Livingston v. Isuzu Motors, Ltd.

• Decision Date: 22 December 1995
• Docket Number: No. CV-92-50-BU-RMH.,CV-92-50-BU-RMH.
• Citation: 910 F. Supp. 1473
• Parties: Elizabeth LIVINGSTON and George Livingston, Plaintiffs, v. ISUZU MOTORS, LTD., American Isuzu Motors, Inc., and Isuzu Motors of America, Inc., and John Does I Through X, Defendants.
• Court: U.S. District Court — District of Montana

910 F. Supp. 1473

Elizabeth LIVINGSTON and George Livingston, Plaintiffs, v. ISUZU MOTORS, LTD., American Isuzu Motors, Inc., and Isuzu Motors of America, Inc., and John Does I Through X, Defendants.

No. CV-92-50-BU-RMH.

United States District Court, D. Montana, Butte Division.

December 22, 1995.

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Steven J. Crowley, Darwin Bunger, Crowley Law Firm, Burlington, IA, Michael C. Coil, Angel, Screnar, Coil, Bartlett & Fay, Bozeman, MT, for Elizabeth Livingston and George Livingston.

Richard A. Bowman, David R. Kelly, Steven L. Reitenour, Bowman & Brooke, Minneapolis, MN, for Isuzu Motors, Ltd.

James M. Ragain, Holland & Hart, Billings, MT, Mary E. Bolkcom, John Q. McShane, David R. Kelly, Steven L. Reitenour, Bowman & Brooke, Minneapolis, MN, for American Isuzu Motors, Inc. and Isuzu Motors America, Inc.

OMNIBUS ORDER AND OPINION

HOLTER, United States Magistrate Judge.

Pending before the court are numerous post-trial motions which the parties fully briefed and then argued before the court on September 15, 1995. The motions will be discussed in the following order:

I. Plaintiffs' motion to disqualify David Schultz and the firm of Bowman and Brooke.

II. Defendants' motion to stay judgment pending termination of further motions and appeal.

III. Plaintiffs' motion for additur re: punitive damages and motion for new trial re: punitive damages.

IV. Plaintiffs' motion to release exhibits from protective order.

V. Defendants' motion to interview jurors.

VI. Defendants' renewed motion for judgment as a matter of law or for a new trial.

FACTUAL BACKGROUND

This action arose from a single vehicle, off-road rollover that occurred on August 7, 1989, near Bozeman, Montana. Plaintiff Elizabeth Livingston inadvertently drove her Isuzu Trooper II off the road on which she was traveling. When Livingston attempted to drive back onto the roadway, the vehicle rolled and she was ejected, sustaining a fracture at T-12 that rendered her paraplegic.

The trial of this action began before the undersigned on June 5, 1995, in Butte, Montana. Plaintiffs rested their case on Tuesday, June 13, 1995. Immediately thereafter, defendants moved for a directed verdict and for judgment as a matter of law pursuant to Rule 50, Federal Rules of Civil Procedure. This court denied defendants' motions and defendants proceeded with their case-in-chief on the afternoon of June 13, 1995.

On Wednesday, June 14, 1995, during the testimony of Dr. Richard Stalnaker, a biomechanical engineer, defendants offered into evidence defendants' exhibit 592, a poster-like diagram with dimensions of about 36 inches high by 30 inches wide.¹ The exhibit displayed a listing of plaintiff's injuries sustained in the rollover and showed their specific location by referencing a drawing of a female body. Elizabeth Livingston's name appeared on the top center of the exhibit followed by the words "Driver-Unbelted" in about one- to two-inch letters.

Dr. Stalnaker adjusted the exhibit on the easel, which was about 10 to 15 feet from the jury box. Plaintiffs' counsel requested a sidebar, which the court granted. Following the sidebar, the exhibit was taken down and turned away from the jury. The court sent the jury to the jury room and continued the proceeding out of the jurors' presence. The court estimates the exhibit was before the jury for two to three minutes.

Plaintiffs' counsel moved to sanction defendants for violating the court's order in limine precluding mention of Elizabeth Livingston's failure to use a seat belt. Plaintiffs requested judgment with respect to liability with the trial to proceed on the issue of damages only. In the alternative, plaintiffs requested a mistrial with defendants to incur all costs or for a cautionary jury instruction, at the very least.

After consideration of the issues and argument from the parties, this court struck defendants' defenses and sent the case to the jury on the evidence offered to that point. The jury returned a verdict finding defendants liable and awarding compensatory damages of $2,110,409.19.

