*The HONORABLE DONALD D. ALSOP, United States District

Judge for the District of Minnesota, sitting by

designation.

___________

No. 95-1604

___________

Kenneth Lee Baker; Steven *

Robert Baker, by next friend, *

Melissa Thomas, *

*

Appellees, * Appeal from the United States 

* District Court for the Western

v. * District of Missouri.

*

General Motors Corporation, *

*

Appellant. *

*

___________________ *

*

The Product Liability *

Advisory Council, Inc., *

*

Amicus Curiae. *

 ___________

 Submitted: January 8, 1996

 Filed: June 14, 1996

___________

Before BEAM, MORRIS SHEPPARD ARNOLD, Circuit Judges, and ALSOP, District *

Judge.

___________

BEAM, Circuit Judge.

In this products liability action, General Motors Corporation (GM)

appeals a jury verdict in favor of plaintiffs for 11.3 million dollars.

GM argues that the district court erred in: (1) entering a discovery

sanction against it; (2) instructing the jury on punitive damages; and (3)

allowing a former GM employee to testify at deposition and trial. We

reverse. 
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I. BACKGROUND

This case arose out of an automobile accident in which Gerald

Shoemaker and Beverly Garner were killed. Shoemaker and Garner collided

head-on with another car after which a fire broke out in the engine

compartment of their vehicle. Garner's sons, Kenneth and Steven Baker,

brought this products liability action alleging that the engine fire was

caused by a faulty fuel pump in the Chevrolet S-10 Blazer in which their

mother was riding and that this defect caused her death. GM asserted that

the fuel pump was neither faulty nor the cause of the fire and that

instead, Garner died as a result of collision impact injuries.

As in any products liability case, the cornerstone of the plaintiffs'

case is the product's defect. To help prove that defect, the plaintiffs

asked GM to produce its 1241 reports (1241 reports are essentially

complaints from customers regarding GM products) involving similar

accidents. GM represented that all 1241 reports were indexed in summary

form in its central computer file. GM stated that its customary response

to discovery requests was to produce these 1241 summaries instead of the

actual 1241 reports. From these summaries, plaintiffs could request the

specific 1241 reports in which they were interested. Both the 1241

summaries and the reports proved difficult to obtain from GM and were the

source of several discovery disputes during the months before trial. 

On July 9, 1993, after several discovery stalemates, the district

court issued an order which directed GM to produce "summaries of 1241 forms

on non-collision under-hood electrical fires within 10 days" of the order.

On July 20, GM produced a group of computer summaries, none predating 1988.

GM stated that pre-1988 reports were no longer available due to a five-year

retention policy and that its production, therefore, amounted to full

compliance with the July 9th order. 
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After learning from other plaintiffs' attorneys in other GM cases

that they had received 1241 reports which were allegedly over five years

old, the plaintiffs asked the district court to sanction GM for what they

believed to be abuses in the discovery process. On August 2, GM explained

that although there were several exceptions to its five-year retention

policy, none of these exceptions had resulted in the retention of any 1241

reports (or summaries) over five years old which were relevant to this

case. 

A few days later, the plaintiffs found more 1241 reports over five

years old in a National Highway Transportation Safety Administration

(NHTSA) file. The file had been compiled by the NHTSA during one of its

investigations into possible automobile defects. The plaintiffs then

supplemented their request for sanctions against GM. This time, GM stated

that it had never occurred to anyone to search the NHTSA files for older

1241 reports and cited the public availability of the reports to justify

its lack of production. GM did, however, expand its records search at this

time. Two days before trial, GM produced another five hundred 1241

reports, some of which duplicated those found in the NHTSA file. GM

claimed, however, that few of these reports were responsive to the July 9th

order. Following this production, the district court granted the

plaintiffs' request for sanctions against GM. 

