Marrocco v. General Motors Corp.

• Decision Date: 07 July 1992
• Docket Number: 91-3083,Nos. 91-3045,s. 91-3045
• Citation: 966 F.2d 220
• Parties: Francis N. MARROCCO, Individually, and as Father and Next Friend of Francis A. Marrocco and Stefani Marrocco, minors, Donna Marrocco, and Madlaine Marrocco, Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION, Defendant-Appellee. John E. JONES and Janice Jones, Plaintiffs-Appellees, v. GOODYEAR TIRE AND RUBBER COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 220

966 F.2d 220

22 Fed.R.Serv.3d 967

Francis N. MARROCCO, Individually, and as Father and Next

Friend of Francis A. Marrocco and Stefani

Marrocco, minors, Donna Marrocco, and Madlaine Marrocco, Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.

John E. JONES and Janice Jones, Plaintiffs-Appellees, v. GOODYEAR TIRE AND RUBBER COMPANY, Defendant-Appellant.

Nos. 91-3045, 91-3083.

United States Court of Appeals Seventh Circuit.

Argued April 9, 1992.

Decided June 12, 1992.

As Amended July 7, 1992.

Robert J. Trizna, Robert J. Lepri, Daniel L. Collins, Trizna & Lepri, Daniel J. Fumagalli, Fumagalli & Tecson, Chicago, Ill Thomas A. Ricca, Scott F. Bergo, Detroit, Mich., for plaintiffs-appellants.

Thomas D. Nissen, Paul R. O'Malley, O'Malley & O'Malley, Chicago, Ill., Glenn F. Ruud, Ruud, Scovil & Neppl, Rock Island, Ill., for plaintiffs-appellees.

William E. Kelly, Michael H. West, Edmund W. Sinnott, Stephen M. Naughton, Pope, Ballard, Shepard & Fowle, Chicago, Ill., Peter H. Lousberg, Lousberg, Kopp & Bonnett, Rock Island, Ill., for defendant-appellant.

Hugh C. Griffin, David R. Reed, Diane I. Jennings, and L. Anthony Lehr, Lord, Bissell & Brook, Chicago, Ill., for defendant-appellee General Motors Corp.

Before FLAUM, EASTERBROOK and KANNE, Circuit Judges.

KANNE, Circuit Judge.

We have consolidated for decision these two appeals because though they arise from separate cases before different district judges, both involve questions about how severely a judge may sanction a party for violating a pretrial protective order. We affirm the district judge's choice of sanctions in both instances.

I.

Marrocco v. General Motors Corp.

In this case, plaintiff Francis N. Marrocco and his family brought this products liability action against General Motors Corporation to recover damages for the injuries they incurred in a 1986 car accident. They alleged that the rear axle of their GM car was defective and broke in the moments just before the collision occurred, thereby causing the driver to lose control; GM responded that the broken axle was a result of the impact, rather than the accident's cause. Consequently, the district court issued a protective order requiring both parties to preserve the condition of the car and its components. The order provided in relevant part:

The purpose of this Protective Order is to ensure preservation and safekeeping of the motor vehicle which is the subject of this litigation, while at the same time ensuring that all parties have sufficient access to the vehicle for necessary study and testing and that no parties rights are prejudiced.

4. No destructive testing shall be performed upon the vehicle, nor shall any changes, alterations or modifications be made to the vehicle, without further order of this court.

Both parties proceeded to conduct their pretrial examinations of the vehicle within the parameters of this order--always in each other's presence, and always with prior notice.

Until one Saturday morning in September of 1988. It was then that the plaintiffs arranged a "private" viewing of the vehicle for their three case experts. Of course, without the GM experts looking on, the plaintiffs' experts would be free to inspect the car however they pleased. Unfortunately, they went too far: when the left rear axle bearing assembly was removed to determine whether there were any impact marks inside it, the metal cage which held the axle's thirteen individual roller bearings was accidently deformed. As a result, all of the rollers fell out and their sequence within the bearing assembly was irretrievably lost. This meant that any pattern of impact marks on the rollers--a pattern which could have indicated whether the axle broke before or after the accident--was likewise destroyed.

GM only learned about this ex parte inspection a month later, when one of the plaintiffs' experts unintentionally referred to it during a deposition. GM immediately moved to dismiss the plaintiffs' complaint for violation of the protective order. After holding an evidentiary hearing on GM's motion, Judge Plunkett found that the plaintiffs had wilfully violated the protective order; that the destructive inspection had deprived GM of evidence which was material to its defense; and that plaintiffs' counsel had also "attempted to suborn perjury and to conceal the violation of a court order." The judge accordingly sanctioned the plaintiffs by granting GM's motion to dismiss, and by ordering plaintiffs' attorneys to pay all of GM's legal fees and costs associated with its motion. In addition, a copy of the court's opinion was submitted to the Michigan state bar--where the plaintiffs' attorneys were admitted to practice-- with a request that a disciplinary investigation be commenced.

