State ex rel. Kawasaki Motors Corp., U.S.A. v. Ryan

• Decision Date: 08 August 1989
• Docket Number: No. 56409,56409
• Citation: State ex rel. Kawasaki Motors Corp., U.S.A. v. Ryan, 777 S.W.2d 247 (Mo. App. 1989)
• Parties: STATE ex rel. KAWASAKI MOTORS CORP., U.S.A. and Kawasaki Motors Manufacturing Corp., Relators, v. The Honorable Brendan RYAN, Judge of the Circuit Court of the City of St. Louis, Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 247

777 S.W.2d 247

STATE ex rel. KAWASAKI MOTORS CORP., U.S.A. and Kawasaki Motors Manufacturing Corp., Relators, v.The Honorable Brendan RYAN, Judge of the Circuit Court of the City of St. Louis, Missouri, Respondent.

No. 56409.

Missouri Court of Appeals,

Eastern District,

Writ Division Six.

Aug. 8, 1989.

Richard A. Mueller, Dudley W. Von Holt, Coburn, Croft & Putzell, St. Louis, for relators.

James William Childress, Holtcamp, Liese, Hummel & Childress, P.C., St. Louis, David Alan Sosne, Mann, Poger, Wittner & Hereford, Clayton, for respondent.

SIMEONE, Judge.

I.

This is an original proceeding in prohibition brought by two of four defendants in the underlying case in which Jack L. Gruver and his wife Sharon K., brought an action for actual and punitive damages and loss of consortium for injuries sustained by Mr. Gruver in an accident involving an All Terrain Vehicle (ATV).Relators, Kawasaki Motors Corp., U.S.A., the wholesaler, and Kawasaki Motors Manufacturing Corporation, the manufacturer, seek to prohibit respondent from enforcing certain orders of respondent, compelling relators to respond to a broad range of requests for production of documents.We issued our preliminary order in prohibition on April 3, 1989.We now make such preliminary order permanent.We have jurisdiction.Mo. Const., Art. V, § 4.

Cutting through the labyrinth of all the pleadings, motions for production and to compel, memoranda in support thereof filed by the parties, affidavits, an evidentiary hearing, invectives by counsel directed to the adverse party and a host of other papers and matters, this case, basically involves the scope of discovery in a product liability case.It is one in which Mr. and Mrs. Gruver seek actual and punitive damages for injuries sustained on May 3, 1986, the day on which Mr. Gruver purchased the ATV in question from a retailer.He was seriously injured when the 1985 three-wheeler ATV, ¹ model KXT 250-A2 Tecate, ran off the road, overturned and struck a tree.As a result, the Gruvers, on February 2, 1988, filed a petition in the circuit court of the City of St. Louis on the theories of strict liability, negligence and loss of consortium against the retailer, S & S Kawasaki Sales, and its owner, Richard Oxton, the wholesaler, Kawasaki Motors Corp., U.S.A. and the manufacturer, Kawasaki Motors Manufacturing Corporation.As to the theory of strict liability, the petition averred that the ATV had a "design and/or manufacturing defect" and was in "a defective condition unreasonably dangerous when put to a reasonably anticipated use" in several ways.The petition alleged, inter alia that (a) the rear axle was not perpendicular to the chassis, causing the 3-Wheeler to pull to the right when normally operated, (b) the ATV had a propensity to roll and capsize, (c) the drive chain bolt caused the rear axle to shift, (d) it had no roll-over protection structure, and (e) it had inherent instability and handling difficulty causing it to pull to the right and overturn.The petition further alleged that relators failed to warn of the defects and that while using the vehicle, the "condition of the bike caused the bike to run off the road and strike a tree."

On May 2, 1988, the underlying plaintiffs sought discovery by filing a "Request for Production."The Request is broad.It is attached hereto as an exhibit.Nineteen requests were made, some with several subparts.The Request sought numerous documents (a term broadly defined in the Request) and, among other matters, sought:

1.All documents relating to the development, testing and evaluation of any Kawasaki ATV, its early production, test reports and performance tests;

2. all documents relating to comparison of specifications of other manufacturer's ATVs;

3. copies of all depositions of all defendants' employees or expert witnesses conducted in any other case in the past seven years which involved an alleged injury with a three or four wheeler ATV;

4. all documents, including dealer bulletins pertaining to addition of or changes to various parts of any ATV;

5. all test manuals or data for testing [any] ATVs;

6. all documents, correspondence, and conference reports, relating to communications with the Consumer Product Safety Commission or the Department of Justice for all ATVs;

