When a 380,000 lb. diesel-powered blasthole production drill used in mining operations tips over and kills the operator, civil litigation and strong regulatory responses are near certainties. This is the factual background of Driscoll v. Standard Hardware and Atlas Copco Drilling Solutions v. United Taconite, decided this week by Judges Toussaint, Hudson, and Willis (retired appellate judge serving by appointment pursuant to Minn. Const. Art. VI, § 10) in an opinion by Judge Hudson.
The 24-page appellate decision covers a lot of ground of importance to products liability lawyers, only flagged here: the economic loss doctrine, the viability of implied warranty claims for property damages in light of the economic loss doctrine, sufficiency of evidence for fraud and misrepresentation, and the sufficiency of evidence for a claim for punitive damages.
(The evidence, tragically, suggests that the drill manufacturer had increasing knowledge of problems with the drill’s stabilizing jacks literally the day before and the very day of the fatal accident — the day before the accident an internal communication states, “[i]t appears the subject issue may be bigger than we anticipated.” This growing awareness of a substantial risk, the district court found and the court of appeals affirmed, was insufficient to permit a claim for punitive damages.)
Of more broad interest, the opinion, at the conclusion, addresses an appeal of a decision that a litigant waived privilege on a document which was inadvertently produced in discovery — a draft of responses to regulators’ investigation after the accident prepared at the request of in-house counsel for in-house counsel. From the appellate opinion, it appears that the party claiming the privilege sat on its hands far too long after the fact of production came to light. Apparently, no objection was made until the document appeared on an opposing party’s trial exhibit list, though the document had been used repeatedly during discovery.
The district court found that, although privilege had initially attached to the document, during the period before it was identified as privileged, it had been used several times inmotion practice and deposing key witnesses, and the information it contained was well known to both parties, so that ―’it would be unfair and futile . . . to attempt to erase [the]imprint that the document has made,’ [and the Minnesota Court of Appeals agreed.]