United States District Court, S.D. Ohio, Western Division
October 17, 1996
Kevin P Hardman, Scanlon & Gearinger Company, L.P.A., Timothy F Scanlon, Robert A Royer, Scanlon & Gearinger, Akron, for Sara Zonaras, by and through her parents and next freinds Kimberly and James Zonaras, Kimberly Zonaras, James Zonaras, plaintiffs.
Vincent Galvin, Bowman & Brooke, San Jose, Ca, Michael Hiram Carpenter, Zeiger & Carpenter—2, David A Wallace, Zeiger, Dreher & Carpenter, Columbus, for General Motors Corporation, defendants.
DECISION AND ENTRY SUSTAINING PLAINTIFFS' MOTION TO COMPEL PRODUCTION OF CRASH TEST AND SLED TEST DOCUMENTS AND DATA (DOC. # 40); DEFENDANT ORDERED TO PRODUCE SPECIFIED DOCUMENTS AND DATA IMMEDIATELY
*1 This case arises from the tragic injuries suffered by Plaintiff Sara Zonaras, the minor child of Plaintiffs Kimberly and James Zonaras, in a motor vehicle accident that occurred on October 15, 1988, when Sara was six years old. Sara, by her parents, sues Defendant General Motors Corporation (“GMC”) under Ohio statutory and common law, alleging that the automobile in which she was riding was defective in manufacture or construction (O.R.C. § 2307.74), was defective in design or formulation (O.R.C. § 2307.75), was defective due to inadequate warning or instruction (O.R.C. § 2307.76), was defective because it did not conform to the manufacturer's representation (O.R.C. § 2307.77) (all alleged in Count One), and was negligently designed, manufactured, and/or sold (Count Two). In addition, Plaintiffs seek punitive damages.
This Court has subject matter jurisdiction over this action based upon diversity of citizenship, pursuant to 28 U.S.C. § 1332, which provides jurisdiction over all civil actions where the matter in controversy exceeds the sum of $50,000, and where the action is between citizens of different States. The statute requires complete diversity; that is, all of the plaintiffs must be from different states than all of the defendants. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978). For purposes of 28 U.S.C. § 1332, a corporation is deemed to be a citizen of the state in which it is incorporated, and the state in which it has its principal place of business. § 1332(c)(1). In this action, Defendant GMC is alleged to be a foreign corporation, and Plaintiffs are citizens of Ohio. Because the Defendant is not a citizen of the same state of which Plaintiffs are citizens, complete diversity exists. Moreover, the amount in controversy exceeds $50,000. Therefore, this Court's subject matter jurisdiction is proper.
Currently pending before this Court is Plaintiffs' Motion to Compel Production of Crash Test and Sled Test Documents and Data (Doc. # 40). This Court notes at the outset that numerous discovery issues which were raised in this Motion have been resolved by the parties since its filing.
Indeed, according to the Plaintiffs' Reply Memorandum (Doc. # 49), there exist only three outstanding categories of information which require a ruling from this Court. After setting forth the applicable law regarding discovery, the Court will discuss each of these categories.
Plaintiffs have moved, pursuant to Rule 37 of the Federal Rules of Civil Procedure, to compel certain discovery from Defendant GMC. Typically, parties are allowed to discover all non-privileged matter which is relevant to the subject matter of the pending action, whether it is itself admissible, as long as such matter appears reasonably calculated to lead to the discovery of admissible evidence. Fed.R.Civ.P. 26(b)(1). The typical rule appears to have been the only rule on the subject prior to 1983. Defendant has argued, however, that it should not be required to provide the requested discovery pursuant to the following Rule, added by a 1983 Amendment:
*2 The frequency or extent of use of the discovery methods... shall be limited by the court if it determines that... (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.
Fed.R.Civ.P. 26(b)(2). The Advisory Committee Notes explain how this Rule is to be interpreted and applied:
The elements... address the problem of discovery that is disproportionate to the individual lawsuit as measured by such matters as its nature and complexity, the importance of the issues at stake in a case seeking damages, the limitations on a financially weak litigant to withstand extensive opposition to a discovery program or to respond to discovery requests, and the significance of the substantive issues, as measured in philosophic, social, or institutional terms. Thus the rule recognizes that many cases in public policy spheres, such as employment practices, free speech, and other matters, may have importance far beyond the monetary amount involved. The court must apply the standards in an even-handed manner that will prevent use of discovery to wage a war of attrition or as a device to coerce a party, whether financially weak or affluent.
Advisory Committee Notes, 1983 Amendment.
Bearing this standard in mind, the Court turns to the parties' arguments regarding the three pertinent categories of documents and data requested by the Plaintiffs.
Before turning to the specific documentation at issue here, it is helpful to summarize the factual basis of this case, as alleged in the Plaintiffs' Complaint and asserted in the Plaintiffs' Motion (Doc. # 40).
