Trull v. Volkswagen of Amer.

• Court: District Court, D. New Hampshire
• Decided: March 19, 1998
• Docket: CV-94-015-JD
• Status: Published

Opinion

Trull v. Volkswagen of Amer. CV-94-015-JD 03/19/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Elizabeth Trull, et al.

v. Civil No. 94-15-JD

Volkswagen of America, Inc., et al.

O R D E R

The plaintiffs, David Trull, both individually and as

administrator of the estate of Benjamin Trull, Elizabeth Trull,

and Nathaniel Trull, brought this products liability action

pursuant to the court's diversity jurisdiction against the

defendants, Volkswagen of America, Inc., and Volkswagenwerk, A.G.

The plaintiffs contend, inter alia, that the defendants

negligently designed the 1986 Volkswagen Vanagon, with the result

that several of the plaintiffs, when their 1986 Vanagon was

involved in an accident, suffered personal injuries more serious

than they would have incurred had the design been safe. Before

the court is the defendants' motion in limine regarding expert

testimony on internal Volkswagen standards and the cost of

integrated seats (document no. 35). Discussion1

On February 19 , 1991, the plaintiffs, who are residents of

Massachusetts, were involved in a motor vehicle accident while in

their 198 6 Volkswagen Vanagon in Conway, New Hampshire. As a

result of the accident, David Trull, who was driving, received

only minor injuries. His wife, Elizabeth Trull, who was riding

in the front passenger seat, suffered severe brain injury. His

son Nathaniel Trull, riding in the first row of rear bench seats,

also suffered severe brain injury. His other son Benjamin Trull,

also riding in the first row of rear bench seats, was killed.

The plaintiffs contend that their injuries were more severe than

they would otherwise have been due to the unsafe design of the

Vanagon.

On January 13, 1994, the plaintiffs brought this action,

asserting, inter alia, that the defendants are liable under

theories of negligent design and strict liability for an unsafe

product. The defendants have filed a motion in limine to exclude

the plaintiffs' expert testimony on internal Volkswagen safety

standards and the cost of integrated seats. Both subjects are

based on the expert's knowledge gained from documents under

protective orders.

1The court summarizes the background information relevant to the resolution of the instant motion.

2 The plaintiff's liability expert, John Stilson, stated

during depositions that Volkswagen has internal design standards

for its vehicles but that it did not conduct tests to determine

whether the Vanagon met those standards. His information on

internal standards arises from other cases in which he has been

involved, some of which involved Volkswagen and others of which

did not. He did not provide the documents that form the basis of

his information, however, because they are under a protective

order. As a result, the defendants seek to preclude him from

offering this information as part of his opinion. The plaintiffs

state that Stilson is willing to disclose the information under

Volkswagen protective order, but to do so Volkswagen must release

him from the order. They urge that it would be ineguitable to

allow Volkswagen to preclude Stilson's testimony on internal

standards when its protective order is the only thing preventing

him from giving an admissible opinion.

Stilson also stated during his deposition that it would cost

between seven and twelve dollars to implement an integrated seat

design. Integrated seats are constructed with the passenger

restraints incorporated into the seat rather than being attached

to another part of the vehicle. Stilson's testimony is based on

documents stemming from his involvement with cases involving non-

Volkswagen manufacturers, but the documents are similarly under

3 protective order. The defendants object to Stilson's testimony

on this subject because it is founded upon hearsay documents on

which the defendants cannot cross-examine him. The plaintiffs

contend that the documents need not be made available to the

defendants because they are of the type relied on by experts in

Stilson's field and the defendants can adequately expose any

deficiency in his testimony on cross-examination. The defendants

respond that they cannot adequately cross-examine Stilson without

first havinq been provided an opportunity to review the documents

on which he bases his testimony.

"The admission of expert testimony is a matter reserved to

the trial court's discretion." International Adhesive Coating

Co. v. Bolton Emerson Int'l, Inc., 851 F.2d 540, 544 (1st Cir.

1988). The court finds that the defendants must be able to

examine the documents on which Stilson bases his testimony on

these two subjects in order to effectively cross-examine him.

However, the court lacks the authority to order Stilson to

release non-Volkswaqen documents under the protective order of

another court. Therefore, Stilson is ordered to produce for the

defendants any documents or records of Volkswaqen under

protective order upon which he relied in forminq his opinions and

Volkswaqen may submit a proposed protective order to cover the

use of its documents in this case. Stilson may then offer expert

4 testimony based on information contained in those documents.

Stilson may not testify as to the cost of manufacturing

integrated seats to the extent his opinion relies on documents

that he is unable to release to the defendants because they are

under a protective order for the benefit of third parties.

Conclusion

The defendants' motion in limine regarding expert testimony

on internal Volkswagen standards and the cost of integrated seats

(document no. 35) is denied to the extent the plaintiff's expert

seeks to offer testimony based on Volkswagen documents under

protective order and is granted to the extent the plaintiff's

expert seeks to offer testimony on non-Volkswagen documents that

he is unable to release to the defendants because they are under

the protective order for the benefit of a third party.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

March 19, 1998

cc: John J. Cronin III, Esguire Alan L. Cantor, Esguire Howard B. Myers, Esguire