*1 Ct. 744 37 Mass. App. Motors Caron v. General Corp. Corporation Gregory H. Caron Motors vs. General & another.1 No. 92-P-420. 1993. December 1994.
Franklin. March Armstrong, Porada, Brown, & JJ. Present: Practice, Admissions, Evi- Civil, Objection, Deposition, Directed verdict.
dence, Witness, Unavailability. Negligence, De- Expert, Expert opinion. Code, Warranty. sign, Commercial Manufacturer. Uniform action, requests for admissions plaintiffs set forth in the In a civil facts filed where the defendants had deemed admitted should not have been vague, burden- overbroad and requests as timely motions to strike some, objection under Mass.R.Civ.P. written which was sufficient plaintiff did not rights, where the (a) protect the defendants’ objection. sufficiency of the defendants’ [746- move to determine 748] out-of- deposition of an judge properly excluded the At a civil trial fairly con- could plaintiff, where the expert proffered State effort to se- a reasonable proponent had not made party clude that where, any [749-751], trial presence at the cure the deposi- event, in the basis demonstrated insufficient factual there was to be admitted expert’s opinion [751-753]. tion for liability action did not demonstrate products Where a in a question, the automobile in defect in the injuries resulted from a defendants, manu- in favor of the verdicts properly directed J., concurring. and seller. facturer [753-754] Brown, Depart- Court Superior commenced action
Civil 12, 1986. May ment on Welch, J. H. before William
The case was tried Kerlinsky Louis for the plaintiff. defendants.
Richard P. Campbell for the Caron, was in- H. Gregory The plaintiff, J. Armstrong, his 1975 Buick when, navigating intoxicated jured Company. 1Lorenz
37 Mass. App. hour fifty-five automobile at fifty LeSabre *2 road,2 in he the white line the fog following dense through by an em- drove the car down failed to a turn and negotiate tree, car, bankment, culvert, and a small a striking parked a over. His two tree after the car had rolled large a ultimately were able to crawl out injured, neither seriously companions, car, in the one hole. Caron was trapped the rear windshield frame, the the driver’s door and the car leg caught between before having jamming door at some apparently opened point shut, the tree. large either in the roll or on final with impact 12, 1986, against
On Caron this action the May brought car, and the (GM), manufacturer of the General Motors vendor, his resulted alleging injuries Lorenz that Company, from, of, a de- design or were made more severe as a result in was fect in the 1975 LeSabre. the case Discovery pro- divisive, tracted discov- including and more than seventy-five motions ery eighteen motions to and five requests, compel, for orders. it became protective Through discovery, apparent (1) that the would on three claims of defect: plaintiff rely that a defective door latch caused the driver’s door to come accident; (2) rigid that materi- open during insufficiently als in during the car caused it to crush body excessively accident; insufficiently that the Buick’s interior was order, en- padded scheduling A protect occupants.3 tered in be January, discovery completed 31, 1988, in March with the case scheduled for trial by May.4
In order to show that a
defect caused or contributed
design
to his
relied
from two sources:
injuries, Caron
on evidence
defendants,
requests for admissions which he had sent to the
and which he claimed should be deemed admitted pursuant
36(a),
(1974);
to Mass.R.Civ.P.
