Commonwealth Insurance v. Titan Tire Corp. , 398 F.3d 879 ( 2004 )


Menu:
  •                              In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    Nos. 03-3223, 03-3224 & 03-3225
    COMMONWEALTH INSURANCE COMPANY,
    Plaintiff,
    v.
    TITAN TIRE CORPORATION,
    Defendant-Appellant,
    v.
    PIRELLI TIRE, LLC, formerly known as Pirelli
    Tire Corporation, formerly known as Pirelli
    Armstrong Tire Corporation,
    Defendant-Appellee.
    ____________
    Appeals from the United States District Court
    for the Central District of Illinois.
    Nos. 99 C 3209, 00 C 3182 & 01 C 3087—Jeanne E. Scott, Judge.
    ____________
    ARGUED SEPTEMBER 21, 2004—DECIDED NOVEMBER 2, 2004
    ____________
    Before MANION, ROVNER, and WOOD, Circuit Judges.
    MANION, Circuit Judge. Following a $55 million settlement
    of a Texas case involving eight deaths allegedly caused by
    a defective tire, the two tire companies involved sued each
    2                               Nos. 03-3223, 03-3224 & 03-3225
    other, claiming breach of an indemnity agreement. The
    claims were eventually tried in the Central District of Illinois,
    1
    which had diversity jurisdiction over the matter. Pirelli
    Tire, LLC won a jury verdict for the underlying trial ex-
    penses and attorneys’ fees against Titan Tire Corporation in
    the amount of $259,775.98, which included interest. On
    appeal, Titan challenges a key jury instruction ruling by the
    district court as well as several other district court rulings
    that affected the trial proceedings. We affirm in part and
    reverse in part.
    1
    Before the district court and in this court it was asserted that
    “Pirelli was and is a citizen of the State of Delaware, being a lim-
    ited liability company incorporated under the laws of the State of
    Delaware, formerly having its principal place of business in
    Connecticut and currently having its principal place of business
    in Georgia.” However, limited liability companies are unincorp-
    orated entities, and, for diversity purposes, “limited liability
    companies are citizens of every state of which any member is a
    citizen.” See Belleville Catering Co. v. Champaign Mkt. Place, L.L.C.,
    
