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Tim Smith
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Kent County Judge Retires

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Judge Kolenda announced his retirement from the Kent County Circuit Court bench. His sense of fairness and an unwaivering quest for the truth makes his loss as a jurist a sad day for the folks of Grand Rapids. He issued an opinion in a case involving one of the Big-3 auto makers who had played games with the plaintiff’s attorney and the court in obstructing discovery and witholding evidence. His written opinion on that issue from 1/27/97 is a great read and commentary on the question of “What is truth”?

The text of the trial court’s thorough revised opinion, Traxler v Ford Motor Co, Kent Circuit Court #93-84039-NI, issued 1-27-97, is repeated here in full:

“What is truth?” is the core question posed by every lawsuit. People v Barbara, 400 Mich 352, 357 (1997). Lawsuits are not activities to generate fees, games to be won, or theater to entertain. Lawsuits are searches for the truth of who did what and who is to be accountable for the consequences. Given the complexities of human affairs, the truth cannot always be found, but the fair search for it is why courts, lawyers and lawsuits exist. When it is found, the truth must be revered, and one answer to the question, “What is truth?” must always be, “What is expected,” which means that when it is known, the truth must always be spoken. It wasn’t in this case. That is why defendant Ford Motor Company is being defaulted.

When the truth is concealed or deliberately distorted, the reaction must be outrage. Anything less accepts dishonesty and by accepting it encourages it. That is why “[c]courts have never been inclined to condone or reward those who choose to perjure themselves. Nor should they, since the pernicious effects of perjury are evident to all. Upon disclosure, perjury should be condemned by the courts and the guilty party dealt with accordingly,” Lanky v Lanky, 29 Mich App 17, 22 (1970). Unless the price for dishonesty is unbearable, the temptation to it “would be not a little increased.” Nagi v Detroit United Ry, 231 Mich 452, 460 (1925); and People v Adams, 430 Mich 679, 695 fn 11 (1988). Perjury “is utterly reprehensible.” In the matter of Grimes, 414 Mich 483, 494 (1982); and People v Adams, supra, at 695. It tears at the very fabric of the legal system and at the objective of the rule of law, which is to keep peace in the community by fairly resolving the disputes endemic to communal life. Reverence for the truth is an essential component of fairness. If the public ever comes to believe that the courts do not abhor dishonesty, they will not accept the courts’ decisions as fair and will not be willing to submit their disputes to them.

It is because Ford has been caught concealing a great deal of significant information and blatantly lying that this Court is entering a default against it. No lesser penalty is proportional to the offense. A default, not a default judgment, is being entered because Ford remains entitled to a jury assessment of plaintiffs’ damage claims, Wood v DAIIE, 413 Mich 573 (1982), but a default is appropriate. It should be axiomatic that hiding information and lying cannot be tolerated and must be answered with sanctions which unmistakably say so. Regrettably, Ford needs to hear more. It insists that this Court is powerless to deal with its misconduct. That is not so. There is ample precedent recognizing the propriety of what this Court is doing in this case.1

Statement of Proceedings

When she was two months old, Sarah Traxler was severely injured when the automobile in which she was a passenger was rear-ended by another automobile. Although securely fastened in a child restraint seat, Sarah suffered severe brain injuries when the back of her mother’s seat collapsed onto her. In all likelihood, Sarah’s physical and mental capabilities will never develop beyond those of a 3-year old. She and her parents sued the manufacturer of the child restraint seat2 and Ford, the manufacturer of her parent’s car, a 1986 Ford Tempo. Their claims against Ford are that it was negligent in not designing seats to withstand the forces imposed on them in routine collisions.

