Williams v. Volkswagenwerk Aktiengesellschaft

• Decision Date: 15 May 1986
• Citation: 226 Cal.Rptr. 306,180 Cal.App.3d 1244
• Court: California Court of Appeals Court of Appeals
• Parties: , Prod.Liab.Rep. (CCH) P 11,023 Elita Kim WILLIAMS, Plaintiff and Respondent, v. VOLKSWAGEN AKTIENGESELLSCHAFT, Volkswagen of America, Inc., and Marina Volkswagen, Defendants and Appellants. Civ. B 010 769.

Page 306

226 Cal.Rptr. 306

180 Cal.App.3d 1244, Prod.Liab.Rep. (CCH) P 11,023

Elita Kim WILLIAMS, Plaintiff and Respondent, v. VOLKSWAGEN AKTIENGESELLSCHAFT, Volkswagen of America, Inc., and Marina Volkswagen, Defendants and Appellants.

Civ. B 010 769.

Court of Appeal, Second District, Division 3, California.

May 15, 1986.

Review Denied Aug. 14, 1986.

Carroll Burdick & McDonough, Justs N. Karlsons and Donald T. Ramsey, San Francisco, for defendant and appellant Volkswagen Aktiengesellschaft

Chapman & Glucksman and Richard H. Glucksman, Santa Monica, for defendant and appellant Marina Volkswagen.

Herzfeld & Rubin, Martin S. Friedlander and Seymour W. Croft, Los Angeles, for defendants and appellants Volkswagen of America, Inc. and Marina Volkswagen.

Browne Greene, Charles B. O'Reilly, Steven J. Wilson, Greene, O'Reilly, Broillet, Paul, Simon, McMillan, Wheeler & Rosenberg, Los Angeles, for plaintiff and respondent Elita Kim Williams.

MILLS, Associate Justice. ^*

Defendants and Appellants, Volkswagen of America, Inc. (VWOA), Marina Volkswagen (Marina) and Volkswagenwerk Aktiengesellschaft (VWAG) appeal from judgment entered on a verdict and from the denial of defendants' ¹ motions for Judgment Notwithstanding the Verdict.

FACTUAL AND PROCEDURAL BACKGROUND

On May 15, 1976, Respondent-Plaintiff Elita Kim Williams (Williams) purchased a 1975 Volkswagen Dasher automobile which had been used as a demonstrator from Marina Volkswagen. She signed a Used Vehicle Certificate. The odometer showed 8,740.3 miles.

During the early morning of April 2, 1977, after leaving a party where she drank a glass of wine, Williams lost control of her car after it was bumped on the right rear by an unidentified vehicle as it rounded a curve on Sunset Boulevard. The Dasher veered to the left, crossed the opposite lanes of travel, struck the opposite curb with such force that its underside was "totalled" and she sustained severe injuries, including massive facial fractures, lacerations, permanent indentation of the skull, damage to her eyes and brain damage.

Williams filed her original complaint on March 30, 1978. She sued "Defendant Doe I" for negligent operation of the unidentified vehicle, and VWOA and Marina for strict liability and negligence. The pleading alleged that the Dasher was defective because its right rear trailing arm assembly broke, rendering the vehicle uncontrollable after impact with the unidentified automobile.

She filed her First Amended Complaint on February 29, 1980, suing VWOA (the importer-distributor), Marina (the dealer), and VWAG (the manufacturer) for strict liability, breach of implied warranty and negligence and alleging negligent design, inspection and manufacture of uncrashworthy vehicle.

In pretrial discovery depositions were held; appellants served five sets of interrogatories that asked for the disclosure of the facts and contentions underlying Williams' claims of negligence and product defect. The answer was that the trailing arm was defective because it broke. Seven motions to compel further answers, or to compel compliance with prior court orders requiring further answers were filed on behalf of VW. On February 7, 1983, Williams' Answers to Interrogatories added the steering wheel and steering column as defective components.

Between October of 1978 and March of 1982, Williams propounded five sets of interrogatories, which included inquiries about both the trailing arm and steering system. She also made four motions to Compel Further Answers, two Requests for Production of Documents and Requests for Admission. By stipulation, during discovery proceedings in open court on December 23, 1981, VWAG agreed and the court ordered it to provide information on "Whether steering mechanism of 1975 Dasher had a safety factor built in to react to a failure of trailing arm system...." The answer was not given.

On December 1, 1982, VWOA and VWAG filed a Demand for Election of Experts pursuant to Code of Civil Procedure sections 2037, 2037.1 and 2037.9. On December 20, 1982, Williams filed Designation of Expert Witnesses containing 73 names; Dr. Michael Eugene Fourney, a stress analyst, was not included.

