Trull v. Volkswagen of America

• Decision Date: 06 May 1999
• Docket Number: No. 98-1812,98-1812
• Citation: 187 F.3d 88
• Parties: (1st Cir. 1999) ELIZABETH TRULL, NATHANIEL TRULL, BY HIS FATHER AND NEXT FRIEND DAVID TRULL, DAVID TRULL, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF BENJAMIN TRULL, Plaintiffs, Appellants, v. VOLKSWAGEN OF AMERICA, INC., AND VOLKSWAGENWERK, A.G., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 88

187 F.3d 88 (1st Cir. 1999)

ELIZABETH TRULL, NATHANIEL TRULL, BY HIS FATHER AND NEXT FRIEND DAVID TRULL, DAVID TRULL, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF BENJAMIN TRULL, Plaintiffs, Appellants, v. VOLKSWAGEN OF AMERICA, INC., AND VOLKSWAGENWERK, A.G. Defendants, Appellees.

No. 98-1812.

United States Court of Appeals for the First Circuit.

Heard May 6, 1999.

Decided July 22, 1999.

Order Denying Rehearing Aug. 26, 1999.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] David P. Angueira with whom Edward M. Swartz, Alan L. Cantor, and Lisa V. Kaprielian were on brief for appellants.

Howard B. Myers with whom Bryan K. Gould was on brief for appellees.

Before Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Pollak, Senior District Judge.^*

COFFIN, Senior Circuit Judge.

In February 1991, David and Elizabeth Trull, and their two sons, Nathaniel and Benjamin, were traveling to Maine after a day of cross-country skiing in New Hampshire when their Volkswagen Vanagon slid on black ice and collided with an oncoming car. Benjamin, age 9, died in the accident, and Nathaniel, age 13, and Elizabeth suffered severe brain injuries. In this diversity products liability action, the Trulls seek damages from Volkswagen on the ground that defects in the design of the Vanagon made their injuries more severe than they otherwise would have been.¹ The district court granted summary judgment for Volkswagen on the Trulls' breach of warranty claims, and a jury found for the automobile manufacturer on the remaining liability claims.

The Trulls contend that the district court made a number of evidentiary errors that tainted the jury's deliberations and also improperly imposed on plaintiffs the burden of proving the nature and extent of the enhanced injuries attributable to the Vanagon's design. We find no reversible error in the district court's evidentiary rulings. The remaining matter of who, under New Hampshire law, should bear the burden in a so-called "crashworthiness" case, poses sophisticated questions of burden allocation involving not only a choice of appropriate precedent but also an important policy choice. It is a question of fairly recent origin that has divided courts across the country. Although we do not criticize the district court for abuse of discretion in its decision declining to certify, we choose to exercise our own discretion and think it preferable to allow the state's highest court to choose its own path. We therefore grant the Trulls' motion to certify the burden of proof question to the New Hampshire Supreme Court.

I. Background

Although certain particulars of the Trulls' 1991 accident are germane to issues raised on appeal, we think it more helpful to relate them in the context of our discussions of those claims. At this juncture, therefore, we provide only a brief procedural history of the case.

The Trulls filed their lawsuit in early 1994, alleging claims of negligence, breach of warranty and strict liability on behalf of all four family members. Plaintiffs had two primary theories of recovery: (1) the Vanagon was defective because it was a forward control vehicle constructed in such a way that it lacked sufficient protection against a frontal impact, and (2) the Vanagon was defective because the rear bench seats, on which Nathaniel and Benjamin were seated, did not have shoulder safety belts as well as lap belts.

In May 1997, defendants filed an in limine motion seeking to exclude from trial certain evidence relating to the post-accident condition of the Vanagon because the vehicle had been disposed of ("spoliated," in the relevant jargon) by the Trulls' insurance company and therefore was unavailable to be inspected by Volkswagen's experts. In particular, David Trull, who had gone with a friend shortly after the accident to retrieve personal items from the vehicle, was prepared to testify that Elizabeth's seat belt was broken. Other evidence indicated that Benjamin had been wearing a seat belt before the accident but was not wearing it when he was found in the wreckage after the crash. Volkswagen claimed that it would be unduly prejudicial to allow testimony about the post-accident condition of the seat belts when the defendant had had no opportunity to inspect them itself. The district court granted the motion to the extent that plaintiffs were barred from using lay testimony or expert opinion about the seat belts' post-accident condition.

