Unpublished Disposition, 878 F.2d 1439 (9th Cir. 1986)

MEMORANDUM^* 

Rayhill brought a product liability action under Arizona law for the wrongful death of her husband, Major Joseph Rayhill. She argues that the district court erred in denying her motion to vacate a stay on her discovery. She also argues that the district court erred in granting defendant/appellee's motion for summary judgment. We vacate the summary judgment and remand for further discovery on the part of the plaintiff.

STANDARD OF REVIEW

We review a district court's rulings concerning discovery for abuse of discretion. Ellis v. Brotherhood of Railway, Airline, & Steamship Clerks, 685 F.2d 1065, 1071 (9th Cir. 1982). A district court's grant of summary judgment is reviewed de novo. Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir. 1983).

BACKGROUND

On August 6, 1984, plaintiff's decedent, Major Joseph Rayhill, was piloting a United States Air Force A-10 airplane. The plane crashed during maneuvers in Arizona. Fairchild manufactured the A-10 and sold it to the Air Force in 1978. The ejection seat holding Major Rayhill ejected successfully from the A-10. However, he sustained fatal injuries when he remained attached to the ejection seat and his parachute failed to deploy. McDonnell Douglas, not Fairchild, designed, manufactured, and sold the ejection seat to the Air Force.

The Air Force investigation found no evidence that the crash had been caused or affected by the airframe or aircraft systems designed or manufactured by Fairchild. The investigation report concluded that the accident was caused by pilot error. The investigation report also found that the seat had ejected properly from the aircraft but that Major Rayhill was unable to separate from his seat and deploy his parachute because Air Force maintenance personnel failed to reconnect the recovery sequencer mechanism portion of the ejection seat that would have initiated automatic separation of the pilot from the seat.

In July 1986 appellant brought this action against numerous defendants alleging negligent design, manufacture, testing, inspection, labeling, and assembly of the aircraft and the ejection seat. Included among the defendants were McDonnell Douglas Corporation, the General Electric Co., Lear Siegler, Inc., and the appellee, Fairchild Industries and one of its divisions ("Fairchild"). On August 26, 1986, Fairchild served Interrogatories and Requests for Production of Documents on appellant seeking to ascertain the precise nature of appellant's claims. Seven months later, pursuant to Fed. R. Civ. P. 37(2), Fairchild moved to compel discovery on the ground that Rayhill had provided no substantive response to its interrogatories under Fed. R. Civ. P. 37(a) (3), which states that an evasive or incomplete answer is to be treated as a failure to answer.

Thirty days later Rayhill filed supplemental responses to the interrogatories but did not comply with the district court's order to substantiate her claims against Fairchild with specific facts. Rayhill moved to vacate the stay of discovery and Fairchild cross-moved for sanctions pursuant to Rule 37(b) (2) (c) and Rule 11 on the grounds that Rayhill had not complied with the court's prior order and that Rayhill's supplemental responses clearly showed that neither she nor her counsel made a reasonable inquiry into the facts before filing the lawsuit.

The court held a hearing on the motions following briefing by the parties. The court advised the parties that Fairchild's cross motion to dismiss would be treated as a motion for summary judgment. The court allowed Rayhill additional time to secure and submit affidavits or other evidence in opposition to summary judgment. Rayhill's response included two supporting affidavits. Fairchild's reply included a controverting affidavit.

The district court granted summary judgment against Rayhill. It held that Rayhill had not produced specific evidence of wrong-doing by Fairchild. In particular, the court determined that Rayhill had alleged defects in the plane's ejection seat and flight control system but had produced evidence neither of such defects nor of any conduct by Fairchild that would render it liable if such defects had existed.

DISCUSSION

* Rayhill argues that the district court abused its discretion in refusing to vacate the stay on Rayhill's discovery against Fairchild. Fed. R. Civ. P. 37 gives a district court a wide selection of sanctions to impose upon parties who fail to comply with discovery orders. These range from those with a remedial objective, such as staying proceedings until a party complies with the order, to those with the objective of general deterrence, such as dismissing the claim with prejudice. In National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639 (1978), the Supreme Court clearly authorized the district court's discretionary use of even the most severe sanctions as a judicial tool to deter litigants from exploiting the dilatory potential of discovery. Specifically, the Court reinstated a district court judgment that dismissed a plaintiff's action for its failure to answer written interrogatories in a timely manner as the district court had ordered. The litigation explosion underscores the need for such strong judicial oversight over the discovery process. This need is especially acute in the products liability cases because the litigation and settlement costs of such disputes spread far beyond the pocketbooks of the parties and of the judicial system. See G. Priest, The Current Insurance Crisis and Modern Tort Law, 96 Yale L.J. 1521 (1987).