This case is now weeks from trial. It was mediated very favorably to plaintiffs, settlement efforts failed, and trial is looming. What happened during discovery is why a default is being entered. Discovery was not only extensive, it was arduous. It is apparent from the motions on file that Ford seldom answered an interrogatory, produced a document, or scheduled a deposition without burdening plaintiffs’ counsel with delays and the need to fight for everything owed. A very common response to plaintiffs’ interrogatories was to object to them as overbroad and, then, “in the spirit of discovery,” to answer them very narrowly, effectively reformulating the questions so that the answers revealed nothing pertinent. (A particularly pertinent example is discussed below.) Ford also played word games. For example, when plaintiffs asked for information about seats “collapsing rearward,” Ford responded that it could not answer the question because the word “collapse” is ambiguous and argumentative. Ford could not locate documents, and witnesses and/or counsel were seldom available for depositions. Only dogged persistence by plaintiffs’ counsel got anything. Every discovery request had to be followed with motions to compel and, then, with prolonged and wearing negotiations. In the best tradition of a civil profession, plaintiffs’ counsel “worked with” Ford. Unfortunately, Ford used that willingness to evade.

Last summer, in July, Ford’s discovery tactics resulted in this Court issuing an order which said and did the following:

“After a careful review of them, this Court finds (i) that plaintiffs’ discovery requests at issue are appropriate, MCR 2.302(B)(1), and (ii) that, especially when placed in the context of the difficult time plaintiffs have had throughout this case obtaining information from defendants, the responses to those requests are obstructionist. Those responses appear to be a calculated effort to burden plaintiffs’ counsel and to so narrowly redefine the standard of “relevant to the subject matter” in MCR 2.302(B)(1) and disingenuously invoke, given Ford’s capabilities, the standard of “undue burden or expense” in MCR 2.302(C), that much of considerable potential significance to this case can be withheld by defendants. That Ford has produced much already is a product of plaintiffs’ persistence and patience, not cooperation by Ford. Accordingly, as authorized by MCR 2.313(A)(2)(c):

IT IS HEREBY ORDERED AND ADJUDGED that plaintiffs’ Fourth Motion to Compel against Ford Motor Company and Ford Motor Company of Canada, which motion is dated May 26, 1996, and was filed on May 31, 1996, be, and the same hereby is, GRANTED. Defendants Ford Motor Company and Ford Motor Company of Canada are to provide within 28 days hereof full and complete responses to the disputed particulars of plaintiffs’ Second Request for Admissions, Fourth Set of Interrogatories, and Fifth Request for Production of Documents. If, in the judgment of this Court, appropriate responses are not provided within that time, a default will be entered against said defendants and, as to them, trial will proceed solely on the issue of damages. See MCR 2.313(B)(2)(c) and MCR 2.313(D)(1)(b). Entry of a default is the only credible response to persistent obstructionism by a litigant with Ford’s economic strength. See, Wood v DAIIE, [infra]; Thorne v Bell, [infra]; and Frankenmuth Ins Co v ACO, Inc, 193 Mich App 389, 396-397 (1992). Any lesser sanction is no penalty and will invite, not deter continued misconduct.”

Ford did not fight that order. It did not appeal nor did it seek reconsideration. Instead, Ford promptly turned over 120,000 pages of documents. What plaintiffs’ counsel discovered when they read those documents was disgusting; no other word would be accurate. For over two years, Ford had concealed very significant documents and information, and, worse, had blatantly lied about those documents and about the information in them; any word other than “lied” would understate what Ford did.3 Those revelations prompted plaintiffs to ask this Court to enter a default judgment against Ford. Their counsel had run out of patience. After carefully reviewing plaintiffs’ discovery requests and some of Ford’s responses (hundreds of pages), studying several rounds of briefs, and listening to counsels’ very helpful oral argument, this Court had to agree that an outrageous fraud has been perpetrated by Ford-a few telling examples are discussed below-and that the sanction of a default, but not a default judgment, is the appropriate response.4

Plaintiffs’ recent briefs and their counsel’s illuminating oral argument do an outstanding job of identifying the deception perpetrated by Ford. The higher courts which will be reviewing this Court’s decision are invited to study those briefs and the transcript of that argument. Nothing but needless prolixity will be achieved by restating here everything said so persuasively there. Those briefs and the transcript are all part of the record. Suffice to say here, Upjohn Co v New Hampshire Ins Co, 438 Mich 197, 207, fn 7 (1991), that a few examples amply demonstrate that Ford consistently concealed information legitimately requested by plaintiffs and consistently lied in its response to appropriate discovery requests. Ford does not deny the shortcomings of its discovery responses. It tries only to excuse them as unintentional or not prejudicial, and it argues strenuously that this Court lacks authority to punish, by default or otherwise, it for what it did. Obviously, the Court sees things much differently.