Noting GM's continuing delay in the discovery process, the district

court ordered GM's affirmative defenses stricken and further ordered that:

the following matters, which relate to the substance of the July 9,

1993 order, shall be established for the purposes of this action:

The 1985 Chevrolet S-10 Blazer at issue in this case was

defective in that General Motors placed an electric fuel pump

in the fuel tank without an adequate mechanism to shut off the

pump in the event of a malfunction or
 For 15 of his 30 years of credited service with GM, Elwell

1

was a member of GM's Engineering Analysis staff which studied the

performance of GM vehicles, especially those involved in products

liability litigation. Based on this experience, Elwell had

assisted GM lawyers in defending products liability actions. 

 Although the settlement agreement was sealed by the court

2

below, we make use of the agreement to the extent necessary for our

preparation of this opinion. 

-4-

collision and that General Motors has been aware of this defect

and hazard for many years. The fuel pump in the 1985 Chevrolet

S-10 Blazer in this case continued to operate after the engine

stopped upon impact.

Baker v. General Motors Corp., 159 F.R.D. 519, 528 (W.D. Mo. 1994) (Baker

I). The case proceeded to trial on the sole issue of whether the defect

in the 1985 Chevy Blazer "directly caused or directly contributed to cause"

the death of Beverly Garner. Trial Trans. at 1725.

At trial, the plaintiffs called former GM employee, Ronald Elwell,

to testify. Prior to trial, Elwell's testimony had been the subject of

1

much debate. Elwell and GM had been involved in an earlier employment

dispute which had led Elwell to sue GM for wrongful discharge. GM

counterclaimed, alleging that in testifying for various plaintiffs (and

against GM) in other products liability actions, Elwell was divulging

privileged information. In settling the wrongful discharge claim, Elwell

consented to a Michigan injunction which barred him from testifying against

GM in products liability cases. GM and Elwell also entered into a

settlement agreement memorializing, among other things, their monetary

2

settlement and GM's desire to prevent future damaging testimony by Elwell.

The settlement agreement provided, in part, that if Elwell were ordered to

testify by a court or other tribunal, he could do so without violating the

settlement agreement.
 The only explanatory damages instruction given, as to either 3

type of damages, read in relevant part: 

In determining what amount would be fair and just

compensation in this case you may consider the pecuniary

losses suffered by reason of the death and the loss of

companionship, comfort, instruction, guidance, counsel,

training and support which decedent provided to Kenneth

Baker and Steven Baker if any such loss or losses are

found by you. In addition, you may award such damages as

Beverly Sue Garner may have suffered between the time of injury and

the time of death and for the recovery of which the deceased may

have maintained an action had death not ensued. You may consider

any mitigating or aggravating circumstances attendant upon the

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In this case, GM strenuously objected to both Elwell's deposition and

trial testimony contending that Elwell's testimony was barred by the

Michigan injunction. The plaintiffs countered that the Michigan injunction

was not entitled to full faith and credit by the district court.

Alternatively, they argued that even if the injunction were entitled to

such credit, the settlement agreement allowed Elwell to testify. After in

camera review of the Michigan injunction and the settlement agreement, the

district court allowed the plaintiffs to depose Elwell and to call him as

a witness at trial. 

Elwell's trial testimony concerned his research on fuel-fed engine

fires and the existence and contents of the "Ivey" document. The Ivey

document is a value analysis document prepared by Edward Ivey, an Advance

Design employee, and allegedly circulated among selected top GM and

Oldsmobile officials. The Oldsmobile officials, according to Elwell's

testimony, were at that time responsible for the overall fuel system design

of GM vehicles. The document analyzed the potential expense of the loss

of human life per vehicle due to fuel-fed engine fires. According to

Elwell, the analysis implied that it would be worth only $2.40 per vehicle

in operation for GM to prevent such fuel-fed fires. 

At the end of trial, the district court incorporated its Rule 37

sanction language into the jury instructions. The district court also

instructed the jury as to both compensatory and aggravating circumstance

damages. GM objected to the jury 3
death if you find any such circumstances. You may not consider

grief and bereavement by reason of the death.

Trial Trans. at 1727.