In response, the plaintiffs filed a motion for relief from the dismissal order on the grounds that the district judge's choice of sanctions was unduly harsh in light of the circumstances of the case; that motion was in turn referred to a magistrate judge for a report and recommendation. The plaintiffs then filed a second motion, asking the district judge to permit the magistrate to consider a new "alternative" to dismissal--that GM be required to reconstruct the bearing assembly to the best of its ability, and proceed to defend the case using the manufactured evidence. The magistrate judge was given authority to review the plaintiffs' proposal, but ultimately rejected it as too speculative to support any "honest" expert testimony by GM's witnesses. The magistrate judge also determined that the district judge's dismissal order was justified given the plaintiffs' flagrant disregard of the protective order, and their attorneys' subsequent attempts to cover up the violation. These findings were each adopted by the district judge, and so the plaintiffs' motion for relief from the dismissal order was denied. The plaintiffs appeal solely from this denial. ^*

Jones v. Goodyear Tire and Rubber Co.

Here we have the flipside of Marrocco--a defendant who violated a pretrial protective order. In this products liability action, plaintiffs John and Janice Jones sought damages for personal injuries John suffered when a multipiece truck rim separated; named as defendants were the Firestone Tire and Rubber Company, the manufacturer of the rim base, and the Goodyear Tire and Rubber Company, the manufacturer of the side ring which actually struck John Jones and caused his injuries. On May 16, 1986, the plaintiffs and Goodyear stipulated to a protective order which gave Goodyear forty-five days to inspect the rim base and side ring, provided it "preserve, keep safe and maintain" their condition. Both items were then shipped to Goodyear's main headquarter in Akron, Ohio via the United Parcel Service.

The rim base arrived in Akron on May 27, 1986, but the side ring never got there. Goodyear should have expected trouble given the way the items were packaged. The side ring was never boxed, though a box could have been purchased from UPS for all of $2.50. It was simply taped to the top of the rim base and tagged with its destination. Goodyear only compounded its problems by waiting nearly three months after receipt of the rim base before initiating an internal trace through the UPS, or even informing the plaintiffs that the ring was missing so they could conduct their own search. By the time UPS was actually contacted, it was already too late; the ring was deemed to have been destroyed in the UPS national overgoods center in Atlanta, Georgia--a shipping graveyard where unclaimed items are eventually discarded.

It was not until four years later on March 23, 1990 that the plaintiffs first filed their motion for sanctions. Following a lengthy evidentiary hearing, Judge Mihm concluded that Goodyear had violated the protective order by reason of its own gross negligence. 137 F.R.D. 657. In reaching this holding, the court cited numerous illustrations of Goodyear's lack of care in handling the side ring, including: its failure to adequately package and label the side ring; its failure to timely monitor the UPS shipment and delivery to Akron; its failure to commence a timely trace through UPS; and its failure to timely notify plaintiffs' counsel of the missing side ring before it was too late for them to initiate their own investigation for the side ring. The court went on to state that the "side ring was material and irreplaceable evidence necessary to establish Plaintiffs' theories of a manufacturing defect or deviation from design specification." Accordingly, a directed verdict was entered in favor of the plaintiffs and against Goodyear on the claim for liability based on negligent manufacturing. Goodyear alone was sanctioned, and Goodyear alone now appeals.

II.

We cannot understate the difficulty of the task litigants face when challenging a district court's choice of sanctions. They must convince us that the district court abused its discretion in sanctioning them--a burden which is met only when it is clear that no reasonable person would agree the trial court's assessment of what sanctions are appropriate. Pyramid Energy, Ltd. v. Heyl and Patterson, Inc., 869 F.2d 1058, 1061 (7th Cir.1989); 3 Penny Theater Corp. v. Plitt Theatres, Inc., 812 F.2d 337, 339 (7th Cir.1987); Zaddack v. A.B. Dick Co., 773 F.2d 147, 150 (7th Cir.1985); Locascio v. Teletype Corp., 694 F.2d 497, 499 (7th Cir.1982), cert. denied, 461 U.S. 906, 103 S.Ct. 1876, 76 L.Ed.2d 808 (1983). Most are unable to meet so demanding a standard, and today's appellants are no exception.

Given the record before us, it would be hard to imagine plaintiffs more deserving of civil sanctions than the Marroccos. The conduct of their experts and attorneys clearly transgressed the court's protective order: they arranged for Francis Marrocco to have the yard where his car was kept opened during the weekend--when it would otherwise be closed--so that the experts could...