Hammering home the potentially severe consequences of failing to disclose consequential information requested in discovery, the First Circuit has vacated a district court’s denial of a motion for a new trial made by an injured helicopter pilot who claimed his trial was prejudiced by the discovery misconduct of defendants. West v. Bell Helicopter Textron, Inc., No. 14-2168, 2015 WL 4979575 (1st Cir. Aug. 21, 2015).
The relevant facts can be condensed to the following. On December 22, 2008, plaintiff, Kurt West, a helicopter pilot employed by JBI Helicopter Services, experienced a sudden engine shutdown while flying a Bell 407 helicopter from a small airport in Connecticut back to JBI’s facilities in New Hampshire. West managed to negotiate a “hard” landing, and, as a result of the accident, allegedly suffered gastrointestinal problems and post-traumatic stress disorder interfering with his ability to fly. He commenced an action against the manufacturer of the helicopter, Bell Helicopter Textron, Inc. (“Bell”), the manufacturer of the engine, Rolls-Royce Corporation (“Rolls-Royce”), and the manufacturer of the electronic control unit, defendant Goodrich Pump & Engine Control Systems, Inc.
At trial, the parties advanced very different theories to explain the engine’s sudden shutdown. West argued the shutdown was caused by a phenomenon referred to as false overspeed solenoid activation, or “FOSSA.” The solenoid is an electrical switch coupled with a valve through which fuel must flow before reaching the engine. The Bell 407 helicopter was equipped with a mechanism intended to prevent the engine from rotating too quickly, or going into “overspeed.” When an electrical current reaches the solenoid, the switch activates and shuts the valve, causing less fuel to get into the combustion chamber, thereby slowing the engine speed until it returns to normal. The defense disagreed that West’s accident had anything to do with FOSSA and told the jury that the engine could not have shut down for the reasons West alleged.
The jury returned a defense verdict on September 30, 2013, after which West moved for a new trial asserting that he had been prejudiced by a variety of errors. On January 23, 2014, while West’s motion was pending, Rolls-Royce issued a “Commercial Engine Bulletin” applicable to the type of engine and electronic control system in West’s helicopter. The bulletin described an “adapter” the defendants had developed to be installed on Bell 407s, which “modifies the overspeed protection system to reduce the likelihood of a false overspeed activation,” or FOSSA. The same day, Bell issued its own “Allert Service Bulletin” for its 407 helicopters, which also addressed FOSSA and advised that “Bell Helicopter has been made aware of a potential condition where a false engine overspeed protection system could occur.” Bell’s bulletin also directed the installation of an overspeed adapter and provided instructions for installation.
Two weeks after these bulletins were released, West filed a second post-trial motion, this time seeking a new trial based upon Federal Rule of Civil Procedure 60(b)(2) and 60(b)(3). The district court denied all of West’s motions.
On appeal, the First Circuit addressed only the resolution of the Rule 60(b)(3) new trial motion. Rule 60(b)(3) provides that the court may relieve a party from a final judgment, order or proceeding for “fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party.” West argued that following issuance of the bulletins, it was clear the helicopter’s circuit design was defective. Moreover, he argued, the technical nature of the information in the bulletins, detailed fixes, and government approval of them, coupled with the short passage of time between the conclusion of trial and their issuance, compelled the inference that the defendants knew about and failed to disclose information regarding the defect during discovery or at trial: “In West’s view, at least some of the defendants had to have been engaged in efforts to identify the defect, design and test a solution, and prepare documentation long before trial began.” Id. at *7. West claimed this failure to disclose constituted misconduct during the course of discovery which substantially interfered with the preparation and presentation of his case, thus entitling him to a new trial.
In deciding the appeal, the court relied upon precedent from the case Anderson v. Cryovac, Inc., 862 F.2d 910 (1st Cir.1988), where it was recognized that a party’s failure to disclose materials requested in discovery can constitute “misconduct” for purposes of Rule 60(b)(3). The court elaborated that misconduct in this context can cover even accidental omissions and need not be predicated on “evil” purpose. Id. at *9. However, discovery misconduct alone does not warrant a new trial. Rather, a complaining party must demonstrate that the alleged discovery misconduct “substantially…interfered with [his] ability fully and fairly to prepare for and proceed at trial. Id. at *10 (quoting Anderson, 862 F.2d at 924). Anderson also set forth a burden-shifting framework according to which a moving party who makes a showing that his opponent intentionally suppressed evidence is entitled to a presumption that such evidence would have damaged the moving party. The burden then shifts to the non-moving party to prove its misconduct did not result in any substantial interference. West argued, and the court agreed, that the trial court erred in failing to shift the burden to show no substantial interference to defendants:
“But, after assuming West could fly through the turbulence of the first hurdle and show culpable misconduct, the district judge misconstrued and misapplied the next stage of the Anderson test. Having assumed the defendants culpably withheld their knowledge of the defect addressed by the Bulletins, the district judge should have gone on to presume the defendants’ misconduct substantially interfered with West’s trial preparation. He did not do this, though. Rather than shift the burden to the defendants to prove by clear and convincing evidence that the withheld material was inconsequential like Anderson requires, the judge erroneously placed the burden on West to show that disclosure of the information would likely have made a difference in the trial’s outcome.”
Id. at *11.
In so holding, the court rejected defendants’ argument that the trial court did not abuse its discretion in finding that the nondisclosure, even if it constituted purposeful misconduct, did not substantially interfere with West’s case because the bulletins did not reveal any information about Bell 407 helicopters or about FOSSA that West did not already have before trial, and because West conceded that the modifications described in the bulletins would not have prevented his accident. For the benefit of the district court to which the case was remanded, the court also “observed” that, “thanks to counsel’s own admissions, there can be no doubt that the defendants failed to produce information not due to oversight, inadvertence, or counsel’s own ignorance of its existence. Rather, the decision not to produce the information was a conscious, deliberate choice.” Id. at *13.
As to defendants’ two arguments that no discovery misconduct was committed because they were not required to disclose the information in the first place, the court also found these to be without merit. Specifically, defendants argued that they did not have an obligation to disclose because before and at the time of trial, the development of the modifications set forth in the bulletins was in a very preliminary stage. However, the court reasoned that the “‘preliminary’ nature of the investigation did not relieve the defendants of their obligation to disclose information about it in response to proper discovery requests.” Id. at *14. Likewise, the court found that defendants’ argument that West waived supplementation of his first set of Requests for Production was simply not supported by the record.
The cautionary tale of this case feels all the more pronounced by the likelihood that in deciding not to disclose information related to the bulletins prior to or during trial, the defendants collaborated and took a gamble. Because defendants could not dispute that the information was deliberately withheld, they had to rely on the strength of their arguments that they had no obligation to disclose this information in the first place. Unfortunately, where, as here, such arguments fail, the resulting finding of discovery misconduct can be difficult to overcome in light of the Anderson burden-shifting framework articulated by the court. This case is perhaps a dramatic example of information coming to light post-trial that is almost certain to trigger a FRCP 60(b)(3) motion. Nonetheless, an obvious but important takeaway is that litigants should carefully weigh and be prepared to support any decision to withhold information during discovery.