Early in the discovery process, back in August, 1994, plaintiffs had submitted interrogatories to Ford asking whether it had used the seats in Sarah’s parents’ car, a 1986 Ford Tempo, in other vehicles, as well. If it had, discovery would have to include seeking information about those other vehicle models. If the seat had been used only in Tempos, discovery could be limited to that model. Ford answered that the seats used in the Tempo “are unique to the Tempo/Topaz car lines only.” That answer was not true. Plaintiffs have learned that the Tempo/Topaz seat was derived from the Escort/Lynx seat and that that seat had been used in numerous other models. Ford admits that now, but only after having been caught in a lie.

How Ford answered plaintiffs’ interrogatories about seats reveals much about its handling of discovery in this case. Ford insists that it is true that “the seat track assembles used in the Tempo are unique to the Tempo/Topaz car lines only.” That may be, but the question asked of Ford was not so limited. Ford was asked whether the front “seat tracks and seat backs” installed in 1986 Tempos “were ever installed on any other Ford Motor Company vehicle.” If they were, particulars were requested. Ford objected to the interrogatory as “overly-broad, vague, irrelevant, oppressive and not calculated to the discovery of admissible evidence,” and then responded that “the seat track assembles used in the Tempo are unique to the Tempo/Topaz car lines only.” What it did was craftily reformulate the question to ask only what it wanted to say, namely: that the seat track assemblies, not the seats themselves, were unique, thereby creating the misleading impression that the seats had not been used in any other vehicles. With that impression, plaintiffs would not expect to be told about tests and lawsuits involving the seats and other models, even though the seats were, it now turns out, the same. That was as dishonest as saying in so many words that the seats, not just the seat track assemblies, were unique to the vehicle. “It is generally recognized that ‘fraud’ may be consummated by suppression of facts and of the truth, as well as by open false assertions.” USF&G v Black, 412 Mich 99, 125 (1981). Ford’s answer was not simply a precise answer to a poor question; it was a dishonest answer, carefully crafted to mislead the reader. An impression can be so strong and so obviously what someone wanted to impart that it is a statement to that effect, in this case, a false statement.

The impact of Ford’s deception was made abundantly clear by its latest discovery disclosures. Plaintiffs had asked Ford to identify and produce all tests done to establish the integrity of the seats used in 1986 Ford Tempos, as well as the same or similar seats used in other vehicles. Ford responded that it had performed 48 rear impact tests on the Tempo/Topaz seat between 1984 and 1994. The discovery disgorged in response to this Court’s July order revealed that there have been hundreds of such tests performed on the same seats in numerous other models. Those tests are all highly relevant to this case and were requested by plaintiffs. By the way it responded to plaintiffs’ interrogatories that the Tempo/Topaz seat was unique, Ford hid all those other tests.

Concealing those tests concealed something highly significant to this case. In those tests, the front seats routinely collapsed into the back seat on the slightest impact. Throughout this case, Ford has insisted that its seats, including those in 1986 Tempos, are designed to “yield.” Ford has persistently taken great exception to any characterizations of seats having “failed,” “broke,” or “collapsed,” but the test reports just disclosed repeatedly use those very terms to describe what happened to Ford seats in collisions just like that which occurred in this case. What Ford disclosed also revealed that, years ago, it had developed, but never used, a seat capable of withstanding much greater rear-end impacts than that which injured Sarah. Until last August, Ford had disclosed none of that.

