Bitler v. AO Smith Corp.

Citations: 252 F. Supp. 2d 1123; 2003 U.S. Dist. LEXIS 10046; 2003 WL 1524455Docket: 1:98-cv-01897

Court: District Court, D. Colorado; March 21, 2003; Federal District Court

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Fred D. Bitler, Peggy A. Bitler, and the Colorado Compensation Insurance Authority filed a lawsuit against A.O. Smith Corp., White Rodgers (a subsidiary of Emerson Electric Co.), and National Propane Corp. following a propane gas water heater explosion that severely burned Fred D. Bitler. After an 11-day jury trial, a verdict was rendered on February 12, 2002, in favor of the plaintiffs, awarding over $2.3 million, with National Propane settling just before the verdict. The court entered a judgment against White Rodgers for $1,386,850.95 on March 25, 2002, which White Rodgers subsequently appealed.

White Rodgers filed a Motion to Supplement Record On Appeal, claiming that during the first five days of the trial, an official stenographer recorded the proceedings accurately. However, for the remaining six days, the trial was recorded via audiotape, which resulted in a transcript containing numerous inaudible sections due to inadequate audio capture. The transcriber noted significant issues with audibility, including entire phrases or sentences being unintelligible. Two private stenographic reporters, hired by the defendants, were present during these six days with the court's permission and without objection from the plaintiffs. The court had previously discussed the recording method for the trial, addressing whether it would be audiotaped or stenographically recorded. The Motion to Supplement Record was granted in part, although specific errors cited by White Rodgers were not detailed in the motion or court file.

On January 28, 2002, the trial began with discussions about seating at the counsel table. Lead counsel George Flynn for White Rodgers indicated that they had hired a court reporter to create a simultaneous record. The court clarified that the official record would be the tape recorded version, suggesting that Flynn switch places with another counsel for ease of access to the microphone. Flynn expressed a preference for the court reporter's record over the tape, citing concerns about mobility and the quality of the tape recordings. Counsel Lampert supported this view, emphasizing the superiority of court reporters in accuracy and flexibility. The court acknowledged the request but stated it would need to review the stipulation's viability. Ultimately, the court decided to use a stenographic court reporter, Paul Zuckerman, for the proceedings on January 28 through February 1, 2002. However, on February 4, 2002, Zuckerman was unavailable, prompting the court to revert to the tape recorded record, while urging the attorneys to ensure their voices were picked up by the microphones for the official record.

White Rodgers requests a court order to replace the official transcript with one prepared by unofficial stenographers due to alleged inadequacies in the original transcription of audiotapes. Citing Rule 10(e) of the Federal Rules of Appellate Procedure, White Rodgers emphasizes the court's role in resolving discrepancies in the record and allowing for corrections or supplemental records if material omissions or misstatements occur. If a transcript is unavailable, Rule 10(c) permits the appellant to create a statement of the evidence based on available means, which must then be served to the appellee for objections before being settled by the district court. The trial court is ultimately responsible for maintaining an accurate transcript. Case law indicates that the absence of a complete transcript may question the fairness of the trial and necessitate a new trial, but an imperfect transcript does not automatically mandate reversal. A party must demonstrate actual prejudice from the omission before reversal is warranted. In cases like Smaldone, where a court reporter lost notes, alternative methods to reconstruct the record were upheld, showing that an equivalent report can suffice. The Ninth Circuit in Bergerco articulated a test for determining when a remand for a new trial is necessary due to an inadequate record, noting that while a complete transcript is not always essential, certain circumstances may require it to ensure a fair appeal.

An appellant seeking a new trial due to a missing or incomplete transcript must demonstrate three key factors: (1) a specific allegation of error, (2) that the defect materially affects the appellate court's review capability, and (3) that a Rule 10(c) proceeding would fail to provide an adequate substitute for the evidence. Such situations are expected to arise infrequently. In this case, White Rodgers is not seeking a reversal or retrial based on the record but is requesting a supplement to enable meaningful appellate review of alleged errors. Supplementing the record is crucial to avoid impairing due process rights, as reliance solely on the existing transcript may lead to inaccurate or missing evidence necessary for appeal arguments.

The plaintiffs oppose this request, arguing that the privately retained stenographers are not official reporters under 28 U.S.C. § 753. Nevertheless, less reliable methods of record preparation have been accepted in this and other circuits as sufficient for creating an "equivalent report." Approving the unofficial transcript from private stenographic reporters would be a significant undertaking, covering over 1,950 pages. The court is not inclined to undertake this task without clear necessity indicated by White Rodgers, especially as much of the transcript may not pertain to the appeal. The court will not remand based on inaudible portions unless it's shown that the missing transcript would support the appellant's case or hinder judicial review. However, if White Rodgers can demonstrate the inadequacy of the official record concerning relevant matters for the appeal, they should be permitted to reconstruct an adequate record using the unofficial transcripts.

The court granted the Motion to Supplement Record with specific conditions. White Rodgers must, within 20 days, detail the errors relevant to their appeal that are impacted by the official record's status, pinpoint specific sections of the official record pertaining to these errors, and identify the unofficial transcripts intended to supplement the official record. Following this, plaintiffs have 10 days to file objections, citing any inaccuracies in the unofficial transcript and submitting any necessary record supplements. The court will then review the record, approve necessary supplements, and instruct the Clerk to include them in the appeal record. The motion is denied in all other aspects. 

Notes clarify that discussions about the official record occurred off the record, and there is no record supporting claims about motions made regarding the official court reporter. The court rejected a stipulation to use private reporters, opting instead for a court stenographic reporter for part of the proceedings. It was noted that after January 28, 2002, no court stenographer was available, and the proceedings reverted to being tape recorded.