    350 F.3d 691
    , 692 (7th Cir. 2003). Therefore, to cure this juris-
    dictional defect, this court ordered a supplemental statement of
    jurisdiction from Pirelli. See 28 U.S.C. § 1653. Fortunately for all
    concerned, Pirelli’s supplemental statement reveals that we do
    have subject matter jurisdiction. Pirelli’s sole member, Pirelli
    North America, Inc., is a corporation incorporated in the State of
    Delaware with its principal place of business in Connecticut, and
    complete diversity of citizenship exists in the action between
    Pirelli and Titan because Titan is a corporation incorporated in
    the State of Illinois with its principal place of business in the
    Iowa. Counsel and litigants are again cautioned to carefully
    scrutinize all jurisdictional requirements lest they encounter
    possible dismissal at this late stage of litigation. See 
    Belleville, 350 F.3d at 694
    .
    Nos. 03-3223, 03-3224 & 03-3225                                   3
    I.
    On July 16, 1994, Pirelli sold a tire plant in Des Moines,
    Iowa, to Titan. At the same time, the two entered into a man-
    ufacturing agreement under which Titan would manufacture
    light truck tires for Pirelli at the Des Moines plant according
    to Pirelli’s specifications. Pursuant to this agreement, Titan
    agreed to indemnify Pirelli for any expenses caused by tire
    defects resulting from Titan’s actions or inactions. This
    contractual relationship lasted until 1998, when a strike
    caused the permanent shut-down of the Des Moines plant.
    Shortly after Titan began producing tires under the initial
    agreement in September 1994, Pirelli discovered a tread de-
    fect in the relevant tire design. Consequently, in November
    and December 1994, Titan temporarily halted production,
    and Pirelli improved its design. On November 22, 1994,
    Pirelli provided its design improvements to Titan and by
    letter agreed to indemnify Titan and hold Titan harmless with
    respect to any claims arising from the tread defects of the
    prior design. This so-called letter agreement of November 22
    (“the letter agreement”) was modified on December 14, 1994,
    with an addendum (“the addendum”) handwritten on the
    margin of the letter agreement by Titan’s president, Maurice
    Taylor, a non-attorney. The addendum stated that the in-
    demnity arrangement in the letter agreement covered tires
    “that had been produced since Sept[ember] 1, 1994.” The
    addendum is at the epicenter of this appeal.
    The addendum became a point of contention as the result
    of a 1998 automobile accident in Duval County, Texas, in
    which eight people died. The accident triggered a negligence
    and product liability action over a light truck tire involved
    in the accident. Initially, Titan and Pirelli were named as
    defendants in the underlying action, but, in the early stages
    of that case, the plaintiffs dismissed their claims against Pirelli.
    Nonetheless, as the result of a Titan cross-claim for indem-
    4                             Nos. 03-3223, 03-3224 & 03-3225
    nity, Pirelli remained exposed to liability in the underlying
    suit. During the underlying litigation, Titan and Pirelli pos-
    ited—to varying degrees—that the tire at issue was not de-
    fective. In the end, however, Titan’s insurer, Commonwealth
    Insurance Company, paid $55 million to settle the underly-
    ing case, and Titan dismissed its cross-claim against Pirelli
    in that case.
    The indemnity battle, nevertheless, was far from over.
    After the settlement, three new lawsuits involving indem-
    nity and other claims arising from the underlying litigation
    were filed in three different jurisdictions by and against Pirelli,
    Titan, and Commonwealth. Each entity was a plaintiff as
    well as defendant in at least one of the three suits. Eventu-
    ally, the three suits were consolidated in the United States
    District Court for the Central District of Illinois. Matters
    concerning Commonwealth are not before this court, and
    only two causes of action are pertinent to this appeal: Titan’s
    direct claim against Pirelli for breach of indemnity agree-
    ment, and Pirelli’s counterclaim against Titan for breach of
    the same indemnity agreement. Through these claims, each
    party sought to recover the attorneys’ fees and other ex-
    penses it incurred as the result of the underlying action. Of
    the district court’s numerous decisions in this complex case,
    only four remain at issue in this appeal.
    At the summary judgment stage, the district court con-
    cluded that the unambiguous text of the addendum limited
    the duration of the letter agreement. Specifically, the district
    court, applying Illinois law, ruled that the addendum
    confined Pirelli’s obligation to indemnify Titan for tires
    produced between September 1, 1994 and December 14,
    1994. After that date, when the addendum’s coverage ex-
    pired, the default indemnity arrangement formulated in the
    original manufacturing agreement controlled. Under the
    district court’s interpretation of the addendum, the key fact
    Nos. 03-3223, 03-3224 & 03-3225                               5
    of each party’s indemnity claim against the other was when
    the tire at issue was made. For Titan to prevail on its claim,
    Titan had to prove that the tire was made before December
    14, 1994. On the other hand, Pirelli had to prove that the tire
    was made after December 14, 1994. Further, the district court
    twice ruled that the date the tire was produced was an issue
    for trial. In the second ruling, the district court explicitly
    held that the evidence presented by Pirelli did not show
    when the tire was made and, as a result, that question of fact
    remained for trial.
    The case then proceeded to trial. On the first day of trial,
    Titan’s witness, who was expected to establish the date of
    production, suddenly backed out of testifying. The witness
    determined, at the last minute, that he could not testify that
    the tire was made before December 14, 1994. Absent this
    testimony, Titan conceded that it could not meet its burden
    of proving that the tire was made before December 14, 1994.
    Titan rested its case without presenting any evidence, and
    the district court granted Pirelli’s uncontested motion for
    judgment as a matter of law on Titan’s claim against Pirelli.
    The district court then began the trial on Pirelli’s counter-
    claim. At a mid-trial conference on the jury instructions, Titan
    proposed an instruction requiring Pirelli to prove that the
    tire in question was manufactured after December 14, 1994.
    The district court rejected the proposed instruction and
    further refused to include any instruction regarding the date
    of production, thereby relieving Pirelli of its burden of prov-
    ing when the tire was manufactured. The reason behind this
    on-the-record ruling is not clear. The transcript reveals that
    the district court, although having made contrary summary
    judgment rulings, adopted Pirelli’s contention that Pirelli
    did not have the burden of proving when the tire was made.
    Further, the transcript indicates that the district court
    treated Titan’s concession that it could not prove that the
    6                            Nos. 03-3223, 03-3224 & 03-3225
    tire was made before December 14, 1994, as an admission
    that the tire was made after December 14, 1994. The ques-
    tion of when the tire was made was thus dropped from the
    trial.
    As a consequence, to prevail on its counterclaim against
    Titan, Pirelli only had to prove that the tire was defective as
    the result of some failure on the part of Titan and that the
    defect caused the underlying accident. As an additional
    defense, Titan argued that the doctrine of judicial estoppel
    precluded Pirelli from claiming that the tire was defective
    because, in the underlying litigation, Pirelli had taken the
    exact opposite position, i.e., that the tire was not defective.
    The district court disagreed, concluding that the doctrine of
    judicial estoppel was inapplicable because the underlying
    case settled and, as a result, Pirelli never won a favorable
    judicial ruling with its prior non-defect position.
    Additionally, to prove that the tire was defective and that
    the defect caused the accident, Pirelli relied upon the dep-
    osition testimony of Robert Ochs, the plaintiffs’ expert from
    the underlying litigation. However, Titan moved for discovery
    sanctions under Federal Rule of Civil Procedure 37(c)(1),
    requesting that the district court exclude Ochs’s testimony
    from trial because Pirelli failed to properly disclose this opin-
    ion evidence under Federal Rule of Civil Procedure
    26(a)(2)(A). The district court denied Titan’s motion, finding
    that the discovery violation was harmless for two reasons.
    First, Titan participated in Ochs’s deposition and thus knew
    the substance of his testimony. Second, Pirelli put Titan on
    notice of its intent to rely on Ochs’s opinion when it re-
    sponded to Titan’s interrogatories in this case.
    Ultimately, the jury returned a verdict in favor of Pirelli
    and awarded $223,625.00 in damages. This amount repre-
    sents the attorneys’ fees and costs incurred by Pirelli as the
    result of Titan’s breach of its contractual obligation to indem-
    Nos. 03-3223, 03-3224 & 03-3225                                 7
    nify Pirelli for matters related to the underlying accident.
    The district court also awarded $36,150.98 in prejudgment
    interest for a total judgment amount of $259,775.98. Titan
    appeals.
    II.
    Titan seeks to overturn that judgment by challenging four
    key district court decisions: (a) the interpretation of the ad-
    dendum, (b) the rejection of the proposed jury instruction
    on the elements of Pirelli’s counterclaim, (c) the decision to
    not judicially estop Pirelli on the defectiveness issue, and (d)
    the determination that Pirelli’s discovery violation was
    harmless. We will address each in turn.
    A. Interpretation of the Addendum
    Titan first maintains that the district court incorrectly ruled
    that the addendum was unambiguous and limited Pirelli’s
    liability to tires made before December 14, 1994. Under
    Illinois contract law, whether a contract is ambiguous is a
    question of law subject to de novo review. See WH Smith
    Hotel Servs., Inc. v. Wendy’s Int’l, Inc., 
    25 F.3d 422
    , 427 (7th
    Cir. 1994); Berryman Transfer & Storage Co. v. New Prime, Inc.,
    