Ford also failed to disclose that it had convened a Task Force to study seat back performance, that the Task Force had had numerous tests performed on Ford seat backs and that a report was drafted, but apparently never issued. Ford attempts to justify its withholding of that information by contending that, for years, the existence of the Task Force and its work were thought to be privileged. The Task Force was finally disclosed because Ford and its counsel now conclude that the same are “probably not privileged.” The claim of privilege is disingenuous. Absolutely nothing disclosed about the Task Force and its activities supports any appearance of a privilege. Furthermore, highly revealing of the claim of privilege is how Ford handled that claim. The proper response would have been to note the existence, but not disclose the particulars, of the information, and, then, decline to produce it because of a privilege. Martin, et al., Michigan Court Rules Practice (3d ed), Rule 2.314, p 383. The Court could then have ruled on the claim. Ford’s counsel knew the right way. Ford’s silence was not the assertion of a privilege, but the deliberate concealing of information known to be discoverable. The claim of a mistaken belief in a privilege is an unpersuasive rationalization.

One more example of Ford’s mendacity will suffice. Another of plaintiffs’ 1994 interrogatories asked Ford to identify all lawsuits against it which complained about defects in the seat backs and/or seat tracks of the 1986 Ford Tempos and other Ford vehicles utilizing the same or similar seats. At first, Ford identified only 2 such lawsuits. Later, Ford reported that there had been 48 lawsuits, but no particulars were ever disclosed. The recently-produced documents reveal that Ford has defended the Tempo/Topaz seat in 91 lawsuits. Some 19 of those lawsuits were brought on behalf of minor children who were injured due to seat failures, several of them having been back seat passengers injured just like Sarah Traxler, by a collapsing front seat. Even more startling is the revelation in the documents disclosed in response to this Court’s July order that Ford has defended hundreds of lawsuits involving the same seat in other models. Nothing was disclosed about those numerous lawsuits until August, 1996. Ford’s explanation for its initial inaccurate response is its supposed belief that plaintiffs were asking only about lawsuits involving 1986 Tempos, a model and year which generated only a pair of lawsuits. That is nonsense, to put it bluntly. Plaintiffs’ interrogatory asked for all lawsuits complaining about design or manufacturing defects in the front seats “of the 1986 Ford Tempo automobile, as well as for any other automobile employing the same or similar seat[s]” [emphasis added].

Applicable Law

The Court has authority to default Ford for its perverting of the discovery process. Common sense says so. So do the Michigan Court Rules, the case law, and the Michigan Revised Judicature Act. According to MCR 2.313(D)(1), a trial court “may order such sanctions as are just,” including the “rendering [of] a judgment by default,” MCR 2.313(B)(2)(c), against a party which fails to answer interrogatories. An order compelling discovery is not a prerequisite. LaCourse v Gupta, 181 Mich App 293, 296 (1989), lv app den 434 Mich 921 (1990). Since a blatantly deceptive answer is worse than no answer-the lack of an answer is not misleading-“it would be an absurd anomaly” if the authority to punish failing to answer interrogatories did not apply equally to giving deliberately false answers. Cummings v Wayne County, 210 Mich App 249, 251 (1995); and MCR 1.105. A trial judge “must have the discretion” to treat doing something inadequately or improperly as a failure to do it at all. Cf. Banaszewski v Colman, 131 Mich App 92, 95 (1983). In addition, the courts have, independent of court rules, “inherent authority to sanction misconduct.” That authority “is rooted in a court’s fundamental interest in protecting its own integrity and that of the judicial process.” Cummings v Wayne County, supra, at 252. See also Bellok v Koths, 163 Mich App 780, 783 (1987), lv app den 430 Mich 854 (1988). Assigning to the trial courts “the front-line responsibility for the administration of justice” requires authorizing them to shoot back, so to speak, with the sanctions of dismissal or default. North v Department of Mental Health, 427 Mich 659, 661-662 (1986). The Legislature agrees. It has conferred “jurisdiction and power to make any order proper to fully effectuate the circuit court’s jurisdiction and judgments.” MCL 600.611; MSA 27A.611. In sum, this Court has authority to default Ford.

