Stender v. Vincent

• Decision Date: 31 January 2000
• Docket Number: No. 20784.,20784.
• Citation: 992 P.2d 50,92 Haw. 355
• Parties: Terri-Lynn STENDER, Individually and as Next of Friend to Stephen I. Adams-Stender and Sheryl-Lynn A. Adams Stender, Respondents-Plaintiffs-Appellants/Cross-Appellees, v. Charles K. VINCENT, Jr.; State of Hawai`i; and City and County of Honolulu, Defendants-Appellees, and Ford Motor Company, Petitioner-Defendant-Appellee/Cross-Appellant, and John Does 1-10; Jane Does 1-10; Doe Partnerships 1-10; Roe "Non-Profit" Corporations 1-10; and Roe Governmental Entities 1-10, Defendants.
• Court: Hawaii Supreme Court

992 P.2d 50

92 Haw. 355

Terri-Lynn STENDER, Individually and as Next of Friend to Stephen I. Adams-Stender and Sheryl-Lynn A. Adams Stender, Respondents-Plaintiffs-Appellants/Cross-Appellees, v. Charles K. VINCENT, Jr.; State of Hawai`i; and City and County of Honolulu, Defendants-Appellees, and Ford Motor Company, Petitioner-Defendant-Appellee/Cross-Appellant, and John Does 1-10; Jane Does 1-10; Doe Partnerships 1-10; Roe "Non-Profit" Corporations 1-10; and Roe Governmental Entities 1-10, Defendants.

No. 20784.

Supreme Court of Hawai`i.

January 31, 2000.

Bertram Goldstein, Richard Turbin, and Laura Stone-Jeraj, on the briefs, for respondent-plaintiffs-appellants/cross-appellees Terri-Lynn Stender, Individually and as Next of Friend to Stephen I. Adams-Stender and Sheryl-Lynn A. Adams-Stender.

Jerold T. Matayoshi, Honolulu, Robert Sadaoka, and Kathleen Clark, on the briefs, for petitioner-defendant appellee/cross-appellant Ford Motor Company.

MOON, C.J., KLEIN, LEVINSON, NAKAYAMA, and RAMIL, JJ.

Opinion of the Court by NAKAYAMA, J.

On July 19, 1999, petitioner-defendant-appellee/cross-appellant Ford Motor Co. (Ford) filed a petition for a writ of certiorari seeking review of the summary disposition order filed by the Intermediate Court of Appeals (ICA) on June 17, 1999. In the order, the ICA vacated the circuit court's judgment against Terri-Lynn Stender (Stender), individually and as next friend of her children, Steven and Sheryl-Lynn Adams Stender (collectively, plaintiffs), in a case involving, inter alia, product liability and negligence claims against Ford for defective design. This court granted certiorari to review Ford's petition. Upon review of the parties' arguments before this court and the record presented, we hold that the ICA erred in vacating the circuit court's judgment based on an adverse inference jury instruction given by the trial court as a spoliation sanction against plaintiffs. Nevertheless, insofar as we agree with the ICA that the circuit court erred by partially denying plaintiffs' motion to exclude Ford's supplemental discovery responses, and because we further believe that this error provides an independent and sufficient basis for a new trial, we uphold the ICA's decision to vacate the circuit court's judgment, albeit on different grounds. In all other respects, we affirm the ICA's order.

I. BACKGROUND

A. Accident and Preliminary Events

In the early morning hours of March 22, 1992, Stender and Darrell Perysian were parked in a 1984 Ford Tempo (Tempo) owned by Eugenia Stender (Eugenia), Stender's mother, at the Makapu`u Lighthouse lookout on the island of O`ahu in the City and County of Honolulu. Stender sat in the driver's seat and Perysian sat in the passenger's seat.

Defendant-appellee Charles Vincent, Jr. (Vincent) was traveling northbound on Kalaniana`ole Highway at speeds approximated at over 70 miles an hour. In an attempt to pass slower moving vehicles, Vincent crossed the center line and accelerated. While still passing the vehicles, Vincent saw headlights and attempted to avoid a head-on collision. Vincent lost control of his vehicle and veered into the lookout, striking the left front area of the Tempo. The collision fractured the Tempo's front axle and sent the vehicle into a 180-degree spin. Stender was rendered quadriplegic.

The position of Stender's seat back at the time of the accident is an issue of contention. On March 25, 1992, Perysian made unsworn audiotaped statements to Teryn Loo (Loo), an insurance adjuster with Allstate Insurance Company (Allstate). The transcript reads in relevant part:

[Loo]: Okay. Can you tell me—you said the two of you—[Stender] turned off the ignition, she had parked, was facing forward or was she—

[Perysian]: She had her feet up on top of the steering wheel as we were talking, with the seat backs down and—

[Loo]: They were reclined then?

[Perysian]: Yeah, they were reclined. No, not fully reclined cause they don't fully recline those chairs or whatever....

