*1 KUIPER, Respondent, v. DENNIS Plaintiff COMPANY, al., & GOODYEAR TIRE RUBBER еt De- Appellant. fendant No. 82-224. 12, May Submitted 1983. 25, Decided Nov. 1983.
Rehearing Denied Jan.
1984.
Plaintiff, Dennis a ac- against (Goodyear) tion Tire and Rubber Co. injured working multi-piece after he was while on a truck Following twenty-five day Eighth wheel rim. a trial County, jury Judicial District Court for Cascade plaintiff compensatory damages $325,000 awarded and punitive damages judgment $1,500,000 in was entered upon based verdict. The District Court denied a Goodyear appeals. new trial. We reverse and remand for new trial. August plaintiff, twenty-two year newly 13,
On 1979, old employed independent Goodyear man, married at an dealership Andy’s Falls, Montana, Great known D as & employed only period K. He had been a short of time working shop repairman, and was in the as a tire called a August tirebuster. Late in the afternoon of the service manager Kuiper repair instructed to do a flat on a multi- piece truck tire with a rim known as a K-28. Kui- per type had wheel, never worked on that of a so a co- helped Kuiper worker, Huston, David tire, dismount the re- pair Kuiper put tube, and instructed how to the tire together. pro- and rim back Huston left to work on another ject, Kuiper assembled the rim and tire and inflated safety cage. Kuiper tire inflated, After the tire was proceeded rolled the tire to the truck and to mount the tire lugs. mounting and wheel on the wheel As he was the tire ring explosively separated and wheel the from the rim base Kuiper Kuiper multiple and struck in the face. suffered fa- jaw diploplia fractures, cial fracture, teeth, loss of right eye, paralysis facial and a cerebral contusion. Doctors injuries, Kuiper testified that as a result of these continued paralysis, to suffer from facial loss of sense of smell and memory anxiety, depres- taste, loss of concentration, sion and traumatic neurosis. Medical evidence was conflict- ing Kuiper organic as to whether had suffered brain damage. partial recovery, Kuiper Andy’s
After returned to work at *5 D & K as a salesman. He was unable to function as a sales- man due memory lapses and loss of concentration. He shop next returned to in cope work but was unable to anxiety with the experienced working he while there. Fol- lowing medical change recommendations that he should oc- cupation, Kuiper enrolled at a vocational technical school Missoula studying forestry. 28, 1979,
On December Kuiper complaint filed a in Dis- trict Court against Goodyear. complaint sought dam- ages from Goodyear designer as the and manufacturer wheel, the K-type liability for strict design, for defective warn, manufacturing failure defect and malicious conduct. trial,
Because the case is returned not for new we need review the extensive factual record. Our factual review will be brief with the of illustrating aim the contentions of the parties. separated Kuiper’s The wheel which in- caused March, Goodyear is a K-type-28, manufactured (1) (2) 1944. split The wheel has parts: two base a com- ring bined slide mechanical en- locking ring. Plaintiffs gineer probable witness cause of the testified that the most separation portion the absence of a of the hook gutter was split on the ring base which serves to hold the slide locking ring place parts when the are assembled and the tire is missing por- inflated. That witness testified that tion gutter may hook was defect which manufacturing wheel, have been increased and he usage with the ring further testified that the lock was manufactured .032 of missing gutter an inch too large. He also testified that assembly ring hook and oversized caused the unsafe which explosively separated Kuiper mounting the wheel while pat- on the truck. He device locking further testified that a placed ented to in the 1930’s could have been on separation. K-type explosive wheels to decrease the risk of Goodyear presented expert testimony K-type wheel in- defectively designed was not and that the wheel defectively manufac- Kuiper’s volved accident was missing gutter Goodyear experts testified that tured. Kuiper by rec- should have and that hook was caused wear ognized dangerous not reas- of the wheel and condition K-type experts is a that the wheel sembled it. Such testified according properly if maintained and assembled safe wheel super- Goodyear’s witness, A tire instructions. K-type Georgia express company, testified the visor for a properly assembled, al- if maintained and wheel is safe shop though had two accidents involv- he testified that his improper mounting ing K-type wheels caused procedures.
Kuiper involving introduced evidence of other accidents multi-piece K-type particu- general in wheels in wheels Goodyear May 1981, lar. had One exhibit reveals that as of many eighty reported notice of in- as as six other accidents volving K-type showing wheels. No evidence was introduced exactly age occurred, how other accidents nor the or condi- exploding tion of the wheels. Plaintiff introduced an inter- by manager engineering office of memo written of field Goodyear the motor in he wheel division of which stated parts multi-piece inherently dangerous of the rim are highway shop. parts both on the and in the He said the catastrophically “sometimes cease to their intended serve purpose” and that “the time at which the usefulness ceases dependent procedure, chance, maintenance, is proper on service tools, use,
use of and the abuse and misuse of which parts subjected during have been wit- their lifetime.” That K-type average ness estimated the of wheel useful life years. at case twelve to fourteen The wheel involved this approximately thirty-five years old. significant Goodyear production It is to note that ceased K-type prior 1968, of the wheel in of the incidents referred to the trial of the case. repair regard Goodyear policy notifying
With to the of tire shops necessity using handling wheels, of the of care Goodyear presented Goodyear showing that had evidence posters charts, distributed a multitude of and advertise- proper assembly ments which demonstrated the of multi- piece Goodyear charts, rims. A witness testified that posters multi-piece and advertisements warn rims can dangerous they properly be if if are not assembled or parts are worn or abused. also had available a May entitled, film “You Not Get a Second Chance” which explosive separation multipiece showed rim. The film indepen- was shown at some seminars and was available to Andy’s manager dent dealers for a D & fee. The service at multi-piece pos- warning K testified there was some of the shop, exactly ters and literature but he did not recall which ones. during
In the administration of President Carter and subsequent problems of the Nixon administration discussed, which are later the Director of the Office of De- Investigation Department Transportation fects re- opened K-type investigation. November, 1979, wheel he transmitted a letter to the Vice President of stating:
“By forty-two 1973, inclusive, we have identified at least involving explosive accidents and twelve deaths disas- sembly multi-piece K-type types All rims. rims can be subject variety servicing procedures, including to a warnings, parts. use corroded or mismatched When rec- ognizing significantly higher this, number of accidents K-type totally unacceptable *7 among found rims and is points safety to an inherent defect in these rims.” requested Goodyear notify working He days him within seven they safety
whether would conduct a recall. responded request stating they attempt to that would to re- K-type charge by replacing, call the wheels rims without January purchased 1, those manufactured in 1968 or after prior replaced 1971. Wheels manufactured to 1968 could be type price. with a rim The recall was new at a discounted percent Originally unsuccessful. offered ten twenty-five percent. cost discount and later raised that to Following are the issues:
45 following admitting 1. Did trial court irrele- err prejudicial plain- vant in connection with the and evidence allegations political bribery lying tiff’s and to the Ervin Committee:
(a) (b) political campaign by Goodyear; contributions plaintiff’s Watergate; all of references to (c) videotape? DeYoung admitting following
2. irrele- Did the trial court err prejudicial vant and of other accidents: evidence (a) mentioning documents dissimilar to other accidents plaintiff’s accident; (b) testimony by Youngdahl from a document identified as III; Phase
(c) video-taped accidents, which dramatization other jury; was shown to the
(d) the Brandford letter? submitting 3. 27 Did the trial court err in instructions jury: to the (a) they were did instructions 13 and 27 erroneous because change not include “without in condition” as an substantial plaintiff’s proof; essential element of (b) erroneously equate “unjustifiable did instruction conduct” with malice? submitting
4. Did the trial court err the issue of “failure jury? to warn” to the by jury
5. Was verdict influenced misconduct bailiff? unsup- excessive,
6. Was the on an verdict based portedassumption, inspired by passion prejudice? require or
We will discuss those issues which reversal may problems which cause on retrial. plaintiff’s jury, opening
Issue 1 relates to statement plaintiff’s plaintiff’s closing argument with re- evidence and gard to an in Swiss bank account used untaxed slush fund (Committee by Goodyear to Re- as to CREEP contribution President), references, name, elect to those extensive persons particular Watergate scandal, with involved *8 46 Watergate
emphasis upon in the convicted of crimes those ap- DeYoung video-tape Goodyear scandal, of chairman pearing tc Senate Committee before the Ervin on television campaign contribution, of and the conviction discuss the Goodyear regard to that contribution. theory plaintiff upon contends that all of
The which the 27-1-221, is under Section such matters are admissible may exemplary damages provides MCA, be al- which “oppression, guilty of lowed where a defendant has been presumed.” general malice, standard fraud, The or actual or damages recovery punitive in Graham is restated for the (Mont.1981), 718, 721, 631 P.2d v. Clarks Fork Nat. Bank St.Rep. 1140, 1143, 1144 to wit: respecting punitive general “. . . we stated the rule awards: “ recovery damages the act com- ‘To warrant the of such plained partake or somewhat of a criminal must also universally recognized wanton And nature. it is an almost only may damages cases, rule such recovered and be complained wrongful cases, act is such where the aggravation as characterized sоme such circumstances of brutality, oppression, insult, willfulnes, wantonness, malice, part gross negligence, gross recklessness, or fraus on the ” added) (emphasis the defendant.’ complained alleged de- The act of is the defective K-type sign, manufacturing wheel. to warn of defect of any relationship record fails to disclose between political case at issue activities of and the wheel here. recognize purpose opening
We state that the presented jury is ment to inform the of the evidence to be justify recovery plaintiff’s place perspective. it in opening apparent statement, intent was to it is that the persuade wanton conduct of that the criminal and Goodyear making CREEP its contribution to supporting ad scandalous conduct of the Nixon punitive proper ministration, was a reason to conclude damages Goodyear, against regardless shculd be awarded presence design, or absence of a direct connection production K-type manufacture wheel. opening jury filledapproxi-
Plaintiffs statement *9 mately seventy-two pages transcript. forty Over of those pages recounting political are devoted to a of the slush fund, the administration, contribution to the Nixon and the Watergate great emphasis placed upon scandal, Nixon with the names of those who were convicted of various crimes in Following por- the Nixon administration. are illustrative plaintiffs opening tions of statement: developed Goodyear, through “. . 1960’s, . It that in the foreign Europe, getting their affiliates in were kickbacks or suppliers foreign rebates from affiliates, to their and rather report honestly they than books, them and on the decided pay any report not to tax, books, not to them on their gimick issue some kind of [sic] a financial controller’s a subsidiary acquire bank check to the the cash rebate. They always paid put cash, were it a secret ac- they up nothing count that set with but a code name. That Goyeda. code name of that account was That bank in Swit- period zerland accumulated the cash then over a of time. purposes, “One of the or the one we’re concerned with of up fund, that cash was to build a domestic slush country fund in this . . .
