Simpson v. Chicago Pneumatic Tool Co.
| Decision Date | 05 March 2003 |
| Docket Number | No. 20020171.,20020171. |
| Citation | 2003 ND 31,657 N.W.2d 261 |
| Parties | Stephen SIMPSON, Sheri Simpson, husband and wife, Plaintiffs and Appellants and Justin Simpson, Amanda Simpson, and Jeffrey Simpson, all minors, Plaintiffs v. CHICAGO PNEUMATIC TOOL COMPANY, Defendant and Appellee and Residual Materials, Inc. and Todd A. Clausnitzer, Defendants. |
| Court | North Dakota Supreme Court |
Robert V. Bolinske (argued), Bismarck, N.D. and Charles T. Edin (appeared), Charles T. Edin, P.C. Law Office, Bismarck, N.D., for plaintiffs and appellants.
Thomas H. Fegan (argued), Johnson & Bell, Ltd., Chicago, IL and Jerome C. Kettleson (appeared), Pearce & Durick, Bismarck, N.D., for defendant and appellee.
[¶ 1] Stephen and Sheri Simpson appealed from a judgment dismissing their products liability action against Chicago Pneumatic Tool Company and from an order denying their motion for a new trial. Simpsons argue the trial court abused its discretion in denying their motion for a new trial and their post-judgment motion to compel the production of all the original surveillance videotape taken by Thomas Twist in July 1997 and September 1999. We hold the trial court did not abuse its discretion in denying Simpsons' motions, and we affirm the judgment and order.
[¶ 2] In 1996, Simpsons sued Chicago Pneumatic, Residual Materials, Inc., and Todd Clausnitzer. Simpsons alleged Chicago Pneumatic negligently manufactured pneumatic air tools that were used by Stephen Simpson while he worked at Residual Materials in 1991, and the pneumatic air tools were defective and unreasonably dangerous for the user. Simpsons alleged Stephen Simpson's use of the pneumatic air tools caused him serious injuries, including "atypical reflex sympathetic dystrophy, in conjunction with occupational Raynaud's phenomena." Simpsons separately alleged Clausnitzer rear-ended a vehicle driven by Stephen Simpson in 1995, causing aggravation of injuries related to atypical reflex sympathetic dystrophy and occupational Raynaud's phenomena. In 1997, the trial court dismissed Simpsons' claim against Residual Materials under the exclusive remedy provisions of the workers compensation law. See N.D.C.C. §§ 65-01-08, 65-04-28, and 65-05-06. In 1998, Simpsons settled their claims against Clausnitzer. In April 2000, a jury found Chicago Pneumatic was not negligent, the pneumatic air tools were not defective and unreasonably dangerous, and the pneumatic air tools did not cause Simpsons' injuries.
[¶ 3] In response to Chicago Pneumatic's request for costs, Simpsons questioned whether Chicago Pneumatic had provided them with all of the original surveillance videotape taken by investigator Thomas Twist in July 1997 and in September 1999. During pretrial discovery, Simpsons had asked Chicago Pneumatic if there were "any photographs, video recordings, or moving pictures related to this case" and to "produce any and all of the aforementioned photographs, video recordings, or moving pictures." Chicago Pneumatic answered that it had taken surveillance "[v]ideo of Stephen Simpson at Lake [Sakakawea] and in Ray[, North Dakota] on July 3-4, 1997 and September 3-4, 1999," and "[a]ll of the photographs and video recording or moving pictures have been disclosed." At trial, a videotape recorded on July 3-4, 1997 and on September 3-4, 1999 was introduced into evidence.
[¶ 4] After trial, Simpsons' "suspicions" that Chicago Pneumatic had not provided them with all the original surveillance videotape taken by Twist "were aroused." Simpsons moved for a new trial, claiming Chicago Pneumatic had failed to provide them with all the original surveillance videotape. In conjunction with their motion for new trial, Simpsons moved to depose Twist. The trial court granted Simpsons' request to depose Twist, and he testified in his deposition that some videotaping on July 2-4, 1997, and on September 3-4, 1999, had not been provided to Simpsons. According to Twist, the videotape provided to Simpsons during discovery and introduced at trial did not include all the videotaping he did on July 2-3, 1997 and on September 3, 1999, but Stephen Simpson was not on any of the videotape that had not been provided to Simpsons. Simpsons moved to compel production of all the original videotapes taken by Twist. Simpsons claimed the videotape that had been produced in response to their discovery request and introduced at trial was not a true, accurate and complete representation of all the videotape taken during Twist's surveillance of Stephen Simpson.
