IN THE COURT OF APPEALS

STATE OF GEORGIA

ROSS CAMPBELL,

Plaintiff/Appellee,

v.

NISSAN MOTOR COMPANY, NISSAN NORTH AMERICAN, INC.,BRIDGESTONE-FIRESTONE CORP., and PEACHTREE NISSAN, INC.,

Defendants/Appellants.

Appeal No. A02A1932

AMICUS CURIAE BRIEF FILED ON BEHALF OF THE GEORGIA TRIAL LAWYERS ASSOCIATION

I. STATEMENT OF INTEREST

The GTLA is a voluntary organization comprised of over 2,000 trial lawyers licensed to practice in this State. GTLA attorneys represent injured and damaged parties in civil matters. GTLA supports the right to trial by jury and is dedicated to protecting the fairness of the civil justice system and to securing full and fair compensation for their clients.

Appellants unjustifiably seek to limit the discretionary authority of trial courts to determine appropriate sanctions for alleged party misconduct - in this instance, the disposal or spoliation of evidence. The effect of the appellants' argument, if accepted, would be to narrow trial court discretion, to place undue emphasis on the most draconian of remedies available to trial courts and to bypass jury consideration of a significant product liability issue. GTLA believes that a trial court should be permitted to exercise discretion in selecting the appropriate remedy for spoliation of evidence. The sanction of dismissal should be reserved for those unusual cases in which a party maliciously destroys evidence pending or in anticipation of litigation. Chapman v. Auto Owners Ins. Co., 220 Ga. App. 539, 469 S.E.2d 783 (1996).

II. FACTS

Plaintiff was involved in a single vehicle rollover on Interstate 20 near Madison, Georgia on October 10, 1998. This product liability lawsuit arose from this wreck. Well before the filing of this action, the plaintiff authorized the disposal of the 1992 Nissan Pathfinder and two Firehawk ATX tires from the vehicles that had apparently separated. This action was taken for one reason: the plaintiff did not think that he could afford to pursue a product liability action. When the plaintiff made this decision, the publicly available information about the suspected defectiveness of Bridgestone/Firestone⁽¹⁾ tires was limited. More recently, this subject became a matter of national debate, class action litigation⁽²⁾ and investigation by the federal government.

In May of 2000, the National Highway Traffic Safety Administration (NHTSA) opened a defect concerning certain lines of Firestone tires, including the ATX tires. (Appendix A) On August 9, 2000, Firestone announced a recall of approximately 14 million tires. (Appendix A) A focal point of the recall was tires manufactured at Firestone's Decatur, Illinois plant. (Appendix A) The plaintiff's Firehawk ATX fires came from this plant. In August of 2000, despite acknowledging some of its tires might be defective, Firestone insisted that the Firehawk ATX tires were not among them and refused to expand its recall. (Appendix A) NHTSA, however, did not accept this representation. On September 1, 2000, NHTSA issued a consumer advisory on Firestone tires and included the plaintiff's Firehawk ATXs among the potentially defective tires. (Appendix B) After the issuance of the NHTSA advisory, Firestone agreed to inspect and replace all tires covered by the advisory. (Appendix B) If appellants want to stress the issue of bad faith, then GLTA would suggest that Bridgestone/Firestone has not been entirely forthcoming with the public about the tire defect issue and this public posture may have influenced more than a few wreck victims to make an incorrect, initial assessment of their legal rights.⁽³⁾

III. ARGUMENT

A. Trial Court Correctly Applied Chapman

Appellants ask this Court to rule that the trial court abused its discretion in fashioning the spoliation remedy set forth in the order of January 7, 2002. Having been made fully aware of this Court's opinion in Chapman v. Auto Owners Ins. Co., 220 Ga. App. 539, 469 S.E.2d 783 (1996), the trial court granted the following relief: (1) an adverse inference jury charge based on spoliation of evidence; (2) the exclusion of inspection notes and other examination materials relating to the tires; and (3) the exclusion of expert and witness testimony based on an inspection of the Nissan Pathfinder and the tires in question.⁽⁴⁾ This is strong medicine.