7. all documents, including drafts, notes, inter-office memoranda relating to the preparation of the owner's manual for any Kawasaki ATV;

8. the advertising budget for all Kawasaki three-wheel ATVs from 1980 to the present;

9. any and all consumer complaints, or dealer complaints relating to instability or hazard;

10. the names and addresses of all advertising agencies which have been involved in any way in advertising any Kawasaki ATVs from 1980 to the present;

11. all documents relating to users or profiles of users, or purchase habits of any three-wheel ATV or any make or model;

12. all strategy reports related in any way to any marketing plan or strategy;

13. each sales presentation or document for dealers or prospective purchasers or shown to dealers from 1979 to the present relating to all ATVs including film clips, bulletins, handouts, accessory lists, etc.;

14. all documents which passed between the distributor and dealer with respect to the ATV in question;

15. copies of all repair, service or assembly manuals for the KXT 250 series vehicles;

16. the face sheet from each insurance policy insuring liability;

17. copies of all applications for patents for any ATV or part thereof;

18. all documents relating in any way to the assembly or adjustment of all Kawasaki ATVs; and

19. copies of all documents reflecting the net worth of all defendants since 1980, including financial statements and documents evidencing retained earnings.

After objections were made by relators on June 20, 1988, a motion to compel and for sanctions was filed by the plaintiffs in the litigation.Memoranda were filed in support thereof.Affidavits were filed and on December 5, 1988, an evidentiary hearing was held on the motion.

Plaintiffs contended before the respondent that the requests for production of the documents were proper, relevant, not overbroad or burdensome and within the proper scope and philosophy of modern discovery.They contended that they are entitled to documents relating to all models of Kawasaki ATVs because they were substantially similar to the model involved in the accident and that Kawasaki has, through advertising, attempted to create an image of fun and safety.They relied on Stengel v. Kawasaki Heavy Industries, Ltd., 116 F.R.D. 263(N.D.Tex.1987) and other federal judicial decisions which they contended authorized the requests in their motion for production.

Relators, however, countered with the arguments that (a) the requests were not limited as to any time frame, (b) that the documents requested are not limited to similar models of the Kawasaki Tecate series, (c) the requests are not limited to similar circumstances of the accident which allegedly caused Mr. Gruver's injuries, (d) the requests violate certain privileges of the relators, and (e)they are overbroad and burdensome.

Relators argued that the basic issue is whether they are required to produce documentation and information for ATV models other than the KXT 250-A2, Tecate, series involved in this accident and that plaintiffs seek discovery so as to "paint" all ATVs with the same broad brush in the hope that "some will splash over to this case as well."

An evidentiary hearing was held on the motion to compel, at which Franklin H. Johnson, an engineer, testified.His opinions centered around the problems associated with the handling and stability and overall safety of the machine.He indicated that he"needed" the information contained in the request for production of documents.

After the evidentiary hearing, the respondent issued his order on March 15, 1989.The order on the motion to compel denied the first two requests numbered 1 and 2 above, but sustained the motion to compel as to the remaining 17 requests, limiting, in a few instances but not all, the production of documents to the 3-wheeler ATV and not the 4-wheeler.

On March 22, 1989, relators filed their petition for a writ of prohibition and we issued our preliminary order on April 3, 1989.

In this action, relators contend that the respondent erred in granting plaintiffs' motion to compel because (1) such requests seek irrelevant documents concerning ATV models, alleged defects, and accident circumstances not substantially similar to those models involved in the underlying lawsuit, (2) such requests are not stated with reasonable particularity in that they seek documents relating to "any and all" matters, (3) request No. 19 seeks production of "all" documents "reflecting" relators' net worth, (4) request No. 3 seeks depositions taken in the past seven years of any employee or expert retained by relators in any case involving an ATV, (5) request No. 4 seeks documents relating to design changes or additions to ATVs after plaintiffs' accident which will be inadmissible at trial, (6) such requests for advertising budgets and marketing matters seek material which is irrelevant, (7) such requests violate relators' right to privacy and private information, and (8) such requests are overbroad and not reasonably calculated to lead to the discovery of admissible evidence in that no reasonable time restriction is placed on the documents sought.

Respondent, however, makes several points to sustain his order.Respondent contends that relators have failed to prove that there was an abuse of discretion because (1) there was substantial evidence that the information sought is relevant, is reasonably calculated to lead to the discovery of admissible evidence and because the information sought relating to all ATVs should be produced since the ATVs are allegedly "substantially similar,"(2) the information sought has been identified with...