Hunter v. Nissan Motor Co., Ltd. of Japan, A97A1389

• Decision Date: 05 December 1997
• Docket Number: No. A97A1389,A97A1389
• Citation: 229 Ga.App. 729,494 S.E.2d 751
• Parties: , 98 FCDR 6 HUNTER et al. v. NISSAN MOTOR COMPANY, LTD. OF JAPAN et al.
• Court: Georgia Court of Appeals

Page 751

494 S.E.2d 751

229 Ga.App. 729, 98 FCDR 6

HUNTER et al. v. NISSAN MOTOR COMPANY, LTD. OF JAPAN et al.

No. A97A1389.

Court of Appeals of Georgia.

Dec. 5, 1997.

Certiorari Denied April 10, 1998.

Morris & Webster, Tifton, Steven R. Webster, Atlanta, Craig A. Webster, for appellants.

King & Spalding, Lanny B. Bridgers, Steven J. Estep, Atlanta, Blasingame, Burch, Garrard, Bryant & Ashley, E. Davison Burch, Athens, Amy M. Power, Atlanta, for appellees.

McMURRAY, Presiding Judge.

In January 1989, Margaret Thrasher Hunter was driving a 1982 Nissan Sentra automobile ("Sentra") with her two sons as rear-seat passengers. While she was waiting to make a turn, her Sentra was struck in the rear by a 1980 Chevrolet Monte Carlo automobile operated by an allegedly intoxicated minor under the legal drinking age. The rear of Hunter's Sentra collapsed, crushing the car's rear passenger area. One child died, the other was injured.

Hunter filed a products liability action against Nissan Motor Company, Ltd. of Japan and Nissan Motor Corporation in U.S.A. ("the Nissan defendants"), individually and in her representative capacities for her surviving child and her deceased child's estate, alleging (in pertinent part) that the Nissan defendants defectively designed the Sentra to withstand rear-end collisions. ¹ At the April 1995 trial, however, the trial court directed the jury to disregard key expert-testimony supporting this claim. Specifically, the trial court excluded Automotive Design Engineer Billy S. Peterson's testimony that $3 worth of steel during the manufacturing process or a $20 impact-absorbing bumper would have cured the alleged defect (the Sentra's unreinforced impact-absorbing frame stubs) which caused the Hunters' catastrophic injuries. ² The trial court imposed this sanction because Hunter did not supplement her interrogatory responses or Peterson's deposition so as to update the Nissan defendants regarding Peterson's suggested safer design alternatives, as was allegedly required by OCGA § 9-11-26(e).

The jury found in favor of the Nissan defendants. This appeal followed. Held:

1. Hunter contends the trial court erred in striking Billy S. Peterson's expert testimony regarding alternative safer designs for the 1982 Sentra automobile. We agree.

Exclusion of probative trial evidence is not an appropriate remedy for curing an alleged discovery omission. White v Lance H. Herndon, Inc., 203 Ga.App. 580, 581(5), 417 S.E.2d 383. Such a harsh and unnecessary sanction was flatly rejected, albeit under different circumstances, in Sharpe v. Dept. of Transp., 267 Ga. 267, 270(2), 271, 476 S.E.2d 722, where the Supreme Court of Georgia held that a motion to strike is never an appropriate tool for excluding probative evidence during a civil jury trial. The only appropriate remedy for Hunter's alleged failure to update her discovery responses or her expert witness' deposition testimony in the case sub judice (if any such update was even required) was postponement of trial or a mistrial. ³ White v. Lance H. Herndon, Inc., 203 Ga.App. 580, 581(5), 417 S.E.2d 383, supra. See Jones v. Atkins, 120 Ga.App. 487, 490(2), 171 S.E.2d 367. The trial court simply did not have authority or latitude to grant the Nissan defendants' motion to strike the Hunters' expert's "alternative design" testimony. The trial court's judgment must therefore be reversed for a new trial so that a jury may consider Billy S. Peterson's expert testimony. Saying otherwise, as does the dissent, not only disregards controlling authority, but also disregards this State's venerable policy against obliquely coursing appropriate paths in the name of procedural gaming by excluding relevant evidence, which is not inadmissible for some reason of prejudice or illegality. See Ga. Farm, etc., Ins. Co. v. Merck, 209 Ga.App. 879, 880(1), 434 S.E.2d 585, and cits.

2. Hunter contends the trial court erred in denying her motion to exclude the testimony of Jeff Worth, a testing engineer who conducted a crash test between a Sentra automobile and a Monte Carlo automobile which the Nissan defendants used in their defense. Hunter argues that Worth was not identified during discovery as an expert and that the substance of his testimony was never disclosed. Since these alleged omissions will no longer be an obstacle to Jeff Worth's testimony upon remand for a new trial, it is unnecessary to address this enumeration of error.

