Appeal from judgment of the United States District Court for the Western District of New York, John T. Curtin, J., dismissing complaint in wrongful death action at close of plaintiff's case. Plaintiff also appeals from order denying motions for discovery. Affirmed.
Feinberg, Mansfield and Mulligan, Circuit Judges.
Plaintiff's husband, Ronald F. Butkowski, was fatally injured in a single car accident in Norfolk, Virginia in 1967. Thereafter, in the United States District Court for the Western District of New York, plaintiff Mary Ann Butkowski sued the manufacturer of the car, defendant General Motors Corporation, for the wrongful death of her husband. The theory of the action was that the absence of an external grease fitting on the car's idler arm had caused the part to "seize up," resulting in a sudden and fatal loss of steering control. After the close of plaintiff's evidence at trial, Judge John T. Curtin took the case from the jury and dismissed the complaint for failure to establish that a defect in the idler arm caused the accident. Plaintiff appeals from that decision and from the judge's earlier ruling denying discovery concerning defendant's campaign to recall cars of the model involved in the accident.
We affirm the judgment of the district court. Plaintiff's motions for discovery relating to the recall campaign were not made until February and March 1973 -- after the parties had assured the magistrate that all pre-trial steps had been completed, after the case had been referred to the court for trial, and some three and a half years after the complaint was filed.*fn1 Moreover, the discovery sought concerned an entirely different defect from the one that plaintiff claimed caused the accident. The recall campaign was aimed at correction of a defect which could cause the idler arm to separate from the rest of the steering assembly; plaintiff never alleged that the idler arm separated, contending rather that it froze. On these facts, the district judge could reasonably conclude that the discovery motions were untimely and "irrelevant and immaterial to the issues in this case."*fn2
Similarly, the judge did not commit error in dismissing the complaint. Plaintiff attempted to prove her theory of causation with the testimony of Myers, a passenger in the car at the time of the accident, and of Brehm, an auto mechanic proffered as an expert witness.*fn3 But Judge Curtin refused to permit Brehm to testify before the jury, ruling that he was not a qualified expert because he was unfamiliar with the particular type of lubrication system employed on the model of car involved in the accident. This ruling was a permissible exercise of the trial judge's broad discretion to determine the qualifications of witnesses. The most significant aspect of Myers's testimony was the attribution to plaintiff's husband of the excited utterance "I can't steer the car." This was insufficient standing alone to justify submission of the causation issue to the jury,*fn4 especially since the allegedly defective part was undamaged in the accident and remained available for an inspection (which was never made) while the car was driven another 1,500 miles. See Barker, Circumstantial Evidence in Strict Liability Cases, 38 Albany L. Rev. 11 (1973).*fn5 Appellant cites to us the Appellate Division decision in Codling v. Paglia, 38 A.D.2d 154, 327 N.Y.S. 2d 978 (3d Dep't 1972), aff'd in relevant part, 32 N.Y. 2d 330, 337 (1973), which apparently was not called to the attention of the trial court. To be sure, Myers's version of events was very similar to testimony admitted to prove causation on behalf of the successful plaintiffs in Codling. However, the plaintiffs in Codling also introduced detailed expert testimony concerning a defect in the automobile's hydraulic pump system, see 327 N.Y.S. 2d at 982, 984-85; Barker, supra, 38 Albany L. Rev. at 11-12, and we think that difference is crucial. Of course, had this diversity suit been brought in the New York courts, where distinguished authority suggests it belongs,*fn6 the issue would be authoritatively resolved under state law.*fn7 But -- for the present, at least -- we must decide it, and we surely cannot say that Judge Curtin was wrong in holding plaintiff's evidence insufficient to get to the jury.
We have considered all of plaintiff's arguments and, after reviewing the record, find them to be without merit.