The trial that “the burden on [had been] get the defendants to their motion or an extension of press within which to answer the time held that the requests,” facts in Caron’s were deemed asserted admitted. requests Mass. 747 Nonetheless, the court relief from some of the granted admissions, 36(b), finding deemed to rule pursuant of the were “not for admis- many requests truly requests sion,” and that the defendants should be to amend permitted admissions, the in order to of the advance the presentation Leonard, merits. See Prod. Reynolds Bldg. Aluminum Co. Because we hold that the facts set out the requests admitted, should not have been deemed we need not on pass the propriety granted relief the Deemed ad- judge. missions result when only the from whom admissions party are sought fails to serve the within upon requesting party, thirty days after service of the (1) “either a written request, statement signed under party penalties perjury (i) specifically denying (ii) matter or forth in setting de- tail why answering cannot admit party or truthfully deny matter; or a written objection addressed to the mat- ter, signed party or his attorney.” Mass.R.Civ.P. 36(a). The parties cite no Massachusetts on authority question whether a motion for a protective order with respect to the request for admissions constitutes the “written objec- tion” rule required by 36(a). The bulk of under authority cognate Federal rule holds that a motion for a or- protective der which states reasons which can be grounds considered *4 objection5 is sufficient to protect the objecting party’s rights. Sons, See J.R. Willimon, Prewitt & 149, Inc. v. 20 F.R.D. 150 (W.D. Mo. 1957); In re Milwaukee Crate & Lumber Co., 115, 206 F. 117 Supp. (E.D. Wis. 1961); 8 & Wright Miller, Federal Practice and 733, Procedure: Civil 2262 at § 735 (“there is so little practical difference between an objection and a motion for a order protective that it is proba- not bly worth the effort to to maintain a attempt clear dis- requests excessive, 5The for admissions in facially this case were burden some, oppressive, judge might such properly that a have ordered them struck in entirety. Requests their for thoughtfully admissions should be structured to settle may before trial issues as to which there be no real deluge contest. It is an abuse to opposing party an with successive banks of requests hoping may for admissions inadvertently give away that he his case. 744 748 Zobel, two”). also Smith & Rules tinction between the See order is alter- (1975) (motion Practice 36.7 protective § objections). native to specific their argues objection
Caron
that
the defendants waived
on their motion
(if
to secure a determination
any) by failing
burden of mov-
to strike the
But rule 36
requests.
places
objection
to determine the
of an
on the re-
ing
sufficiency
not on the
See ibid. See also
objecting party.
questing party,
1016,
La.
(W.D.
100 F.
Taylor,
Supp.
United States
1951).6 Since Caron failed to
a motion to determine
pursue
the facts as-
objections,
of the defendants’
sufficiency
admitted,
deemed
and the
serted in his
were never
requests
trial were timely.7
answers filed
the defendants at
Caron’s attor-
testimony
2. Expert
deposition.
offered
in
of his
discovery deposition
expert,
offered
evidence the
ney
Noettl,
the defendants on
John M.
who was deposed by
22, 1988,
designated
March
after the
Noettl as
admissibility
deposi-
witness for the trial.
32,
in part
tions at trial is
rule
which
governed by
provides,
of live testi-
be used
lieu
(a)(3)(B),
may
that a deposition
court,
is out of the
finds “that
the witness
when the
mony
Commonwealth,
the absence
unless it appears
offering the deposition.”
witness was
procured by
party
amended,
(a) Duty arrange expert’s at trial. appearance cognate Federal rule to 32(a)(3)(B) Mass.R.Civ.P. is Fed.R.Civ.P. 32(a)(3)(B), which allows the admission of a witness’s if testimony by deposition “the witness is at a greater distance than 100 miles from the of trial or place hearing, States, or is out of the United unless it appears the absence of the witness was procured party offering the deposition.” witnesses, As to whose ordinary is testimony admissible because have they personal knowledge facts in case, the Federal courts are relatively uniform in al- lowing depositions to substitute for the distant witnesses. “Procuring” witness’s absence means more than simply failing to secure his attendance at trial. “[Procuring absence and doing nothing to facilitate are presence quite .”; different . . things and the will be admitted unless the party offering it “actively took steps keep deponents from setting foot in the courtroom.” Houser v. Tools Snap-On Corp., F. Supp. (D. Md. 1962).
As to witnesses, however, expert the Federal authorities are split. witnesses, Unlike fact who are determined their personal facts, knowledge of relevant regardless of where work, they live or a party normally has broad latitude in se- lecting expert witnesses. an By selecting from Ari- expert zona, the plaintiffs counsel the absence “procured” of his ex- pert from the Commonwealth in the sense that he voluntarily created a situation in which his would be out of the
750 37 Mass. App.
