FARMER, J.
Relevant evidence in civil cases — that is, the acceptable knowledge base of facts for the jury — is found in an aggregate of historical facts, data, information, objects and opinions that the law allows the parties to place before the finder-of-fact to decide the case. To assist the parties in assembling all the knowledge fairly needed to prove a cause of action or defense, the rules establish a pretrial process called discovery, which (as its name implies) is also meant to afford a means of apprehending that which they do not know. Hence, the process begins with a wide sweep, gathering many kinds of knowledge only possibly germane (if at all), yet capable of leading to admissible trial evidence. At discovery's end, the accumulated knowledge is distilled into the evidence the parties can lay before the jury.
When this discovery is not allowed to have its intended scope — for example, when one party is blocked from ascertaining and acquiring from the other party unprotected, relevant information and data that is admissible at trial — the sum of knowledge placed before the jury will be unfairly deficient, hence misleading. The whole structure of the trial will be faulty. The jury's basis for resolving the facts will be tilted against the party denied that access. Trial then will be an expedition on an errant course. Because the possible factual base for the jury has been unreasonably curtailed peremptorily, a jury's resolution of the facts will be unreliable, and its verdict untrustworthy.
It is said in this case that a trial judge unreasonably curtailed one party's pretrial discovery of directly relevant, valid and reliable information reasonably calculated to lead to admissible evidence. The argument is that the critical information about the subject matter was lodged solely with the adverse party, but the court's errant discovery restrictions resulted in one-sided evidence before the jury. Hence, there was a verdict based on faulty, defective information. It is contended that the resulting judgment must be reversed and the case returned to the trial court to allow the full measure of discovery in accord with the principles and purposes of the rules governing that process. When reasonable discovery has been completed, the party asserts, the case must then be retried with — as will then be determined by the trial court — all the relevant admissible evidence.
The subject of the action was a fatal accident in a light pick-up truck. The tire tread unexpectedly separated on a rear wheel while the vehicle was traveling within the speed limit near the Sawgrass Expressway's great curve. Three men occupied its front seat. None fastened a seatbelt. When the tread separated, the driver lost control. The vehicle lurched from the roadway into the median and rolled over. The passenger in the right window seat, whose estate brought this lawsuit, was crushed and killed, along with the man in the middle. Only the owner-driver survived.
The tires were standard passenger-light truck tires, but not original equipment. Although purchased as new, they were unmatched, aftermarket, replacement tires, each of a different make and in use just under three years.
The complaint alleged that the tread separation resulted from defects in the design or manufacture of the tire.
Cooper Tire manufactured the tire at a plant in Mississippi. It denied plaintiff's claims and alleged 12 affirmative defenses, including the failure to use seat belts, misuse and abuse of the tire, as well as failure to maintain the tire.
To gauge what permissible discovery might allow, we must necessarily assay the nature and elements of the claims and defenses alleged. Plaintiff's primary claim alleged strict liability. In West v. Caterpillar Tractor Company, 336 So.2d 80, 92 (Fla. 1976), the Florida Supreme Court adopted the Restatement (Second) of Torts, § 402A, holding:
336 So.2d at 92. West further held:
336 So.2d at 87.
Later, in Ford Motor Company v. Hill, 404 So.2d 1049, 1051-52 (Fla. improper adhesion between components." 1981), the supreme court considered a contention that Florida should apply negligence law for products liability design defects, thus confining strict liability claims to manufacturing defects only. Hill rejected that argument. It held that under § 402A the doctrine of strict liability expressly applies to design defect claims, quoting with obvious approval the following:
404 So.2d at 1052 (quoting Hancock v. Paccar, Inc., 283 N.W.2d 25, 33 (Neb. 1979)). The court also agreed that:
404 So.2d at 1052. Ultimately, the Hill court concluded:
404 So.2d at 1052. The explication of § 402A in West and Hill constitutes the prevailing law in this State on strict liability as settled by our supreme court.
Under West and Hill, the strict liability claim here required plaintiff to plead and prove only these elements:
West, 336 So.2d at 87; Hill, 404 So.2d at 1051. Here plaintiff pleaded that:
Obviously the principal issue for discovery centered on issue (2): whether the tire was defective and unreasonably dangerous in ordinary operation. Equally critical to discovery's scope is Cooper Tire's "state-of-the-art" affirmative defense.
It is evident that the parties occupied significantly different positions of access to relevant scientific-technical information and data as to issue (2) and Cooper Tire's "state-of-the-art" defense concerning design and production of the tire. Plaintiff was a consumer-user, probably having little (if any) knowledge of passenger car-light truck tire production. On the other hand, Cooper Tire is one of the leading manufacturers of such tires in the United States and should be presumed to be well-informed about all aspects of their design, production and use. Consequently, on the critical discovery issues, access to information was essentially a oneway street with most, if not all, information and data critical to plaintiff in the hands of defendant, Cooper Tire.