<< opportunity influencing politics
“The to use it in domestic early arose either late 1971 or 1972. . .
ÍÍ operative December,
“. . . In 1971, the White House personnel, doing job the man who was in the federal government, key man, he’s the was Fred Malek . . . “Fred Malek was on the Nixon White House Staff in the Management Budget personnel Office of as the direc- you you you job, tor. If wanted a fat federal . . . saw Malek will recall that the Chief of Staff of Nixon’s White House gentleman was the named H. R. Haldemann. December suggested long memorandum, which is a Malek public government record, allow Malek to Haldemann politicizing up program, which he first talked about set bureaucracy, by fancy meant, ‘We’re words he which Washing- going people who are civil servants make the departments Department such as the ton and work in the Transportation, work for the re-election president.’
“They finally euphemism smoothed this out to a called proposed responsiveness program, by they to make which departmental govern- people in branch of the executive responsive ment needs to be re-elected. to the President’s you’ll recall, the chairman of And as all Mitchell became notoriously CREEP, known as the committee that became President. the Committee to Re-elect the Attorney Stans had “He had General. Maurice been Secretary the Chairman been the of Cоmmerce and became . . . the President Finance Committee to Re-elect *10 U February, 1972,
“In . a business coun- . . Maurice Stans at DeYoung. meeting Washington is sel in meets Russell Who DeYoung of the Good- he? Russell is the Board Chairman year Company, De- and he asks Russell Tire & Rubber testimony Young if him. The will be he can come and see responds, DeYoung me, I’ll need to come and see ‘You don’t you.’ send a man to see And he does. charge the slush
“The man he sends is the man that’s of fund, Mr. Arden Firestone. they’re
“DeYoung agree going to con- and Firestone hand-carry request they $20,000 Stans, tribute of and by way courier, of $20,000 Firestone to the Office cash Committee to Re-elect the President. Finance <C wrapped money bag
“When Firestone carries the Pennsylvania paper, Avenue testified, brown it is to 1701 President, and delivers it to Committee to Re-Elect enough, disappointed, Stans him is it is advises that he and sends him back to Akron for more. Firestone consults with DeYoung they Russell between themselves agree they $20,000 will add another to the ante. And then De- Young $3,000 own, decides that he will add of his $45,000. check from his wife for two more. A total of twenty safe, other they up comes out of a and now are at $45,000. cash, Firestone Washington returns to with the de- Stans, livers it to accepted and it is without comment. “Now, develops it the Finance Committee to Re-elect of, up President is made among people, other of Mau- Stans, rice course, budget and a serving committee with him, and Magruder, and on the committee is Fred Malek. . .
“. 1972, . . In January re-election, following the Nixon president of the Company, Union Oil Griniger, Claude G-R- I-N-I-G-E-R, believe, I became the Secretary Transpor- tation. righthand man, His Dr. James Gregory, became the Administrator of the Highway Safety National Traffic Ad- ministration. The Secretary Transportation, other the evidence will be proposed that Mr. Malek that wе work through the undersecretary, he’s our Undersecre- man —the tary Transportation, Egil Krogh. name, E- strange He— K-R-0-G-H, G-I-L pronounced but like Egil the bird. Krogh had been in the Nixon White House Staff. He had been the man organized security who the White House force that plumbers. became known as the “Egil Krogh Secretary acted under Transportation through the spring of before the plumbers and the grand juries finally got to him. 1973, fact,
“. . . In April Cause, pub- Common a consumer *11 lic group, interest following burglary and the aftermath of the Watergate, files a lawsuit the United States Dis- trict Court for the District against of Columbia the Com- mittee to Re-Elect the President. April, they’re
“In asking for records of the contributors 50 April 7,
the Finance Committee to Re-Elect before the 1973 . . deadline. get him,
“Firestone advises we’ll have to back to Stans. He DeYoung. DeYoung talked to Stans and conclude that they’ll give phoney DeYoung them some names. Stans and Goodyear, met with the Pil- executives of that included Mr. public liod, Lane, man, Mr. who is their relations and They explained gentlemen situation, others. and those agree misrepresented that their names can be as the con- they give money. tributors, when didn’t a cent of by July, appears “Well, Cause, Common it now to the law- yer judge Re-Elect, for the Finance Committee to that the going is gave him make reveal the records of who it was that pre-April money. only Now, evidence,
this 7th only they destroyed it, evidence, record of because all the prepared CREEP, was a list at F. and sent down the street Pennsylvania Avenue, a block to 1600 addressed to Rose- mary personal secretary Wood, the to Richard Nixon. That Rosemary Rosemary’s Smith, became know as and list was only prior April 7th, record the contributors cod- ing, Goodyear employees appear cash or whatever. on Rose- mary’s list, which will be evidence. Meyers DeYoung
“Mr. and Mr. Mr. Firestone consult they uр, they jig’s counsel, with outside decide the so go Watergate special prosecutor, you who recall is they time, staff, Archibald Cox at the to his tell their story. charges Goodyear
“Archibald Cox with violation of the fed- felony felony law, offense, eral election of- or it could be a charges DeYoung fense, and also Russell with that same crime. . . April DeYoung pleads guilty 19, 1973,
“On Russell to vio- lating by giving corporate the federal election law con- Company tribution, and the Tire & Rubber
51 pleads guilty substantially charge, the same. the same or they’ll guilty pleas Those be are a matter of record and you. before DeYoung subpoenaed appear
“Mr. is Ir- [sic] to before the Senate, [sic] Committee, vin that’s the Committee of the Campaign Senate Select Committee on Presidential Activi- by ties. It’s [sic] chaired Sam Irvin from North Carolina. appears He on November and before the Irvin 15, 1973, [sic] million, Committee and a television audience of possibly including yourselves. some of He testifies under payments.” oath about the scenario of these by plaintiffs open- No statement was made counsel in the ing Depart- foregoing statement to connect all of the Transportation, investigation ment of the wheel and this case. moved for a mistrial at the conclusion of plaintiffs opening plaintiff statement, on the basis that the any relationship had failed to state sufficient facts to show Department Transportation to the actions of the and its investigation K-type argued of the wheel. Counsel also plaintiff had not stated sufficient facts to show a basis punitive damages for an award of based on the objec- contribution issue. The District Court considered stating part: tions and denied the motion Okay. any argu- Well, “THE COURT: I don’t need further gentlemen. any question ment, There isn’t about it that ref- Watergate participants thing erences to prejudicial. and the this is agree [Goodyear’s
I that, counsel]. with John just simply question There’s no about that. Whether or not we can overcome that admonitions and instructions to from here on out remains to be seen. difficulty “The I have with the motion for a is mistrial granting prevent plaintiffs putting that would from they’ve theory got right case, on their to their of the case. accordingly, predicated upon alone,
“And that fact denied, motion for a mistrial is denied. The same is how- prejudice ever, without to resubmit motion or prejudice having or to do with the motion other relevant particular case. from the issues the removal of this Alright?” closing, through plaintiffs opening, case-in-chief, to
From Goodyear political theory presented plaintiff con- of the his unsuccessful an the Nixon Administration tribution to attempt Administration of the Nixon to tie the activities to the motion addition of the Kwheels. opening statement, for mistrial at the conclusion plaintiffs evi- mistrial at the close moved for again All motions *13 close of all evidence. at the dence and were denied. Goodyear it had that admitted shows that record
plead guilty making CREEP, those that a contribution to to U.S.C., 18, Section were in violation of Title contributions Goodyear paid $5,000 fines of 601, misdemeanor, a $1,000. attempted
Throughout plaintiff link the Good- trial, to the year attempted recall of avoidance of the contribution to an Testimony K-type Ervin the Senate before the wheels. emphasis jury, on the ef- with to the Committee was shown Re-elect Malek, of the Committee of Mr. a member forts Ervin Com- Malek, before the who testified the President. proceed- knowing any in which mittee, situations denied any department agency with, ings were interfered or before influenced or obstructed. Goodyear theory offering con- of the
Plaintiffs evidence suggest jury the contribution was to tribution to the being K-type prevent from the wheels was made in order to 1974, after the until noted it was not recalled. It should be investigation (the High- closed, National had been NHTSA Administration) empow- Transportation Safety way was & statutory addition, 1974 In even recall. ered to order change order recalls recall, could NHTSA which allowed safety- finding only been a where there had situations Up never a trial, was there to the time related defects. safety- finding a rims had the NHTSA that related defect. record, shows very extensive review of the