    802 N.E.2d 1285
    , 1287 (Ill. App. Ct. 2004).
    8                             Nos. 03-3223, 03-3224 & 03-3225
    2
    The addendum entered into on December 14, 1994, states:
    “It is further agreed that [with respect to] all tires . . . that
    have been produced since Sept[ember] 1, 1994, provided they
    were produced to [Pirelli] specification[s], and [past Pirelli]
    practices[,] . . . Titan Tire is held harmless and indemnified
    by [Pirelli] as [stated] above [in the letter agreement].”
    Titan argues that the absence of an explicit end date in the
    addendum renders the addendum ambiguous and that, as
    a result, the case should be remanded to permit a jury to
    consider its meaning. Titan hopes that a jury would find that
    the addendum indemnified Titan beyond December 14,
    1994, the date of the addendum. However, Titan ignores the
    plain meaning of the terms: “all tires . . . that have been
    produced” and “were produced.” Under Illinois law, “a court
    must give meaning and effect to every part of the contract.”
    Cress v. Recreation Servs., Inc., 
    795 N.E.2d 817
    , 852 (Ill. App.
    Ct. 2003). Here, there is no reason to treat the terms “have
    been produced” and “were produced” as meaningless sur-
    plusage. See 
    id. These terms
    clearly indicate that the addendum
    addressed tires made in the past; in other words, tires
    2
    The addendum in question was handwritten on the bottom of
    the one-paragraph letter agreement, dated November 22, 1994,
    from Sherwood Willard, vice president and general counsel for
    Pirelli, to Russell Ash, advisor to the chairman of Titan. The ad-
    dendum was written and signed on December 14, 1994, by
    Maurice Taylor, the president of Titan, who was not an attorney.
    The actual text of the addendum, which was agreed to by
    Willard, is as follows:
    It is further agreed that all tires (LT235/85/R16) that have
    been produced since Sept. 1, 1994, provided they were pro-
    duced to P.A.T.C. [Pirelli Armstrong Tire Corporation] spe-
    cifications, and pass [sic] P.A.T.C. Des Moines practices that
    Titan Tire is held harmless and indemnified by P.A.T.C., as
    above.
    Nos. 03-3223, 03-3224 & 03-3225                                    9
    manufactured before December 14, 1994, when the adden-
    dum was signed. Thus, the addendum’s use of the past tense
    literally confines Pirelli’s responsibilities to a finite period,
    the time from September 1, 1994 to December 14, 1994.
    Titan’s contention that the relevant period was completely
    open-ended is an unreasonable expansion of the adden-
    dum’s plain text. See Forest Glen Cmty. Homeowners Ass’n v.
    Bishof, 
    746 N.E.2d 1285
    , 1289 (Ill. App. Ct. 2001). Therefore,
    as the language employed in the addendum is susceptible
    to only one reasonable interpretation, the addendum is not
    ambiguous: Pirelli’s obligations under the letter agreement
    are limited to tires produced before December 14, 1994. See
    3
    