The case was originally set for trial on December 9, 1981, then moved to June 14, 1982, February 7, 1983, February 9, 1983, February 28, 1983, and finally assigned for trial on March 1, 1983. Trial commenced on March 3, 1983.

At the trial Dr. Kashar, a metallurgist, testified that he had found a manufacturing defect in the trailing arm in the form of major "inclusions" in steel at the fracture site resulting in reduced strength of the steel and leading to its fracture.

John Marcosky, a mechanical engineer, testified that the steering wheel was defectively designed because the spokes of the wheel were not covered with the same wrapping and cushioning that covered the hub. (In its Trial Memorandum, VWAG requested that Marcosky be precluded from rendering opinions or conclusions not disclosed in his deposition. When it appeared that the court would allow the witness to address defects in the steering wheel and steering assembly, VWAG moved for a mistrial. The motion was denied.)

Dr. David Douglas, a metallurgist, testified that the trailing arm developed a fracture as a result of fatigue failure and as a result of possible manufacturing defects and that his opinion rested upon stress analyses performed for him by Dr. Fourney Dr. Fourney testified to certain measurable stress intensity factors on which Douglas based his opinions. Following Fourney's direct examination, VWAG made motions to strike portions of the Douglas testimony which relied upon him, for a mistrial and for a continuance. The motions were denied.

a stress analyst, after the commencement of trial.

The jury was instructed and began its deliberations on May 9, 1983. The special findings requested the jury to determine whether or not there was a defect in the design of the trailing arm and/or, steering wheel system, whether or not VWOA, WVAG and Marina were negligent, whether or not their negligence caused injury to Williams, whether or not VWOA, VWAG and Marina breached warranties to Williams and whether or not such breach caused injury to her; finally, the jury was requested to determine whether or not Williams was contributorily negligent. On May 11, 1983, the jury returned its verdict with special findings.

The jury found that there was no design defect in the trailing arm or in the steering wheel system; that VWAG was negligent and caused injury to Williams; that VWOA and Marina were not negligent; that VWOA, VWAG and Marina breached warranty and caused injury to Williams. It awarded compensatory damages in the amount of $1,376,989.24 against VWOA, VWAG and Marina, and after determining that Williams was 6 percent contributorily negligent, reduced the compensatory damages awarded to $1,294,284.35.

VWOA, VWAG and Marina timely moved for judgment notwithstanding the verdict and for a new trial on all statutory grounds. The motions were denied and on August 5, 1983, they filed Notice of Appeal.

CONTENTIONS

VWOA, VWAG and Marina contend that reversal is mandated and a new trial required because:

1. The trial court denied their right to a fair trial and abused its discretion under Code of Civil Procedure sections 2037-2037.6 by permitting Williams to conduct a trial by "ambush", including: (a) refusing to sanction her failure to discover; (b) allowing her to raise the issue of steering assembly defect after close of discovery; (c) allowing her to offer opinions and data of experts who were not revealed in pretrial discovery; (d) allowing her to elicit undisclosed opinions on accident reconstruction, and theories of defect of the trailing arm, from experts Marcosky, Kashar and Douglas who had expressed no such opinions at their pretrial depositions and (e) refusing to grant a continuance in order to evaluate and rebut surprise expert testimony;

2. The trial court committed prejudicial error by permitting Williams' experts to speculate about "possible" defects in areas outside their field of expertise and concerning matters that were without foundation in fact;

3. The verdict of negligence and breach of warranty against VWAG is fatally inconsistent with the special finding that there was no design defect in the trailing arm or in the steering wheel system;

4. The verdict for breach of warranty is against the law;

5. Williams' counsel committed prejudicial misconduct by misstating the evidence and the law and inviting the jury to speculate about matters outside the record in closing argument.

SUMMARY

The trial court ruled properly in denying VW's motions for Judgment Notwithstanding the Verdict and for a new trial. The record shows no error in its rulings, either in the form of abuse of discretion relative to discovery, the admissibility of expert opinion testimony, the "misconduct" of counsel and requests for continuances, or in its determining the legality and consistency of the verdict and special findings.

DISCUSSION

I. There are No Abuses of Discretion by the Trial Court

VW is correct in stating that the California Discovery Act of 1957 was designed to enhance the truth-seeking function of the litigation process and eliminate trial strategies that focus on gamesmanship and surprise. As the California Supreme Court stated in explaining the purpose of the new legislation:

"[T]he Legislature intended to take the 'game' element out of trial preparation while yet retaining the adversary nature of the trial itself. One of the principle purposes of discovery was to do away 'with the sporting theory of litigation--namely, surprise at trial.' " (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 376, 15 Cal.Rptr. 90, 364 P.2d 266.)

The overall intent of the Discovery Act, said the Court, was to:

"[M]ake a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the...