3. Our holding in Division 1 of this opinion renders moot Hunter's final enumeration of error regarding the trial court's exclusion of Billy S. Peterson as a rebuttal witness.

Judgment reversed.

BIRDSONG, P.J., RUFFIN and ELDRIDGE, JJ., concur.

ANDREWS, C.J., BEASLEY and SMITH, JJ., dissent.

BEASLEY, Judge, dissenting.

I respectfully dissent as to Division 1 of the majority opinion and the reversal of the judgment.

1. In this case, expert witness Peterson referred to the severity of the damage to the Nissan as excessive crush and attributed it to a lack of structure in the rear of the vehicle. He identified the Nissan's stub frame as the energy absorber that manages crush in this part of the car. It was his opinion that in order for the stub frame to function effectively it must remain horizontal, which it failed to do in the collision.

When Peterson testified that the stub frame can be stabilized by installing a "sleeve," defendants objected on grounds that the witness did not respond to questioning on this subject during his deposition and plaintiff did not comply with a defense request to supplement the witness' answers to its interrogatories with newly acquired information. After the court overruled the objection, Peterson testified that when the Nissan was designed and manufactured, the sleeve could have been installed for about $3 per vehicle. Counsel asked Peterson about other available safer designs, and the same objection was made and overruled.

Peterson then identified a "five mile per hour bumper" as another available alternative that would have cost $20 per vehicle. Defendants renewed their objection, and after learning that Peterson had arrived at his opinions concerning alternative designs after his deposition but before trial, the court ruled that plaintiff failed to comply with the discovery obligation to supplement the witness' interrogatory responses. The court granted defendants' motion to strike the alternative-design testimony and instructed the jury to disregard it. Nonetheless, the court charged the jury on the risk-utility doctrine adopted in Banks and that a factor integral to assessment of design utility is the availability of alternative designs. ⁴

The Civil Practice Act (CPA) provides that "[a] party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired," except as set forth in subsections (1) and (2). OCGA § 9-11-26(e). Subsection (1) states: "A party is under a duty seasonably to supplement his response with respect to any question directly addressed to: (A) The identity and location of persons having knowledge of discoverable matters; and (B) The identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify and the substance of his testimony." Subsection (2) states: "A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which: (A) He knows that the response was incorrect when made; or (B) He knows that the response, though correct when made, is no longer true and the circumstances are such that a failure to amend the response is, in substance, a knowing concealment." This section of the CPA applies to both oral depositions as well as written forms of discovery, Glennville Hatchery v. Thompson, 164 Ga.App. 819, 824(6), 298 S.E.2d 512 (1982), and extends to the time of trial. See Haugabrook v. Waco Fire, etc., Ins. Co., 190 Ga.App. 815, 816(2), 380 S.E.2d 347 (1989).

It was not error to rule that plaintiff failed to fulfill her disclosure obligations. In such instances, the question is what sanction should be imposed. The CPA does not provide a specific answer. Hanna Creative Enterprises v. Alterman Foods, 156 Ga.App. 376, 377(2), 274 S.E.2d 761 (1980). Case law provides the solution.

In the pre-CPA case of Nathan v. Duncan, 113 Ga.App. 630, 638(7), 149 S.E.2d 383 (1966), defendant objected to the testimony of lay witnesses whose existence was not disclosed until trial. Pretermitting the question of whether plaintiff was under a duty to list the witnesses in answer to defendant's interrogatory as worded, the Court held that "the proper procedure when [undisclosed witnesses] were called to testify was not to object to their testifying or to the admission of their testimony, but to move for a postponement of the trial for a sufficient length of time to enable the defendant to interview them, check the facts to which they would testify, and, if indicated, arrange to secure rebuttal evidence or to impeach them. It would be an abuse of discretion, requiring the grant of a new trial, to refuse the postponement. If this should not come up until the trial was already under way and the court determined that a postponement was impracticable, a mistrial should be declared. [Cits.]" Id. at 641, 149 S.E.2d 383. It also suggested a citation for contempt. The Court looked at the application of the federal rules in fashioning its answer to a violation of the civil procedure statute which preceded the CPA.

Jones v. Atkins, 120 Ga.App. 487, 490(2), 171 S.E.2d 367 (1969), was decided after the adoption of the CPA. The Court considered interpretation of the corresponding federal rules, articulated the purpose of pretrial disclosure requirements (avoid surprise at trial), and applied the complementary rationale and practical sanction which had been utilized in Nathan. The Court...