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Kirk v. Ford Motor Co.6/23/2005
oduct defect and was contrary to the Seatbelt Order.
Bidez was permitted to testify that the occupants were dead prior to being ejected from the vehicle. The district court properly noted that the Kirks' remedy to Moffatt's testimony would have been to object at trial rather than attempt to proffer the inadmissible testimony of Bidez which would have added theories to the trial that were not a proper part of the case.
Oral stipulations in the presence of the court and on the record are traditionally held binding. Kohring v. Robertson, 137 Idaho 94, 99, 44 P.3d 1149, 1154 (2002)(quoting Conley v. Whittlesey, 126 Idaho 630, 633, 888 P.2d 804, 807 (Ct. App. 1995)). "A stipulation is a contract. The enforceability of an oral stipulation is determined by contract principles." Id. (quoting Olson v. Idaho Dept. of Water Res., 105 Idaho 98, 100, 666 P.2d 188, 190 (1983) (citation omitted)). An enforceable contract requires "distinct understanding common to both parties. . ." Hoffman v. S V Co. Inc., 102 Idaho 187, 189, 628 P.2d 218, 220 (1981).
Prior to trial the Kirks orally stipulated that they would not bring any crashworthiness claims (i.e. allegations the restraint system was defective) against Ford. This stipulation was confirmed in a written correspondence between the Kirks' attorney and counsel for Ford. When attempting to offer the testimony of Bidez, the Kirks stated that Bidez would testify the seatbelts in the vehicle were defectively designed. Such testimony would have been contrary to the Kirks' prior stipulation and written statements to Ford's counsel. The district court gave effect to these stipulations and refused to allow Bidez to testify that the vehicle's seatbelts were defectively designed. Bidez was still permitted to testify that the occupants died prior to being ejected and that had they worn seatbelts it would not have made a difference. The district court properly limited Bidez' testimony. There was no abuse of discretion.
V. THERE WAS NO ERROR IN FAILING TO COMPEL PRODUCTION OF THE SUSPENSION ORDERS
The Kirks assert that the district court misapplied the burden of showing privilege and argue that the Suspension Orders were not privileged under either the attorney-client privilege or work product doctrine. The Suspension Orders were directions from Ford's attorneys regarding the preservation of test data, the ADAMS data. Ford maintains that the Suspension Orders were properly protected as privileged and that the Kirks failed to preserve any error related to the Suspension Orders because they stipulated to a dismissal of their independent spoliation claim, failed to question Ford's witness regarding destruction of the ADAMS data, and failed to object to the lack of a jury instruction that an inference unfavorable to Ford could be drawn from destruction of the data.
Initially it is difficult to identify any prejudice to denial of the motion to compel. Although the district court prohibited either the Kirks or Ford from referring to the Suspension Orders at trial, either party could elicit testimony regarding the ADAMS data and its destruction. Ford presented the testimony of an engineer who took part in compiling the ADAMS data. The Kirks did not attempt to question the engineer regarding the status of the ADAMS data as destroyed. Consequently they did not establish a foundation to request a jury instruction that the data could be inferred to be unfavorable to Ford. See e.g. Bromley v. Garey, 132 Idaho 807, 979 P.2d 1165 (1999)(remedy for alleged spoliation claim was a reasonable inference the documents destroyed were unfavorable to the opposing party). There was no spoliation claim left in the case.
Even if re
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