Hopkins v. Duo-Fast Corp.

• Decision Date: 28 January 1993
• Docket Number: DUO-FAST,No. 18372,18372
• Citation: 123 Idaho 205,846 P.2d 207
• Parties: Steven L. HOPKINS and Cheryl Hopkins, husband and wife, Plaintiffs-Appellants, v.CORPORATION, an Illinois corporation; Duo-Fast Corporation, Northwest Sales and Service Division, an Illinois corporation in good standing in the State of Idaho, Defendants-Respondents. Boise, September 1992 Term
• Court: Idaho Supreme Court

Page 207

846 P.2d 207

123 Idaho 205

Steven L. HOPKINS and Cheryl Hopkins, husband and wife, Plaintiffs-Appellants, v. DUO-FAST CORPORATION, an Illinois corporation; Duo-Fast Corporation, Northwest Sales and Service Division, an Illinois corporation in good standing in the State of Idaho, Defendants-Respondents.

No. 18372.

Supreme Court of Idaho,

Boise, September 1992 Term.

Jan. 28, 1993.

Howard & Owens, Coeur d'Alene, for plaintiffs-appellants. Kenneth B. Howard, Jr., argued.

Hall, Farley, Oberrecht & Blanton, Boise, for defendants-respondents. Donald J. Farley, argued.

ON REHEARING

McDEVITT, Justice.

Before and after his injury, plaintiff Steven Hopkins worked for Northwest Building Systems ("Northwest"), a manufacturer of modular homes. While at work reviewing a sheet of building specifications, Hopkins was struck in the left eye by a three inch nail and was permanently injured. At the time of this incident, a co-worker was nearby, operating a pneumatic nail gun, which was manufactured by Duo-Fast. ¹ Duo-Fast provided Northwest with nail guns and in exchange Northwest purchased all of its nails and other fasteners from Duo-Fast.

Plaintiffs brought a product liability action against Duo-Fast, alleging defects in the nails and nail guns manufactured by Duo-Fast. The plaintiffs' theory at trial was that the nail gun which injured Steven Hopkins should have been provided with a safety device known as a "drop-off," that drop-offs were not provided by Duo-Fast as standard equipment on all of its nail guns, and that some of the nails manufactured by Duo-Fast for the nail guns were of a dimension that would allow them to escape from the guns in tandem. Without the drop-off attachment, when one nail was fired another nail might also be fired from the nail gun on a different trajectory. The gun used by the co-worker did not have a drop-off attachment.

During the trial, the defendants' expert, Bookwalter, modified what had been his earlier testimony in deposition, as the result of determining during the course of direct examination of plaintiffs' witness that he had been provided erroneous information as to the size of the nail head used in the nail gun in question. Bookwalter had been provided the nail head dimension by the defendants based upon information the defendants had provided in the course of discovery to the plaintiffs. Plaintiffs objected to this revised testimony; after inquiry, the court permitted the testimony.

An additional defense expert witness, Dr. Blotter, had had his deposition taken approximately two weeks prior to the commencement of the trial by the plaintiffs, had described the testing and analysis performed by him at that deposition, and rendered an opinion. Subsequent to this deposition, and prior to his testimony, Dr. Blotter performed additional tests and analysis which changed his testimony to the effect that the nail gun did not generate the velocity required for the accident to have occurred as described by the plaintiffs.

Defense counsel informed plaintiffs' counsel of this contemplated change in testimony the morning that Dr. Blotter was to testify. Plaintiffs' counsel timely objected to the testimony which after inquiry was permitted over plaintiffs' objection.

After both parties presented lay and expert testimony, a jury returned a verdict for Duo-Fast. The jury determined that Duo-Fast did not manufacture an unreasonably dangerous or defective product, and that no warranties had been breached by Duo-Fast.

The issues framed by the plaintiff on appeal with which we must deal are as follows:

1. Did the trial court err in permitting testimony of defendants' experts where:

(a) the defendants' expert deposition testimony was based on information concerning product condition provided by the defendant to the defendants' expert and where the defendant divulged, for the first time at trial, that the information upon which its expert relied and testified at deposition was in error;

(b) the opinions expressed by the defendants' expert witness at the time of his deposition were changed prior to trial, but no notice was given of the changed testimony to the plaintiffs until the day of testimony at trial of the defendants' expert witness (c) additional tests and analyses were performed after the deposition of the defendants' experts and the results of said tests and analyses were not provided to counsel for plaintiffs until the day of the experts' testimony at trial?

2. Did the trial court err in giving the jury a limiting instruction with regard to the introduction of defendants' safety bulletin, plaintiffs' Exhibit 18?

