Perkinson v. Gilbert/Robinson, Inc.

• Citation: 821 F.2d 686
• Decision Date: 19 June 1987
• Docket Number: 86-5248 and 86-5282,Nos. 86-5048,s. 86-5048
• Parties: , 8 Fed.R.Serv.3d 383 Nellie M. PERKINSON, Appellant, Ralph Hawks v. GILBERT/ROBINSON, INC., d/b/a Houlihan's Old Place. (Two Cases) Nellie M. PERKINSON, et al. v. GILBERT/ROBINSON, INC., d/b/a Houlihan's Old Place, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 686

821 F.2d 686

261 U.S.App.D.C. 198, 8 Fed.R.Serv.3d 383

Nellie M. PERKINSON, Appellant, Ralph Hawks v. GILBERT/ROBINSON, INC., d/b/a Houlihan's Old Place. (Two Cases)

Nellie M. PERKINSON, et al. v. GILBERT/ROBINSON, INC., d/b/a Houlihan's Old Place, Appellant.

Nos. 86-5048, 86-5248 and 86-5282.

United States Court of Appeals,

District of Columbia Circuit.

Argued April 14, 1987.

Decided June 19, 1987.

Thomas W. Kirby III, Washington, D.C., was on the brief for appellant/cross-appellee, Nellie M. Perkinson.

Frank J. Martell, ^* Rockville, Md., was on the brief, for appellees/cross-appellants, Gilbert/Robinson, Inc., et al.

James C. Gregg and D'Ana E. Johnson, Rockville, Md., entered appearances for appellees/cross-appellants.

Before SILBERMAN, BUCKLEY and D. H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

This case presents two issues on appeal: whether an award of attorney's fees and costs as sanctions for a repeated pattern of discovery evasion constituted an abuse of the trial judge's discretion; and whether under District of Columbia law the trial judge should have instructed the jury that a violation of the D.C. Building Code was negligence per se and precluded the defense of contributory negligence. We affirm the district court as to its sanctions award, but reverse with respect to the jury instructions issue.

I.

Plaintiff Nellie M. Perkinson, an elderly lady from Williamsburg, Virginia, was visiting Washington, D.C. with her family on Easter Sunday, April 22, 1984. After attending services at the National Cathedral, Mrs. Perkinson and her family traveled to Georgetown for lunch at Houlihan's Old Place Restaurant. Mrs. Perkinson and her party entered the restaurant at the street level and were directed up several wood surface steps to the upper level of the restaurant where they were seated for lunch. After lunch, as she attempted to walk down the steps, Mrs. Perkinson slipped and fell, severely fracturing her thigh. Despite surgery and physical therapy, Mrs. Perkinson remains substantially incapacitated by the accident.

After the restaurant disavowed responsibility for the accident, Mrs. Perkinson brought this diversity suit in federal district court, alleging that her fall had been caused by Houlihan's negligence, principally its failure to apply a "nonslip" surface to the wood steps as mandated by the District of Columbia Building Code, 12 D.C.M.R. Sec. 603.5 (provisional ed. 1983). The restaurant denied any violation of the Building Code or any other negligence and alleged, in any event, that Mrs. Perkinson's fall resulted from her negligent inattention as she descended the steps and not from the condition of the premises.

What began as a simple "slip and fall" case, quickly became a protracted and contentious discovery war as defendant repeatedly obstructed plaintiff's efforts to prepare for trial. Defendant blocked the deposition of critical witnesses--ultimately prompting the district court to intervene and order the deponents produced with defendant paying certain travel costs as a sanction. Defendant also failed on several occasions to produce requested documents, most notably, Georgetown Houlihan's safety reports, which were on file at the headquarters of the restaurant's parent corporation, Gilbert/Robinson, Inc. At the trial, which began on February 19, 1985, a key defense witness, the restaurant's manager, John Mignona, contradicted his prior deposition testimony that the steps on which plaintiff fell did not have a nonslip surface. Mr. Mignona stated that the steps had actually been treated with a nonslip substance called "Glitsa." This testimony caught plaintiff by surprise because defendant had not supplemented Mignona's deposition testimony before trial as required by Fed.R.Civ.P. 26(e)(2). Nor had defendant produced the documents from the parent corporation's files, which Mignona relied upon, pertaining to the properties of "Glitsa," even though the documents were clearly within the ambit of plaintiff's discovery requests.

