International Harvester Co. v. Cunningham

538 S.E.2d 82, 245 Ga. App. 736, 2000 Fulton County D. Rep. 3421, 2000 Ga. App. LEXIS 963
CourtCourt of Appeals of Georgia
DecidedJuly 31, 2000
DocketA00A0471
StatusPublished
Cited by14 cases

This text of 538 S.E.2d 82 (International Harvester Co. v. Cunningham) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
International Harvester Co. v. Cunningham, 538 S.E.2d 82, 245 Ga. App. 736, 2000 Fulton County D. Rep. 3421, 2000 Ga. App. LEXIS 963 (Ga. Ct. App. 2000).

Opinions

Blackburn, Presiding Judge.

International Harvester Company1 (“International”) appeals from a jury verdict in favor of George Cunningham on his claim for injuries he received when a crank handle broke off a disc harrow and hit him in the face. On appeal, International contends that the trial court: (1) abused its discretion when it refused to compel Cunningham to produce the crank handle for an expert inspection; (2) erred when it admitted surgical photographs into evidence; and (3) erred when it denied International’s motion for a mistrial based on Cunningham’s closing arguments. Additionally, International contends the jury’s award was excessive. Because we find the trial court’s denial of International’s requests for the production of the crank handle, the very part Cunningham alleged was defective, was a clear abuse of discretion, we reverse.

1. In its first enumeration of error, International contends the trial court abused its discretion when it refused to compel Cunningham to produce the crank handle for inspection by an expert metallurgist retained by International, and we agree. The record shows that Cunningham’s expert had unlimited access to the crank handle. Yet, International had been given only one opportunity to test the crank handle early in the litigation, prior to the testing by Cunningham’s expert and prior to that expert’s availability for deposition. By preventing the parties from having equal access to the pivotal piece of evidence, the trial court’s denial of International’s request thwarted the very purpose of discovery.

Prior to suit, counsel for Cunningham had the broken crank handle examined by Robert Hochman,2 a metallurgical expert. Suit was filed in March 1994. In July 1995, before Hochman was available for deposition, Cunningham’s counsel agreed to allow International’s in-house engineer access to the crank handle for four or five weeks. This was the only time International had access to the crank handle before trial four years later.

Two years later, in late September 1997, Hochman was made available for deposition. Hochman testified that after his initial analysis in 1993, he had conducted a number of tests in 1995, some of which required a section of the crank handle to be removed. Shortly after Hochman’s deposition, International requested production of [737]*737the crank handle so that its expert metallurgist could conduct tests on the crank handle as well. This request, made well within the discovery period,3 was met by objection. Despite the fact that his own expert had repeatedly tested the crank handle, Cunningham contended that a second production of the crank handle was unreasonable and an abuse of discovery. Although discovery was ongoing (depositions continued into May 1998), International’s subsequent motion to compel was denied by the trial court.4 The trial court denied International any additional access to the crank handle, finding that International should have had a metallurgical expert examine the handle in 1995, more than two years prior to the deposition of Hochman.

The case proceeded to trial on November 16, 1998. During the cross-examination of Hochman, International learned for the first time that he had conducted additional testing on the crank handle in June 1998, after his deposition. Because this testing had not been disclosed to International prior to trial, the trial court ordered a mistrial.

Following the mistrial in November, International was permitted to depose Hochman a second time regarding the bases for his opinion, including the previously undisclosed testing. In that deposition, Hochman testified that he had removed another section of the crank handle for this second series of testing. With regard to these tests, Hochman deposed that the only way that someone else could verify his results would be to conduct the tests again on a fresh piece of the crank handle:

Q: Dr. Hochman, is there any way for another metallurgist or engineer with metallurgical training to verify the results you’ve shown through these tests by looking at the photographs of the part?
A: Not by looking at the photographs. I mean, this is far more sophisticated than photography.
Q: And the only way someone could independently verify the results you’ve shown in these tests is to conduct the comparable tests themselves, is that correct?
A: That’s correct. And they would have to start with a fresh piece, because we have already cleaned this one, if they want to find that.
Q: Does the part still have areas where a fresh piece could be obtained?
A: It does.

[738]*738International again requested production of the crank handle in light of this testimony by Hochman, but the trial court denied the motion. At the second trial in March 1999, counsel for Cunningham cross-examined International’s expert and challenged his credibility because the expert had not examined the crank handle prior to trial or conducted independent tests on the handle.

The goal of discovery is the fair resolution of legal disputes, “to remove the potential for secrecy and hiding of material.” Hanna Creative Enterprises v. Alterman Foods.5 In this case, International was denied the opportunity to test the evidence in the same manner that plaintiffs expert had tested it and was thus denied the ability to effectively cross-examine or refute plaintiffs expert’s testimony. This was done even though plaintiffs expert testified that testing was the only way the defendants could test his conclusions. International’s one opportunity to examine the crank handle arose prior to the testing by Cunningham’s expert and prior to either of his two depositions. Thus, at the time International looked at the crank handle, it had very little information about Cunningham’s theories. Our rules of discovery do not require International to guess what evidence may show; rather, they require that International have fair access to evidence. Cunningham’s expert testified that the only way to verify his tests were to conduct new tests, which is exactly what International requested. Ironically, while the trial court found that the imbalance of information due to Hochman’s undisclosed testing was sufficient to declare a mistrial, it refused to allow International the discovery necessary to rebut the results of the tests.

The trial court denied International’s request solely because International had inspected the handle once before, early in the litigation. This “one bite at the apple” reasoning is contrary to the nature of the discovery process. Discovery is an ongoing process, requiring parties to evaluate and reassess evidence as new evidence is presented. By prohibiting this legitimate discovery, the trial court frustrated the very purpose for discovery in our civil practice.

[Discovery [is] an integral and necessary element of our civil practice. Wide latitude is given to make complete discovery possible. The broad purpose of the discovery rules, under the Civil Practice Act, is to enable the parties to prepare for trial so that each party will know the issues and be fully prepared on the facts. Discovery is specifically designed to ftdfill a two-fold purpose: issue formulation and factual revelation. The use of the discovery process has been held to [739]

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International Harvester Co. v. Cunningham
538 S.E.2d 82 (Court of Appeals of Georgia, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
538 S.E.2d 82, 245 Ga. App. 736, 2000 Fulton County D. Rep. 3421, 2000 Ga. App. LEXIS 963, Counsel Stack Legal Research, https://law.counselstack.com/opinion/international-harvester-co-v-cunningham-gactapp-2000.