Caron v. General Motors Corp. arrangements Commonwealth unless he should make for the at trial. witness expert’s typical appearance “[U]nlike fortuity whose involvement with the case on the may depend and whose at the observing presence of his a event particular has the ordinarily opportu trial is often involuntary, party he desires to choose the witness whose nity expert testimony for his mutual invariably arranges presence privately, by of an at agreement, Although and for a fee. a requirement who to secure the attendance of a witness tempt voluntary lives of the court is not ordina beyond subpoena power liti before can be used civil rily prior testimony imposed ., is gation particularly . . we think that such a requirement wit dealing when appropriate expert is almost secured invariably nesses whose earlier attendance Carter-Wallace, Inc. v. arrangements.” such voluntary Otte, 529, denied, 1972), cert. 412 (2d 474 F.2d 536 Cir. While are Federal decisions' many U.S. 929 there that do not differentiate between witnesses and fact expert in Fed.R.Civ.P. we are 32(a)(3)(B),8 witnesses applying that, the latitude of given clined to with those decisions agree general choice in and the selecting experts preference than rules for live witnesses rather testimony by depositions,9 to exclude the of an accord the discretion satisfied that the party witness where the is not secure expert’s has made a reasonable effort to proponent See, Hanson v. Parkside e.g., Surgery at the trial. presence Center, 745, 1989); Cir. v. Trans- (6th Polys 872 F.2d 750 Airlines, 1404, Inc., (10th 1410 Cir. 941 F.2d Colorado Rentals, Inc., 722, 8See, e.g., Savoie v. LaFourche Boat 627 F.2d 724 Lund, 958, 1986) (10th (5th 1980); Cir. v. 783 F.2d 961 Cir. Alfonso facts, however, expert witness (distinguishable, on because out-of-State country); suddenly been called out of the was unavailable because he Co., 352, (D. 1991). Eagle Mfg. Kan. 137 F.R.D. 354-355 v. Pfeiffer 754, Lang, include State v. 2d 344 So. 757- State court decisions contra America, Inc., 1283, Volkswagen Lee v. (Ala. 1977); 688 P.2d 1290 759 (Okl. 1984). Bossard, Napier 43(a). 32(a)(3)(E) See also v. 9See Mass.R.Civ.P. been, 467, 1939) (2d (“the deposition always Cir. has 102 F.2d 469 Miller, substitute, is, .”); Wright a second-best. . . & 8 still treated as a 2142 & n.7 Practice & Procedure Fed. § App. 1991); In re Air Crash Disaster at Intl. Stapleton Airport, 1493, (D. 1989);10 Myers 1501-1502 Colo. v. F.Supp. Alessi, 80 Md. (1989); 138-139 Thompson Pharmaceuticals, Inc., Merrill Dow 229 N.J. Super. (“We 252-253 agree Judge with the rationale of *7 Otte, Friendly Carter-Wallace v. witnesses are expert not unavailable because are not to service simply they subject of . . . process. is the of the responsibility party offering [I]t to ascertain the expert willingness and of the availability to expert at trial. The of the appear proponent expert must to attempt arrange trial date at which the can expert ap Since the is pear. under the control of the offering litigant, due diligence must be used to secure the attendance at trial”).
Here, the trial judge doubtless that Caron’s suspected counsel have may made little real effort to obtain Noettl’s attendance at the trial. The explanation his absence con- undated, sisted of one-sentence, an typewritten letter on blank paper, signed Noettl over a misspelled typewritten name, rendition of his stating that he simply would be un- available November, 1988, to attend a trial in “due to other commitments and obligations and time constraints.” Caron’s principal reliance seems to have been his claim that he was entitled by right to present of an testimony out-of-State witness by deposition.
