Appeal from the United States District Court for the Southern District of Illinois.
No. 93-57-WDS William D. Stiehl, Judge.
Before Flaum, Easterbrook, and Rovner, Circuit Judges.
Decided February 20, 1997
Plaintiff Ronald G. Langley, as the personal representative of three decedents, sued the Union Electric Company on the theory that an unventilated furnace, negligently provided with gas by Union Electric, killed the Langley-Patterson family. Langley never produced the furnace. As a sanction for this failure of production, the district court disallowed all evidence pertaining to the existence or use of the furnace. With no evidence before it to show negligence, the district court granted summary judgment for Union Electric. Langley now appeals the imposition of the sanction, and implicitly, the grant of summary judgment. We affirm.
In January 1991, Melissa Langley, her two children, Nathan R. Patterson and Lisa L. Bergman, and Nathan L. Patterson, father of Nathan R., were poisoned to death by lethal carbon monoxide fumes presumably caused by an unventilated furnace. Police, soon thereafter, took pictures of the furnace. In December 1992, Ronald Langley, as representative of the mother and two children, filed a wrongful death suit in state court against the Union Electric Company, the supplier of the gas. Imogene Patterson, representative of Nathan L., filed a similar suit. The theory of their cases was that Union Electric acted negligently by providing gas service to the victims' home when the company had reason to know that the home contained improper or nonexistent gas fixtures. *fn1 Union Electric removed the cases to federal court, where jurisdiction was premised upon diversity, and moved for the cases to be consolidated, to which there was no objection.
Shortly after the suits were filed, a representative of Union Electric visited the site of the home, which had been razed by the landlord; he assumed all evidence in the home had been destroyed. In May 1993, however, James Patterson testified that he had removed the furnace from the home two or three weeks after the accident and stored the furnace in the garage of a friend, Greg Becker. Defense counsel orally notified plaintiffs' counsel of his need to inspect the furnace, and confirmed this request in writing on June 14, 1993. After several more oral inquiries, November 24, 1993 was agreed upon as the date to inspect the furnace. On November 23, 1993, one of plaintiffs' attorneys informed defense counsel that unspecified problems had arisen and the inspection would be impossible. On December 6, defense counsel sent another letter requesting an inspection. At this time, plaintiffs did not explain the unavailability of the furnace. On January 11, 1994, Union Electric moved for Rule 37 sanctions and requested that the court compel the production of the furnace. Plaintiffs responded that they were incapable of producing the furnace. They later filed an affidavit of James Patterson, which explained that the furnace had been lost in the flood of 1993, some seven months earlier, as Greg Becker's house was on a flood plain. In response, raising more questions about the furnace (or furnaces), defense counsel filed an affidavit of Kenny Harrison, stating that the furnace purportedly moved into the Langley-Patterson home in November 1990, pre-inspection, was not the one in the police photographs, and an affidavit of Brenda Patterson, wife of James, stating that she had seen the furnace after the flood. *fn2
On August 22, 1994, Judge Stiehl entered an order requiring the plaintiffs to produce the furnace in 21 days or, in the alternative, barring the introduction of any evidence regarding the furnace. Plaintiffs filed a motion to reconsider. Another round of affidavits ensued: Greg Becker claimed that FEMA removed the furnace; a representative of FEMA stated that the agency participated in no debris removal. In March 1995, the court denied the motion to reconsider. Plaintiffs responded that they were unable to produce the furnace. Accordingly, the court barred all evidence concerning the furnace. In July 1995, defendants sought summary judgment. In March 1996, with no evidence to show negligence, the court granted summary judgment.
Our case law is adamant that an appellant faces an uphill battle in seeking to reverse an award of sanctions by the district court. See Marrocco v. General Motors Corp., 966 F.2d 220, 223 (7th Cir. 1992) ("We cannot understate the difficulty of the task litigants face when challenging a district court's choice of sanctions."). Discovery sanctions under Rule 37 will be affirmed unless the district court has abused its discretion. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642 (1976); Patterson v. Coca-Cola Bottling Co. Cairosikeston, Inc., 852 F.2d 280, 283 (7th Cir. 1988). In order for us to reverse, it must be clear that "no reasonable person could concur in the trial court's assessment of the issue under consideration." Id. (internal citation omitted).
Appellant complains that there was neither a court order to compel production pursuant to Rule 37(a) nor a Rule 34 request prior to the imposition of sanctions. Appellant fails either to grasp the plain meaning of Rule 37 or to appreciate what transpired in this litigation. A Rule 34 request consists of a party serving notice that it wishes to inspect an item. Fed. R. Civ. P. 34 (b). *fn3 This request should be accompanied by a suggestion of a time and place for inspection. Counsel for Union Electric requested in writing that he be able to view the furnace, and, in deference to appellant's counsel, inquired when would be a convenient place and time for the inspection. Langley's counsel replied orally that the furnace could be viewed November 24, 1993. When Langley's counsel did not produce the furnace, he failed to honor this commitment. Such a lapse can trigger a request for sanctions under Rule 37(a). Defense counsel moved for such sanctions January 11, 1994. At this point, the judge allowed for copious filings. On August 22, 1994, the judge ordered the furnace to be produced within 21 days, under threat of sanctions. Pursuant to a motion to reconsider, more affidavits and arguments accumulated. Having reentered his order and waited in vain for the furnace, the judge imposed sanctions in March 1995. Because appellant was in violation of the order to produce the furnace, the sanctioning was a perfectly legitimate exercise of power under Rule 37(b). *fn4
Appellant next argues that he is not at fault for the loss of the furnace, and thus should not be sanctioned. Rule 37 sanctions may only be imposed where a party displays "wilfulness, bad faith, or fault." Phillips Medical Systems Int'l, B.V. v. Bruetman, 982 F.2d 211, 214 (7th Cir. 1992). In Marrocco, we explained that the term "fault," as we employed it, was unconcerned with the non-complying party's subjective motivation, but rather "only describe[d] the reasonableness of the conduct--or lack thereof--which eventually culminated in the violation." Marrocco, 966 F.2d at 224. We construed the sanctioned party's poor judgment in the way it packaged and handled evidence and its inexcusable delay in not investigating the loss of evidence as "fault." Id. We are presented with an analogous situation here: appellant demonstrated ...