    id. Titan further
    complains that the district court ignored Titan’s
    evidence of extrinsic ambiguity and, thereby, erroneously
    precluded the jury from considering the addendum’s mean-
    ing. Under the doctrine of extrinsic ambiguity, a party may
    present evidence to show the existence of an ambiguity even
    though the contract appears clear on its face because, in
    certain situations, the real-world context shows that the
    contract does not actually mean what it appears to mean.
    3
    We note that, contrary to Titan’s additional assertion, the dis-
    trict court’s mention of the addendum’s “purpose” in its ruling
    was not some tacit acknowledgment that the addendum was
    ambiguous. (The district court observed that “Titan wanted cov-
    erage for [the three-month] period during which it had followed
    Pirelli’s defective procedures.” See Order, July 15, 2003, at 24.)
    Rather, it was a simple explanation of the plain meaning of the
    addendum as well as the context in which the addendum was
    created—a context reasonably drawn from the contractual pro-
    visions of the initial manufacturing agreement as modified by the
    letter agreement and as further modified by the addendum. See
    Unelko Corp. v. Prestone Prods. Corp., 
    116 F.3d 237
    , 239-40 (7th Cir.
    1997). The district court did not err in this regard.
    10                             Nos. 03-3223, 03-3224 & 03-3225
    See AM Int’l, Inc. v. Graphic Mgmt. Assocs., 
    44 F.3d 572
    , 574
    (7th Cir. 1995). However, “the general rule in Illinois is that
    only objective evidence supplied by disinterested third
    parties may establish an extrinsic ambiguity in a contract.”
    Ocean Atl. Dev. Corp. v. Aurora Christian Schs., Inc., 
    322 F.3d 983
    , 1003-04 (7th Cir. 2003); see also Home Ins. Co. v. Chicago
    & N.W. Transp. Co., 
    56 F.3d 763
    , 768-69 (7th Cir. 1995); AM
    