Our careful contri political the connecting of evidence a total absence agency federal by a bution of plaintiff. injured the type which multi-piece rims of the con Goodyear’s evidence of result, As a it is clear that was President Re-elect the Committee to tribution to 402, Mont.R.Evid. under Rule inadmissible contri- Goodyear political In allowing injection contribution, bution, making conduct its criminal criminal scandal, and the references Watergate a rela- scandal, court allowed the trial participants become tively simple products liability case to We to a fair trial. parties right circus and denied indicating it was liability jury split note that 8-4 on However, liability questions. products rather close on the im- suggests 12-0. This punitive damages the vote for damage punitive proper jury influence of the on question. preju- statements and failing prejudicial to exclude the indulge evidence, permitted
dicial the trial court contrary to our guesswork in improper speculation and (1967), in Graham v. Rolandson 150 Mont. holding P.2d 263. Montana, *14 that to sustain law long
It has been the or indi upon, whether direct recovery the evidence relied Es mere scintilla. rect, than a must be substantial —more 238, Co. (1912), 127 Ry. v. Great Northern 46 Mont. callier (1920), 58 Mont. Ry. Pac. Co. McIntyre v. Northern 458; P. upon conjecture, 256, A rest 191 P.1065. verdict cannot well shrewd, suspicion, however upon however nor Purchasing Company Ore Olsen v. Montana grounded. v. Northern 400, In (1907), P. 731. 35 Mont. 89 Monforton 511, 501, 191, 211, P.2d (1960), 355 Ry. Pac. Co. 138 Mont. this Court held: appellee’s whatever that no evidence presents
“The record Monfor- Cloyd car or that by the distracted attention was 54 necessary any distraction, make the
ton, failed to because of as- involves an otherwise for the train. To find look-out conjecture speculation sumption upon or inference based or Cloyd second and the his attention that the car did distract assumption first, distrac- that this on the or inference based discover to failure of Monforton the cause of the tion was approach. 4, to section 93-1301-1 But under the train’s Ry., 594, 330, P. one Butte Electric 72 Mont. Fisher v. any or inference from other inference cannot be drawn presumption.” Hageman supra; v. Town- Rolandson, v. Graham
See also
(1965),
lowed investiga- K-type wheels, the IR-215 known as tion into the voluntarily despite tion, that fact K-type wheels three manufacture of the discontinued the years despite no NHTSA had the fact that earlier and power It allowed rims to be recalled. of those to order jury speculate memorandum, and to about the Malek to support, evidentiary be- surmise, with no by House the White there was a commitment lieved that prior making jury to con- It allowed its contribution. to persons evidentiary basis, clude, that unknown no with preferences Goodyear’s and were House knew of the White position allowed out. It them to be carried in a to order contrary, desрite jury think, all the evidence De- of the Office to the head Detrick was moved Andrew Secretary by Investigation, De- ODI, fects partment Transportation of unknown direction at the Finallyit employees. as- allowed the White House assumption support that De- sume, no evidence to with differently than in 1972 IR215 trick closed the predecessor. evidence find no We his those closed proof support these infer- conclusions, much less these probable. The or even reasonable are ences and conclusions Goodyear’s have been should contribution evidence of *15 submitted to the under Rule Mont.R.Evid. Unquestionably, plaintiffs allegations political of brib- ery prejudicial appellant Goodyear. were Circum- pertaining Watergate investigation stances to the and sub- sequent dropping parties name of the notorious had no previously noted, connnection with the cause of action. As mentioning observed, the trial court . “advice of . . Water- gate inherently prejudicial.” and all the rest of it is The prejudice putting court also noted that the of such evidence jury outweighed probative before the its value.
As we review the order of the District Court in the present possible case, we conclude that it is that the trial judge holding Kuiper misunderstood our v. The Dist. Eighth (Mont.1981), Court Judicial Dist. 632 P. 2d St.Rep. holding, plain 694, 38 In 1288. we allowed the discovery including, taking tiff considerable latitude depositions Goodyear produc requesting executives and holding tion However, of documents. our in that case did duty not in manner reduce the of the District Court to pass upon admissibility relevancy of information produced discovery. in the course of part admissibility
Last we consider as a
of issue 1 the
DeYoung videotape.
tape
On retrial this
should not be
played
jury.
anything directly
It fails to show
cоn-
K-type
nected with the
wheel
or the accident
subject
which is the
of this action. See Montana Rules of
403;
Evidence,
Evidence 402 and
§
31 C.J.S.
108.
including
After a careful review of the extensive record
transcript, we conclude that the District
Court erred
ad-
mitting
prejudicial
irrelevant and
evidence of political campaign contribution and all of
evidence re-
lating Watergate.
reaching
conclusion,
we do not
any way
surreptitious
condone the
contribution
by Goodyear
$40,000
to the Committee to Re-elect the
Similarly,
grossly improper
President. That was
conduct.
any way approve
Watergate,
we do not in
or condone
in-
cluding
participants
actions,
and their
which were so
graphically
jury.
is a national scandal
described to the
That
proud.
key
element is that
which none
us are
plaintiff completely
contribu-
failed to connect the
*16
tion
the multi-
to the federal
piece
plaintiff
prove
The
that
contribu-
wheels.
failed to
the
multi-piece wheel,
tion
related in
manner
the
was
to
exploded
plaintiff.
injury
the
We
which
caused the
to
and
agree
the
that this evidence
with
District Court’s conclusion
obviously inflammatory
extremely damaging
in na-
and
only upon proof show-
ture and should
been admitted
have
ing
present
The
discloses
its relevance to the
action.
record
possibility
The
total failure
establish such relevance.
upon
prejudice
clearly present
is
the examination
punitive
regret
very
damages.
counsel
substantial
We
totally
necessary
bring in
and
deemed it
this
extraneous
prejudicial
prevented
seriously-injured cli-
It
his
material.
receiving
ent,
defendant,
as well as
a fair trial.
the
from
The
be
is
the
second issue to
considered whether
admitting
prejudicial
erred
evi
trial court
irrelevant
This
sub
dence of other аccidents.
issue is subdivided into
paraqraphs. We
our
those sub-
will direct
attention to
paragraphs covering
not
considered
material that should
be
Burlington
v.
Northern
on
Runkle
retrial.
(Mont.1981),
St.Rep.
982,
995,
37
this Court set
P.2d
relevancy
determining
acci
forth the test for
the
of “other
amissibility
is
dents”
for such evidence
evidence. The
test
surrounding
product in
to whether the circumstances
substantially
same or
volved
other
were
accidents
rule
be the
similar to the accident at issue. This
should
guide
should
for the trial
on retrial. A concerted effort
court
be
evidence
made
court to allow the admission
only
product
cir
and the
those accidents where both the
surrounding
were similar to
cumstances
the accident
liability
products
the federal
In a
case tried in
case at bar.
(10th
Laundry Press Co.
court, Rexrode
American
v.
Cir.1982),
substan
court held that
With these the trial court on retrial can protect respondents here. record admissions of
Issue No. 5 is directed to whether the court committed denying alleged error newa trial for the misconduct of principally the bailiff. this This issue is discussed because being case is remanded for retrial. While the factsituation might involved herein a reversal this is necessitate on sue alone due fact that the defendant’s counsel learned of this misconduct while the was still out bring immediately failed to the matter to the attention of import urge court, the trial is of it such we the trial judge to instruct the bailiffsof the to follow stat court jurors ute as to theirduties and not communicate with the during their discussions. *17 petition alleging
The for a new trial the the misconduct of provides: MCA, 25-11-102, bailiff was made under which “Grounds for trial. deci- new The former verdict or other may granted applica- sion be and a on vacated new trial the party aggrieved any following tion of the of the causes materially affecting rights party: of such substantial
“(1) irregularity proceedings jury, court, in the of the or party adverse or order of the court or abuse discre- of by party prevented having tion which either was from a fair trial;”
Here the affidavit counsel for the defendant (1) hung jurors “get that, stated the bailiff told the not to up” (2) during deciding case; and, on the in instructions the apply jurors trying the were deliberations while several by ju- jurors instructions, the those were reminded another up” hung “getting ror of what the bailiff had said about (3) being upon instructions; bailiff, in- and, the on the by juror formed “four hardnosed women that there were you responded, get anything with,” in there can’t done (4) juror you “well, and, can’t when a work around them?” 58 instruction,
gave an the question the bailiff a written about “self-explanatory.” Such question bailiff stated that the was by conduct a bailiff cannot be tolerated. of instructions appellant argues question next the
given, submitting and in instruc- whether the court erred 27, 13, that these instructions jury, tions 41 to change did not include “without substantial and condition” as plaintiff’s proof. essential of the an element in liability product
This Court
age
entered into
Brandenburger
v.
