Westerbeke Corporation v. Atherton

224 So. 3d 816, 2017 WL 3399886, 2017 Fla. App. LEXIS 11417
CourtDistrict Court of Appeal of Florida
DecidedAugust 9, 2017
DocketCase 2D16-5179
StatusPublished
Cited by1 cases

This text of 224 So. 3d 816 (Westerbeke Corporation v. Atherton) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Westerbeke Corporation v. Atherton, 224 So. 3d 816, 2017 WL 3399886, 2017 Fla. App. LEXIS 11417 (Fla. Ct. App. 2017).

Opinion

MORRIS, Judge.

Westerbeke Corporation seeks certiorari review of a nonfinal order denying Wester-beke’s motion to compel the unwinding, or disassembling, of a piece of a gas generator' that was involved in a boat explosion and that is a key piece of evidence in three personal injury and products liability lawsuits filed by the respondents. Because the trial court applied the incorrect law to Westerbeke’s motion'to compel, we grant the petition and quash the order.

I. Background

The boat explosion occurred in May 2009, while several respondents were on-board and operating the boat in Tampa Bay. 1 Three separate lawsuits were filed based on injuries suffered during the explosion, and the lawsuits were consolidated for purposes of discovery only. 2 Wester-beke is the manufacturer of the gas generator, and newly installed component parts ón the gas generator, that was operating on the boat at the .time of the explosion. The respondents’ theory with regard to Westerbeke’s liability is that there was an internal short that caused a sparking event in the windings of the piece of the generator called the “stator,” that the sparking event caused the explosion, and that the sparking event was due to manufacturing and design defects. The respondents and Westerbeke agree that there was a short, but they disagree as to when the short occurred and whether the short caused a sparking event in the stator. 3

*819 Westerbeke sought to “unwind” or disassemble the stator to look for evidence of a spark or ignition source that caused the explosion. The respondents objected to unwinding the stator on the basis that it would not reveal any probative evidence and that it would destroy evidence -and thus prejudice the respondents. The issue of the unwinding was considered at two separate hearings. At the first hearing on August 26, 2016, Westerbeke argued that the unwinding was necessary to see if the stator contains evidence of “sparking, burning, melting, [or] charring,” which would indicate if the spark, or ignition source, came from the stator. Westerbeke stated that it did not seek to unwind the stator until it became aware that the respondents would be claiming that the ignition source was in the stator portion of the generator. It also argued that unwinding the stator would not harm the respondents’ ability to prove their case because the respondents have thousands of photographs. Westerbeke also questioned “how [the jury’s] touching and feeling this generator is going to prove anything” for the respondents. Last, Westerbeke argued that the relevant factors weighed in favor of the unwinding because the unwinding is relevant, reasonable, and necessary; there is no other way to do this; there are adequate safeguards in place; and the respondents’ ability to present evidence is not hindered.' ‘

The respondents argued that the unwinding would not be probative because a spark in the stator would not necessarily leave any evidence. Thus, if no evidence of a spark was found, it would not affect the respondents’ case. The respondents also argued that the unwinding would destroy evidence that they need to present to the jury:

[W]e want to present to the jury ... the generator back end in its current condition where you can, show and demonstrate the short, where we can show them the flame patterns, where I can use .this, product candidly to take the depositions of their expert and respond to them, to rebut them, and to educate the jury about what happened in this.

The court asked whether videotaping could be conducted during the experts’ depositions before the trial court allowed the unwinding, but respondents argued that they would lose their trial dates. Counsel for the Meyers ■ mentioned getting an agreement in all three cases from Wester-beke and the issue of “collateral estoppel.” *820 He also argued that they would not be able to keep the first trial date. Westerbeke argued that the unwinding would not delay the trial. Westerbeke agreed that if no evidence of a spark is found as a result of the unwinding, the respondents are in no worse of a position, but under Wester-beke’s theory, a spark would have left evidence in the stator.

The trial court was concerned about the issue of “collateral estoppel” and whether the unwinding would potentially harm the cases that had not yet been set for trial. The trial court indicated it wanted to treat all three cases similarly and that an agreement would be' necessary before the trial court would allow unwinding.

A second hearing was held on Wester-beke’s motion to compel on October 26, 2016, and the trial court remained concerned that the respondents would be affected differently if the trial court allowed the unwinding. This was because the first trial—in the Athertons’ case—was scheduled for April 2017 and the trial court was under^ the impression that the unwinding would not be completed by then and admissible at that first trial. Westerbeke’s counsel did not understand how the unwinding “would have any adverse bearing on the subsequent cases if it’s going to be applicable to all the cases.” Counsel for the Meyers again mentioned the doctrine of collateral estoppel, saying that they would agree to the unwinding if Westerbeke was willing to accept the liability verdict in the Athertons’ case and apply it to the remaining two cases. The trial court agreed and was concerned that if Westerbeke won in the Athertons’ litigation, there would still be two more liability cases and the respondents would claim that the stator has been destroyed. Westerbeke then argued that the case should be bifurcated for liability. The trial court referred to collateral estop-pel and asked Westerbeke if it would be willing to be bound by the liability determination in the first trial. If so, the trial court would consider granting the unwinding. The trial court denied the request for unwinding unless Westerbeke agreed to “be bound by whatever is the finding in regards to liability on the first trial as to all plaintiffs.” Westerbeke stated that if it would be bound by the liability finding, the remaining respondents would also need to be bound by it. The Meyers’ counsel objected to that.

Counsel for the Meyers also argued that the unwinding would be prejudicial. West-erbeke argued that several other pieces of evidence had been disassembled and destroyed and that the'requested unwinding should not be treated any differently. Counsel for the Athertons argued that the unwinding is not necessary for Wester-beke’s defense and that they had not shown that it would be probative. He also contended that Westerbeke waited until the “9th hour” to request the unwinding. The hearing ended with all parties understanding that the trial court had denied the motion to unwind. The trial court entered an unelaborated order on November 7, 2016, simply denying Westerbeke’s motion to compel unwinding.

II. Analysis

In its petition for certiorari review, Westerbeke argues that the trial court departed from the essential requirements of law in denying its motion because the proposed unwinding is necessary to its defense as it is the only way the parties will be able to determine if there was a short in the stator at the time of the explosion.

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Cite This Page — Counsel Stack

Bluebook (online)
224 So. 3d 816, 2017 WL 3399886, 2017 Fla. App. LEXIS 11417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/westerbeke-corporation-v-atherton-fladistctapp-2017.