    Int’l, 44 F.3d at 574-75
    ; but cf. Air Safety, Inc. v. Teachers Realty
    4
    Corp., 
    706 N.E.2d 882
    , 885 & n.1 (Ill. 1999). Subjective evi-
    dence, on the other hand, is generally inadmissible. See AM
    
    Int’l, 44 F.3d at 575-76
    . Subjective evidence is “the testimony
    of the parties themselves as to what they believe the contract
    means.”Id. at 575. In this case, Titan did not present evidence
    from disinterested third parties. Rather, it only offered
    subjective evidence: the deposition of its president, Maurice
    Taylor—the very person who drafted the addendum. Accord-
    ing to Taylor, the addendum was meant to provide Titan
    with unlimited indemnity both retroactively and prospec-
    tively. Such evidence from a party’s agent/employee/
    executive is frequently self-serving and inherently difficult
    to verify, which is exactly why such subjective evidence of
    ambiguity is inadmissible and should be disregarded, as it
    was in this case. See Mathews v. Sears Pension Plan, 
    144 F.3d 461
    , 467 (7th Cir. 1998); AM 
    Int’l, 44 F.3d at 575
    .
    4
    In Air Safety, the Supreme Court of Illinois noted that, although
    several appellate courts in Illinois have applied the doctrine of
    extrinsic ambiguity, it has not had an opportunity to formally
    adopt the doctrine. 
    See 706 N.E.2d at 885
    & n.1. We need not
    predict whether the Supreme Court of Illinois will adopt this
    principle, however, because we conclude that it is inapplicable in
    this case. See generally Allstate Ins. Co. v. Menards, Inc., 
    285 F.3d 630
    , 635-37 (7th Cir. 2002).
    Nos. 03-3223, 03-3224 & 03-3225                               11
    B. Jury Instruction/Elements of Pirelli’s Counterclaim
    Titan next contends that the district court erred in refusing
    to instruct the jury on an essential element of Pirelli’s
    counterclaim against Titan, specifically, Pirelli’s burden of
    proving that the tire at issue was produced after December
    14, 1994. “We review jury instructions with deference,
    analyzing them as a whole to determine if they accurately
    state the law and do not confuse the jury.” Aliotta v. Nat’l
    R.R. Passenger Corp., 
    315 F.3d 756
    , 759 (7th Cir. 2003); see also
    Pearson v. DaimlerChrysler Corp., 
    813 N.E.2d 230
    , 237 (Ill.
    App. Ct. 2004). Reversal is warranted when an instruction
    misstates the law and this misstatement misled the jury
    causing prejudice to one party. See 
    Aliotta, 315 F.3d at 759
    ;
    
