Sylla-Sawdon v. Uniroyal Goodrich Tire Co.

• Decision Date: 07 February 1995
• Docket Number: No. 94-2267,SYLLA-SAWDON,94-2267
• Citation: Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277 (8th Cir. 1995)
• Parties: Valerie K., individually and as personal representative of the estate of Jesse Daniel Durmon, decedent, a minor, Appellant, v. UNIROYAL GOODRICH TIRE COMPANY, a Delaware corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 277

47 F.3d 277

31 Fed.R.Serv.3d 27

Valerie K. SYLLA-SAWDON, individually and as personal representative of the estate of Jesse Daniel Durmon, decedent, a minor, Appellant, v.UNIROYAL GOODRICH TIRE COMPANY, a Delaware corporation, Appellee.

No. 94-2267.

United States Court of Appeals Eighth Circuit.

Feb. 7, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied March

22, 1995.

William H. Pickett, Kansas City, MO. David T. Greis appeared on the brief, for appellant.

Michael W. Rhodes, Kansas City, MO. Peter F. Daniel appeared on the brief, for appellee.

Before MAGILL, Circuit Judge, BEAM, Circuit Judge, and PIERSOL, ^*District Judge.

PIERSOL, District Judge.

Valerie K. Sylla-Sawdon, individually and as personal representative of the estate of her deceased minor son, Jesse Daniel Durmon, appeals from the judgment entered by the district court¹ following a jury verdict in favor of Uniroyal Goodrich Tire Company(Uniroyal), and from the district court's denial of her new trial motion.For the reasons discussed below, we affirm.

On August 15, 1989, Sylla-Sawdon and her six-year-old son, Jesse Durmon, Michigan residents, were riding as passengers in a 1984 Mazda driven by Sylla-Sawdon's mother, Yvonne Kirby, on a trip from Michigan through Missouri enroute to Arizona.Sylla-Sawdon sat in the right front passenger seat, and Jesse sat in the rear center passenger seat.As Mrs. Kirby drove westbound on Interstate 44 near Joplin, Missouri, the left rear tire on the car blew out.Mrs. Kirby lost control of the car, which crossed the median and rolled at least twice.Jesse sustained severe injuries that resulted in his death.The accident occurred just after 6 o'clock in the evening.It was still daylight, and the road was level and dry.Missouri Highway Trooper Bobby Smiles, who responded to the accident scene, did not find any roadway obstruction that could have contributed to the accident.He checked the box for "vehicle defect" on his accident report.

Sylla-Sawdon filed suit in Missouri state court alleging claims for wrongful death and strict liability against several defendants.Uniroyal removed the action to federal court.Sylla-Sawdon voluntarily dismissed all defendants except Uniroyal prior to trial.Following a three-day trial, the district court submitted to the jury plaintiff's individual claim and her claim as personal representative of her son's estate.The jury returned verdicts for Uniroyal.Upon denial of her motion for a new trial, Sylla-Sawdon timely appealed, and she now raises five issues.

I.Sanction for Failure to Preserve Evidence

Title to the Mazda transferred from Mrs. Kirby to her insurer, Metropolitan Property and Liability Insurance Company(Metropolitan), in return for payment of property loss benefits.On December 5, 1989, former attorneys for Sylla-Sawdon inspected the Mazda at the Missouri salvage yard where it was taken after the accident.The inspection report prepared on December 5 described the three Uniroyal "Big O, Legacy" tires that remained on the car, and noted that the fourth tire had been replaced with a short mileage spare.²The inspectors asked a mechanic to remove certain seat belt assemblies, but they took no steps to acquire the remaining tires.On December 15, 1989, Metropolitan sold the car as salvage.On April 12, 1991, Sylla-Sawdon's current attorney bought the car, but by then the front tires had been removed.

Uniroyal's inability to examine the front tires became an issue when Uniroyal learned through sales invoices disclosed in discovery that Mrs. Kirby had purchased two of the four tires on July 6, 1987, and the other two on June 23, 1988.Uniroyal sought to establish conclusively, by tread wear analysis or by the "DOT numbers" molded on the tires, that the tire which failed was one of the older tires and had more mileage on it.In her videotaped deposition, later shown at trial, Mrs. Kirby agreed it was probable that the damaged tire was one of the two older tires.Sylla-Sawdon produced no other evidence to show that the damaged tire was one of the two newer ones purchased in June 1988.

As a sanction for plaintiff's failure to preserve the three undamaged tires as evidence, Uniroyal moved to exclude any evidence that the damaged tire was purchased in 1988.Over plaintiff's objection, the district court granted the motion, finding that Sylla-Sawdon, through her attorneys, knew the front tires existed in December 1989, but she failed to preserve them when she had the opportunity to do so.The district court instructed the jury that the damaged tire was purchased on July 6, 1987.