Many lawyers would conclude that appellants' strategy inflicted a crippling blow to the plaintiff's case. The remedies are tailored to the facts and calculated in their curative effect. They are less beneficial to the appellants than outright dismissal, but only slightly less so. Not satisfied with victory, appellants want the death penalty. In their view, the trial court did not go far enough. Appellants argue that the remedy of dismissal was required. The trial court had no other reasonable alternative and abused its discretion in refusing to dismiss the case. This is an extreme position - in fact, it is not the argument that appellants made in the trial court⁽⁵⁾ - and GTLA, as friend of the Court, urges its rejection.

B. Dismissal: Last Resort Remedy

The sanction of dismissal or default for attorney or party misconduct is a last resort remedy. It is one of several available remedies available for discovery abuse and spoliation of evidence. This continuum of remedies reflects the strong preference in Georgia for the resolution of cases on the merits. Recognition of this preference is inherent in this Court's reasoning in Chapman v. Auto Owners Ins. Co., 220 Ga. App. 539, 469 S.E.2d 783 (1996)("dismissal should be reserved for cases where a party has maliciously destroyed relevant evidence with the sole purpose of precluding an adversary from examining that relevant evidence" quoting from Northern Assurance v. Ware, 145 F.R.D. 281 (D. Me. 1993). The specific holding in Chapman is not as prescriptive as appellants would suggest. Chapman says simply that an adverse inference instruction is not the sole remedy for spoliation. It expressly acknowledges a continuum of remedies, noting among them the exclusion of expert testimony and test results and, in rare cases, dismissal of a case outright. As the Court emphasized, which of "those remedies are warranted . . . is a matter for the trial court to decide." Chapman, 220 Ga. App. 539 at 543, 469 S.E.2d 783 at 786. Subsequent cases of this Court reflect this analytical framework. Chicago Hardware & Fixture Co. v. Letterman, 236 Ga. App. 21, 25, 510 S.E.2d 875, 878 (1999)("Where relevant evidence has been spoliated, the parties degree of fault is an important factor in determining whether the severe sanction of dismissal should be imposed."); see also Johnson v. Riverdale Anesthesia Assoc., 249 Ga. App. 152, 155, 547 S.E.2d 347, 350 (2001)("[A] party should only be penalized for destroying documents if it was wrong to do so."); Georgia Bd. of Dentistry v. Pence, 223 Ga. App. 603, 608, 478 S.E.2d 437, 443 (1996)("In all those decisions, however, litigation was pending or contemplated at the time of the alleged spoliation; in Chapman, suit had already been filed. . . . Here, in contrast, [the] former patient sought treatment from another dentist before any complaint was made to the Board."(citation omitted)).

C. Abuse of Discretion Standard

Under the abuse of discretion standard, there is no hard and fast rule of law, no one-size-fits-all approach to decision making. Based on the facts presented including an assessment of witness credibility, a trial court exercises discretion when it chooses from among lawful alternatives, none of which can be demanded by a party as a matter of right. The touchstone for the appropriate exercise of discretion is fairness, the use of reason and the absence of prejudice. GTLA suggests that the trial court's order of January 7, 2002 meets these criteria. The trial court obviously rejected appellants' bad faith argument and found that the remedy of dismissal was too severe. If a remedy short of dismissal can level the litigation playing field, it is not and cannot be an abuse of discretion for a trial court to choose the lesser remedy. There are several reasons to conclude that the trial court was both conscientious and wise in the exercise of its discretion in this case.

1. Appellants' Position in Trial Court

When the appellants filed motions for sanctions against the plaintiff, they specifically asked for relief in the alternative. Their preferred remedy was dismissal because it would end the lawsuit. But, appellants were willing and perhaps recognized that they would probably have to accept less draconian sanctions:

Bridgestone/Firestone alternative relief: Exclusion of "all photographs and other examination material (e.g. inspection notes) of the subject tires . . . from trial." (Appendix C)

Nissan alternative relief: Exclusion at trial of "all of Plaintiff's photographs, documents and other materials, as well any expert testimony, relating to the subject vehicle and tires." (Appendix D)

If appellants did not demand dismissal as a matter of right in the trial court, how can they now attack the trial court's exercise of discretion when it gave them most of what they asked for as alternative relief? Though they do not acknowledge this fact, appellants are trying to change the rules in the middle of the game.⁽⁶⁾

