Yukon Equipment, Inc. v. Gordon, s. 6054

• Decision Date: 25 February 1983
• Docket Number: Nos. 6054,6055,s. 6054
• Citation: 660 P.2d 428
• Parties: YUKON EQUIPMENT, INC., Appellant, v. Robert GORDON and Susan Gordon, Appellees. DROTT MANUFACTURING COMPANY, and J.I. Case Company, Appellants, v. Robert GORDON and Susan Gordon, Appellees.
• Court: Alaska Supreme Court

Page 428

660 P.2d 428

YUKON EQUIPMENT, INC., Appellant, v. Robert GORDON and Susan Gordon, Appellees.

DROTT MANUFACTURING COMPANY, and J.I. Case Company, Appellants, v. Robert GORDON and Susan Gordon, Appellees.

Nos. 6054, 6055.

Supreme Court of Alaska.

Feb. 25, 1983.

As Amended on Denial of Rehearing May 24, 1983.

Howard Staley, Merdes, Schaible, Staley & DeLisio, Inc., Fairbanks, for Yukon Equipment, Inc., appellant.

Marcus R. Clapp, Doris R. Ehrens, Hughes, Thorsness, Gantz, Powell & Brundin, Fairbanks, for Drott Mfg. Co. and J.I. Case Co., appellants.

James A. Parrish, Parrish Law Office, Fairbanks, and Theodore R. Dunn, Goetz, Madden & Dunn, Bozeman, Mont., for appellees.

Before BURKE, C.J., RABINOWITZ, CONNOR and COMPTON, JJ., and HODGES, Judge. ^*

OPINION

CONNOR, Justice.

This is a products liability case involving claims for defective design and manufacture of a crane, sale of a defective crane and negligent maintenance.

On June 14, 1976, Robert Gordon suffered serious permanent injuries when the Drott 250 crane he was operating went out of control on a downhill grade on Rosie Creek Road near Fairbanks. The crane was manufactured by Drott Manufacturing Company and sold to Yukon Equipment, Inc. in 1970. Gordon's employer, Adkins Steel Company, purchased the crane from Yukon in 1972.

On June 6, 1978, Robert Gordon and his wife, Susan Gordon, brought suit against Drott and Yukon. Count I of the complaint alleges that Drott is strictly liable for the defective design or manufacture of the crane and count II seeks to hold Yukon strictly liable for selling a defective crane. The alleged defects were in the design and manufacture of the brake and steering systems of the crane. Count III is a loss of consortium claim by Gordon's wife. On April 8, 1980, over Yukon's objection, the Gordons amended their complaint to add a claim against Yukon for negligent maintenance of the crane's braking system. The negligent maintenance claim involves Yukon's failure to rebuild the brake booster, or hydrovac, after a Yukon mechanic discovered a reddish fluid in the brake system.

After trial, the jury rendered a special verdict for the Gordons. The jury found that the crane was defectively designed or manufactured by Drott; that Yukon sold a defective crane; ¹ that Yukon was negligent; that each of the foregoing proximately caused the Gordons' injuries; and, that Robert Gordon was 5% contributorily negligent. The jury also found that Robert Gordon sustained damages in the amount of $1,250,000 and that Susan Gordon's damages were $250,000. The superior court thereafter entered a judgment against Drott and Yukon, jointly and severally, for Robert Gordon in the total sum of $1,851,755.47 and for Susan Gordon in the total sum of $350,620.39, which includes pre-judgment interest and attorney's fees. Drott's and Yukon's motions for remittitur or new trial were denied. Drott and Yukon appeal.

I. YUKON'S CLAIMS

A. Protective Order

Yukon claims that its ability to conduct discovery was improperly hindered by protective orders granted by the superior court. These orders prohibited Yukon from deposing the expert witnesses of the opposing party until Yukon submitted its own expert witness list for the negligence claim added in its amended complaint.

In its opposition to the motions for protective orders, Yukon argued that it would be inconsistent with the court's earlier ruling to require Yukon to disclose the names of its expert witnesses before December 1, 1980, the time set for the exchange of witness lists. Further, Yukon claimed that it had not yet consulted an expert engineering witness and that its selection of an expert, if any, would depend entirely on the nature of the testimony of the other parties' experts. In addition to these arguments, Yukon argues on appeal that because the time period between the filing of the answer to the amended complaint and the motions for protective orders was only seventeen days, it would be unfair to require Yukon to name its experts so soon.