I. DID THE TRIAL COURT ERR IN PERMITTING THE DISPUTED TESTIMONY OF DEFENDANTS' EXPERT WITNESSES

The testimony of Jeffrey Bookwalter, to which appellants object, was a result of Mr. Bookwalter learning during the course of plaintiffs' examination of its witness that Bookwalter had used a different dimension nail head than Hopkins' witness Mr. Novak. Bookwalter used the dimension supplied by Novak (plaintiffs' witness) rather than that he had used earlier.

After the timely objection of plaintiffs' counsel to the testimony of Bookwalter, the court made inquiry and determined that Mr. Bookwalter had relied upon engineering drawings of the nails, which were supplied by the defendants to the plaintiffs during discovery, and which became, during this trial, Exhibit 8. These engineering drawings were drawings of a nail then in use, but were of a dimension different than that which was in use at the time of the accident, March 4, 1986.

During plaintiffs' case-in-chief, they called Mr. Novak to establish the actual size of the head of the nail in use at the time of the injuries sustained by the plaintiff. It was during this testimony that Mr. Bookwalter learned for the first time that the information upon which he was relying was improper. Mr. Bookwalter then adjusted his analysis to reflect the evidence introduced by plaintiffs in their case-in-chief, as to the actual nail head dimensions.

The issue, as to the testimony of Dr. Blotter was framed based upon deposition testimony taken approximately two weeks prior to the trial date, and the proffered testimony of Dr. Blotter at the trial.

During the deposition of Dr. Blotter, an expert hired by Duo-Fast, plaintiffs' counsel asked Dr. Blotter whether or not he was going to conduct more tests:

Q. Are there any other opinions that you are going to be expressing in this trial in terms of areas of your evaluation that we haven't already discussed that you can think of?

A. Well, that will depend upon Mr. Farley [opposing counsel] and it will depend on the development of the case. I think if something comes up that needs a technical response as an expert, then I would respond to that request.

....

Q. Dr. Blotter, you can understand I am sure also that I am representing a client and I do not want to be ambushed by new information that comes out ten minutes or two days before trial. You understand that, don't you?

A. Yes, but could I also expect that you would welcome with a welcome hand anything that would add to the truthfulness as to what would happen.

Q. If I had an opportunity to test its truthfulness, yes, but I don't want you to be the sole judge of that. I want to know if you anticipate doing any further work on this [in] advance of trial.

Deposition of Dr. Blotter, 87-88 (taken August 31, 1989).

On the morning of the day that Dr. Blotter testified at trial:

"MR. HOWARD [counsel for Hopkins]: Over the break I asked Mr. Farley if there's any additional work that had been done by Dr. Blotter, who is his next expert witness he intends to call.

"He indicated to me that there was. The court afforded me the opportunity to talk to Dr. Blotter, who's out in the hallway now. I took about 10 minutes to do that.

"I guess I wanted to place my objection on the record. Also there's work that's been done by Dr. Blotter.

"We continued his deposition because he had indicated at his deposition, and Mr "And he did some force tests and he did some other calculations in regard to shear strength, which I haven't had a chance--I have talked to him about it. But as a practical matter, there is no way that I'm going to be able to get into analyzing what he did so ... that I can effectively interrogate him on that.

[123 Idaho 208] Farley had, that he might want to do something more. And yet until I asked Mr. Farley this morning, I still wasn't told what it was.

"I wanted to place my objection on the record, which is essentially the same objection I placed on the record with regard to Mr. Blotter--Mr. Bookwalter. I'm sorry. That I think it's the defendant's obligation to make that information available to me. Not 15 or 20 minutes before the witness goes on, but long enough for me to be able to meaningfully do something with it.

"And I guess I wanted to object to that. And he isn't on the stand yet, and I appreciate that. But this is in an effort to try and save some time with the jury.

"THE COURT: Mr. Farley?

"MR. FARLEY: Yes, Your Honor.

"I didn't know what Dr. Blotter had done until I met with him late last night. And there wasn't an opportunity for me to even advise Mr. Howard until this point during the day.

"The work that he has done since his deposition was discussed at his deposition and Dr. Blotter alluded to it. He said, I have done this type of a qualitative analysis, but I haven't done a quantitative analysis.

"And essentially that is what has been disclosed by Mr. Howard at this point. And building on the same information that was discussed at his deposition, what his quantitative analysis is based upon that.

"He's had the opportunity to talk to him, spend whatever time he wishes to spend with him. I don't know what else I can say. He's here, he's available for Mr. Howard to speak with for however long he wishes to speak with him.

"If he wishes to take his deposition before he testifies, since I know we're going...