DISCUSSION

I.

The motion to disqualify David Schultz and the law firm of Bowman and Brooke is now moot.

Counsel have assured the court that Schultz is no longer with the Bowman and Brooke firm and will take no further part in these proceedings.

The second part of the motion was satisfied by Bowman and Brooke filing with the court a document in which the Isuzu defendants acknowledge the possibility that a conflict of interest may exist between the Bowman and Brooke firm and the Isuzu defendants, and that the Isuzu defendants request Bowman and Brooke to continue as their attorneys.

II.

Defendants' motion to stay judgment pending appeal is granted.

Plaintiffs did not file a brief to oppose this motion. See Rule 220-1(i), Rules of Procedure of the United States District Court for the District of Montana (failure to file a brief by the adverse party shall be deemed an admission that, in the opinion of counsel, the motion is well taken).

III.

Plaintiffs' motion for additur re: punitive damages and for a new trial re: punitive damages is denied.

The question was clearly posed to the jury whether punitive damages should be awarded against defendants by the punitive damage verdict question:

"Are the plaintiffs entitled to punitive damages?" The jury answered "No" to this question. Thus, because the jury did not determine entitlement to punitive damages, there is nothing to add to. Liability for punitive damages must be determined by the trier of fact, whether it be judge or jury. Mont.Code Ann. § 27-1-221(6).

Plaintiffs contend the court erred in not affording them the opportunity to present further financial evidence. Whether the court should have permitted counsel to state the net worth of the defendants is frankly questionable, but no further evidence was offered by plaintiffs nor was an offer of proof made by plaintiffs of the defendants' "financial affairs, financial condition and net worth" as required by section 27-1-221(7)(a) of the Montana Code. Because the jury did not reach the query requiring them to determine the amount of damages, the quantum of proof of such damages is moot.

Section 27-1-221 requires determination of punitive damages in an "immediate, separate proceeding." The court afforded counsel several hours to confer about a full settlement of this case after the general verdict was returned and before the punitive damage question was presented to the jury. During the entire time counsel were attempting to negotiate a settlement, the jury was sequestered. When the case did not settle, the court proceeded to submit the punitive damage question to the jury.

It was Friday afternoon on the tenth day of trial; to delay submitting the punitive damage question until a later date was unwarranted from the standpoint of efficient use of the court and its facilities and from the standpoint of jury utilization. Counsel should have been prepared to proceed to the "immediate, separate proceeding" as the statute requires. Counsel were permitted to produce evidence according to the dictates of statute and to argue the entire record as it related to punitive damages. The jury verdict, however, would not have been aided by financial evidence since the conclusion was that plaintiffs were not entitled to such damages.

IV.

Plaintiffs' motion to release exhibits from protective order is denied.

All of the protected exhibits were used at public trial of this cause; afterwards the exhibits were returned to the party who produced them. This was done because the sheer volume of exhibits made a storage problem for the Clerk of Court and because copies of each party's exhibits had been furnished to their opponents. Thus, although they were used at trial, such exhibits did not enter the public record as it existed following the trial.

Jochims v. Isuzu Motors, Ltd., 151 F.R.D. 338, 340 (S.D.Iowa 1993), is a well-reasoned case providing insight into the disposal of plaintiffs' motion. There, the court held that although the trial record had not been sealed, there was no common law right of access to confidential documents used at trial. Id. Acting under the court's supervisory power over its own records and files, the court must exercise sound discretion in determining whether to seal or not. Id. The trial judge has the obligation to override any public access where disclosure would harm a litigant's competitive standing. Id. at 341. The court then held that the confidential documents, which by their description were nearly identical to those at issue here, continued in their protected status. Id. "In making this determination, this court is mindful of the need to balance the competing interests involved, and to make this determination in light of the facts and circumstances of this particular case." Id. at 341. Finally, the right of the public to access does not override the interests of the defendant in maintaining confidentiality to its documents. Id. at 341-42. "The public good would be substantially disserved if the introduction of a document in a civil trial deprived it of its otherwise confidential status." Id. at 342.

Much the same situation confronting the court in Jochims exists here. All of the documents were produced pursuant to protective order which contemplated use of such documents at trial without loss of their confidentiality. Plaintiffs did not timely dispute whether any of the produced documents were truly confidential and as such subject to the protective order. This court notes that during the trial these documents were regarded by all parties as confidential, sensitive information, and by implication agreed that the untoward release of them had the potential to harm defendants. Finally, the confidential documents are not now part of the public record; the continued treatment of the documents as...