In December 1997, the district court granted summary judgment for the defendants on the breach of warranty claims, a disposition that is not challenged on appeal. In April 1998, just before opening statements in the trial, Elizabeth Trull withdrew her remaining claims, assertedly because of the court's exclusion of the seat-belt evidence and its determination that plaintiffs bore the burden of proving the nature of any enhanced injuries caused by a defect in the vehicle. Because Elizabeth was ejected from the Vanagon, she maintained that evidence about her broken seat belt was crucial for her to show a link between a defect and her injuries. The defendants subsequently moved to dismiss the claims of both Elizabeth and David Trull with prejudice,² and the district court granted the motion on May 4. The trial proceeded with Nathaniel's and Benjamin's claims.

The jury returned verdicts for the defendants on all remaining claims, and the district court denied plaintiffs' motion for a new trial. This appeal followed.

II. Discussion

Five of the plaintiffs' six assertions of error concern the admission or exclusion of evidence, and the district court's decisions in each instance are reversible only for an abuse of discretion. See Acosta-Mestre v. Hilton Int'l of Puerto Rico, 156 F.3d 49, 56-57 (lst Cir. 1998). The last issue, the legal determination of the appropriate burden of proof in New Hampshire in a crashworthiness case, is a question of law entitled to de novo scrutiny. We discuss first why we find no reversible error in the court's evidentiary decisions, addressing each in turn, before explaining why we choose to consult the New Hampshire Supreme Court on the burden of proof issue.

One procedural matter needs attention before we reach these claims of error, however, and we therefore begin with that issue, namely, whether Elizabeth has preserved her claims for appellate review.

A. Elizabeth's Appeal.

Appellees contend that Elizabeth is not properly a party on appeal because the district court dismissed her claims with prejudice, and there has been no appeal of that dismissal. Appellants counter that their explicit statements withdrawing Elizabeth's claims based on the court's pretrial rulings on the burden of proof and the exclusion of the broken seat-belt testimony, together with their offer of proof on those matters, sufficed to preserve her right to appeal.

Because the spoliation issue also is raised on behalf of Benjamin's estate, and because we uphold the district court's exclusion of the seat-belt evidence, Elizabeth's status is irrelevant with respect to that claim. The court's ruling on the burden of proof, however, which we hold in abeyance in order to certify the issue to the New Hampshire Supreme Court, see infra at 22-31, is a different matter. If the state court disagrees with the district court's resolution of that issue, Elizabeth would be entitled to bring her claims in a new trial only if she has preserved her appellate rights.³

After careful consideration of the record and relevant legal principles, we conclude that she has not. As noted above, Elizabeth withdrew her claims on the morning of the first day of trial, April 7, 1998. Three weeks later, on April 30, as the eighteen-day trial was near completion, defendants moved for dismissal of Elizabeth and David's claims with prejudice. In an eight-page memorandum in support of their motion, defendants argued that dismissal with prejudice of Elizabeth and David's claims was justified given the procedural irregularity and timing of Mrs. Trull's "withdrawal," failure of David Trull to submit either claims or evidence, the extensive preparation that was undertaken by defendants to try Elizabeth and David Trull's claims, the amount of time the court has invested in ruling on evidentiary and other matters, the substantial rights defendants have developed under the rulings already made by the court, and the extreme cost to defendants and the court in holding a second trial in this matter.

Although the motion informed the court that plaintiffs objected, no opposition was filed. The docket reports that on May 4, the court orally granted defendants' motion. On May 6, in a document entitled "JUDGMENT," the district court included its May 4 grant of the dismissal motion in a list of five dispositions, which also included the jury verdicts rendered on May 4.⁴ The same list was repeated in a June 11 document entitled "POST-JUDGMENT JUDGMENT," which contained one additional item, the court's June 10 order denying plaintiffs' motion for new trial. That motion did not seek reversal of the dismissal.

Plaintiffs' subsequent notice of appeal requested review of six separate orders, but it, too, made no reference to the May 4 dismissal order. So far as we can tell, therefore, the record contains neither an objection to the dismissal filed by the plaintiffs nor a request that the court substitute a less final disposition. Although counsel stated when he announced withdrawal of Elizabeth's claims that he was making an offer of proof "for purposes of appellate practice," we think this was not enough to preserve her claims in the face of defendants' subsequent motion to dismiss with prejudice. That motion explicitly alerted plaintiffs to defendants' view that Elizabeth was not entitled to pursue an appeal precisely because of the way in which she had withdrawn from the trial.

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