Admittedly, having authority to do something does not necessarily mean that it is proper in every instance to utilize that authority. Specifically with regard to the issue at hand, the sanction of a default “is a drastic measure and should be used with caution.” Mink v Masters, 204 Mich App 242, 244 (1994). The court is to consider various things. Was there a “flagrant and wanton refusal to facilitate discovery[?],” Thorne v Bell, 206 Mich App 625, 633 (1994); and Mink v Masters, supra, or some other “inexcusable” conduct? Equico Lessors, Inc v Original Buscemi’s Inc, 140 Mich App 532, 535 (1985). Did that conduct frustrate appropriate attempts to discover information vital to the proper development and presentation of the case, Bellok v Koths, supra, at 783, or did it otherwise prejudice the other party, e.g., by impairing a mediation presentation? Barlow v Crane-Houdaille, Inc., 191 Mich App 244, 252 (1991). Finally, after considering available alternatives, “[i]s the drastic sanction of default “just and proper within the context of the particular case[?]” Houston v Southwest Detroit Hospital, 166 Mich App 623, 629-630 (1987) lv app den 431 Mich 852 (1988); and Bellok v Koths, supra. The trial court need not necessarily impose lesser sanctions before ordering a dismissal or default. What the court must do is consider “whether the imposition of lesser sanctions would not better serve the interests of justice.” North v Department of Mental Health, supra, at 662. If not, dismissing a misbehaving plaintiff’s case or defaulting a misbehaving defendant is proper.

Applicable Law Applied

Ford’s conduct in this case satisfies all of the criteria for the drastic sanction of a default. Concealing information and lying are, there can be no dispute, inexcusable behavior. Such conduct is more than an intentional refusal to facilitate discovery, which is sufficient to warrant entry of a default. Concealing information and lying is a flagrant and wanton refusal to facilitate discovery; nothing could be more obvious. That alone probably warrants a default. Because perjury is reprehensible, engaging in it, especially, engaging in a prolonged course of it, is so offensive to the maintenance of a sound judicial process that the severest punishment may be required regardless of the perjury’s effect on the case. Cf., MCR 6.508(D)(3)(b)(iii), and People v Anderson (aft rem), 446 Mich 392, 405, 406 (1994). Whether that is so need also not be decided in this case, however because all of the criteria for entry of a default have been met.5

Ford’s conduct has badly prejudiced plaintiffs and this Court. Plaintiffs’ counsel has had to spend considerable effort and incur great expense acquiring from other sources information which Ford should have disclosed. More significantly, Ford’s misconduct has frustrated plaintiffs in the development of information vital to a persuasive presentation of their claims. What Ford has belatedly revealed about its testing of the car seat at issue in this case, what it appears to have learned from those tests, the availability of a safer seat, and the fact that a safer seat was never used, all go directly to what a plaintiff must prove in a case like this one and what the Supreme Court expects to be disclosed during discovery. See Prentice v Yale Mfg Co, 421 Mich 670, 688-689 (1984). It is readily apparent from Ford’s recent briefs that it has a favorable “spin” on that information. To enable plaintiffs to respond, discovery needs to start anew. Plaintiffs’ experts need to start all over, and a tremendous amount of follow-up inquiries must be made of Ford and its pertinent personnel. That would put off trial until next year, which would be very unfair to plaintiffs.

Ford’s misconduct has also harmed this Court and the public interest. “Aside from its advantage to a party in discovering the opponent’s claim,…[discovery]…has a public purpose…arising from reducing the time of the trial by narrowing the issues, obtaining admissions of fact, fixing the claims of the parties when the incident is fresh in their minds, and otherwise fostering accuracy and celerity of trial, and also from inducing settlements, which are made more easy when the respective claims are known.” Ewer v Dietrich, 346 Mich 535, 542-543 (1956). Because of what Ford did, those benefits are unavailable, unless discovery is reopened. More significantly, Ford’s misconduct “constitutes an abuse of the judicial process itself and not just a matter of inequity between the parties… ‘[T]ampering with the administration of justice…is a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society.'” Cummings v Wayne County, supra, at 252.