The discovery rule lays down this basic principle: the scope of discovery extends to anything not privileged, possibly relevant to the "subject matter" of the claim or defense as being reasonably calculated to lead to admissible evidence.
Within this scope, even trade secrets are discoverable.
Obviously the subject matter for discovery in this case was passengerlight truck tire production and tread separation. It is, therefore, relevant to know whether passenger-light truck tire design and production differs from model to model, or maker to maker. Does the incidence and cause of tread separation change with each model of such tires and diverse producer? Are there standardized factors and remedies running throughout the industry for such factors? In short, does the model alone determine the scope of discovery related to tread separation?
Plaintiff's expert witness testified that Federal Regulations specifically recognize that:
Under this federal Department of Transportation regulation, all domestic passenger-light truck tires currently produced are deemed substantially similar to each other. At the same time, the federal Environmental Protection Agency also recognizes that domestic manufacturing and production of rubber tires is standardized:
The Record on Appeal discloses no plausible reason why, if passengerlight truck tires are substantially similar for purposes of federal regulation of interstate commerce, they are not also substantially similar for the subject matter of discovery in this lawsuit.
The failed tire was a Trendsetter model, steel-belted radial tire (Cooper Trendsetter SE, P205/70R14), produced at Cooper Tire's Tupelo plant in 1998, bearing green tire specification 3011. In addition to discovery
Concerning discovery from these other cases, plaintiff's most important initial requests were numbers 19 and 20 in the original request for production. Plaintiff furnished an affidavit of an expert having extensive knowledge and experience in the design and manufacturing of Cooper Tire's passenger tires and tread separation. During the discovery proceedings, he testified by affidavit that the inner liner on every steel-belted, radial passenger tire is identical and that the components relevant to tread separation for steel-belted radial passenger tires made by Cooper Tire are identical in all critical aspects. He stressed that all the documents being sought dealt with the "Trendsetter" line of Cooper Tire and that they were both critical and significant to proving defects in the subject tire. Finally the expert testified that none of the details being sought constituted trade secrets because all were already made known to competitors.
Cooper Tire objected to all these requests on the grounds that they were irrelevant, overbroad, unduly burdensome and constituted trade secrets. The positions of the parties as to the propriety of these requests yielded multiple motions to compel discovery and opposing motions for protective orders barring such discovery. These motions resulted in at least one evidentiary hearing lasting three days, as well as many other protracted hearings over the span of 4 years.
Plaintiff argued that the discovery allowed in other cases was directly relevant to the subject matter, was crucial to the issues in this case and — because it had previously been produced elsewhere — was of no burden to Cooper Tire. He further emphasized that because it had already been produced in these other cases, Cooper Tire's claim of trade secrets could not be taken seriously as a bar to disclosure.
Ultimately the judge initially presiding over discovery agreed with the position of Cooper Tire, restricting plaintiff's discovery "to the subject tire and substantially similar tires, which [the trial court] define[d] as tires designed and manufactured according to Green Tire Specification 3011 and its Related Specification 3163."
As the case progressed, the initial discovery order in this case was later accepted and followed without change by a successor judge in spite of renewed attempts by plaintiff to allow discovery of these other Cooper Tire models with tread separation. That restriction was then continued at trial and applied by the successor judge to the evidence permitted to be seen and heard by the jury. All testimony, tangible and documentary evidence allowed before the jury was similarly limited to the specific models specified in the pretrial orders.
Plaintiff argues that these orders effectively limited the resulting evidence at trial to just the model tire involved in the accident. Plaintiff contends that this restriction was unreasonable and contrary to the allowed scope of discovery under the rule, depriving him of highly relevant discovery and trial evidence within the sole control of Cooper Tire, but critical to proving his claims. That is the principal issue on this appeal.
Much of the briefing and oral argument on appeal repeats the arguments in the trial court over the meaning of the term substantially similar applied by the trial judge in this case restricting discovery essentially to only the model tire involved in the accident. But as a prescriptive device to determine like products, this term is not especially useful.
Substantially is one of those English words with multiple meanings pointing in quite different directions. First, it may mean "having substance and not illusory" or "relating to the main or most important things being considered."
If the second meaning (that the similarity must be "considerable in amount or degree," i.e., having a similarity that is strong or compelling) is the one intended, then the modifier substantially appears to require an intensified evidentiary weight for the similarity. But, evidentiary weight is a matter almost always reserved for the trier-of-fact and not as a factor in discovery. Thus, of the possibilities, the first meaning, comparable in substance, comes closest to the text and purpose of rule 1.280(b)(1) with its focus on the broader subject matter of the claims and defenses. A better measure for discovery regarding other products would thus be comparable in substance rather than substantially similar.