(b) Other The discretionary significant more rea- factors. son for the judge’s however, exclusion of the deposition, was its out, form. As the judge Noettl pointed was deposed by General Motors for discovery to ascertain purposes: materials on which he might be basing any opinions might he 10In the Air case, Crash Disaster (at 1502) suggested that, the court discretion, applying it would balance various factors “toward the ends of (1) fairness: offeror’s need for the presented through evidence to be deposition, (2) opportunity provided opponent to cross-examine the issues, witness on those nature of the evidence to be presented, (4) jury’s need to observe the credibility demeanor and of the witness, and, (5) witness, unavailability actual distinguished as from geographic add, mere well, distance from the courthouse.” We would as surprise opposing occasioned to party, where possibility pre of through deposition sentation contemplated has not been from the start. 37 Mass. App. if reasoning them. Little underlying
have formed and the examination of out in General Motors’ anything brought case,11 to Caron’s of a exception Noettl was helpful formed, sup- conclusion that Noettl had based on materials counsel, the car’s at the speed to him Caron’s plied ten to large only collision with the tree was time of the Caron) came (to hour. The useful twenty Caron’s “cross-examination” of Noettl during out a short counsel, in convo- objected-to highly a series response that the unintelligible leading questions luted and sometimes excluded, or indicated) he would have judge (as if had been asked at the trial. they be rephrased, moreover, doubt, whether the opin- expressed fac- if on the predicated paucity ions were not speculative, Compare as their sole basis. gave tual data that the expert Dry Corp., Reed Canada *8 Pub., Inc. v. National Union Fire (1977), with Fourth Street 157, Co., The speed 161-162 Ins. Mass. App. tree, ten the large example, at the of collision with point hour, from the car’s speed miles was calculated twenty per to hour, told to to (fifty fifty-five when it left the road of travel counsel) and its curved path Noetll plaintiff’s in accident (as diagram police report) in the depicted 175 feet later. Noettl large its of collision with the tree point acceleration or decel- made as to steer input assumptions removed his foot from the assumed the (he eration and that he did as the car left the road accelerator as soon this, with the assumed brakes), and from coupled not apply seen, calculated a decelera- a terrain he had never friction of arrive at the low point over the 175 feet to tion force of .5G’s with this of fine calculation type speed. Comparing impact tell from the information acknowledged inability Noettl’s a roll or LeSabre had taken half he had received whether the tree, we colliding large with the one and a half rolls before have arrived at could very reasonably think that his preparation his conclusion that [Noettl] “[t]he original theory that the LeSabre’s gave support to Caron’s 11Noettl no design was defective. door latch 37 Mass. v. General Motors Corp.
Caron his ef- did not commend facts necessary familiarity wit- As the key expert being by deposition. fort to presented im- case, it was quite I believed liability ness in a products court.” in open orally his be heard portant [that] discretion. view, exercise of This, was a proper in our reason why is a further verdicts. There 3. Directed if it even deposition, The Noettl is hopeless. plaintiffs appeal evidence, to es- not have sufficed would had been received de- a design resulted from injuries tablish that the plaintiffs fect in his LeSabre.12 recalled, case on the will be presented it plaintiff, designed, defectively LeSabre was the 1975
theory To merchantability.13 warranty violation of the implied crashes claim, (1) that prove Caron needed to make out this 1984, were on February such as the one he experienced manufacturer; the de- (2) that to the foreseeable reasonably dangerous unreasonably made it sign of the 1975 LeSabre crash; (3) that such a for use in the circumstances of than he seriously more injured he was because See designed. reasonably would have been had the car been “In Mass. 638-642 Back v. Corp., Wickes design, jury of a evaluating adequacy product’s factors, consider, of the dan- gravity other among should that such the likelihood ger challenged design, posed by al- occur, of a safer feasibility the mechanical danger would design, of an improved ternative the financial cost design, and to the con- to the consequences product and the adverse Id. at design.” sumer would result from an alternative *9 Inc., 20 Mass. App. Sys., 642. v. Rockwell Fahey Graphic Ct. 651 admitted, have would
The Noettl had it been deposition, infer- to warrant an evidence insufficient left the plaintiffs In designed. 1975 LeSabre was inadequately ence that the receiving hearing in evi 12“[0]bjection may at the trial or be made require part any reason which would any deposition dence or thereof for testify present then evidence if the witness were the exclusion of the 32(b), ing.” Mass. 787 Mass.R.Civ.P. design, alleging negligent but complaint counts 13The contained two those were waived at the time of trial. counts 37 Mass. App. particular, there was no evidence showing “the of gravity the danger posed by the challenged design,” or “the likelihood that such would danger occur.” Two possible design defects were suggested the first, plaintiffs proffered evidence: the door design it permitted to come open during acci- dent, second, the LeSabre’s structure was insuffi- ciently rigid, causing excessive deformation during the colli- sion. As to each alleged defect there was a complete absence of proof, even with the Noettl deposition, regarding dan- ger posed 1975 LeSabre as it was actually designed. Although Noettl testified that car doors should generally not come collisions, open during rollover and that cars involved in collisions such as the plaintiffs should not be crushed as as the badly was,14 LeSabre he actually had never examined the LeSabre’s door latch or its frame. He there- fore could not (and did not) testify regarding the likelihood door, that the car as designed, would come open such an accident, LeSabre, or that the as designed, would be severely crushed in such an accident. The evidence left open pos- sibility that the vehicle was designed to an extraordinary de- gree of safety and that the door opening crushing were the result of an extraordinary accident.
