Lindberger_v__General_Motors Corporation
1 of 250 DOCUMENTS
Gordon C. LINDBERGER and Carol Lindberger, Plaintiffs, v. GENERAL MO-
TORS CORPORATION and Euclid Division of General Motors Corporation, De-
fendants
No. 70-C-320
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF
WISCONSIN
56 F.R.D. 433; 1972 U.S. Dist. LEXIS 11896; 16 Fed. R. Serv. 2d (Callaghan) 1523
September 22, 1972, Decided
September 22, 1972, Filed
CASE SUMMARY:
PROCEDURAL POSTURE: In an action alleging that he suffered personal injuries proximately caused by the negligence of the defendant corporation in manufactur-ing and designing a front-end loader that was sold to plaintiff's employer, plaintiff filed a motion to compel the corporation to answer certain interrogatories relating to subsequent design changes made to the braking sys-tem or brake malfunction warning system of the loader in question.
OVERVIEW: The corporation contended that plaintiff was not entitled to compel discovery because the subject matter was privileged. The corporation theorized that the evidence was privileged because of the rule of evidence prohibiting the admission at trial of subsequent remedial measures to establish negligence or culpability. The court granted plaintiff's motion to compel. The court noted that discovery under Fed. R. Civ. P. 26(b)was broad, and that it was not a valid objection that the in-formation sought was not admissible at trial. More im-portantly, the doctrine of subsequent remedial conduct was not a rule of privilege. The court noted that there was a substantial difference between the policy underly-ing the exclusion of evidence in the area of traditionally recognized privileges and in the privilege claimed by the corporation. The court reasoned that stringent protection was afforded to the traditional privileges because disclo-sure in itself, even outside the trial of the case, could cause harm to the parties. The court concluded that harm would not result from disclosure in the present case ex-cept at trial where a jury might improperly draw an infe-rence of negligence. OUTCOME: The court granted plaintiff's motion and ordered the corporation to answer the interrogatories at issue.
CORE TERMS: loader, interrogatories, brake, privi-leged, discovery, Proposed Rules, malfunction, disclo-sure, front, rule of evidence, compel discovery, subject matter, remedial measures, burden of persuasion, exclu-sion of evidence, subject-matter, admissible, relevancy, deponent, warning, external, braking, machine LexisNexis(R) Headnotes
Civil Procedure > Discovery > Privileged Matters > General Overview
Evidence > Privileges > General Overview
Evidence > Procedural Considerations > Rule Applica-tion & Interpretation
[HN1] Fed. R. Civ. P. 26(b)provides that a deponent may be examined regarding any matter, not privileged, which is relevant. The privilege that protects matter from discovery under this rule is the same as that applicable under the rules of evidence at a trial. Furthermore, the party claiming the existence of the privilege has the bur-den of persuasion.
Civil Procedure > Discovery > Disclosures > Mandato-ry Disclosures
Civil Procedure > Discovery > Methods > General Overview
[HN2] Fed. R. Civ. P. 26(b)provides that the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. It is not ground for objection that the testimony will be inadmissible at the trial if the testimo-ny sought appears reasonably calculated to lead to the discovery of admissible evidence.
JUDGES: [**1]James E. Doyle, United States Dis-trict Judge.
OPINION BY: DOYLE
OPINION
[*434]OPINION AND ORDER
JAMES E. DOYLE, UNITED STATES DISTRICT JUDGE
Plaintiff, Gordon C. Lindberger,a citizen of Wis-consin, filed a complaint against the defendants, General Motors Corporation and a division thereof, which are not citizens of Wisconsin. Plaintiff alleges that he suf-fered personal injuries proximately caused by the negli-gence of the defendants in manufacturing and designing a front end loader which was sold to the plaintiff's em-ployer. Plaintiff specifies that the front end loader was defective in two respects: first, that the front end loader did not contain an adequate system to warn its operator of impending brake failures; and second, that the loader was manufactured with only a single braking system so that any malfunction would result in the loader being without brakes altogether. The plaintiff further contends that the defendants are liable under a theory of strict lia-bility in tort, because the brake system in the loader con-stitutes a defective condition making the machine unrea-sonably dangerous to any person using it. Finally, the plaintiff contends that the defendants, in selling the [**2] loader, breached their warranty that the machine was merchantable.
Attorneys for the defendants have refused to answer interrogatories 23, 25 and 26, which were propounded by the plaintiffs pursuant to Rule 33, Fed. R. Civ. P. Plain-tiffs have filed a motion to compel discovery.
Interrogatory 23 requests the defendants to state whether any changes have been made, and if so to de-scribe such changes, subsequent to the date when the loader in question was produced, in either the design of the braking system or in the warning system for brake malfunctions. Interrogatory 25 requests the defendants to state how any such changes affect the utility of the loader. Interrogatory 26 requests the names of persons responsi-ble for such design changes.