At the time of the accident, six-year-old Plaintiff Sara Zonaras was seated in the left rear seat of a 1984 Pontiac Sunbird, a “J” car designed and manufactured by Defendant GMC. She was wearing a two-point lap belt-only seat belt (“two-point restraint system”), as opposed to a three-point lap belt and shoulder harness (“three-point restraint system”). When the car she was riding in was struck in the right front side by another car, Sara's body jackknifed over her seat belt, causing catastrophic and permanent injury, including quadriplegia.
In their Motion, Plaintiffs assert that Defendant GMC had provided them with certain documentation relating to 32 “sled tests,” which differ from full-scale crash tests in that they are crash simulations performed on a “test buck,” or representation of the occupant compartment portion of a car. The test buck contains instrumented test dummies of varying sizes that are either restrained or unrestrained. Plaintiffs originally represented that Defendant had provided them with video tapes of these thirty-two tests and limited information regarding test conditions (“set up sheets”), but did not provide them either with results from the test dummies or data on the “crash pulse” used in the test.
*3 In response, Defendant GMC has explained that there are no “test reports,” but rather only set up sheets, video tapes, “data tracings” and “backup materials” exist.
Defendant asserts that it has now produced data tracings and backup materials for all but eleven
of these tests, and objects to production of the remaining tests “as unduly burdensome and expensive.” In support of this argument, Defendant has submitted an affidavit from Joseph Ziembo, its Director Of Information Management Systems, who states that the requested data plots for all thirty-two tests would have to be regenerated at a cost of either $100 (for tests run after 1990) or $200 per test (for tests run before 1991) (Doc. # 46).
Notably, Defendant GMC has not
argued that the eleven remaining sled tests are not relevant to this action. Moreover, the Defendant has failed to distinguish, either on the basis of cost or relevance, the tests which were provided to the Plaintiffs from the eleven tests which were not so provided. In contrast, Plaintiffs have made specific and detailed arguments as to the relevance of the requested information regarding these eleven tests (Doc. # 49, p. 3–6) .
Under the standard enunciated in Rule 26(b)(2)(iii), this Court finds that the expense of the proposed discovery does not
outweigh its likely benefit, in view of the technical complexity of this litigation, the sizable amount in controversy, the financial ability of Defendant GMC to provide this discovery, the importance of the substantive issues in this case to the public at large (i.e. the safety of rear seat-belts), and the undisputed relevance of the proposed discovery to the resolution of the issues in this litigation. Accordingly, Defendant GMC is ORDERED to produce, on an immediate basis, data tracings and backup materials of the eleven tests specified in Plaintiffs' Reply Memorandum (Doc. # 49, p. 4).
Although this material is discoverable, in that it is either itself admissible or appears reasonably calculated to lead to the discovery of admissible evidence, this Court is unprepared to say that it will definitely be admissible at trial. Accordingly, this Court orders that the Plaintiffs pay half of the cost of producing these materials. In view of the Defendant's representation that these materials may be produced at a cost of $100 or $200 per test, and assuming that there are eleven (rather than ten) tests at issue, the total cost should be between $1,100 and $2,200, which would require the Plaintiffs to pay between $550 and $1,100. Given the imminence of trial, the Defendant should produce this information immediately and bill the Plaintiffs for their share of the cost at a later date.
At issue in this request are four tests performed on 1990 and 1992 “J” cars with six-year-old size dummies in the rear seats. Defendant GMC argues that because the accident occurred in 1988, no test performed after that time is relevant. Notably, Defendant GMC has asserted that this request is burdensome without any specific explanation as to why the production of these four tests would be unusually burdensome or expensive. In response, Plaintiffs argue that these tests are relevant to their claim that it was feasible to install an alternative type of restraint system which would have lessened the severity of Sara's injuries in earlier model cars. Although these tests were conducted after the accident, Plaintiffs apparently intend to argue that Defendant GMC could have conducted this research at an earlier time, had it chosen to do so. This Court notes that these tests and any other evidence of subsequent modifications of the restraint system installed in “J” cars appear to be admissible under Fed.R.Evid. 407 even though they may be evidence of subsequent remedial measures, as Plaintiffs have indicated an intent to offer this evidence for a purpose other than that of proving negligence or culpable conduct.
*4 Applying the test set forth in Rule 26(b)(2)(iii), this Court finds that the unspecified burden of the proposed discovery (i.e. data relating to four specific tests) does not
outweigh its likely benefit, both in view of the factors described supra
and because the Plaintiff is entitled to discovery relating to the availability or non-availability of a practical and technically feasible alternative design, as such non-availability is a potential defense to Plaintiff's claim in Count One for defective design. O.R.C. § 2307.75(F). Because the proposed discovery appears to be relevant to that issue,
Defendant GMC is ORDERED to produce, on an immediate basis, all requested data pertaining to these four tests. Although this material is discoverable, in that it is either itself admissible or appears reasonably calculated to lead to the discovery of admissible evidence, this Court is unprepared to say that it will definitely be admissible at trial. Accordingly, this Court orders that the Plaintiffs pay half of the cost of producing these materials. This Court notes the Defendant's offer to provide these tests to the Plaintiffs at a cost of $15.00 per sled test video, 10 cents a page for any related reports, and $100 per data plot (Doc. # 44, Exh.C).