Sylla-Sawdon argues that the erroneous imposition of this sanction requires a new trial.The parties agree that a district court has discretion to impose a sanction under its inherent disciplinary power.Dillon v. Nissan Motor Co., 986 F.2d 263, 267(8th Cir.1993).Sylla-Sawdon argues, reasoning from Beil v. Lakewood Eng'g and Mfg. Co., 15 F.3d 546, 552(6th Cir.1994), that the automobile was not within her possession or control at the time the tires remained on it in December 1989, as the auto was then owned by Mrs. Kirby's insurer and was in the custody of a salvage dealer.She further argues that, in December 1989, her attorneys were contemplating a possible lawsuit alleging a seatbelt defect rather than a tire defect, and their focus at that time explains why they acquired seatbelt mechanisms, but not the tires, from the car.She argues she should not have been penalized for failing to preserve the remaining three tires.

Uniroyal argues the district court committed no clear error in ruling that the damaged tire was purchased on July 6, 1987.Uniroyal contends that sanctions are intended in part as a deterrent, and no deterrent effect is achieved if a plaintiff, who controls the date a lawsuit is brought, can destroy evidence freely until an action is filed.Uniroyal stresses that the proper analysis, followed by the district court, is whether the plaintiff knew or should have known of the evidence, had the opportunity to preserve it, and failed to do so, citing e.g., American Family Ins. Co. v. Village Pontiac GMC, Inc., 223 Ill.App.3d 624, 166 Ill.Dec. 93, 96, 585 N.E.2d 1115, 1118(1992)(affirming spoliation sanction against plaintiffs, including those who no longer owned or possessed car, because "plaintiffs intentionally allowed" car to be destroyed by salvage dealer after title transferred to insurer).Uniroyal also argues that, in December 1989, Sylla-Sawdon's former attorneys did consider a tire defect lawsuit, and they could have acquired the tires for a nominal sum when they obtained the seatbelt assemblies.Thus, Uniroyal argues the sanction was properly imposed.

We review the district court's imposition of a sanction under its inherent power, as well as the factual basis for the sanction, for an abuse of discretion.SeeDillon, 986 F.2d at 267(citations omitted).Our review is very deferential, and generally we will not interfere with the great latitude exercised by the district court in discovery matters.SDI Operating Partnership v. Neuwirth, 973 F.2d 652, 655(8th Cir.1992).

We find no abuse of discretion in this instance.The tires remaining on the vehicle were critical to this litigation because only an examination of all four tires would conclusively establish the date of purchase of the failed tire and the mileage that was on it at the time of the accident.SeeDillon, 986 F.2d at 267(holding sanction is appropriate if court finds destruction prejudiced opposing party).Plaintiff's own witness, Mrs. Kirby, testified that it was probable the damaged tire was one of the older tires.The record reflects that, at the time of the December 1989 inspection, plaintiff's former attorneys were well aware that the cause of the fatal accident was tire failure and that the attorneys were contemplating a lawsuit claiming tire manufacturing defect.Therefore, they knew or should have known that all of the tires would be relevant and should be preserved as evidence.

Like the district court, we reject Sylla-Sawdon's contention that she did not have ownership or custody of the car and thus, she could not preserve the evidence.Through her former attorneys, she obtained the seatbelt assemblies.Similarly, she could have acquired the remaining tires.Based upon the information before it, the district court did not abuse its discretion in setting the July 6, 1987 date of purchase as a sanction for plaintiff's failure to preserve the tires.SeeDillon, 986 F.2d at 267;SDI Operating Partnership, 973 F.2d at 655.

II.Highway Patrol Report

Sylla-Sawdon next argues that the district court abused its discretion in admitting into evidence over her objection the accident report completed by Trooper Smiles because the report contained hearsay statements.She argues, citing Meder v. Everest & Jennings, Inc., 637 F.2d 1182, 1187(8th Cir.1981), that the district court should not have admitted the report into evidence as a business record under Federal Rule of Evidence 803(6) because the source of information in the report was unknown and because there was no testimony about when or under what circumstances the information was obtained.She also contends that the district court abused its discretion (1) in permitting Trooper Smiles to testify at trial as to statements made to him by Mrs. Kirby regarding the vehicle's speed just prior to the accident and Jesse's failure to use a seatbelt and (2) in permitting Trooper Smiles to testify that a vehicle defect other than the tire failure caused the accident.

Uniroyal responds that the parties stipulated to admission of the report as a business record, and alternatively, the report was admissible as a public record under Federal Rule of Evidence 803(8).Uniroyal distinguishes Meder on the ground that both the source of the information and the circumstances under which Trooper Smiles received the information are...