The defendants contend that the plaintiffs are not entitled to compel discovery because the subject matter of the disputed interrogatories is "privileged" and that consequently the standard of "relevancy" set out in Rule 26(b), Fed. R. Civ. P., is inapplicable. The defendants' theory is that the evidence sought is "privileged" because of the rule of evidence which prohibits the admission of evidence at trial of subsequent remedial measures to es-tablish [**3]negligence or culpability.
This court has diversity jurisdiction over the subject matter of this action. 28 U.S.C. § 1332(a).
[HN1] Federal Rule 26(b) provides that a "deponent may be examined regarding any matter, not privileged, which is relevant. . . . ." Fed. R. Civ. P. 26(b). The "pri-vilege" which protects matter from discovery under this rule is the same as that applicable under the rules of evi-dence at a trial. United States v. Reynolds, 345 U.S. 1, 6, 97 L. Ed. 727, 73 S. Ct. 528 (1953); 2A Barron & Holtzoff, Federal Practice & Procedure §651. Further-more, the party claiming the existence of the privilege has the burden of persuasion. See Mattson v. Cuyuna Ore Company, 178 F. Supp. 653 (D. Minn. 1959); 2A Barron & Holtzoff, Federal Practice & Procedure §651, pps. 103-104. The defendants have not met this burden.
The defendants argue that the exclusion of evidence of subsequent measures is a "privilege" because this ex-clusion is based upon an external policy, promoting pub-lic safety by not discouraging subsequent repairs. Rely-ing solely upon McCormick, Law of Evidence (1954), §77, the defendants contend that any rule of exclusion, not looking to truth-finding at trial, [**4]but rather to an external policy, should be classified as a privilege.
I am not persuaded by defendants' arguments. Textwriters other than McCormick do not classify the doctrine of subsequent remedial conduct as a rule of pri-vilege. See 2 Wigmore, Evidence § 283 (3rd ed., 1940). In the Proposed [*435]Rules of Evidence for the United States District Courts and Magistrates, (hereinaf-ter cited as Proposed Rules), which attempt to define the privileges applicable to discovery under Rule 26(b), sub-sequent remedial measures are treated in Chapter IV, Relevancy and Its Limits, and not in Chapter V, Privi-leges. 46 F.R.D. 161, 236; Proposed Rules, Rule 11-01(c), 46 F.R.D. 161, 417; see Wright & Miller, Fed-eral Practice & Procedure § 2016, p. 123, n. 57. Finally, it would seem that there is a substantial difference be-tween the policy underlying the exclusion of evidence in the area of traditionally recognized privileges, e.g. the attorney-client privilege, the secret of state privilege, or the doctor-patient privilege, and in the "privilege" claimed in the instant case. Stringent protection is af-forded to the traditional privileges because disclosure, in itself, even outside [**5]the trial of the case, may
cause harm to the parties. But such harm would not result from disclosure in the instant case. It is disclosure at trial, where a jury may improperly drawn an inference of neg-ligence, which presents the danger to the defendants, and consequently to the public. For these reasons, I conclude that the defendants have not met their burden of persua-sion.
The only remaining question is whether the sub-ject-matter of the interrogatories falls within the scope of examination permitted under Rule 26(b), Fed. R. Civ. P. Rule 26(b) provides:
[HN2] the deponent may be examined
regarding any matter, not privileged,
which is relevant to the subject matter in-
volved in the pending action. . . . . It is not
ground for objection that the testimony
will be inadmissible at the trial if the tes-
timony sought appears reasonably calcu-
lated to lead to the discovery of admissi-
ble evidence. Id.
Broad discovery is favored under Rule 26(b). See Advi-sory Note to Fed. R. Civ. P. 26(b); Hickman v. Taylor, 329 U.S. 495, 507-508, 91 L. Ed. 451, 67 S. Ct. 385 (1947). Furthermore, the plaintiff need not, at this stage of the proceedings, establish that the evidence sought [**6]would be admissible at trial. Reed v. Smith, Barney & Co., 50 F.R.D. 128, 130 (S.D.N.Y. 1970); Brunswick Corporation v. Chrysler Corporation, 291 F. Supp. 118, 120 (E.D. Wis. 1968). It is clear that the in-formation sought in the challenged interrogatories is re-levant to the subject-matter of this action. The feasibility of the installation of a better brake system and of more adequate warning systems for brake malfunctions may be significant with respect to each of the three theories re-lied upon by the plaintiffs. Furthermore, the knowledge of the defendants about the adequacy of the design of the loader as well as any information on this subject which may have been passed to the employer of the plaintiff may be relevant on the issues of negligence and contri-butory negligence.
In conclusion, I find that the defendants' refusal to answer interrogatories 23, 25, and 26, is without justifi-cation. Accordingly, on the basis of the entire record herein, IT IS HEREBY ORDERED, pursuant to Rule 37, Fed. R. Civ. P., that the defendants answer interrogato-ries 23, 25 and 26, within 30 days from the date of entry of this order.
Entered this 22nd day of September, 1972. [**7]