Plaintiffs have requested eighteen tests which involve six-year-old size dummies in rear seats of non-“J” cars, using both two-point and three-point restraint systems. Plaintiffs argue that this information may allow for comparison between cars with two-point restraint systems and the same cars with three-point restraint systems, in regard to the effect of a crash on a six-year-old child in the rear seat, and is relevant because such a comparison may show the Defendant's knowledge of the difference in injuries produced by these two restraint systems. Although Defendant GMC argues that there is no factual basis in the record for utilizing a “comparison test,” it is significant that the Defendant has provided this Court with no evidentiary material (or argument) indicating that such a test would either be inadmissible or not be reasonably calculated to lead to the discovery of admissible evidence. In addition, Defendant GMC has not made any argument or showing that the production of data relating to these eighteen tests would be unduly burdensome or expensive.
Accordingly, this Court finds, pursuant to Fed.R.Civ.P. 26(b)(iii), that the unspecified burden of the proposed discovery does not outweigh its benefit, in view of the factors set forth supra
and the relevance of the proposed discovery to the central issue of Defendant GMC's knowledge of the risks unique to the two-point restraint system (as opposed to the three-point restraint system). Therefore, Defendant GMC is ORDERED to produce, on an immediate basis, all requested data pertaining to these eighteen tests. Although this material is discoverable, in that it is either itself admissible or appears reasonably calculated to lead to the discovery of admissible evidence, this Court is unprepared to say that it will definitely be admissible at trial. Accordingly, this Court orders that the Plaintiffs pay half of the cost of producing these materials. This Court notes that the Defendant has represented that it will produce these materials if the Plaintiffs pay the cost of its compilation and reproduction (Doc. # 44, p. 12), although no precise figures were mentioned. Plaintiffs should bear half of these costs.
*5 WHEREFORE, based upon the aforesaid, Plaintiffs' Motion to Compel Production of Crash Test and Sled Test Documents and Data (Doc. # 40) is SUSTAINED. Defendant GMC is ORDERED to produce, on an immediate basis, the above-specified information. This Court is confident of Defendant's immediate compliance; however, Plaintiffs should notify this Court immediately if they experience any difficulty in obtaining this information from the Defendant. Plaintiffs are to pay half of the cost of this production, in accordance with the Defendant's earlier representations as to the amount of this cost, as described herein. Given the imminence of trial, the Defendant should bill the Plaintiffs for their share of the cost after the above-specified information is produced.
The Court notes here that Count Three, a claim brought by Sara's parents for loss of consortium, was previously dismissed (Doc. # 27).
Issues which were raised by the Plaintiffs in their initial Motion but have since been resolved by the parties include: (1) data tracings and backup materials for 22 sled tests requested by the Plaintiff (Doc. # 44, p. 9); and (2) Plaintiff's request for documentation relating to other J-car crash tests (Doc. # 49, p. 6).
Plaintiffs have defined “crash pulse” as a graphic display of how the structure of a car handles the energy in a crash.
In its Response (Doc. # 49), Plaintiff did not dispute the Defendant's assertion that there are no “test reports” in regard to the subject tests. To avoid the sudden resurrection at trial of evidence previously represented not to be extant, the Court would require an affidavit or declaration by Defendant's record-keeping official to the effect that no test results exist.
Although Defendant argues that there are only ten
tests which remain at issue, Plaintiffs assert that there are actually eleven tests at issue, and provide a list of them (Doc. # 49), p. 4. In view of this specificity, this Court will presume, for purposes of this opinion, that Plaintiffs' tally is the correct one.
For example, Plaintiffs argue that three tests, involving six-year-old size dummies restrained by a three-point restraint system in the rear seat of 1987 “J” cars, are relevant because they involve a restraint system which could have been provided for Sara's benefit. Plaintiffs also make a specific argument regarding five sled tests of six-year-old size dummies in the rear seats of non-J cars with a three-point restraint system. Given that the Defendant has previously produced data pertaining to similar sled tests which also utilized booster seats, and, further, that one of the Defendant's experts has opined that Sara would have been protected by a booster seat, Plaintiffs argue that the requested tests are relevant because they may allow for a comparison between similar sled tests conducted with and without booster seats.
Of course, a decision that discovery is relevant under the broad standard set forth in Rule 26(b)(1) is not equivalent to a ruling that said discovery is admissible at trial.
End of Document.