2. Absence of Bad Faith

The plaintiff did not act in bad faith, which is a precondition to the dismissal remedy. When plaintiff authorized the disposal of the Nissan Pathfinder and the Firehawk ATX tires, he had decided not to pursue a product liability lawsuit. The plaintiff's principal reason was financial. Whether the plaintiff made a wise or fully informed decision is not the question, the question is whether he made the decision in good faith. Plaintiff surely did not know in 1998 and 1999 what became public knowledge about Firestone tires in 2000. The defendants do not argue that the trial court was compelled to reject the plaintiff's explanation.⁽⁷⁾ Thus, on the record before this Court, the plaintiff did not "maliciously [destroy] relevant evidence with the sole purpose of precluding an adversary from examining that relevant evidence." Chapman v. Auto Owners Ins. Co., 220 Ga. App. 539, 542, 469 S.E.2d 783, 785-86 (1996).

3. Corrective Effects of Trial Court's Sanction Order

GTLA believes that the trial court's sanction order significant altered the adversarial balance in this case. Exclusion of testimony and the inspection notes from plaintiff's initial expert places the plaintiff in a difficult position. He will have to prove defect and causation without the Nissan Pathfinder and the Firehawk ATX tires. Even if plaintiff can offer expert testimony that the Firehawk ATX tires have more tread separation failures than other tires on the road in 1998, it is unclear whether such an expert can testify that plaintiff's tires were in fact defective or that they failed in connection with the October 10, 1998 accident. The road ahead is not easy for the plaintiff. He faces the possible grant of a defense motion for summary judgment or, if the case goes to trial, a motion for directed verdict (due to the possible exclusion of plaintiffs' expert testimony concerning tire defect and causation).⁽⁸⁾ From a systemic perspective, the virtue of either outcome would be a decision on the merits.

4. Appellants' Red Herrings

At the hearing on the motions to dismiss, appellants suggested that the non-disclosure of plaintiffs' consulting expert and his opinions about tire defect was a disadvantage to them. The trial court's order certainly corrects that problem by excluding such testimony. Appellants, however, try to use this nondisclosure to buttress their bad faith claim. They conjecture that plaintiff's consulting expert actually found that there was no defect in the Firehawk ATX tires and that this undisclosed, adverse opinion was the real reason for the disposal of the Pathfinder and the tires. If appellants really believe this to be true, why didn't they ask the trial to compel the plaintiff to identify his expert and to make him available for deposition? A deposition could solidify the argument for bad faith and make the argument for dismissal far more persuasive. The trial court appropriately resisted the invitation to speculate about evidence that appellants never tried to develop.

The same can be said of appellants' insinuations about plaintiff's first attorney. Appellants imply that this attorney must have been sophisticated about tire defect litigation. Yet, appellants did not depose him to determine whether he had any background in product liability litigation generally, much less tire defect cases. If the attorney had such experience, it would have strengthened the argument for bad faith and the case for the dismissal remedy. Again, the trial court properly declined to speculate about plaintiff's first attorney.

When facts are left vague, it is easier to fashion an extreme argument from them than if the facts are more fully developed. Here appellants seek to benefit from the blankness of the record about the consulting expert's tire defect opinion and the litigation experience of plaintiff's first attorney. One obvious risk of pursuing this information is that appellants' theory might prove to be wrong and their investigative endeavor would ultimately undermine their dismissal strategy. The trial court was astute in seeing through this speculative line of argument.

5. Photographs

The trial court's order did not exclude the photographs of the Firehawk ATX tires. They apparently show that tire separation occurred in the October 10, 1998 accident. If plaintiff is going to be allowed to testify about the post-accident condition of 1992 Nissan Pathfinder and its tires, it seems reasonable to permit him to tender photographs that are most directly probative on that issue. These photographs, after all, represent the only visual evidence available to both sides on post-accident condition. They are also likely to be the most reliable information as well. Properly authenticated, they have clear relevance to the issues in this case. Whether these photographs are sufficient to permit expert testimony about tire defect or causation in this case is another matter. But that issue is one the trial court can address on the merits at the appropriate time - whether in the context of a summary judgment motion, motion in limine or motion for directed verdict.⁽⁹⁾ The values recognized in Chapman are better served by the resolution of the issues in this case in that manner.