No lesser sanction is sufficient. To the extent Ford’s dishonesty resulted in plaintiffs’ counsel having to look elsewhere for the requested information, assessing against Ford the actual costs of those searches will offset that prejudice, assuming that what amounts to just a fine is ever a sufficient response to perjury. The other prejudice to plaintiffs’ case cannot be so readily rectified, however. If a default is not entered, plaintiffs must be allowed to follow-up all of the data just disclosed, e.g., fully explore the Seatback Performance Task Force and the numerous tests conducted on seats. As previously noted, that means re-starting discovery and putting off next month’s trial. However, the courts of Michigan are under orders to eliminate “the injustice of delayed justice” because “[n]o greater wrong hath man judicial wrought than that of overlooking, if not encouraging delays and more delays of justice.” Hearn v Schendel, 335 Mich 648, 653 (1959).

This case is already three years old, and the price of additional delay will be paid by plaintiffs, not Ford. With the passage of more time, it will be harder for plaintiffs to prove their case. Witnesses will scatter even more, and memories will become even dimmer. One of Ford’s excuses for the delays in scheduling depositions was the retirement and move of many employees. That will happen more as time passes. Witnesses who remain available will remember less, and what they remember will be subject to challenge because of age. Whatever the jury is told about the delay, experience teaches that delay itself creates doubts in the minds of jurors. As a case ages, it becomes less persuasive. Since the burden of proof is on plaintiffs, they will feel the consequences of age. For that reason, even ordering Ford to pay all the costs of discovery henceforward, will not offset the prejudice to plaintiffs, but punish them, a real perversion. Ford’s misconduct having impaired plaintiffs’ ability to prove liability, even if reimbursed all their expenses, plaintiffs will remain significantly disadvantaged with Ford still benefitting. That is ineffectual, to say the least, in dealing with what Ford did. Furthermore, a default[ ]is very appropriate because it focuses directly on that which Ford has damaged: plaintiff’s ability to prove liability.

In sum this is a case in which the drastic sanction of a default is just and proper. This is, in fact, a case in which anything less than that sanction would be improper. Numerous times, our Court of Appeals has sustained a trial court’s defaulting a defendant or dismissing a plaintiff’s case, which is the equivalent of a default, because of that party’s wanton and flagrant violation of its discovery obligations. In Mink v Masters, supra; and Chrysler Corp v Home Ins Co, 213 Mich App 610, 612 (1995), the Court of Appeals affirmed defaults as a discovery sanction. Dismissals as a sanction were affirmed in Barlow v Crane-Houdaille, Inc., supra,; Welch v J. Walter Thompson, USA, Inc., 187 Mich App 49 (1991), lv app den 439 Mich 852 (1991); LaCourse v Gupta, supra; Enci v Jackson, 173 Mich App 30 (1988); Bellok v Koths, supra; and Edge v Ramos, 160 Mich App 231 (1987), lv app den 428 Mich 907 (1987). The misconduct in this case being far worse, a comparable penalty is certainly within the discretion of this Court.

Defaulting Ford does not deprive it of its right to a jury assessment of its liability. Cf., Enci v Jackson, supra, at 35. The right in civil cases to a trial by jury is not absolute. That right can be lost by not asking soon enough or by not timely paying the required fee. MCR 2.508 (D)(1). A jury trial can also be lost by waiting too long to answer, MCR 2.603(A)(1), or by not complying with some applicable court rule or a pertinent court order. MCR 2.504(B)(1). Finally, a litigant with a legally inadequate case is not entitled to a jury determination, but must be satisfied with a judge’s ruling. MCR 2.116(I)(1). See also Skinner v Square D Co, 445 Mich 153, 174-175 (1994); and Moll v Abbott Laboratories, 444 Mich 1, 26-28 (1993). In other words, not only can the right to a trial by jury be waived by litigants, that right can be lost by inappropriate conduct during the course of a case awaiting trial. That is what has happened in this case. This Court is not taking from Ford a jury trial to which it is entitled. Ford forfeited that trial by its conduct.