Motor
opinion
Toyota
in
1973 with its
Sales, U.S.A., 7nc.(1973),
506,
162
That further this was later, v. American Brown North yers that came down five (1978), P.2d Mont. Manufacturing Company case Many 711. counsel this arguments defense ar- particularly This is true as to the were made Brown. “open obvi- gument appellants danger was “unrea- product and that not “defective” or ous” use, is sonably dangerous” danger, if the occasioned open and to the user. obvious Brown, supra, appellant advanced
As we noted bar or rule as a “open danger,” “patent-latent” and obvious liability. recovery theory under of strict plaintiff’s it had been rejected noting There we such rule also by many jurisdictions. rejected other Brown, danger” “open and obvious We held Ed.) (2nd in 2 of Torts rule is not contained Restatement 401A, source nor in the comments thereto. The Section *18 (1950), case, v. Campo that rule was a New York Scofield However, 468, that rule was aban- 301 N.Y. 95 2d 802. N.E. case, in Appeals Court a later doned the New York of Dexter, Co., v. Division Miehle-Goss Miehle Micallef 115, N.E.2d (1976), 348 Inc. 39 N.Y. 2d. N.Y.S.2d 571. following Brown, cases, the better reasoned we operate encourage misdesign.
held that such a rule would patent danger prevent The fact that it was a does not finding product that the is in a defective condition or un reasonably dangerous particular plaintiff. Rather, the danger obvious character of the defect or is but a factor to determining plaintiff be considered whether the in fact supra, Brown, assumed the risk. We that, held “a show ing proximate necessary predicate plaintiff’s cause is a recovery liability.” liability in strict is, course, Strict “complete liability without fault.” There is no im absolute munity. may Plaintiffs behavior result in a break in the operate recovery chain of causation and to bar as described (2d Ed.), in 2 Restatement of Torts 402A, Section Com (n). ment
We further hold that the above standard of con (n), duct, plaintiff set forth in 402A, Section comment as injury assumption related to the must be considered on the applied liability of risk when to strict cases. We further considering assumption liability hold of risk strict plaintiff judged by apply cases, the actions of the are to be ing subjeсtive plaintiffs standard to conduct rather than objective standard of a reasonable man. produced including appel- case, evidence in this lantGoodyear’s govern- records and records from federal design, ment of the rim indicates that there experienced were numerous accidents over a considerable period involving K-type Testimony of time rim. from Goodyear engineers plaintiff’s experts, both as well Goodyear’s surveys as conclusions, field and their indicates K-type inherently unreasonably that the rim was an dangerous design, years Goodyear and that for had some knowledge Goodyear’s testimony of that fact. Part of the expert, engineer, parts Smith, a field R.M. that the showed highway inherently dangerous rim were both on shop. dangerous use, and in When in condition is appellant case, often masked.” In this raise the does not *19 60 design sufficiency
question defect. evidence of the intervening presented al- in the case of There was no issue design Goodyear’s design product. en- in teration th gineer, in- Gerbeth, no that he could find Gerhart testified Goodyear’s design anyone changed dication had ring, which could or both of either the rim or the either injured plaintiff. explosion the have contributed to the Appellant Goodyear no. is er- that instruction 13 contends “prod- omitting language requiring in that the the roneous change Kuiper in reached without substantial uct Dennis appellant However, in in it sold.” the condition which was condition this instruction did not submit the defective defectively product product, was rather the the but designed.
Appellant objects states: to instruction no. 13 which allega- are that in to recover on the “You instructed order design prove: plaintiff defect, the tion of must designed “First, manufactured the that the defendant and ring K-type rim the of manufacturе base and which at time design unreasonably dangerous to the was defective in user. K-type
“Second, rim the that at the time of the accident Kuiper ring being in man- used Kennis base were reasonably anticipated by ner the defendant. K-type design
“Third, in rim base that the defective the plaintiff.” ring proximately injury caused require- Appellant argues that the instruction omits substantially product in ment that the be shown be injury it as was at the time same condition at the time of it left manufacturer’s hands. proof design governing plaintiffs in
The correct law Mont, Brown, 105, 106, at 576 P.2d at case is found in 716, we stated: prima
“[1] In strict liabil order to establish a facie case prove ity upon plaintiff definition, a must based the above following elements: (1) ‘unreasonably’ product in a was defective condition
dangerous consumer; or user
(2) injuries The defect caused the accident and the com- plained of; and
(3) The defect is traceable to the defendant.” requires
Court’s find instruction no. 13 product design that manufacturing. at defective the time three-prong
This satisfies for a test prima liability, facie ele case strict which is the third plaintiff’s supra. Brown, ment We case set forth *20 design that all find of the elements of the defect are set case incorporated in Brown are in no. forth and the instruction 13. point respondent
At this we note that the Kuiper cites as author ity Eighth brief, in v. its District Court the Judi of supra, proposition Dist., cial for the that sets said case liability design the forth elements strict and for defective respondent failure towarn. his The further bases much of argument allegedly Kuiper on a in citation made super Kuiper effect. We note the in action was one of visory discovery control directed to the of certain docu compelling ments and answer thereto. rejecting Goodyear’s argument denying motion his very carefully trial,
for new the trial court the considered objections to the аbove two instructions and set forth his denying judge’s for reasons holding the same. in the We concur trial denying judge and find no error. The trial noted in that, the motion for new trial requirement design
“There is no that a remain in substan- tially obviously design the the same since condition product change original does not from the of its manu- date design facture, not absent some modification in which was in an issue this case. length during
“This issue is considered at the instruction conference between the court of counsel and it is the court’s opinion [product liability] design case, in concerted changes product through wear, tear, even or question original abuse do de- not affect the of whether the sign unreasonably Design dangerous. is was defective and judged product, but the state not the condition designer knowledge scientific technical available placed product on at time the was the market.” Goodyear acknowledged proposition in- in its offered this 27(a) 14. instruction no. struction which was court’s design proximately “If defect was defective and that any design changes accident, caused the condition during prior not the rim uses irrelevant and would are * * *” plaintiff’s preclude recovery design defect. Goodyear’s proposed instruc notes that Court 25(a), given instruction no. uses the word tion as court’s “anticipate” possible confusion or misdirection and resolves finding regarding change by requiring favor substantial Goodyear. product not If determined the unreasonably dangerous when it left Good defective and by subsequent year’s dangerous control, al made but was change, improper maintenance, abuse, teration, or abnor reasonably use, not mal which the manufacturer could anticipate, liability. instructions there would be no These light together, of the evidence of thе case were read for de make it clear that could be heldliable Goodyear’s product occurring it con left fects after *21 opposed design trol, Both instructions are cor as to defect. rect of law. the jury
Obviously, judge to the the trial here instructed they subsequent change, were or but the effect of alteration product presume that the that law cautioned the does not in it left the hands was condition at the time defective lapse 20, the no. stated that the manufacturer. Instruction date of the to the of time from the date of the manufacture 22, considered; no. accident, instruction was a factor to be produce required a or sell to that the manufacturer is product 23, in that out; no. will never wear instruction that prove plaintiff rim the recover, had to that order the to reasonably ring being an in a used manner base and ticipated by were Goodyear; 13, the no. that instruction product must the in at the design find that was defective manufacturing plaintiff time of in for to recover. order only proper Not these were instructions statements Montana, in product liability they properly law but were error. given this case. We find no cases, such as liability We have held in strict Brandenburger, Brown, that: liability
“On theory, whatever strict justification the for seller, has been be by marketing prod- said to that the his uct the use and consumption, has undertaken and as- sumed a special any member of the responsibility toward consuming it; public may injured by public who that be has right a does expect, products in a case of which it seller, needs rely and for which it is forced on that reputable sellers will their goods; stand behind public policy demands burden inju- of accidental ries by products caused consumption intended for to be placed upon them, those who market and be treated as production cost of against liability which insurance can be obtained; and that products the consumer of such is enti- someone, tled to the protection maximum of at the hands persons and the proper placed to afford it are who those product the market.” (2d Ed.), 402A, (c),
Restatement Torts Section comment p. 550.