    Pearson, 813 N.E.2d at 237
    .
    Under the district court’s interpretation of the addendum,
    Pirelli had to prove three elements in order to prevail on its
    counterclaim: first, the tire involved in the underlying acci-
    dent was produced after December 14, 1994; second, the tire
    was defective due to actions or inactions taken by Titan;
    and, third, the defect was the proximate cause of the un-
    derlying accident. The district court twice ruled that all
    three, including the date issue, were issues for trial, and, on
    the second occasion, the district court expressly held that
    Pirelli’s evidence regarding the date issue failed to show
    when the tire was made for summary judgment purposes
    and that the date of production remained a question of fact
    for trial.
    At trial, Titan submitted a proposal to instruct the jury
    that, in order for Pirelli to prevail, the jury had to find that
    the tire at issue was produced after December 14, 1994. The
    district court, however, rejected the proposed instruction
    and refused to put the date issue to the jury. This on-the-
    record refusal contradicted the district court’s prior summary
    judgment rulings, and instead endorsed Pirelli’s contention
    12                          Nos. 03-3223, 03-3224 & 03-3225
    that Pirelli did not have the burden of proving when the tire
    was made. The district court’s refusal was not justified by
    Titan’s concession in its own case that it was unable to meet
    its burden of proving that the tire at issue was made before
    December 14, 1994. Although Titan threw in the towel on its
    own claim, it did not admit that the tire was made after
    December 14, 1994. Titan only conceded that it could not
    prove the tire was produced before December 14, 1994.
    Pirelli’s counterclaim against Titan was a separate, inde-
    pendent cause of action in which Pirelli had its own burdens
    of proof to bear, including the burden to prove that the tire
    in question was produced after December 14, 1994.
    By rejecting Titan’s proposed instruction, the actual in-
    struction given required Pirelli to prove only the second and
    third elements discussed above. Nowhere in the instructions
    did the district court reference the question of when the tire
    was produced. Furthermore, because the district court’s jury
    instruction ruling came in the middle of the trial, the date
    issue was dropped from the case, and the jury did not have
    an opportunity to consider evidence about when the tire
    was made. By not having to prove that the tire was pro-
    duced after December 14, 1994, Pirelli was relieved from
    proving an essential element of its counterclaim. Thus, the
    instruction given misstated the elements of Pirelli’s claim,
    and this misstatement misled the jury into believing that the
    date of production did not matter, thereby prejudicing
    Titan; therefore, it was an abuse of discretion not to give
    Titan’s proposed instruction to the jury. See 
    Aliotta, 315 F.3d at 759
    , 770; 
    Pearson, 813 N.E.2d at 237
    . Consequently, this
    case must be remanded for a new trial. On remand, Pirelli
    will have the burden of proving that the tire in question was
    produced after December 14, 1994, and the jury must be
    instructed accordingly.
    Nos. 03-3223, 03-3224 & 03-3225                                   13
    C. Judicial Estoppel
    Titan further argues that the district court committed an
    error of law in its refusal to judicially estop Pirelli from
    asserting that the tire at issue was defective when Pirelli had
    taken the exact opposite position in the underlying litiga-
    tion. “Judicial estoppel prevents a party that has taken one
    position in litigating a particular set of facts” and prevailed
    under that position “from later reversing its position when
    it is to its advantage to do so.” Levinson v. United States, 
    969 F.2d 260
    , 264 (7th Cir. 1992). Although judicial estoppel is a
    matter of discretion, see In re Cassidy, 
    892 F.2d 637
    , 642 (7th
    Cir. 1990), errors of law require plenary review, see Maynard
    v. Nygren, 
    332 F.3d 462
    , 467 (7th Cir. 2003); Chapman v. Maytag
    Corp., 
    297 F.3d 682
    , 689 (7th Cir. 2002).
    Titan twice requested that the district court judially estop
    Pirelli from employing a reverse position on the defective-
    ness issue. On both occasions, the district court denied
    Titan’s request on the sole ground that, due to the settle-
    ment of the underlying case, Pirelli never won a favorable
    judicial ruling with its prior non-defect position. However,
    as Pirelli concedes, the district court’s reasoning has been
    rejected by this court. See Kale v. Obuchowski, 
    985 F.2d 360
    ,
    361-62 (7th Cir. 1993). In Kale, this court held that a favor-
    able settlement, such as the one in this case which benefitted
    5
    Pirelli, may be sufficient to show that the party to be
    estopped prevailed in the prior case regardless of whether
    5
    The settlement was a benefit to Pirelli in three important re-
    spects. First, through the settlement, Pirelli was released from
    all liability by the underlying plaintiffs. Second, the settlement
    award was paid by Titan’s insurer; thus, the lawsuit was settled
    through insurance coverage for which Pirelli did not pay premi-
    ums. Finally, the settlement enabled Pirelli to avoid the possibility
    that the underlying matter would be appealed.
    14                            Nos. 03-3223, 03-3224 & 03-3225
    a judicial decision was obtained. See 
    id. Thus, the
    district
    6
