Wilson v. Volkswagen of America, Inc.

• Citation: 561 F.2d 494
• Decision Date: 15 August 1977
• Docket Number: No. 76-1883,76-1883
• Parties: 2 Fed. R. Evid. Serv. 697 John W. WILSON, Appellee, v. VOLKSWAGEN OF AMERICA, INC., a New York Corporation and Volkswagenwerk, A. G., a Foreign Corporation, Wolfsburg, Western Germany, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 494

561 F.2d 494

2 Fed. R. Evid. Serv. 697

John W. WILSON, Appellee, v. VOLKSWAGEN OF AMERICA, INC., a New York Corporation and Volkswagenwerk, A. G., a Foreign Corporation Wolfsburg, Western Germany, Appellants.

No. 76-1883.

United States Court of Appeals Fourth Circuit.

Argued Feb. 16, 1977.

Decided Aug. 15, 1977.

John S. Battle, Jr., Richmond, Va. (John M. Oakey, Jr., Alexander H. Slaughter, William H. Robinson, Jr., McQuire, Woods & Battle, Richmond, Va., on brief), for appellants.

Henry H. Wallace, Pittsburgh, Pa. (William Peter Chapas, Russell J. Ober, Jr., Wallace, Chapas & Ober, Pittsburgh, Pa., Stuart W. Settle, Richmond, Va., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and BUTZNER and RUSSELL, Circuit Judges.

DONALD RUSSELL, Circuit Judge.

This is a products liability case. On the eve of its trial, default judgment on liability was ordered by the District Court against the defendants-manufacturers under Rule 37(b), Fed.R.Civ.P., 28 U.S.C., on the basis of a finding of failure to comply with an oral order in discovery. ¹ The District Court thereafter submitted the single issue of damages to a jury, and judgment was entered on the jury verdict. The defendants have appealed, charging error only in the grant of default judgment on liability.

We reverse.

I

The action arose out of an automobile accident in which the plaintiff concededly received serious permanent injuries. At the time the plaintiff was driving a Volkswagen Beetle ² owned by his companion, Miss Wobbeking. The car was about a year old and had been driven approximately 17,000 miles. It had been previously involved in another accident in September of the year before, as a result of which it had received considerable damage to the front end. The accident, which is the subject of this action, occurred at about 6:30 on the morning of April 1, 1973. The plaintiff and Miss Wobbeking, both of whom were living at the time in Washington, had met at about 8 o'clock on the preceding evening of March 31st in Washington and had then gone in the Beetle to a party at the home of a friend in the environs of Washington. They remained at this party until about midnight. While there, the plaintiff testified by deposition that he drank two glasses of wine. Miss Wobbeking, who had taken a bottle of wine with her in the car, apparently drank sufficient at the party, according to her own deposition testimony, to be tipsy. The plaintiff and Miss Wobbeking proceeded directly from this party to the home of James Brown in Occoquan, and visited there until 3 or 4 o'clock on the morning of April 1. The plaintiff testified in his deposition that, while wine was available at this party, he did not drink any. When they left the Brown home, the plaintiff and Miss Wobbeking intended to return to Washington by way of Interstate Highway 95. However, the plaintiff, as he drove onto Interstate 95, turned south toward Richmond instead of north toward Washington. It was not until he had passed Fredericksburg, Virginia, and was near Richmond, Virginia, that he discovered his mistake. He then turned back toward Washington and it was on this return trip at a point about seven-tenths of a mile north of Route 3, in the northbound lane, approximately one mile west of Fredericksburg that the accident occurred.

The circumstances of the accident were detailed by the plaintiff in his deposition given in the early months of the litigation. He described the night of the accident as "lousy," marked by heavy rains and strong and gusty winds. During the night he said he had experienced no difficulty in the operation of the car, other than that occasioned by the strong winds. In fact, he described the vehicle's performance: "(E)xcept for the wind factor, it was fine." His account of the accident itself was:

" * * * Driving along, I passed a car, pulled back into the right-hand lane. The car was being kind of buffeted about by the wind, you know, Volkswagens, if you have ever driven them, they can be pushed sideways.

"Driving along and hit by the especially strong gust of wind on the driver's side, I lost control, went off the road and rolled over."