Recognizing position the seller is in best to insure product safety, liability imposes the law of strict duty on the seller prevent “any product” the release of in the defective unreasonably dangerous condition consumer, or user “into stream of commerce.” See (2d Ed.), 401(a)(65). Restatement of Torts Section This duty is negligence unknown the law it is not ful filled if even the seller all takes reasonable measures make his product safe. The liability issue focuses on whether product unreasonably dan defectiveand gerous, upon not only of the user or the seller. conduct Put in this light,the only duty imposed on the user is to act *22 64 to which he knows
reasonably respect product with to the the user unrea- only is when dangerous. be defective and It he knows to be product which sonably proceeds to use a duty and re- he violates this dangerous, defective and linquishes the law. de risk is an available summary, assumption must establish liability case. The defense
fense a strict himself unreasonably exposed plaintiff voluntarily and exist then If is found to danger. to a known the defense that of defend plaintiff’s compared with conduct must be comparison of governs law which ant. The same Montana assumption comparison of contributory negligence controls of risk. best liability will warranty policies negligence
The sep- they operate in which spheres by keeping be served how and indicates legislature time as the arate until such standards of changed. The they are to be what extent sphere. in each are well-defined care and the duties on this many issues raised carefully We have examined addressed, we find fur- except to issues here appeal, and However, under unnecessary. of the issues ther discussion recounted, only be it can circumstances herein the facts and jury. this affected irrelevant evidence said that probability strong perceive flight no fanciful It takes product defend a preparing defendant prejudice liability cause. enormity witnessing the persons
It is understandable Tire & Rub- of the officials misconduct Nixon Richard to re-elect Company, its efforts ber mis- for their pay them and make to the fire hold their feet to face had this Court problem is not the deeds. That deciding this case. case in the for the court speaking Justice Harlen first (1886), Co. v. O’Brien Vicksburg and Meridan Railroad 299, 300, stated: 172, 174, L.Ed. 99, 103, 7 S.Ct.
119 U.S. error for an judgment court will not disturb “While this party injury of to the substantial operate that did not committed, a re- against whom it it is well settled that beyond will be a doubt appears versal directed unless it *23 the error and could not have complained of did not prejudiced party.” rights v. also, 61, Kinzle (1966), 105. See 148 Mont. 417 P.2d Goff This cause is for remanded a new trial.
MR. CHIEF JUSTICE HASWELL JUSTICE WEBER concur. GULBRANDSON,
MR. concurring: JUSTICE specially I concur expressed with the result Mr. Justice John Conway ex- Opinion, Harrison’s but not the comments with pressed therein which reaffirm de- an abandonment of the of assumption fense risk in 2 of of enunciated Restatement (2d Ed.),Section (n). Torts 402A. comment MR. JUSTICE MORRISON as follows: dissents very I vigorously aspect dissent from of majority opinion Goodyear’s relating political to activities. The seri- departure ous evidentiary from ma- standards found jority position to results from an emotional reaction “Watergate”. From to even judicial time time the vision of appellate judges Sadly, of becomes clouded. this one is times. those us forget
Let de- partisanship. about Let us not the morality bate is a of Nixon administration. This of recognized evidentiary court law. Well exist principles properly applied, they resolution this control issue.
The applicable legal principles are: actions, 1. In civil a trial discretion in ad- court has wide mitting be ruling circumstantial evidence and its will not appeal showing disturbed on absent a abuse discre- #490, County School District Buttler [Butler] tion. Unified v. 196; Corp. Celotex (1981), 346, 6 Kan. 629 P.2d App.2d Barmeyer v. Montana Power Co. (1983), 185, 202 Mont. 657 594, St.Rep. P.2d 40 23.
2. in a prove Circumstantial evidence a fact sufficient 66 every cause conclusion
civil need not exclude reasonable Plain- sought other than the conclusion be established. reasona- if it affords basis a tiff’s evidence is sufficient other by although fact there are ble inference the trier of reasonable that trier might inferences which be drawn Jacques v. Montana National Guard (1982), 199 fact. 493, 1319, Mont. St.Rep. 649 P.2d 39 1565. Fraudulent,
3. conduct cannot dishonest and dishonorable Therefore, courts proven hy often be direct evidence. proof. burden of grant great having latitude the one suspicion or course Facts which throw on transaction though dealing are admissible even a certain amount drawing inferences speculation necessarily involved when is Bank v. Michels Montana National from those facts. National Merchants (1981). 334; St.Rep. 38 P.2d Bank v. (1895), 395, 41 P. Greenhood 250. Mont. *24 improperly to be majority
The evidence which the found trial, admitted, will excluded from the future and which be can be summarized as follows: Ad- 1970, Safety Traffic April Highway
In of the National K-rims. The of investigation ministration had instituted an to determine purpose investigation was stated safety defect within problemrepresenteda whether Safety Motor Vehicle meaning of the National Traffic and (tr. 1894). OBI- investigation was known as Act of 1966 31, officially closed on December investigation 215. The was 1973, campaign recall notification or without a consumer 1899). 37, (plaintiff’s exhibit tr. 1893 con- Goodyear seriously was question There is no having potential of and the investigation cerned about dangerously defec- notify K-rims were to consumers that in 1972-73 2,900,000 rims service K-type tive. There were 3181). safety Good- (tr. Hutchison, for the head Joseph apiece K-rims at year, replacing $50 estimated the cost of (tr. 1712). the magnitude would reach The cost of recall safety, $145,000,000. Hutchison, characterized head of “overwhelming problem” investigation of K-rims as an 72). (plaintiffs Goodyear A engineer researching exhibit problem, Transportation told by Department was 3735-36). (tr. investigation “top priority” had who,
The person prior 1972, had to March headed office of for one investigation Joseph defects NHTSA was 1972, Goodyear Clark. In February and March executives negotiated had a cash contribution to the Committee for Initially, Goodyear Re-election of the offered President. $20,000. Maurice Stans this and said he rejected offer hoped $50,000. Thereafter, president vice named Arden Firestone cash totaling ap- carried and checks $45,000 proximately This the Committee to Re-elect. was 14, 17, 1972, later, done days March 1972. on March Three Carter was position removed from his and transferred Ohio. replaced Detrick, He placed Andrew was who in charge of though the office of he investigation defects had no background that kind of work.
In early August, Joseph Hutchison met Washing- ton with lobby Andrew Detrick him the K-rim regarding investigation. Detrick, After meeting Hutchison’s first with he wrote a his summarizing meeting letter as follows:
“Detrick safety problem stated that he feels a exists on these multi-piece rims, truck and that he would like to han- dle problem this publicity.” before it morе gets followed, the months that lobbied executives Detrick against notification requiring a manufacturer’s campaign. Investigation officially on Decem- 215 was closed 31, 1973, ber requiring without notification. The consumer closing resulted from a recommenda- tion by Andrew Detrick. Detrick briefed the administrator *25 of Safety the Highway National Traffic Administration and job the accomplished. was
The very facts here are The to move De- simple. decision product trick in of as head was made defects by political the Nixon It was a decision administration. pure days simple. occurred after a The move several $45,000 campaign. say to To contribution was made 68 because,
that this evidence a cannot be considered law, a matter con- as there is no connection between the personnel change totally tribution and the rec- is to fail ognize process. realities
All Goodyear attempting of the activities of to influence for more the fol- government action are admissible one or lowing reasons:
(1) Goodyear knowledge The evidence shows that had the defect.
(2) taking The Goodyear evidence shows that defect, steps to in fact notify public of the known but was attempting to scuttle notification.
(3) malice, fraud, oppres- prove evidence tends to or sion, punitive which for form basis an award damages. 694, Kuiper v. District Court (1981), 38 632 P.2d
St.Rep. 1288, we said: pur- for
“That in 1970 investigation was commenced pose why truck rims seemed to cause determining K-type numerous to accidents. The relator seeks establish influence, Goodyear to terminate attempted, through alleqes ‘covered investigation. The relator un- knew to be up’ product, the defect a which safe, facts prove is entitled to such relator 696, P.2d punitive damages.” p. 632 at establish basis St.Reр. p. at 1289. And, designed prove deposition questions
“Relator’s are product attempted Goodyear knew it had defective would Such prevent public of that defect. knowledge facts to the issues prove tend to malice and are relevant added.) St.Rep. p. at pleaded.” (Emphasis 632 P.2d p. at 1298.