    court’s ruling was contrary to established case law.
    Despite its erroneous rationale, however, the district court
    reached the correct result, and we affirm that result. See
    Payne v. Churchich, 
    161 F.3d 1030
    , 1038 (7th Cir. 1998) (“The
    rule is settled that, if the decision below is correct, it must be
    affirmed, although the lower court relied upon a wrong
    ground or gave a wrong reason.” (internal quotation omit-
    7
    ted)). As judicial estoppel is an equitable concept, our law
    in this area is flexible. While there are boundaries, there is
    not a rigid set of rules to be enforced. See Ogden Martin Sys.
    of Indianapolis, Inc. v. Whiting Corp., 
    179 F.3d 523
    , 526-27 (7th
    Cir. 1999); 
    Levinson, 969 F.2d at 264
    ; 
    Cassidy, 892 F.2d at 641
    -
    42. One aspect of the inquiry is whether the party to be
    estopped has taken clearly inconsistent positions. See 
    Cassidy, 892 F.2d at 641
    . Obviously, it is inconsistent to first say that
    a tire was not defective and later say that the same tire was
    indeed defective. However, what is not clear in this case is
    the extent to which Pirelli had actually taken (i.e., adopted
    or endorsed) the non-defect position during the underlying
    action. In support of its estoppel argument, Titan points to
    only two ways in which Pirelli asserted that the tire was not
    defective. One, after the plaintiffs had already dismissed
    6
    Additionally, although Titan did not explicitly raise this issue,
    we note that the district court erroneously looked to Illinois law
    to adjudicate the judicial estoppel question. Even though this is
    a diversity action, federal judicial estoppel law controls. See
    Ogden Martin Sys. of Indianapolis, Inc. v. Whiting Corp., 
    179 F.3d 523
    , 527 n.1 (7th Cir. 1999).
    7
    The judicial estoppel matter need not be remanded to the
    district court for further consideration because this court has the
    authority to render judicial estoppel determinations in the first
    instance. See 
    Cassidy, 892 F.2d at 641
    .
    Nos. 03-3223, 03-3224 & 03-3225                                15
    Pirelli from the underlying action but while Titan’s cross-
    claim was still pending, Pirelli obtained two expert reports
    concluding that the tire was not defective. Two, in response
    to Titan’s request for admissions, Pirelli stated that it had no
    direct evidence that the tire was defective. This is not
    enough to trigger the harsh consequences of judicial estoppel.
    Having been dismissed from the original complaint, the
    minimal degree to which Pirelli advanced the non-defect
    position as a defendant in a cross-claim is insufficient to
    establish that Pirelli firmly attached itself to that position for
    judicial estoppel purposes. Moreover, Pirelli’s overriding
    position has always been that, to the extent the tire was
    defective, Titan was responsible for the defect. Therefore,
    under the unique circumstances of this case, we cannot con-
    clude that Pirelli should be judicially estopped from asserting
    that the tire was defective. Pirelli’s reflexive responses do
    not reach a level requiring drastic action. Consequently, on
    remand, Pirelli may again argue that the tire was defective.
    D. Discovery Violation
    Lastly, Titan faults the district court for not sanctioning
    Pirelli under Rule 37(c)(1) for Pirelli’s violation of Rule
    26(a)(2)(A): failing to properly disclose the expert opinion of
    Robert Ochs. Again, Ochs was the plaintiffs’ expert in the
    underlying action in which Pirelli was a defendant. Yet, in
    this case, Pirelli used his deposition to support its argu-
    ments that the tire was defective and the defect caused the
    accident. The district court excused Pirelli’s discovery vio-
    lation because it determined that it was harmless. See Fed.
    R. Civ. P 37(c)(1).
    A district court enjoys broad discretion in declining to
    impose discovery sanctions and exclude evidence, and its
    “exercise of discretion on discovery matters will only be
    16                           Nos. 03-3223, 03-3224 & 03-3225
    reversed upon a showing of a clear abuse of discretion.”
    McCarthy v. Option One Mortgage Corp., 
    362 F.3d 1008
    , 1012
    (7th Cir. 2004). The district court found that Pirelli’s viola-
    tion was harmless for two reasons. First, Titan participated
    in Ochs’s deposition during the underlying litigation and
    thus knew the substance of his testimony. Second, Titan had
    adequate notice of Pirelli’s intent to rely on Ochs’s opinion as
    the result of Pirelli’s responses to Titan’s interrogatories in
    this case. As these two reasons are entirely sound, we
    conclude that the district court’s ruling was not an abuse of
    discretion.
    III.
    Accordingly, we AFFIRM IN PART, REVERSE IN PART,
    VACATE the district court’s judgment, and REMAND to the
    district court for further proceedings consistent with this
    opinion. The district court’s one error on the elements of
    Pirelli’s indemnity counterclaim invalidates the results of the
    trial in this case. On remand, given the unambiguous text of
    the parties’ addendum, Pirelli will have the burden of
    proving that the tire at issue was produced after December
    14, 1994, and the jury must be so instructed. Further, on
    remand, Pirelli may again argue that the tire was defective
    and may use the Ochs opinion to support that argument.
    Nos. 03-3223, 03-3224 & 03-3225                           17
    A true Copy:
    Teste:
    _____________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—11-2-04
    