One final point needs to be addressed. Ford contends, quite vigorously, that this Court is effectively estopped from now defaulting it because the Court ruled back in July that it would default Ford if it did not disclose the information which it had belatedly disclosed. This Court disagrees just as vigorously. Ford is not being defaulted because it did not obey this Court’s order in July. Ford is being defaulted because the information recently disclosed reveals that, prior to that order ever being entered, Ford had engaged in a calculated campaign of concealment and deceit. This Court cannot possibly be barred from appropriately reacting to that shameful campaign because it was discovered only when this Court insisted that Ford obey the rules.


“A primary purpose of discovery is to enhance the reliability of the fact-finding process by eliminating distortions attributable to gamesmanship.” People v Burwick, 450 Mich 281, 298 (1995). Necessarily, therefore, the courts must insist that discovery be conducted in a way which “promote[s] the discovery of the true facts and circumstances of a controversy, rather than aid in their concealment.” Hallett v Michigan Consolidated Gas Co, 298 Mich 582, 592 (1941); and Ewer v Dietrich, supra, at 542. Because condoning the deliberate frustration of discovery will conceal information and promote gamesmanship, such misconduct must be penalized swiftly and sternly. Justice is not served by anything less. LaCourse v Gupta, supra.


[Footnotes to trial court’s opinion:]

1It is unfortunate that there are so many published cases which have dealt with obstructionism during discovery. The prevalence of it reinforces why it must be sternly punished. Otherwise, the inclination to it will not be deterred.

2 To simplify the upcoming trial of this case, plaintiffs have agreed to dismiss the babyseat’s manufacturer.

3 Courts must often form opinions as to the merits of matters before them, “often, as to the bona fides of the parties.” People v Houston, 179 Mich App 753, 759-760 (1989) lv app den 434 Mich 855 (1990). “If the judge did not form judgments of the actors in those courthouse dramas called trials, he could never render decisions.” Liteky v United States, 510 US ___; 114 S Ct 1147, 1155; 128 L Ed 2d 474 (1994).

4 The parties were informed in October, 1996, by letter of the Court’s decision. Drafting and re-drafting an opinion was going to take time. The Court wanted the parties to know its decision as soon as possible so they could meaningfully prepare for mediation, settlement negotiations, and trial. The parties’ counsel were told at oral argument that they would promptly be informed of the Court’s decision, but that an opinion would be delayed. The Court apologizes for how long it has taken to issue this opinion. It has been in trial consistently since mid-October.

5 Unnecessary decisions are inappropriate because the risk of error is too great. Unnecessary decisions are often incorrect because they are made without the crucial focus provided by knowing that they will actually make a difference in a case. Cohen v Virginia, 6 Wheat 264, 299; 5 L Ed 257, 290 (1821), quoted in Breckon v Franklin Fuel Co, 383 Mich 261, 267 (1970); and Alar v Mercy Memorial Hospital, 208 Mich App 518, 532 (1995). In judging, as in many things, it is, to paraphrase Samuel Johnson, only the imminence of a hanging which can adequately concentrate the mind. Boswell, Life of Johnson [September 1, 1777]. A striking example of why courts should not make unnecessary decisions is United States v Williams, 872 F2d 773 (6th Cir, 1989). Prior to that case, dozens of published opinions had volunteered that a certain factual scenario, a scenario not involved in any of those cases, would call for a certain outcome. In Williams, the Sixth Circuit was actually confronted with that other scenario. When it was, the law so often previously espoused was revealed to be wrong. See Staples v United States, 511 US 600; 114 S Ct 1793, 1813, fn 22; 128 L Ed 2d 608 (1994).