Likewise, be ad- District held this evidence to Court for a Goodyear’s motion denying missible and the order order, trial, said: pages new on 15 and 16 of in limine Goodyear’s motions “In these circumstances
69 a submissible must be denied in that the facts established were payments fund jury issue the basis that the slush on at spirited investigation attempt evidence of an to abort In the Mat- product. in the proof NHTSA as of defect (sic), ter James D. Rhoades Deposition the National of of 79-0216, States, Miscellaneous No. Archivist the United of Columbia, District Court for the District United States admissible on the October 1980. Such evidence was also Court, Mont., Kuiper v. District P.2d 632 issue of malice. (Mont.1981).” 694 proven
Dishonest conduct can seldom be with direct evi- eloquently dence. The difficulties of the task are described National Bank v. Green- in Merchants’ by Justice De Witt hood, supra, wherein he said: proven by
“Fraud cannot often direct evidence. Fraud be upon conceals itself. It not move the surface does straight diffi- goes ways. may lines. It in devious We with culty it It goeth.’ know ‘whence it cometh and whither ‘loves its are evil.’ light, darkness rather than because deeds rarely It is in its We lay upon going. that we can our hand it destination, are likely more to discover it at its before we know upon it has started on its sinuous course. When it, light judicial we so discover the search of a goes lightens beginning back over its trail and it from As indica- game slight end. the woodsman follows his tions, pebble, may so fraud twig displaced as a broken or a apparent by become circumstances individu- innumerable ally strong . as trivial . . but their mass ‘confirmation proofs holy tending isolated items weight writ.’ The snow,’ drifting drifting but snow time makes drift, avalanche, may hang over the glacier. Fraud history atmo- of the acts of a man like the leaden-hued sphere Usher, ‘faintly but upon the house of discernible air pestilent, atmosphere affinity an has no with the which ” Mont, 429, 41 P. 259. p. p. of Heaven.’ 16 at at remarks, Witt, scope concluding Justice De stated the delibera- judicial guided review which should have tions of this Court. in this atmospheric pressure
“Under this of fraud the days trial. We case lived and breathed for the days, as it through history have followed them of those We not the is transmitted to this court in the record. have they advantage breathing which seeing hearing advantage, agreed had. The had with district court that, these findings jury. opinion We are of under *27 that we circumstances, evidence is not so insufficient the Mont, 429430, 41 P. at pp. at disturb the result.” .should p. 259. fact the trial majority upon
The evidence the places sup- Goodyear’s attempts court found of to that evidence split- press dangerous propensities of its knowledge of rim would be and its to scuttle the efforts would to defendant. Of course such evidence prejudicial is to prejudicial. purpose offering be The of the evidence is question expose punish fraud and the defendant. The rather just prejudicial, not is but whether evidence of permit whether our rules of evidence consideration only rele- evidence. The here evidence introduced prove to a course probative vant and but was essential seeks plaintiff punish. conduct to no certain correctly, If I majority opinion understand the irrelevant, to is found be piece testimony or document Rather, any which thereby evidence justifying a new trial. be “Watergate” is to falls under the umbrella designated wrong- Rosemary’s this evidence of suppressed. tapes, Like shielded doing public scrutiny is from and forever erased jury censory. from it that counsel deemed majority regret
The states: “We prejudicial necessary bring totally to in this extraneous and client, as prevented seriously-injured his as well material. It In my judgment defendant, receiving a fair trial.” from presented not to have been remiss have trial counsel would The is not counsel’s. bribery. The failure the evidence of fault lies here. dissents, nor my cry may
As with most neither be heard my felt. At least conscience is clear. SHEEHY,
MR. dissenting: JUSTICE I dissent.
My captains majority heart does not bleed with the for the industry sticky in a caught called who were Instead, my wicket. for a grievously-injured heart bleeds Kuiper Dennis yet again who must return to the courtroom get just compensation, proof but this time hobbled his industry captains. the malice of these honorable majority justices see no relevance this case illegal donation to Nixon’s and the almost imme- campaign diate dismissal investiga- the Nixon administration of its tion of safety majority the K-28 rims. The wants a smoking gun proof, ignoring many opinions times that each signed has is subject fraud almost never proof, direct because the evil that men do is done clandestinely, record, without and that circumstantial evi- dence is necessary bring out fraud. Kuiper
Dennis was injured August on 1979. For more years date, than ten prior to that was aware that its K-28 rim apart explosively, could come rim and that *28 posed a danger to the life and person mounting limb of or dismounting tires Properly, Kuiper thereon. Dennis has sued for punitiveas compensatory well as damages. Punitive exemplary or damages are allowed when the tortfeasor has guilty malice, been oppression, pre- of fraud or actual or sumed, and are given example by way for the sake of of punishing 27-1-221, the tortfeasor. Section MCA. There- fore, Goodyear’s knowledge dangerously it had a defec- rim, tive and its efforts to re- curing avoid that defect or moving rim period years from the of is an market over part of Kuiper’s proof against Goodyear. of malice essential by Goodyear campaign sordid donation to Nixon’s was part Goodyear’s of its defective keep malicious effort to product on the in in spite knowledge market and use of its of the defect. by campaign Good- donation
The relevance of the Nixon by year case, in District Court this is best summarized Goodyear’s denying new trial: in motion for summary plaintiffs includes the “. . . A of the evidence many years prior undisputed Goodyear fact that for investigation offbook account of K rim maintained an only by bank ‘GOYEDA’ a Swiss known the code name Good- and maintained at from which funds were drawn purpose year’s headquarters Akron, of Ohio for the world Goodyear’s making illegal political domestic contributions. participated general in cash counsel Board Chairman and payments Stans, Fi- $40,000 of the Chairman of to Maurice (FCREEP) in the President Committee to Reelect nance give infer- rise to an in circumstances which March of 1972 attempts political became ence of to seek favors. investiga- Watergate known in the listed on the document Rosemary’s List, substantial tion as a record of secretary personal Rich- of contributors maintained there was At the time these contributions ard Nixon. of Highway Safety pending Com- the National Traffic before involving (NHRSA) investigation mission a defects subject as well as this suit K is the rim which making proposed multi-piece rule rim and a Firestone pro- discontinuing limiting potential or which had the Contemporaneous multi-piece truck rims. duction of most key per- payments by Goodyear ‘FCREEP’ with the cash proceedings charge were ‘NHTSA’ at sonnel of these ques- personnel positions new transferred to other proceed- placed charge qualifications of the were tionable ings. K rim thereafter The defect following inconsequentially reelec- the Nixon discontinued Undersecretary Egil Krogh appointment as tion and the August 1972, Transportation. a memorandum president report Goodyear’s safety vice-president Corporation conference had had a that he Motor Wheel newly Inves- Defects Office of chief of the with the selected *29 tigations view was advised at the ‘NHTSA’ safety problem public these multi- exists on official ‘a official) (the public piece like rims, would that he truck publicity. problem gets more before it to handle this public meeting several official Then with the followed a investigation days was and the after the Nixon reelection product. requiring any Good- without recall of closed up attempting year’s subsequent the ex- to cover conduct corporate na- of the istence of and effect quid that a is additional evidence ture of the contributions undisputed quo pro The evidence was was intended. following the connection between the revelations of Watergate Committee to Re-elect the President and burglary, litigation forced the disclo- the Common Cause identity sure of as a result Maurice of contributors and Goodyear general Arden Firestone Stans contacted counsel requesting Good- of the contributors on behalf of names year. disclosing the United Instead of to Stans and to that the States District Court of the District of Columbia corporate monies, cash contributions to FCREEP were DeYoung, Goodyear Firestone met with Russell board they agreed chairman, to submit the names Good- year purportedly when in fact executives who contributed they given single penny. had not This continued effort to up misrepresentation identity through cover source of the contribution leads to the inference that Good- year sought quid pro public quoin attempting to avoid testimony DeYoung’s According disclosure of the fact. videotape Committee, before the Ervin which was ev- only pressure idence, Cox, it was from Archibald Water- gate Special publicity Prosecutor and the fear adverse that caused to come forward with the admission corporate of a contribution.
“Goodyear DeYoung and its board chairman Russell pleaded guilty violating Laws with Federal Election respect Following to thecontribution. the convictions DeYoung, subpoe- chairman, and its board 15, 1973. naed before the Ervin Committee on November At that DeYoung time swore under oath before the Senate *30 of the United States that: ‘at the time the contribution was made, company the engaged any was not liti- significant gation with government the any and was not aware of mate- rial problems it any faced with branch of the federalgovern- ment,’ and illegal the merely contribution was for the good of country. the There was no disclosure of the defects investigation rim, Goodyear multi-piece K or the rule making proceedings multi-piece rims, involving which were both pending at Goodyear illegal pay- the time made the ments. The video-tape proceedings of the which was offered by plaintiff by only and viewed jury docu- mented the payment facts of the and denial of the investi- gations pending, jury opportunity but the had the judge credibility Goodyear demeanor and of the board chair- man when payment asked about the reason for and his explanation days thereof. Four following DeYoung’s testi- mony before the Ervin Committee and denial of the exis- tence of pending investigations national at the time the payments made, were Goodyear an internal memorandum reported that the same government official who told Good- year’s safety vice-president that he wanted to handle the matter without publicity reported to have advised that quietly’ should ‘sit respect closing with K rim investigation government until official advised Goodyear what ‘its next move should be.’ these circum- Goodyear’s stances motions in limine denied in must be facts established a submissible issue on evi- dence of attempt spirited an to abort at investigation the NHTSA proof product. as of defect in the . .”
The summary District Court’s foregoing of the evidence respect with campaign to the donation is brief and correct. expanded us, record before so that we cannot lengthy incorporate full, it devastatingly here and so connected government’s to the K-rim investigation 1972 is so shock- ing, smoking gun Undoubtedly, Goodyear that no is needed. was buying protection through its donation. on be- going were Illustrative machinations is the officials the administration tween quality manager product its technical memorandum Hutchison, vice-president to J.F. safety addressed 19, 1973: on November Goodyear, Hutchison, vice-president. “J.F. Rim Case —215.