[¶ 5] The trial court denied Simpsons' motion to compel production of the original surveillance videotape, concluding no surveillance videotape of Stephen Simpson had been concealed or withheld. The court also ruled even if there were additional surveillance videotape of Stephen Simpson, that videotape would not have affected the outcome of the case because it concerned the extent of Simpsons' damages and the jury found no liability on the part of Chicago Pneumatic. The court denied Simpsons' motion for a new trial.
[¶ 6] Chicago Pneumatic has moved to dismiss Simpsons' appeal, claiming it is moot. Chicago Pneumatic argues Simpsons' appeal is moot because the issues raised by them on appeal relate only to damages and the jury found against them on liability. Chicago Pneumatic argues any alleged error relating to damages is harmless.
[¶ 7] We will dismiss an appeal if the issues become moot and no actual controversy is left to be decided. Ashley Educ. Ass'n v. Ashley Pub. Sch. Dist., 556 N.W.2d 666, 668 (N.D.1996). Mootness is a threshold issue we decide before reaching the merits of an appeal. Bland v. Commission on Med. Competency, 557 N.W.2d 379, 381 (N.D.1996). An appeal is moot when an appellate court is unable to render effective relief due to the lapse of time, or the occurrence of an event before the appellate court renders its decision. Id. See N.D.R.App.P. 42(c) ().
[¶ 8] Chicago Pneumatic's mootness argument does not raise issues stemming from the lapse of time, or the occurrence of an event after the trial court's decision and before this Court's consideration of this appeal. See DeCoteau v. Nodak Mut. Ins. Co., 2001 ND 182, ¶ 17, 636 N.W.2d 432 (); In Interest of E.T., 2000 ND 174, ¶¶ 4, 6, 9, 617 N.W.2d 470 (); Ashley, 556 N.W.2d at 667-68 (). Rather, Chicago Pneumatic essentially asserts Simpsons' videotape issue is harmless because the jury decided against them on liability. Simpsons respond the videotape issue is not harmless and their appeal is not moot, because the videotape was Chicago Pneumatic's primary piece of evidence at trial and was inextricably tied to the jury's verdict on liability. We have said a decision by the trier of fact on one issue may render some issues raised on appeal moot. See Praus ex rel. Praus v. Mack, 2001 ND 80, ¶ 23, 626 N.W.2d 239; Brown v. Brown, 1999 ND 199, ¶ 24, 600 N.W.2d 869; Jerry Harmon Motors, Inc. v. First Nat'l Bank and Trust Co., 472 N.W.2d 748, 755 (N.D.1991); State v. Brown, 337 N.W.2d 138, 153 (N.D.1983). Here, the parties' arguments about damages and liability are sufficiently intertwined to preclude potential mootness. We conclude Simpsons' appeal is not moot, and we deny Chicago Pneumatic's motion to dismiss.
[¶ 9] Simpsons argue Chicago Pneumatic's flagrant violation of the rules of discovery require the production of all of Twist's original surveillance videotape and a new trial.
[¶ 10] A trial court's discovery decision will not be reversed on appeal absent an abuse of discretion. Bertsch v. Duemeland, 2002 ND 32, ¶ 33, 639 N.W.2d 455. We also review a trial court's denial of a motion for a new trial under the abuse-of-discretion standard. Schaefer v. Souris River Telecomms., 2000 ND 187, ¶ 14, 618 N.W.2d 175. An abuse of discretion by a trial court is never assumed and...
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...Hospital Medical Center, 756 N.Y.S.2d 509, 99 N.Y.2d 383, 786 N.E.2d 444 (2003). But also see Simpson v. Chicago Pneumatic Tool Co., 657 N.W.2d 261 (2003). In a products liability action, the court denied the worker plaintiff’s motion to compel the production of all original surveillance vi......
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...Hospital Medical Center , 756 N.Y.S.2d 509, 99 N.Y.2d 383, 786 N.E.2d 444 (2003). But also see S impson v. Chicago Pneumatic Tool Co. , 657 N.W.2d 261 (2003). In a products liability action, the court denied the worker plaintiff’s motion to compel the production of all original surveillance......
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Requests for Inspection
...Hospital Medical Center, 756 N.Y.S.2d 509, 99 N.Y.2d 383, 786 N.E.2d 444 (2003). But also see Simpson v. Chicago Pneumatic Tool Co., 657 N.W.2d 261 (2003). In a products liability action, the court denied the worker plaintiff’s motion to compel the production of all original surveillance vi......