Trial courts have wide discretion in pre-trial procedure, including orders limiting discovery of expert witnesses. We stated in Security Industries, Inc. v. Fickus, 439 P.2d 172 (Alaska 1968):

"In fashioning an order to guard against any element of unfairness, trial judges are vested with sufficient discretion and flexibility to minimize or eliminate the possibility of any unfairness actually occurring.... The court is also empowered to make discovery of experts or their reports reciprocal by providing for simultaneous exchanges of reports as well as appropriate timing of the taking of depositions. A further possibility is the deferral of any action on discovery motions until all parties to the litigation have disclosed the identity of the experts they intend to call at trial. Imaginative and creative action by the trial judge is called for...." (Footnotes omitted).

439 P.2d at 178-79.

Without a protective order, unfairness may occur, in a case such as the present one, where discovery becomes a vehicle for taking advantage of another's trial preparation, or where discovery serves only to provide a "lead" to obtaining an expert witness. See Long, Discovery and Experts Under the Federal Rules of Civil Procedure, 38 F.R.D. 111, 125-26 (1966).

In the present case, Yukon sought to depose the other parties' expert witnesses without first naming its own expert witness. If allowed to do so, Yukon would have certainly saved considerable time and expense. Furthermore, the results of the deposition would probably direct the focus of the expert witness eventually retained by Yukon, thus freeing that expert from having to independently investigate, analyze, and organize the evidence. To a certain extent, the other parties would pay Yukon's way.

Furthermore, Yukon does not appear to have been prejudiced by the protective orders. The purpose of pre-trial discovery is to make the facts available to all parties. Here, the underlying facts were still discoverable, since the protective orders did not prohibit discovery of witnesses other than experts. Indeed, the person with the most knowledge as to the defectiveness of the brake system was presumably Yukon's own mechanic.

In light of these considerations, we hold that the protective orders were proper.

B. Exclusion of Expert Witness

Yukon claims that the trial court erred in granting Gordon's motion to exclude one of Yukon's expert witnesses because his name was not included in the witness list prepared pursuant to the pre-trial order.

Yukon argues that it was not until December 24, 1980, after having elicited testimony from Gordon's expert engineer, that it decided to use Conrad Hilpert, another engineer, as one of its expert witnesses.

On December 24, Yukon's attorney hand delivered a letter to counsel for Gordon and Drott stating his intention to use Conrad Hilpert as an expert engineer witness, and setting forth his expected testimony. A supplemental witness list was filed with the court on December 30. On the same day, Gordon moved to strike Hilpert as an expert witness. The trial court granted Gordon's motion.

It is implicit in the pre-trial order requiring the exchange of witness lists that the parties were to make up their minds as to who they intended to call at trial by or before December 1, 1980. The precise situation that the protective orders were designed to avoid occurred in this case: as soon as Yukon became informed of the other parties' expert's opinion, it then hired its own expert to rebut that opinion. We hold that in order to prevent Yukon from obtaining an unfair advantage, the trial court correctly excluded Hilpert as an expert witness. ²

C. Exclusion of Rohloff's Testimony

Yukon also challenges the trial court's exclusion of testimony by its mechanic, Frank Rohloff, pertaining to the results of his inspection of the Drott crane in 1972. Rohloff testified that he had performed a pressure check on the brake lines after rebuilding the master cylinder and that the seals in the master cylinder had appeared normal at the time he rebuilt it. This testimony was stricken as a sanction under Alaska R.Civ.P. 37(d) for failure to make discovery. ³ In the trial court's view, the information should have been disclosed previously in response to an interrogatory sent to Yukon that asked for "all information ... regarding the use of hydraulic fluid in the accident vehicle, including ... a description of any parts replaced as a part of the maintenance performed following the use of hydraulic fluid in the system...."

Alaska R.Civ.P. 33 requires that "each interrogatory shall be answered separately and fully." Clearly, it was not error for the trial court to find that the condition of the seals replaced in the master cylinder and the pressure check should have been described in Yukon's answer to the above-stated interrogatory.

We hold that the sanction excluding the testimony was a proper exercise of the trial court's discretion.

II. DROTT'S CLAIMS

A. Causation

Drott argues on appeal that the trial judge erred in instructing the jury on proximate cause.

The trial judge gave the following instruction to the jury:

"An act, or a failure to act, is a 'legal' or 'proximate cause' of an injury, whenever it appears from the evidence in the case that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably foreseeable consequence of the act or omission. When I use the terms 'legal cause' or 'proximate cause' in these instructions, I am using them synonymously.

This does not mean that the law recognizes only one legal cause of an injury or damage, consisting of only one factor or thing, or the conduct of only one person. On the contrary, many factors or things, or the conduct of two or more persons, may operate at the same time, either independently or together, to...