In his September 22, 1994 deposition, however, Perysian denied that Stender had reclined her seat at any time after she had parked the car. At trial, Stender testified that she had been sitting with her seat upright and her left leg resting on the dashboard.¹

On March 27, 1992, Stender, with the assistance of a lawyer (first attorney), executed a general power of attorney appointing Eugenia as her attorney in fact. The precise scope of the attorney-client relationship between Stender and first attorney remains disputed. The attorney admitted, however, that he was Stender's counsel as of March 27, 1992.

With Stender's permission, the first attorney hired an investigator to examine, inter alia, the "crashworthiness" of the Tempo. On March 30, 1992, the investigator inspected and photographed the vehicle. He noticed a deformation in the driver's seat back and informed the first attorney of this finding in an April 6, 1992 meeting. According to the investigator's records, the first attorney expressed interest in "that seat back thing." No arrangements were made to preserve the vehicle.

On April 1, 1992, Eugenia settled her property damage claim with Allstate concerning the Tempo. As part of the settlement, Allstate paid Eugenia $1880 and obtained the Tempo for salvage. Sometime later, the vehicle was scrapped.

On January 29, 1993, Stender filed a complaint against Vincent and unknown Doe and Roe defendants. The complaint included claims for relief sounding in negligence and products liability.

On July 22, 1993, Richard Turbin replaced the first attorney as Stender's counsel. On October 27, 1993, plaintiffs filed an amended complaint adding Ford, the State of Hawai`i, and the City and County of Honolulu as defendants² and Stender as next friend of Stephen and Sheryl-Lynn Adams-Stender. Plaintiffs also added a product liability claim against Ford based on alleged design defects in the front seats of the Tempo. Trial was scheduled for October 7, 1996, with a discovery cutoff date of September 7, 1996.

In a February 16, 1995 deposition, Alan Cantor (Cantor), an expert witness for plaintiffs, opined that the Tempo's seat back was defectively designed because it lacked dual recliner mechanisms. Because the seat back was not strong enough, Cantor asserted, it failed in the collision and caused Stender's injuries.

B. Motion to Dismiss/Sanction Order

On September 6, 1996, Ford filed a motion to dismiss plaintiffs' action, to preclude introduction of plaintiffs' expert testimony, or to impose other sanctions for spoliation of evidence (motion to dismiss). Plaintiffs filed a memorandum opposing the motion on September 25, 1996.

On the same day that it filed the motion to dismiss, Ford also filed a motion to compel the further deposition of Cantor.³ On September 9, 1996, the circuit court orally granted the motion to compel and scheduled Cantor's deposition for September 12, 1996. The circuit court also ordered that the deposition of Ford's liability expert, Priya Prasad, Ph.D. (Dr. Pradad), be rescheduled from September 12 to September 23, 1996.

In his September 12 deposition, Cantor opined that a failure of the head rest on Stender's seat could also have contributed to Stender's injuries. On September 27, in his continued deposition, Cantor further stated that, based on tests conducted on September 18 and 25, 1996, a pre-existing crack at the bolt hole in the seat bottom frame caused Stender's injuries and that different seat tracks and a strengthened seat back would have prevented the injuries.

After a hearing on October 1, 1996, the motions court granted in part and denied in part Ford's motion to dismiss. The written order (sanction order) stated in relevant part:

THE COURT HEREBY ENTERS THE FOLLOWING FINDINGS:

1. Plaintiffs' prior counsel and [p]laintiffs' retained investigator may have more aggressively considered a product liability claim and could have taken affirmative steps to preserve the [Tempo]. However, in light of the circumstances of the case, the court deems that dismissal of [plaintiffs'] claim against [Ford] would be too severe a sanction.

2. [Ford] will have the benefit of argument, cross[-]examination, and a jury instruction as to the burden of proof, and the weight of the evidence, as well as other curative measures to mitigate against the prejudice that this court finds Ford has suffered by spoliation of [the Tempo].

3. Since Ford has been denied full opportunity to defend on the issue of product liability, the following are imposed as sanctions in the interest of fairness.

THE COURT HEREBY ORDERS THAT:

1. [Ford's] request to dismiss [p]laintiffs' claim is denied.

2. Plaintiffs' claim shall be limited to defect in design. Plaintiffs are precluded from claiming a defect in the manufacturing of [the Tempo] seat.

3. The taped and transcribed statement of [Perysian] to [Loo] on March 25, 1992, attached as Exhibit "L" to Ford's motion to dismiss, is admitted in its entirety.

4. The deposition testimony of [Perysian] of September 22, 1994, taken in Phoenix, Arizona, may not be used by [p]laintiffs. Plaintiffs may not call him as a witness in this case.

5. The testimony of the experts who testify regarding the condition of Ford Tempos and [the Tempo] will be held to a reasonable engineering probability.

6. [Cantor] will not be permitted to testify to any opinion given relating to the head[ ]rest, and this was in his deposition of September 12, 1996, or to a pre-existing crack at the bolt hole in the seat bottom frame[, and t]his was in the deposition of September 27, 1996, but will be allowed to testify to any opinion rendered, findings made or experiments conducted before September [7, 1996].

C. Ford's "Supplemental" Document Production

During Cantor's September 12, 1996 deposition, Ford produced a "supplemental" response to plaintiffs' discovery requests consisting of over 10,000 documents and 20 videotapes in two banker's boxes. On September 27,...