The plaintiff estimated his speed as he passed the car at between 50 and 60 miles an hour. The occupants of the car passed, however, told the officers who investigated the accident immediately after it occurred that their car was traveling at a speed of about 70 miles an hour when they were passed by the plaintiff. ³

Within twenty-four hours after the accident, Robert K. Stitt, III, an attorney in Pittsburgh, Pennsylvania, was employed on plaintiff's behalf, by the latter's brother. This attorney began an immediate investigation of the accident. He took possession of the car itself, had it moved to Pittsburgh, and kept it under his control in an open garage for more than two years. Within a week he had interviewed one of the state troopers who had investigated the accident and knew the version of the accident as given by the occupants of the car which was passed by the plaintiff just before the accident. ^3a It was not, however, until some eight months after the accident that Stitt first notified the defendants, the manufacturer and the distributor of the car, of the accident, or made any claim against them on behalf of the plaintiff. When he did communicate with the defendants, Mr. Stitt gave the defendants no details of the accident. This is obvious from the defendants' reply to Mr. Stitt's letter. In this reply the defendants wrote that "this is the first indication we have of any difficulty which your client, John Wilson, may have experienced on April 1, 1973, we would appreciate any and all facts, reports, records, photographs, etc., which you may have to substantiate his claim so that we may be given the opportunity to evaluate it and discuss future handling with you." Stitt did not reply to this letter. Actually the defendants received no further communication about plaintiff's claim from Mr. Stitt or from anyone else until March 28, 1975, when this action against the defendants was filed, two days before the time when the claim would have been barred. In the meantime, Mr. Stitt had been convicted of "insurance fraud" and had been suspended from the practice of law. His brother, who seemingly had taken his affairs over, then transferred this case to other counsel for the plaintiff, one of whom is counsel prosecuting this action on plaintiff's behalf.

In his complaint, the plaintiff alleged merely that "a defect in the design, manufacture and assembly" of the vehicle, manufactured and marketed by the defendants, caused it "to become unstable, go out of control, strike a guard rail * * * roll over and injure" plaintiff. He made no effort to identify in his complaint the car's specific defect which, under his theory of the action, was responsible for the accident. He sought recovery both under strict liability and breach of warranty. The defendants answered the complaint, denying liability on a number of grounds. After the defendants answered the complaint, the plaintiff filed a Notice to Produce, addressed to the defendants. The defendants directed Interrogatories to the plaintiff. In their Interrogatories, the defendants sought to ascertain from the plaintiff, among other things, the basis of his claim, or, as they phrased it, "the relevant area of inquiry," by which they meant the specific defect in the car on which the plaintiff relied. The defendants filed on May 30, 1975, formal objections to the plaintiff's Notice to Produce. The defendants concluded their objections with this statement:

"As required by Local Rule of Court 11(N) counsel have met in a bonafide effort to resolve the objections raised. Defense counsel have asked plaintiffs' counsel to define the relevant areas of inquiry, and have agreed to respond to the Motion to Produce when the relevant areas have been ascertained."

The plaintiff, on the other hand, neither answered nor filed any objections to the defendants' Interrogatories, which had been filed on June 6, 1975 and June 23, 1975; he simply ignored them.

It is stated in the record by defendants' counsel and not disputed by the plaintiff, that the defendants several times importuned the plaintiff to answer their Interrogatories, to which he had filed no objections. The defendants, it is claimed by the defendants, were promised without avail answers by the plaintiff over a period of almost four months. Whatever the circumstances, the plaintiff ignored the Interrogatories filed by the defendants for almost four months. In the meantime, the District Court had ordered all discovery completed by November 15, 1975, in anticipation of trial on January 12, 1976. Concerned that the persistent delay of the plaintiff in answering their Interrogatories might preclude any meaningful discovery on their part within the timetable fixed by the Court, since they did not know the exact defect or defects on which the plaintiff relied, or the names of any expert witnesses on whom he might rely, to prove the claimed defect or defects, the defendants moved on August 25, 1975, and September 23, 1975, for an order compelling answers by the plaintiff to their Interrogatories. These motions resulted in an order of the Court dated September 23, 1975, requiring the plaintiff to answer the defendants' Interrogatories within six days. The plaintiff ignored this order of the Court as he had earlier ignored the Interrogatories addressed to him. In this posture of the discovery proceedings, the defendants moved for dismissal. After a hearing the District Court entered a second order commanding the plaintiff to answer the Interrogatories of the defendants on or before October 20, 1975. Finally, on October 20, 1975, in compliance with this second order to answer, the plaintiff filed sworn answers to the defendants Interrogatories. ⁴

In the meantime, the plaintiff, for his part, had filed on October 10, 1975, a Motion...