International Harvester Co. v. Cunningham , 245 Ga. App. 736 ( 2000 )

Barnes, Judge,

dissenting.

I respectfully dissent because the trial court did not abuse its discretion when it refused to compel the plaintiff to produce the crank handle. “The trial court’s discretion in deáling with discovery matters is very broad, and this court has stated on numerous occapinna that it will not interfere with the exercise of that discretion absent a clear abuse.” (Punctuation omitted.) Ostroff v. Coyner, 187 Ga. App. 109, 117 (6) (369 SE2d 298) (1988). An appellate court, “which is far removed from the unfolding development in the life of a case in court and does not participate in its ongoing journey,” must respect a trial court’s discretion and reverse only when it is “manifestly abused.” Gen. Motors Corp. v. Blake, 237 Ga. App. 426, 427 (1) (515 SE2d 166) (1999). “To say that as a matter of law that discretion was abused is a matter of no small moment,” Id.

In this case, the record shows that the nature of Cunningham’s product defect claims were made known to International from the moment suit was filed. In his complaint, Cunningham alleged that “the crank handle of the disc broke in two, flew off the disc harrow and struck the Plaintiff in his face.” He further alleged that the crank handle was defective because it “was not properly or adequately welded and the material which was used for the rod handle was not suitable for the purpose for which it was intended.” Over one year after Cunningham’s complaint was filed, the parties arranged for an unidentified expert of International to independently examine the crank handle and conduct nondestructive testing. International received custody of the crank handle from Cunningham’s counsel and retained it for over 30 days before notifying Cunningham’s counsel that “[o]ur expert has concluded his inspection of the crank handle. . . .”

Approximately two years later, International requested that Cunningham produce the crank handle again for inspection by an expert metallurgist not employed by either defendant. The expert who previously examined the crank handle was an in-house engineer employed by International’s co-defendant, Case Corporation.¹³ Cunningham objected to the request, and International filed a motion to compel. The trial court denied the motion to compel and two subsequent motions for reconsideration filed by International.

After carefully reviewing the discovery history of this case, we cannot say that the trial court abused its discretion by denying International’s motion to compel. Contrary to International’s assertion, it had more than one opportunity to examine the crank handle. As the trial court recognized, the issue in this case was simple and known by International from the lawsuit’s inception — did improper welding or materials cause the crank handle to fracture into two pieces? International made a tactical decision not to retain an outside metallurgist to answer this question at the time of its independent inspection. Cunningham should not be held responsible if International failed to use its opportunities to examine the crank handle effectively, and International cannot now convert its own conduct into an abuse of discretion by the trial court. See Gen. Motors, supra, 237 Ga. App. at 430 (trial court did not abuse discretion in denying continuance in product liability case where defendant avoided “learning the facts by lack of thoroughness and then claimfed] surprise”). Moreover, “[t]he trial court’s discretion in dealing with discovery matters is very broad, and this court has stated on numerous occasions that it will not interfere with the exercise of that discretion absent a clear abuse.” (Citation and punctuation omitted.) Reeder v. Gen. Motors Acceptance Corp., 235 Ga. App. 617, 620 (3) (510 SE2d 337) (1998).

Decided July 31, 2000 Reconsideration denied August 31, 2000 Nelson, Mullins, Riley & Scarborough, Richard B. North, Jr., Donald L. Swift III, Hull, Towill, Norman, Barrett & Salley, Tara R. Simkins, for appellant. Capers, Dunbar, Sanders & Bruckner, Paul H. Dunbar III, Ziva P. Bruckner, for appellee.

I am authorized to state that Judge Eldridge and Judge Phipps join in this dissent.

13 The triad court directed a verdict in favor of Case Corporation, and it is not a party to this appeal.