Simpson v. Chicago Pneumatic Tool Co.

2003 ND 31, 657 N.W.2d 261, 2003 N.D. LEXIS 35, 2003 WL 732908
CourtNorth Dakota Supreme Court
DecidedMarch 5, 2003
Docket20020171
StatusPublished
Cited by18 cases

This text of 2003 ND 31 (Simpson v. Chicago Pneumatic Tool Co.) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Simpson v. Chicago Pneumatic Tool Co., 2003 ND 31, 657 N.W.2d 261, 2003 N.D. LEXIS 35, 2003 WL 732908 (N.D. 2003).

Opinion

VANDE WALLE, Chief Justice.

[¶ 1] Stephen and Sheri Simpson appealed from a judgment dismissing their products liability action against Chicago Pneumatic Tool Company and from an order denying their motion for a new trial. Simpsons argue the trial court abused its discretion in denying their motion for a new trial and their post-judgment motion to compel the production of all the original surveillance videotape taken by Thomas Twist in July 1997 and September 1999. We hold the trial court did not abuse its discretion in denying Simpsons’ motions, and we affirm the judgment and order.

I

[¶ 2] In 1996, Simpsons sued Chicago Pneumatic, Residual Materials, Inc., and Todd Clausnitzer. Simpsons alleged Chicago Pneumatic negligently manufactured pneumatic air tools that were used by Stephen Simpson while he worked at Residual Materials in 1991, and the pneumatic air tools were defective and unreasonably dangerous for the user. Simpsons alleged Stephen Simpson’s use of the pneumatic air tools caused him serious injuries, including “atypical reflex sympathetic dystrophy, in conjunction with occupational Raynaud’s phenomena.” Simpsons separately alleged Clausnitzer rear-ended a vehicle driven by Stephen Simpson in 1995, causing aggravation of injuries related to atypical reflex sympathetic dystrophy and occupational Raynaud’s phenomena. In 1997, the trial court dismissed Simpsons’ claim against Residual Materials under the exclusive remedy provisions of the workers compensation law. See N.D.C.C. §§ 65-01-08, 65-04-28, and 65-05-06. In 1998, Simpsons settled their claims against Clausnitzer. In April 2000, a jury found *263 Chicago Pneumatic was not negligent, the pneumatic air tools were not defective and unreasonably dangerous, and the pneumatic air tools did not cause Simpsons’ injuries.

[¶ 3] In response to Chicago Pneumatic’s request for costs, Simpsons questioned whether Chicago Pneumatic had provided them with all of the original surveillance videotape taken by investigator Thomas Twist in July 1997 and in September 1999. During pretrial discovery, Simpsons had asked Chicago Pneumatic if there were “any photographs, video recordings, or moving pictures related to this case” and to “produce any and all of the aforementioned photographs, video recordings, or moving pictures.” Chicago Pneumatic answered that it had taken surveillance “[vjideo of Stephen Simpson at Lake [Sa-kakawea] and in Ray[, North Dakota] on July 3-4, 1997 and September 3-4, 1999,” and “[a]ll of the photographs and video recording or moving pictures have been disclosed.” At trial, a videotape recorded on July 3-4, 1997 and on September 3-4, 1999 was introduced into evidence.

[¶ 4] After trial, Simpsons’ “suspicions” that Chicago Pneumatic had not provided them with all the original surveillance videotape taken by Twist “were aroused.” Simpsons moved for a new trial, claiming Chicago Pneumatic had failed to provide them with all the original surveillance videotape. In conjunction with their motion for new trial, Simpsons moved to depose Twist. The trial court granted Simpsons’ request to depose Twist, and he testified in his deposition that some videotaping on July 2-4, 1997, and on September 3-4, 1999, had not been provided to Simpsons. According to Twist, the videotape provided to Simpsons during discovery and introduced at trial did not include all the videotaping he did on July 2-3, 1997 and on September 3, 1999, but Stephen Simpson was not on any of the videotape that had not been provided to Simpsons. Simpsons moved to compel production of all the original videotapes taken by Twist. Simpsons claimed the videotape that had been produced in response to their discovery request and introduced at trial was not a true, accurate and complete representation of all the videotape taken during Twist’s surveillance of Stephen Simpson.

[¶ 5] The trial court denied Simpsons’ motion to compel production of the original surveillance videotape, concluding no surveillance videotape of Stephen Simpson had been concealed or withheld. The court also ruled even if there were additional surveillance videotape of Stephen Simpson, that videotape would not have affected the outcome of the case because it concerned the extent of Simpsons’ damages and the jury found no liability on the part of Chicago Pneumatic. The court denied Simpsons’ motion for a new trial.

II

[¶ 6] Chicago Pneumatic has moved to dismiss Simpsons’ appeal, claiming it is moot. Chicago Pneumatic argues Simpsons’ appeal is moot because the issues raised by them on appeal relate only to damages and the jury found against them on liability. Chicago Pneumatic argues any alleged error relating to damages is harmless.

[¶ 7] We will dismiss an appeal if the issues become moot and no actual controversy is left to be decided. Ashley Educ. Ass’n v. Ashley Pub. Sch. Dist., 556 N.W.2d 666, 668 (N.D.1996). Mootness is a threshold issue we decide before reaching the merits of an appeal. Bland v. Commission on Med. Competency, 557 N.W.2d 379, 381 (N.D.1996). An appeal is moot when an appellate court is unable to render effective relief due to the lapse of time, or the occurrence of an event before *264 the appellate court renders its decision. Id. See N.D.R.App.P. 42(c) (“When an issue before the court may have become moot due to a change in circumstance, the parties shall advise the court in writing about the change in circumstance and explain why appeal of the issue should or should not be dismissed”).

[¶ 8] Chicago Pneumatic’s mootness argument does not raise issues stemming from the lapse of time, or the occurrence of an event after the trial court’s decision and before this Court’s consideration of this appeal. See DeCoteau v. Nodak Mut. Ins. Co., 2001 ND 182, ¶ 17, 636 N.W.2d 432 (holding satisfaction of judgment rendered appeal moot); In Interest of E.T., 2000 ND 174, ¶¶ 4, 6, 9, 617 N.W.2d 470 (holding patient’s subsequent release from hospital and termination of involuntary feeding rendered appeal of involuntary medication order moot); Ashley, 556 N.W.2d at 667-68 (holding conclusion of contract negotiations and issuance of teacher contracts rendered appeal moot). Rather, Chicago Pneumatic essentially asserts Simpsons’ videotape issue is harmless because the jury decided against them on liability. Simpsons respond the videotape issue is not harmless and their appeal is not moot, because the videotape was Chicago Pneumatic’s primary piece of evidence at trial and was inextricably tied to the jury’s verdict on liability. We have said a decision by the trier of fact on one issue may render some issues raised on appeal moot. See Praus ex rel. Praus v. Mack, 2001 ND 80, ¶23, 626 N.W.2d 239; Brown v. Brown, 1999 ND 199, ¶ 24, 600 N.W.2d 869; Jerry Harmon Motors, Inc. v. First Nat’l Bank and Trust Co., 472 N.W.2d 748, 755 (N.D.1991); State v. Brown, 337 N.W.2d 138, 153 (N.D.1983).

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Bluebook (online)
2003 ND 31, 657 N.W.2d 261, 2003 N.D. LEXIS 35, 2003 WL 732908, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simpson-v-chicago-pneumatic-tool-co-nd-2003.