Our circuit's cases support a district court's use of sanctions to promote efficient discovery. United Artist Corp. v. La Cage Aux Folles, Inc., 771 F.2d 1265, 1270-71 (9th Cir. 1985). We review sanctions imposed by a district court for abuse of discretion and will not reverse absent a definite and firm conviction that the district court made a clear error of judgment. United States v. National Medical Enterprises, Inc., 782 F.2d 906, 910 (9th Cir. 1985). A determination that an order was disobeyed is entitled to considerable weight because a district judge is best equipped to assess the circumstances of the noncompliance. Halco Engineering Co. v. Costle, 843 F.2d 376, 379 (9th Cir. 1988). The question is not whether this court would have, as an original matter, imposed the sanctions chosen by the trial court, but whether the trial court exceeded the limits of its discretion. In re Rubin, 769 F.2d 611, 615 (9th Cir. 1985). We review a district court's findings of fact in connection with a motion for sanctions under the clearly erroneous standard. See Bronkhoust v. Safeco Corp., 529 F.2d 943, 947 (9th Cir. 1976).

On balance, however, we must recognize that this is not a commercial dispute between two business entities with substantial litigation resources. Neither is this a case in which evidence is easily available and discovery easily manageable. This is a personal injury case involving the possible failure of technologically sophisticated equipment in an uncertain and extremely harsh environment. Virtually all of the evidence is in the control of the defendants and its interpretation is beyond the ken of all but narrowly specialized experts. Under these particular facts, we conclude that Rayhill's failure to complete discovery within nine months was not extraordinary and did not support the discovery sanctions taken by the court prior to its grant of summary judgment.

II

Rayhill also argues that she presented sufficient evidence of Fairchild's negligence as regards the ACES-II ejection seat and/or the A-10's flight control system to survive a motion of summary judgment. The standard that applies in deciding a motion for summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury." Anderson v. Liberty Lobby, 106 S. Ct. 2505, 2512 (1986). In support of her theory that Fairchild was negligent as regards the A-10's flight control system, Rayhill offers the testimony of Captain Donnie R. Jackson. Jackson is a pilot who accompanied Major Rayhill on training maneuvers and witnessed the accident. In a two page affidavit, he stated his opinion that the cause of the accident was not pilot error. He formulated this opinion after viewing a number of Air Force training films, none of which demonstrated to him flight maneuvers as sudden and violent as those in which Major Rayhill's craft had engaged prior to the crash. Evidence that an eyewitness (with Jackson's experience, training, and point of observation) had never seen a plane behave as did Major Rayhill's plane could permit a reasonable jury to infer that Fairchild was negligent.

Rayhill also presented the expert evidence of John R. Hull who reviewed the Air Force investigation report and Jackson's affidavit. As a pilot, Hull possessed a significant base of experience upon which to render his judgment. He concluded that the crash was caused by "some malfunction in the flight controls." This evidence also supports Mrs. Rayhill's theory that the accident was caused by some design defect that lead to "rudder-hardover" at a critical point in Major Rayhill's operation of the plane.

A court may disregard a conclusion of a nonmovant's expert witness if it finds that the assumptions that underlay the expert's testimony are "implausible and inconsistent with record evidence." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 457 U.S. 574, at 594, n. 10 (1986). Given the qualifications of Rayhill's experts that were particularly relevant to this specific accident, the experts' evidence was not implausible.

We also notice that Rayhill did not file affidavits pursuant to Fed. R. Civ. P. 56(f) to the district court in support of her claim that she was unable to produce evidence in opposition to the motion for summary judgment. See Hall v. Hawaii, 791 F.2d 759 (9th Cir. 1986). The failure to file a Rule 56(f) motion is enough to reject a claim that the opportunity for discovery was inadequate. Brae Transportation v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986). However, we see no harm from the failure to comply with Rule 56(f) in this case, because as the transcript of oral argument shows, both the trial judge and the plaintiff thought that such a motion had been filed.

CONCLUSION

The summary judgment is vacated and the case is remanded for further discovery.

VACATED and REMANDED.