To be sure, in obiter dicta, this court once referred to the substantially similar test. See Nissan Motors Corp. v. Espinosa, 716 So.2d 279 (Fla. 4th DCA 1998). There, however, it is clear that the term's meaning had no actual effect on our decision. Instead we denied relief because the party had simply failed to make any showing by affidavit or otherwise that the proposed discovery was relevant to the subject matter.
As used in discovery, substantially similar appears to have originated in Caterpillar Industrial Inc. v. Keskes, 639 So.2d 1129 (Fla. 5th DCA 1994). There the Fifth District recognized Perret v. Seaboard Coast Line Railroad, 299 So.2d 590 (Fla. 1974), as the leading case on permitting similar accidents to be used to prove liability for negligence at trial. Keskes, 639 So.2d at 1130
In Perret, the Florida Supreme Court explained the general rule for trial admissibility, thus:
299 So.2d at 592. The modifying term substantially was not used in Perret. The Perret holding is actually that the evidence of a similar accident in another case was admissible at trial. The modifying term substantially was not applied to further constrict the operative term similar. In substance, therefore, the supreme court in Perret required only a similarity of conditions to satisfy relevancy for admission of evidence at trial.
If evidence is relevant for admission at trial, surely it must be discoverable. Perret is therefore direct authority for allowing discovery of evidence from other cases involving merely a similar product to prove that the product on trial was dangerously defective.
We note that the rationale in Keskes for restricting discovery with the substantial similarity requirement was that the request was a "fishing expedition," and therefore somehow improper. See 639 So.2d at 1130. In American Medical Systems Inc. v. Osborne, 651 So.2d 209, 211 (Fla. 2d DCA 1995), the Second District adopted the same reasoning to bar discovery. The opinions in Keskes and Osborne offer no explanation for their hostility to fishing expeditions in discovery related to the subject matter.
Indeed, it does not seem to us that discovery fishing in the waters of the subject matter is foreclosed by rule 1.280(b)(1). An enlarged scope of relevancy for discovery purposes seems to embrace a strong policy to allow parties to do some fishing to learn what possible trial evidence may actually be out there. As in this case, where all the relevant information lies in the hands of the opposing party who claims trade secrets as a bar, it could be necessary to do some casting about of lines and nets to learn precisely what the opposition knows that it does not want its adversary to know. After all, lawyers and litigants do not always recognize exactly what they are missing but should know. Anyway, there is a trial judge standing watch over the lakes and ponds of discovery who, if the time comes, can act to stop overfishing and pull in the lines and nets.
Here the subject matter in question is undeniably the Cooper Tire design and manufacturing process for all passenger-light truck tires suffering tread separation. Applying Perret and its holding about trial evidence to the scope of discovery for this case, it seems manifest that evidence from other cases about other model passenger-light truck tires need bear only a similarity in substance with the subject matter of the claim. In this discovery context, Perrets specification of unadorned similarity is more coherent with the essential purpose of rule 1.280(b)(1) to enlarge relevancy to the entire subject matter rather than to contract it to trial evidence.
Especially in discovery, when the conflicting contentions of the parties as to similarity seem to have some plausibility, it is not the role of the judge in discovery to settle the issue of relevancy for admissibility at trial as a precondition to allowing the discovery. If information about other products is plausibly capable of being seen both ways, similar and dissimilar, discovery should be allowed as a matter of course — unless there are other good reasons to bar it. Admissibility of trial evidence should be finally decided only when and if the evidence is actually proposed at trial.
Plaintiff here argues that the unreasonable limitation on discovery and its resulting exclusion of trial evidence profoundly and unreasonably limited his access to evidence in this case. He argues that:
To decide whether discretion has been abused, one must first know the nature and extent of the discretion allowed by law. Correctly interpreted, rule 1.280(b)(1) reduces the range of discretion by allowing discovery so long as the information sought is relevant to the subject matter of the pending action and is reasonably calculated to lead to admissible evidence. See Fla. R. Civ. P. 1.280(b)(1).
On this issue, we follow the decision of the Third District in Cooper Tire and Rubber Company v. Rodriguez, 2 So.3d 1027, 1029-31 (Fla. 3d DCA 2009), involving this identical issue, the same defendant, and even many of the same documents. In that case the tread separated on a different model passenger-light truck tire, also resulting in rollover and serious injuries. 2 So.3d at 1029. There too, Cooper Tire argued that discovery should be confined to the model on the vehicle and those made to the same green tire specifications. 2 So.3d at 1029-30. The trial court overruled its objections and ordered production. On certiorari review, the Third District held:
2 So.3d at 1031.
We conclude that the discovery standard of substantial similarity for other products with similar defects is not a correct interpretation of Florida's scope of discovery rule.