Document Info

Docket Number: 03-3223, 03-3224, 03-3225

Citation Numbers: 398 F.3d 879

Judges: Manion, Rovner, Wood

Filed Date: 11/2/2004

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (20)

Pearson v. DaimlerChrysler Corp. , 349 Ill. App. 3d 688 ( 2004 )

Forest Glen Community Homeowners Ass'n v. Bishof , 321 Ill. App. 3d 298 ( 2001 )

John Kale v. Stanley Obuchowski, Trustee in Bankruptcy for ... , 985 F.2d 360 ( 1993 )

Allstate Insurance Company, as Subrogee of Sam Lakhia v. ... , 285 F.3d 630 ( 2002 )

Am International, Incorporated v. Graphic Management ... , 44 F.3d 572 ( 1995 )

Edward H. Mathews, Individually and on Behalf of All Others ... , 144 F.3d 461 ( 1998 )

harry-l-maynard-dennis-r-favaro-patricia-l-jochum-and-favaro-buzek , 332 F.3d 462 ( 2003 )

Vanessa G. Chapman, as Special Personal Representative of ... , 297 F.3d 682 ( 2002 )

Unelko Corp. v. Prestone Products Corp. , 116 F.3d 237 ( 1997 )

Melvin E. Levinson v. United States , 969 F.2d 260 ( 1992 )

Ogden Martin Systems of Indianapolis, Inc. v. Whiting Corp. , 179 F.3d 523 ( 1999 )

Loretta M. Aliotta v. National Railroad Passenger Corp. , 315 F.3d 756 ( 2003 )

Air Safety, Inc. v. Teachers Realty Corp. , 185 Ill. 2d 457 ( 1999 )

In the Matter of Thomas v. Cassidy, Debtor-Appellant , 892 F.2d 637 ( 1990 )

Belleville Catering Co. v. Champaign Market Place, L.L.C. , 350 F.3d 691 ( 2003 )

Thomas W. McCarthy v. Option One Mortgage Corporation and ... , 362 F.3d 1008 ( 2004 )

Wh Smith Hotel Services, Inc. v. Wendy's International, Inc. , 25 F.3d 422 ( 1994 )

ocean-atlantic-development-corporation-v-aurora-christian-schools-inc , 322 F.3d 983 ( 2003 )

Cress v. Recreation Services, Inc. , 341 Ill. App. 3d 149 ( 2003 )

the-home-insurance-company-as-subrogee-of-the-northeast-illinois-regional , 56 F.3d 763 ( 1995 )

View All Authorities »