other country, the date the press was manufactured, where it was sent, all standards promulgated by the recipient country with which the press complied, whether it had any point-of-operation guards or devices, and if so, what they were. Gulf & Western answered the interrogatories only with respect to model No. 28 1/2 Bliss presses equipped with pullbacks.

The Earls moved to compel more complete answers to the interrogatories. Gulf & Western moved for a protective order directing that its answers to the interrogatories be held confidential. The trial court ordered Gulf & Western to answer the interrogatories with respect to the years 1920 through 1984, as to all sizes of inclinable and bench power presses, and all horning and wiring presses of the side wheel type. It further ordered Gulf & Western to answer the interrogatories regarding the standards imposed by other countries that applied to the same group of presses, including presses which were made domestically and shipped abroad and presses which were made abroad and shipped here. The trial court denied Gulf & Western's motion for a protective order.

Gulf & Western contends on appeal that the information ordered to be produced is not "relevant to the subject matter involved in the pending action," sec. 804.01(2)(a), Stats., and that producing the information will cause undue burden and expense to Gulf & Western. We agree and therefore modify the trial court's order.

The standard of review of a discovery order is whether the trial court misused its discretion. Shibilski v. St. Joseph's Hospital, 83 Wis.2d 459, 470-71, 266 N.W.2d 264, 270 (1978). A proper exercise of discretion requires a statement on the record of the trial court's reasoned application of the appropriate legal standard to the relevant facts of the case. Martin v. Griffin, 117 Wis.2d 438, 442, 344 N.W.2d 206, 209 (Ct.App.1984). If there is no statement of the trial court's reasoning, the reviewing court may examine the record to determine whether the facts support the trial court's decision. Id. at 443, 344 N.W.2d at 209. The trial court misuses its discretion when it bases its decision on an error of law. Barstad v. Frazier, 118 Wis.2d 549, 554, 348 N.W.2d 479, 482 (1984).

Type of Press

Information need not be admissible at trial in order to be subject to discovery; however, it must be "reasonably calculated to lead to the discovery of admissible evidence." Sec. 804.01(2)(a), Stats. Thus, the admissibility of the material requested or the information to which the requested material will lead is relevant to the determination of whether it is discoverable.

Evidence of prior accidents is admissible in a product liability case to show that the claimed defect existed, that the defect caused the plaintiff's injury, and that the defendant knew or should have known of the existence of the defect. Lobermeier v. General Telephone Co., 119 Wis.2d 129, 150, 349 N.W.2d 466, 476, on reconsideration, 120 Wis.2d 419, 355 N.W.2d 531 (1984). The evidence should be admitted only where the accidents occurred under conditions and circumstances similar to those of the accident which injured the plaintiff. Id. The criterion "similar conditions or circumstances" includes similarity of the product involved. See Walker v. Trico Manufacturing Co., 487 F.2d 595, 599-600 (7th Cir.1973), cert. denied, 415 U.S. 978, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974); Uitts v. General Motors Corp., 58 F.R.D. 450, 452 (E.D.Pa.1972).

Edward Freeland, Bliss's manager of product liability, stated in an affidavit that the presses manufactured by Bliss had different sizes; different standard tonnage, clutch, and stroke specifications; different tonnage, clutch, and stroke capacities; different types of activating controls; different capacities for metal feeding and ejection; and differences in being geared or nongeared. He stated in another affidavit that Bliss had manufactured hundreds of thousands of presses since it began manufacturing presses in 1857, and that the group of presses covered by the trial court's order constituted approximately 80% of the company's total output. We conclude, given the differences in the presses manufactured and the large number of presses covered by the trial court's order, that the order is unduly broad and thus represents a misuse of discretion. We conclude that Gulf & Western should be compelled to answer the Earls' interrogatories only with respect to presses of the same model, No. 28 1/2, as that which injured Steven Earl. ¹

The record does not indicate the date that model No. 28 1/2 presses were first manufactured. The trial court limited...