“Subject: Andy “I Detrick federal official just talked with have [the closing of the above charge] morning this relative case. questions you
“As been a number of know there have which we by Mr. as to certain information raised Garbeth file. feel should be held of closed out they legal people their “Mr. Detrick informs me that have *31 quiet sit wait until we working on this and should we I our move should be. hear from Detrick as to what next in minds question their own as to should add there is a they gleaned from our files whether or not the information not, kept part in one Akron will be out or and this is the people looking law into.” their are rim closed in government The was 1973. December record, it is to note light foregoing interesting of the Goodyear,
testimony DeYoung, Russel board of chairman 15, 1973, Ervin on when before the Committee November he stated under oath: $40,000 solely
“. . . It was made be- [the contribution] in thought president cause we was the reelection country. best interest of the It was not made with view to in pressured any I obtaining government favors. Nor was way it. with the fed- making Goodyear’s into total business competitive is at government eral most of which obtained At percent its sales. bidding, constitutes less than 3 made the was en- company time the contribution was geged significant litigation government any in with problems it with any and was not aware material faced Goodyear em- any government. No branch of federal ployee charge government was business aware govern- any contribution, and there is no indication that (Em- ment was made aware the contribution.” official added.) phasis DeYoung’s Goodyear any statement that was not aware of problem government material an out- it faced with the is right people untruth. Its own estimated that recall of the Goodyear approximately rims in use would have cost $140 million.
The monstrous extent of the evil that was the Nixon ad- years people accept. ministration is Ten hard some to syndicated merely “unlucky.” later, a columnist finds Nixon only done, Often one hears that Nixon did what others have though unparalleled trough in his actions are an our na- expressed tional ethics. It own conference on this was our “buy hoped case thаt could not have out” for a selling $46,000. mere But Nixon and his coterie were not highest they selling bidder, were bidder. agent FCREEP Maurice Stans set out with a suitcase had corporate gain govern- full of officials that either wanted to regulation. ment contracts or to avoid adverse Favorable government hope consideration, it, or the of was the bait. very nature offer should have alerted the of- of Stans’ they April 7, 1972,
ferees. If there before would contributed applicable. be “no record” because of a hole the law then gullible, undertaking Stans’ for the tailor-made greedy together and the crooked. That he would come with meeting of two officials was as natural as the moles the dark. *32 Goodyear early tell, in the
For truth to the men who ran by They si- 70’s were cheats. cheated their stockholders phoning accruing into a Swiss bank account discounts from profits by European purchases, stealing company from company They by understating much. cheated the I.R.S. They profits, increasing for rest of us. thus taxes democracy by ille- cheated our election laws and soiled our corrupt gally coughing up of a administra- at the command they country. They smuggled tion the cash had into our Washington, bagmen, travelled to D.C. as to hand-deliver truckling sycophants. lawyers the illicit lucre like now Their dark, tell this Court that these cheats made their forbidden money contributions of stolen under cover of unlawful se- crecy “good government.” strange tell, to achieve And judges dispute jury there are who see in no for a that. brigands, very Thieves and these in cheats find a haven they up by institutions would have torn the roots. No whisper chicanery hiding deathdealing of their K- rims shall echo the next District Court. Hidden from the light scrutiny next and the fierce of its is the sordid story give snap of venal men who did not a for human safety, working Kuiper. men like Dennis In the sanitized Goodyear blimp pristine trial, next blue, will float far ground above the wiles and schemes of its I know crew. may what other trenchant orders issue while I sit on this pray someday grandchild Court, but I some will read glad and be that I had none of this. majority opinion.
There is other is manifest error It it, needless for me to comment on as comment would go enough say unheeded as is I this comment. It is judgment would affirm the of the District Court. dissenting: SHEA, MR. JUSTICE By simple pen, by fairly a stroke of the a failure to analyze plaintiff majority evidence, declares that failed to show a connection between the 1972 contributions to the Committee to Re-elect the President government’s year, and the Presi- decision later that after quietly govern- dent Nixon had been relected to end the multi-piece product safety invtstigation. ment’s rim 1217): majority (pp. states very record,
“Our careful review of the extensive shows connecting total absence of contribu- evidence agency tion of a federal multi-piece plaintiff. type injured As rims of the which Goodyear’s result, it is contribu- clear that the evidence *33 was inad- tion Committee to Re-elect the President 402, missible under Rule Mont.R.Evid.” testimony by reviewing the This conclusion arrived at isolation, farther from the truth. Mr. Malek could not be Sheehy amply have set forth Justices Morrison and contrary fully justified evidence, evidence that necessary inferring case, to in a circumstantial facts Goodyear. exemplary damages against award High- merely It coincidence that the National was a way Safety investi- closed its official Traffic Administration gation 31, 1973, less two months after on December than thereby avoiding Nixon, an ex- the re-election of President possibly pensive program or even a consumer notification voluntarily request Goodyear government recаll its K- rim wheels. investigation
Goodyear vitally was concerned about notifying K-rim that the and the ramifications of consumers projected dangerously wheels cost were defective. dollars, it characterized was 145 million and was fully problem.” Goodyear “overwhelming was aware as an top priority governmental investigation had that the —but Goodyear people then went to work. February 1972, its contribu- and March made Three
tions to the Committee to Re-elect the President. days person contributions, after who headed the these government, Joseph Clark, re- for the position innocuous moved from his and transferred to an position replacement, Detrick, no His Andrew had Ohio. background product investigation. defects appointment after the
After and a few months Detrick’s 1972), Goodyear representative, (August Jo- contributions seph Hutchinson, K-rim discuss the met with Detrick to investigation. Goodyear agent summarized wheel This later company, by explaining meeting in this a memo to his (for safety problem the wheels Detrick indeed felt a existed being public) [Detrick] would still used but “that he publicity.” By problem gets like to handle this before it end of December accomplished. his task was
In the following months August Goodyear after executives succeeded in lobbying against Detrick re- governmental quirement Goodyear notify purchasers potential hazards the K-rim wheels. In late December after President Nixon was re-elected and while Egil Krogh was Undersecretary Department of Transportation, *34 government quietly announced that the multi-piece wheel investigation was ended.
Goodyear’s political contributions meaning took on added because of the during episode, revelations the Watergate and especially revelations before the Ervin in- Committee vestigating the Watergate Hotel break-in and its ramifica- tions. These developments proved Goodyear that attempted up to cover corporate source of the contributions Committee to Re-elect the President. It was also estab- Goodyear lished that attempted up significance to cover by contributions testimony chairman, of its who testified that when the contributions Goodyear were made was not involved in significant proceedings govern- with the ment. But it was revealed Goodyear that had two rather significant proceedings pending government, with the both proceedings involving multi-piece wheel rims —wheel rims like the apart one that burst grievously injured Dennis Kuiper.