We next consider whether this unreasonable restriction on discovery should be treated as harmless error.
There are two ways appellate courts consider prejudice. See Wilson v. State, 764 So.2d 813 (Fla. 4th DCA 2000) (trial errors, occurring during the presentation of evidence to the jury, are subject to harmless error analysis; structural errors "in the constitution of the trial mechanism defy analysis by `harmless error' standards"). In Wilson, we showed that some trial errors can fairly be assessed as harmless because they may "be quantitatively assessed in the context of other evidence presented in order to determine [the effect it had on the trial]." 764 So.2d at 817 (quoting Brecht v. Abrahamson, 507 U.S. 619, 629 (1993)). But we made clear that some structural errors "defy harmless error standards" and are reversible per se "because they infect the entire trial process." 764 So.2d at 817-18 (quoting Brecht, 507 U.S. at 630).
Although the decisions involving "structural error" are nearly all criminal trials with their dominant constitutional requirements, the concept of structural error is not alien to civil litigation. For example, in Lakeside Regent Inc. v. FDIC, 660 So.2d 368, 370 (Fla. 4th DCA 1995), we reversed a deficiency judgment because the trial court had denied the party bringing the appeal discovery of "necessary, properly discoverable material." We concluded that:
660 So.2d at 370. We did not weigh the exclusion of the evidence against other evidence on the critical issue, instead pointing out that:
660 So.2d at 370. If the right to discovery is indispensable to show a triable issue, it is equally so as to admissible evidence at trial itself.
Other decisions have also treated some errors in civil litigation as enough, in and of themselves, to require a reversal. In Lottimer v. North Broward Hosp. Dist., 889 So.2d 165, 167 (Fla. 4th DCA 2004), we held that the failure to permit the exercise of a peremptory challenge before the jury is sworn constitutes an error as a matter of law, requiring reversal of the final judgment. In Martinez v. Vega, 751 So.2d 1268, 1270 (Fla. 3d DCA 2000), the court concluded without weighing the error against the other evidence in the case that the erroneous exclusion of a statement at the scene of an accident — to the effect that a truck driver had run through a red light — was reversible error,. The court pointed out that the issue of which driver had the green light was the central issue in the case, i.e., "hotly disputed". In Peacher v. Cohn, 786 So.2d 1282, 1283 (Fla. 5th DCA 2001), the court held the error in refusing to allow a final peremptory challenge before swearing the jury was reversible error per se. In Van Sickle v. Zimmer, 807 So.2d 182, 184 (Fla. 2d DCA 2002), the trial court's refusal to permit a party to exercise its peremptory challenges is not harmless error when the jury returns a verdict against that party. In State Farm Fire and Casualty Co. v. Pettigrew, 884 So.2d 191, 193, 198 (Fla. 2d DCA 2004), the exclusion of certain evidence of an automobile passenger's prior workers compensation claims was not harmless because it "thwarted" efforts to attack the credibility of a critical witness.
We conclude that the error here is prejudicial and requires reversal, whether the test is deemed trial error or structural. The critical information as to the existence of a defect in the failed tire, as well as Cooper Tire's "state-of-the-art" avoidance of design defect liability, was barred in discovery, and, therefore, the plaintiff was denied the opportunity to introduce the evidence at trial. This forbidden discovery was directly relevant to both claims and defenses and utterly essential to plaintiff's case. From the perspective of authentication, it could be obtained only from Cooper Tire.
From the standpoint of trial error, it is difficult to comprehend any valid basis for concluding that it could not possibly have affected the jury's consideration of the claims and defenses. This was evidence from Cooper Tire's own design and manufacturing processes of all its models of passenger-light truck tires. What might be thought by reasonable jurors as merely an anomaly if found in only a single model tire quite reasonably could be seen as strong evidence of design defects if found in tires across the spectrum of the kind of product at issue. Denying plaintiff the discovery of this evidence from Cooper Tire itself is the equivalent of denying Cooper Tire discovery from plaintiff as to the use of seatbelts and maintenance of the tires, as well as of the financial and emotional effects of the death of the decedent on the members of his family.
As we saw in the beginning, the apparatus of civil litigation has incorporated into its structure the right of all parties to discovery of facts, information and data involving the subject matter of the dispute. Denying one of the parties that discovery — especially as to essential evidence critical to proving a claim or defeating a defense — is a manifest injustice. Within the meaning of the harmless error law, the denial here was considerably prejudicial and perpetrated a substantial injustice on the plaintiff in this litigation.
Upon remand, discovery will have to resume, governed by the holdings of this opinion. Proper and full discovery will then require a new trial, at which both sides will have the right to lay all their relevant, admissible evidence before the jury.
Reversed with instructions.
HAZOURI and DAMOORGIAN, JJ., concur.