IV. CONCLUSION

As an organization, GTLA recognizes the prejudicial potential associated with spoliation of evidence whether it occurs by the hand of the plaintiff or the defendant. Whenever possible, if a case involves spoliation, the case should not be taken from the jury unless the spoliation is accompanied by bad faith on the part of the culpable party and intent to undermine pending litigation. Absent such extreme and hopefully rare facts, trial courts should strive to resolve all cases on the merits. As this brief has shown, appellants exaggerate when they claim that the January 7, 2002 order disadvantages them in ways they cannot effectively and fairly address in the course of the adversarial process. This order granted substantial, corrective relief. The trial court did not abuse its discretion.

Respectfully submitted, this ___ day of September, 2002.

/s/ Albert M. Pearson, III

Cale Conley

Antoinette D. Johnson

Brent J. Kaplan

1. When this action was filed, Bridgestone and Firestone had not yet merged. They now form a single company.

2. Interestingly, one of the orders entered by the trial court in this class action was a Tire Preservation Order. Among the tires Firestone was directed to preserve was the Firehawk ATX 31x10.50R15LT, which was on plaintiff's Nissan Pathfinder at the time of the accident. The order also directed Firestone to preserve all tired manufactured at the Decatur, Illinois plant and plaintiff's Firehawk ATX tires were manufactured at that plant as well. In re Bridgestone/Firestone, Inc., ATX, ATX II and Wilderness Tires Products Liability Litigation, 2001 WL 219858 (S.D. Ind. March 6, 2001). The trial court certified the case as a class action under Rule 23, but the Seventh Circuit reversed. In re Bridgestone/Firestone, Inc., Tires Products Liability Litigation, 288 F.3d 1012 (7^th Cir. 2002). Prior to the trial court's class certification order, several product liability actions against Firestone had been subject to the jurisdiction of a Multi-District Litigation panel. See, In re Bridgestone/Firestone, Inc., Tires Products Liability Litigation, 151 F.Supp.2d 1381 (J.P.M.L. 1373, June 15, 2001). All of these events preceded plaintiff's decision not to pursue the present lawsuit in 1998 and early 1999.

3. Bridgestone/Firestone tried to use the very factual scenario present in this case to support a summary judgment motion barring tire separation product liability claims. In that case, the trial court denied the motions under the law of Arizona and California. Interestingly, the court distinguished between knowledge that a tire failed and knowledge that the tire might be defective in the product liability sense. The plaintiffs in each of those cases did not learn of the tread separation issue until August of 2002 when the matter became the subject of national publicity. In re Bridgestone/Firestone, Inc., Tires Products Liability Litigation, 200 F.Supp.2d 983, 990-992, 995 (S.D. Ind. 2002). This ruling lends great credence to the testimony of plaintiff Campbell in this case.

4. The trial court specifically found that exclusion of tire photographs and dismissal were not warranted.

5. Transcript of November 20, 2001 hearing on appellants' motion for dismissal, at 12, 16-17, 21-22 and 30.

6. A party cannot complain of a verdict, judgment, ruling or order that his own legal strategy, trial procedure or conduct aided in causing. See Alternative Health Care Systems, Inc., v. McCown, 237 Ga. App. 355, 359, 514 S.E.2d 691, 697 (1999); Stewart v. Stewart, 236 Ga. App. 348, 350-351, 511 S.E.2d 919, 921 (1999).

7. Appellants make much of the fact that plaintiff had an attorney at the time he authorized the disposal of the Pathfinder and the Firehawk ATX tires. If this attorney were knowledgeable about Firestone tire defect issues, a deposition would have made this readily apparent. Of course, to pursue such a course might have undermined appellants' strategy for dismissal. What if this attorney were just as ignorant of Firestone tire defects as was the public generally in 1998? By leaving this fact vague and unresolved, appellants have much greater range to speculate and insinuate.

8. Bridgestone/Firestone has successfully obtained summary judgment in two cases where the tires had been lost or discarded. See Clark v. Bohn Ford, ___ F.Supp.2d ____, 2002 WL 1772944 (S.D. Ind. July 26, 2002); Bewry v. Bridgestone/ Firestone, Inc., 2002 WL 398764 (E.D.N.Y Jan. 29, 2002). It is worth noting that in both cases, the plaintiffs did not even oppose summary judgment because they apparently did not have experts who would testify in the absence of the tires.

9. If this case ultimately reaches the jury, the adverse inference instruction will provide the appellants a potent line of closing argument.