Post-election Watergate investigations developed the con- nection between the Watergate burglary and the Commit- tee to is, Committee, Re-elect the President —that di- rectly indirectly, or brought about the Watergate burglary. After revelations, these Goodyear was asked to reveal its contributors, Goodyear, but through DeYoung Chairman Firestone, and Arden corporation decided that instead the would claim corporate individually given officers had the monoy rather corporation. than the was This evidence given to the Ervin continuing coverup Committee. This is circumstantial evidence that jury was entitled to hear as bearing Goodyear on the in making motivations of the con- President. tributions the Committee to Re-elect the videotape Goodyear DeYoung’s Through Chairman testimony Committee, the Ervin saw before only pres- his that it was heard falsifications. He admitted Special from Archibald Cox and fear of sure Prosecutor finally persuaded publicity Goodyear was adverse actually corporation were con- admit that the contributions Goodyear The chairman was asked whether tributions. motives and these contributions were motivated ulterior DeYoung replied mo- Chairman that the contributions were ” solely country. good tivated “for the Yet he testified falsely stating made, were no when the contributions governmental pending. consequence was action sig- was that two uncontradicted and undeniable evidence regarding government pending proceedings nificant were government conducting First, the multirim wheels. investigation, the multi-rim wheel defect and the company projected government ordered consumer notifi- program 145 million dol- cation to cost at least pending rulemaking government Second, lars. also had involving multi-piece govern- proceedings rims. Both wheel *35 multi-piece proceedings kind of ment involved the same apart Kuiper’s wheel rims that burst into Dennis head. Although majority grant the would a new trial and order government investigation that evidence of of the multi- the piece political wheel rims and contributions of be majority excluded nowhere does the discuss the evidence majority Instead, focuses on that was admitted at trial. the plaintiff’s opening the counsel and on the tes- statement timony As a re- of Mr. Malek before the Ervin Committee. focusing, majority sult of this selective the declares: key plaintiff completely to “. . . The element is that failed political fed- connect the contribution of to the multi-piece plaintiff investigation eral wheels. The the prove failed was related to that the contribution exploded multi-piece wheel, which and manner to the 1218.) (At injury plaintiff.” caused the I by am not sure I understand this conclusion which the majority plaintiffs declare proof that failed. The conclusion appearsto parts, have two but I that as to the do believe part, says. second the mean majority truly what it the sentence, majority first plaintiff the states that did not es- tablish political the connection between the contributions and governmental multi-piece If is investigation. wheel this key conclusion, the only by it could have reached ig- been noring by the evidence set forth Morrison Justices and Sheehy in their dissents. But if in the sentence the second majority plaintiff is stating duty prove that had a the contributions were made to governmental influence action particular on the rim injured wheel plaintiff, the ma- jority placed has impossible plaintiffs, an burden on all proof that kind of impossible. not, however, is I do believe majority the impose would such a requirement, al- though used, the language appears it it has. Assuming that majority holding the is confined to the con- plaintiff clusion that prove did not the connection between political multi-piece contributions and rim wheel inves- tigtion, how does majority reach this conclusion? Reli- placed ance is on opening plaintiffs statement of coun- failed, sel which eyes to make majority, this connection, Malek, and on the of Mr. testimony member of the President, Committee to Re-elect who testified he knew no connection between the contributions any attempt by Goodyear government to influence action on any matter. majority
The opinion me. opinion confuses devotes pages several quoting parts of statement of opening plaintiffs counsel as it relates contributions government multi-piece investigation wheels. The majority says also opening statement defective because it did not set forth the connection between Good- year’s contributions the government’s *36 the by Goodyear. wheels majority manufactured The then appears say to opеning that because the statement was de- major- yet prejudiced ipso fective, And the the trial. it facto ity appear grant because of its decla- to a new trial does not opening Rather, was defective. the statement ration that majority grants ex- trial, evidence new and orders evidence trial, did because the trial cluded at the new Goodyear contribu- the connection between establish Goodyear’s government mul- tions and the tipiece evi- from the trial wheels. To reach this conclusion testimony exclusively majority dence, on the relies Re-elect the Malek, Committee to Mr. a member appel- hardly even-handed This is classifiable as President. late review. opinion pages majority
Although of the several devotes plaintiffs quoting opening counsel, the statement of by bearing opening relied on on the issues statement has no majority majority jury orders verdict. The to vacate the perception evidence, on its a new trial based opening presented trial, statement not on whether at opening prejudicial. statement was either defective or light the trial on whether is not and it can shed no evidence political between the the connection evidence established investigation. government Rather and the contributions quote opening statement, which is not than to from the majority’s grant trial, obli- it is the used as a basis to a new presented fairly gation at deal with the evidence Morrison evidence set forth Justices trial —the Sheehy dissents. their OF THE
REASONS GIVEN FOR INADMISSIBILITY THE EVIDENCE ARE ILLUSORY:
Why government investigation con- must the majority eyes jury? The and ears of the tribution reach the each that reasons, in essence as to and states lists several evidentiary speculate jury foun- no with was allowed I be- are unfounded. dation, its conclusions and therefore presented however, lieve, sufficient evidence pieces together as- reach its verdict to fit the *37 sessing exemplary damages against Goodyear. I discuss each by illusory majority, at the reasons listed which are the best. testimony important,
What is so vital in so Mr. Malek’s majority that the orders new trial to be ex- and evidence Malek, the cluded from second trial? a member of the Com- according President, testified, mittee to Re-elect the knowledge majority’s summary, no had that he situations “proceedings department agency in which or before Assuming with, influenced, were interfered or obstructed.” proves only statement, the truth of this it Mr. Malek knowledge attempts by had no re-election committee contributors, members on behalf of or other government proceedings pending. influence then Malek’s testimony does not the exonerate entire reelection commit- Department toe, it does not exonerate the officials of the Transportation, certainly and it does not exonerate the Goodyear officials. evidentiary face,
On vacuum, its and in an considered testimony nothing against plain- Malek’s establishes for or testimony tiff. But when considered with other evi- and testimony trial, dence admitted at Malek’s was not irrele- jury vant. The conclude, was entitled based on all the testimony evidence, that Malek’s before the Ervin Commit- simply up tee was another effort to cover and therefore given alternatively, weight. jury Or, should be no if the be- testimony lieved Committee, Malek’s the before Ervin jury walking was entitled to conclude that Malek was through wearing earplugs. those times and blindfolder given inadmissibility
And now to the reasons governmental investigation and contribution evidence. majority says impermissibly
First, the was al- speculate investigation. lowed to K-rim on the Just wheel speculation permitted jury, majority what was say. majority says speculation doesn’t But on the investigation impermissible was because had vol- untarily K-rim wheels of the discontinued the manufacture investigation years at the time and because three before government author- have the didn’t of the baffling reasoning ity is This to order a wheel recall. discontinuing production point. Voluntary of an misses the already in the hands not establish that the item item does public dangerous. Nor does the of the was not defective product power presence establish to recall a or absence of public already product was the hands that the may production fact, have discontinuance or defective. product the conclusion that been motivated public. dangerous to the both defective power governmental presence Nor does the or absence of Goodyear’s products motives to recall bear on defective *38 governmental influencing inves- on the a favorable decision government tigation. did the The undeniable fact is that require authority investigate the defects and to have the notify come into consumers who had manufacturer to the by distributing possession products efforts of those Depart- is that the the manufacturer. Here the situation Transportation cam- did not order a notification ment of shortly paign investigation after and in fact closed the totality evidence re-election of President. The investigation supported jury was closed that the inference campaign had their intended contributions because the effect. impermissibly concluding
Second, al- the evidence support, evidentiary jury surmise, lowed the with no “to Good- Commitment that there was a White House before entirely opinion year on contribution,” relies its made testimony to es- Ervin Committee of Malek before the added.) (Emphasis memoran- The Malek tablish this fact. pre-existing prove com- dum, however, offered to was not political grant favors to the White House to mitment from simply spoke itself: it contributors. The memorandum po- suggested were out functionaries that the re-election by using government liticize the executive branch of governmental enormous influence of carrot. favors as the entirely although majority It is odd indeed that relies impermissible on the Malek memorandum as the evidence by measured, which all the evidence was to be not once majority evidentiary piece does the discuss this of evidence opening other than the reference to it from the state- plaintiff’s majority ment of counsel. The overlooks the fact question that the essential at all times was whether Good- year expectation made contributions with an reaping governmental favorable action on issues close to Goodyear’s pocketbook. important It is not whether the governmental claiming power officials, or those to have the governmental decisions, to influence committed themselves before or after the contributions. The motives and actions trial, officials were on and the motives and only by proof governmen- actions could be demonstrated complicity. Goodyear’s point tal With I actions as the focal jury strong have no doubt that the had before it a circum- Goodyear expected reap stantial case that re- handsome governmental turns from favorable action multi-rim on the investigation. knows, wheel Who had the possibly been reelection, closed after President Nixon’s very exploded Kuiper’s tire rim into Dennis head would not then have been use.
Although attempts investiga- evidence of to influence an by political tion contributions would be sufficient itself jury exemplary damages, plain- for the to consider here the only get by revealing picture tiff could before the *39 jury post-Watergate investigation to the what the break-in only through evidence disclosed. It was this evidence that jury complete picture the year would have a more of what Good- attempted accomplish accomplished
had in to and fact through political its contributions. inadmissibility politi- given
The third reason for the jury investigation cal contributions evidence is that the and speculate was unknown allowed to from the evidence that persons in attend to the White House knew of and could Transportation. Goodyear’s Department needs before the to this effect conclusion jury states that a majority foundation, fact is that the but the wholly without would be Only foundation. wholly is without majority’s statement could conclude earplugs fitted with blindfolders one to close decision Department Transportation’s that indirect direct or K-rim did have wheel White House influence. realities, political majority’s ignoring
Aside from the misses the excluding the evidence assigned for the reason re- Goodyear was admissible against point. The evidence White specific proved could be that gardless of whether it in Goodyear’s objectives accomplish personnel House could Trans- Department pending before investigations Good- prove certainly tended portation. The evidence contributions, political in its year’s making ulterior motives and conduct is, all, Goodyear’s motives and it after of exem- an award to consider jury form the basis for the Goodyear was successful or not plary damages. Whether by its ccnduct government its efforts to influence exemplary award of necessary to an contributions is not Goodyear’s Goodyear; the evidence damages against but picture of complete jury a more gave success by the harm created involvement and the magnitude of the big government. big collusion of business inference question permitted The evidence without interests out for the looking were people high places government strongly knew how Goodyear. Goodyear rims wheel problems serious focusing on the people estimated Goodyear’s own posed public, and for the Goodyear. But then million dollar cost possible Goodyear people went to work. Sheehy, Morrison set forth Justices
The evidence dis- this format I a different repeated and that have beyond someone sent, an inference that surely gives rise to its decision influenced Department Transportation safety A serious investigation. multi-piece wheel close the *40 problem hardly properly standpoint is handled from the government public, government either the or the when the makes the decision to close the before the safety problems widely publicized. become too finally, majority
Fifth and declares that the evidence is permitted jury improperly inadmissible because it speculate investiga- that Andrew Detrick “closed the K-rim differently predecessors.” tion than those closed his If suggest there is evidence to that Detrick followed standard operating procedures, and that Detrick was not influenced by improper majority suggest motives, the do not what it is. suggests, The evidence believe, and the was entitled to improper political motivating influence was the factor multi-piece investigation. behind the closure of the wheel Ample jury’s evidence exists the record for the assess- examplary damages against Goodyear. ment of I would af- judgment. firm the