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Bright v. Ford Motor Co.8/29/1990
WOLFF, Presiding Judge.
Appellants, Cecil W. Bright et al., are plaintiffs in a personal injury action arising out of a single-car accident involving an automobile manufactured by defendant-appellee Ford Motor Company. After the trial court entered an order forbidding their two experts on causation to testify, plaintiffs stipulated that they would be unable to establish proximate cause. Thereafter, the trial court entered summary judgment against plaintiffs and in favor of all defendants-appellees, from which plaintiffs have appealed, advancing a single assignment of error:
"The Trial Court erred to the substantial prejudice of Appellants when awarding the Appellees a summary judgment which was predicated upon and the direct result of the erroneous Decision and Entry of the Court dated October 20, 1989 excluding Appellants' expert testimony."
The trial court entered a protective order October 27, 1988, upon Ford's motion, that provided in pertinent part that:
" he Ford Lincoln Mercury Cougar * * * be maintained in its present condition until the parties agree in writing as to how, to what extent and by whom any destructive testing of the vehicle or any part thereon is to be accomplished or the further order of the Court[.]"
Subsequent to the entry of this order, the parties conducted a mutual inspection of the automobile and the alleged defect-the left front wheel assembly-at plaintiffs' garage, where the automobile was stored. The removed parts were put into the possession of plaintiffs' counsel. In June 1989, Ford moved for and obtained an order compelling plaintiffs to turn over the parts for non-destructive testing. Plaintiffs' counsel thereafter made a deliberate decision to have their experts degrease, clean, and inspect the parts before turning them over to Ford, which was done. Upon discovering the parts had been degreased and cleaned, Ford moved, inter alia, for dismissal, pursuant to Civ.R. 37(B) (2) and 41(B) (1). Ford claimed that "Plaintiffs' alteration of the condition of the vehicle parts * * * deprive of potentially significant evidence." Defendant Beau Townsend Ford joined in this motion. After an evidentiary hearing, the trial court entered the following order October 20, 1989:
"Pursuant to Defendant Ford Motor Company and Beau Townsend Fords' Motion for Sanctions, the Court concludes after hearing that the plaintiffs and their experts did violate the protective order issued by this Court by cleaninsand degreasing the left front spindle and the related components i.e., bearings, dust caps, grease seals, retaining nut, washer, cotter pin, etc. so that defendants experts were deprived of a laboratory inspection and being able to photograph the parts under laboratory conditions in their original condition.
"The Court concludes that both sides could have inspected, measured, and photographed the parts at the same time or one after the other before they were cleaned, but plaintiff photographed the spindle and cleaned and degreased all the parts before defendant got possession of them.
"The Court concludes that both of the plaintiffs' experts should be and hereby are prohibited from testifying with regard to the adjustment of the hub on the spindle (looseness or tightness - end play or lack thereof)."
The practical effect of this order was to eviscerate plaintiffs' case.
We are satisfied that the trial court possessed the authority to both make the protective order of October 27, 1988, and to impose the sanction that it did for its violation. We are not satisfied, however, that the trial court acted reasonably in imposing this drastic sanc
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