Lacking evidence of the level danger the 1975 posed by LeSabre’s design, could not jury weigh dangers vehicle as designed against the costs of a less implementing dangerous design, and could not consequently perform Wickes, Back v. balancing supra. Compare Motors, Inc., Walsh Atamian (1980) (mere occurrence of automotive problems, standing alone, was insufficient to defect). show existence of The ver- dicts were directed in favor of properly the defendants.
Judgment affirmed. 14Noettl, recalled, will predicated it be speed that the LeSabre’s was twenty under impact large hour at its tree. *10 Brown, anal- I concur in the careful (concurring). fully J. in court’s reasoning comprehen- and sound set forth ysis sepa- raised in this case. I write sive treatment issues should, have suggest to that the could rately only to on this case before it came to trial and pulled plug make regarding discovery process. a few observations verdicts directing the trial did not err
Manifestly, for No rational trier of fact could have found the defendants. a automobile for duty ordinary passenger from an intoxicated use encompasses duty protect injury who drives the vehicle off the road at a speed fifty operator feet, rolling hour and travels another 175 over several before to rest a tree. striking objects coming against This conclusion should have been before trial. apparent
As the out in footnote re- majority points supra, “[t]he excessive, quests facially admissions this case were burdensome, and This is run amok. In oppressive.” discovery book, (1994), recent Profession Sol Lino- Betrayed witz (at 178) makes reference to this abuse special precise and the resultant increased to the greatly expense parties if it is left society unchecked:
“If a judge thinks it that a can highly unlikely plaintiff defendants, he prevail, obligation has an to the to the court, schedule of his — and to for justice other applicants — and, indeed, to the not to the waste permit of their time and A courtroom should not be a money. casino where throw the dice in that a lawyers hopes jury will read them wrong.” comments, remarks,
At the end of these Mr. Linowitz quite there must be worries appropriately, always, “[as] about what when discretion.” One happens judges given are court, course, of the functions of an is to correct appellate abuses of judicial discretion. arena,
In today’s litigation and other forms of depositions have become discovery the main sources of abuse advo- I agree cates. with the remarks of former Chief Justice War- ren Burger, who observes that “has become trial discovery
annihilation before the litigants ever reach courthouse.” Profession, at Betrayed supra from W. quoting of Justice 143 Burger, Delivery This case is a shining wasting considerable example amounts of on a frivolous law- energy money factually suit. It is no wonder that the chief public’s perceptions legal are ones of distrust and frustration profession cynicism, and even anger.
This may be anathema to those who love litigation, routine, whether it be or and the attendant billable complex hours, but it must be said: needs an overhaul. Discovery However, comes, must, when deliverance and it surely utmost care must be taken not to achieve in its gridlock stead. That will be a it. challenge, but we must undertake this abuse falls the bench Responsibility curtailing upon as well as the bar.
I close with this If we fail to our collective prophecy: put judicial in the dike we shall need to fingers immediately, summon Noah because we shall need his ark. certainly