After the jury returned a verdict for the defendant, plaintiff moved for a new trial and sanctions based on defendant's consistent abuse of the discovery process. The court granted the motion for a new trial, finding that the defense counsel's misconduct was "highly prejudicial." In addition, the court concluded it had erred by not permitting plaintiff to prove that defendant violated District of Columbia safety regulations, and by failing to give any jury instructions on the subject. The trial judge admitted he had "put plaintiff's counsel off-guard by offering to take judicial notice of the regulations." ¹ The court held plaintiff's motion for sanctions under advisement pending the new trial.

Despite having already been sternly penalized for discovery abuse and despite the pendency of plaintiff's motion for additional sanctions, defendant and defense counsel continued their misconduct during the supplemental discovery that took place prior to the second trial. Supervision of this discovery, along with the pending motion for sanctions, was referred to a magistrate. Soon after the court ordered a new trial, plaintiff moved to compel production of all discovery material that had been wrongly withheld, evidently in an effort both to unearth new evidence for the second trial and to reveal the extent of defendant's evasion of previous discovery requests. In response, defendant, inter alia, claimed that certain documents in Mr. Mignona's files had apparently been inadvertently destroyed after Mr. Mignona left the restaurant's employ.

To determine if the missing "Mignona File" had been destroyed before or after Mr. Mignona left, plaintiff sought to depose Mignona's replacement, Ms. Hoffman, the present general manager of Houlihan's Old Place. After informally agreeing to the deposition of Ms. Hoffman, defendant then refused to produce her because plaintiff's notice was untimely. With the second trial approaching in less than two weeks, the magistrate intervened and on August 7, 1985 ordered defendant to make Ms. Hoffman available by August 16, three days before the trial. The magistrate also ordered plaintiff to provide at least 24 hours notice of a scheduled deposition. On August 13th, six days later and one day after receiving plaintiff's notice of deposition, defendant's counsel notified the magistrate that Ms. Hoffman had gone on vacation and could not be located. The matter was referred to the trial judge, who issued an order on August 16 ruling that defendant was in contempt of court and assessing a civil contempt penalty of $5,000 a day for each day Ms. Hoffman failed to appear for deposition. Defendant managed to produce Ms. Hoffman for deposition the following day. ² It later became apparent that Ms. Hoffman had still been in town when defendant had received plaintiff's notice and that when she was away on vacation, she was reachable at a telephone number she had left with the restaurant as required by company policy. Indeed, defendant restaurant's acting general manager had spoken with Ms. Hoffman while she was on vacation prior to defense counsel's representation to the trial judge that Ms. Hoffman's whereabouts were unknown.

The case went to trial the second time on August 20, 1985. Rejecting plaintiff's argument that a violation of the District of Columbia Building Code is negligence per se and that contributory negligence is not a defense to such a violation, the trial judge instructed the jury that a Building Code violation is merely evidence of negligence. He also instructed that if the plaintiff's negligence was a proximate cause of the accident, she could not recover. The jury returned a verdict for defendant.

After the trial, the court considered plaintiff's still pending motion for discovery sanctions, supplemented by her additional claim that defendant's misconduct now entitled her to a default judgment or, in the alternative, a third trial. Reviewing the record, the court found a number of serious violations of the Federal Rules and direct court orders. Specifically, the court found sanctionable: defense counsel's failure to supplement Mignona's deposition testimony before either the first or second trials; defendant's destruction of documents in the "Mignona File" after they were subject to a discovery request; counsel's obstruction of Ms. Hoffman's deposition and refusal to accept personal service of a trial subpoena tendered by plaintiff at the deposition; and various misrepresentations to the court by defense counsel. After thoroughly canvassing this pattern of abuse, the court concluded defendant had not acted in good faith and ordered it to pay the plaintiff $42,085, which was the amount of plaintiff's costs, including attorney's fees accrued after September 24, 1984, the date on which defendant first erroneously responded to plaintiff's discovery requests by asserting, inter alia, that documents in the "Mignona File" did not exist. The court found that "most pre-first trial proceedings after [that date and ... virtually all of the proceedings leading up to and culminating in the second trial were necessitated by defendant's and defense counsel's obstructive, uncooperative behavior." The court, however, rejected plaintiff's motion for a default judgment or a new trial, concluding that "two bites at the apple" is enough. In the court's view, respect for the historic function of the jury, the public policy of preferring the resolution of disputes on the merits, combined with the fact that the discovery abuses did not greatly prejudice plaintiff's presentation counseled against upsetting the second verdict. Moreover, as the court noted several times, "it is apparent from the two trials that there was more than enough evidence of contributory negligence as the proximate cause of the accident to justify the two verdicts."

Both parties appeal from the court's...