 GM's objections included the following claims: (1) there was 4

inadequate evidence to support the submission of an aggravating

circumstance damages instruction to the jury; (2) the lack of

evidence of aggravating circumstance damages denied GM the

opportunity to defend against such damages; (3) the jury was given

insufficient standards for imposing aggravating circumstance

damages through vague and unconstitutional instructions; and (4)

the failure to apportion between compensatory and aggravating

circumstance damages was error. 

-6-

instructions, arguing, inter alia, that the instructions gave the jury

insufficient guidance in awarding what were essentially punitive damages.4

GM also objected to the lack of differentiation between compensatory and

punitive damages in the verdict form. Following trial, the jury awarded

the plaintiffs 11.3 million dollars in damages, without apportioning

between compensatory and aggravating circumstance damages. 

 

II. DISCUSSION

A. The Discovery Sanction

GM argues that the district court abused its discretion in entering

the discovery sanction. The district court has broad discretion in issuing

sanctions for discovery abuse and its decision will be upheld absent an

abuse of discretion. Anderson v. Home Ins. Co., 724 F.2d 82, 84 (8th Cir.

1983) (citing Fox v. Studebaker-Worthington, Inc., 516 F.2d 989 (8th Cir.

1975)). Our scope of review of the district court's actions is, therefore,

very narrow. Prow v. Medtronic, Inc., 770 F.2d 117, 122 (8th Cir. 1985).
 Severe sanctions, such as that entered here, are often

5

reserved for wilful or bad faith violations of court orders.

Societe Int'l v. Rogers, 357 U.S. 197, 212 (1958). This court has

determined, however, that a "deliberate default" will suffice.

Anderson, 724 F.2d at 84 (citing Lorin Corp. v. Goto & Co., 700

F.2d 1202, 1208 (8th Cir. 1983) (deliberateness includes failure to

respond to discovery requests and failure to provide full

information following a court order)). In any event, we agree with

the district court's conclusion that GM's noncompliance was both

deliberate and wilful. Baker I, 159 F.R.D. at 524.

-7-

We must first determine whether the district court was correct in

finding a discovery violation to support its imposition of the sanction

under Federal Rule of Civil Procedure 37 (Rule 37). To impose Rule 37

sanctions, there must be: (1) a court order compelling discovery; (2) a

violation of that order which is wilful; and (3) prejudice to the other

5

party from the violation. Shelton v. American Motors Corp., 805 F.2d 1323,

1330 (8th Cir. 1986); Edgar v. Slaughter, 548 F.2d 770, 772 (8th Cir.

1977). In this case, all of these elements were present. 

The July 9th order satisfies the first requirement, that there be a

discovery order in place. GM failed to fully comply with the order within

the ten-day required period, as evidenced by its further production of 1241
 GM argues that the July 9th order only required production of 6

computer summaries of 1241 reports. The district court seemed to

share that belief. Baker I, 159 F.R.D. at 524. However, the

express words of the order made no such limitation. GM further

argues that it only needed to produce the summaries found on its

central computer file, because the district court and the

plaintiffs understood that to be GM's customary discovery response

technique. Again, the discovery order contains no such limitation.

Furthermore, as the district court explained, the order "referred

only to computer summaries because defendant's counsel represented

to the Court that all 1241's that General Motors could produce in

hard copy were indexed on the computer database." Id. This

assurance was, at best, inaccurate. Consequently, GM cannot now

rely on its own interpretation of the discovery order's limiting

language which was employed largely because of its own

misrepresentations. Similarly, GM cannot feign compliance with the

discovery order by producing the actual 1241 reports, instead of

the summaries as directed by the order. 

GM apparently wants this court to overturn the district

court's factual findings leading up to the imposition of sanctions.

This, we refuse to do. See generally Dillon v. Nissan Motor Co.,

986 F.2d 263, 267 (8th Cir. 1993) (both sanction imposed under

court's inherent authority and factual basis for sanction are

reviewed under abuse of discretion standard); Laclede Gas Co. v.

G.W. Warnecke Corp., 604 F.2d 561, 565 (8th Cir. 1979) (party

subject to sanction for violating letter and spirit of discovery

rules as well as court's pretrial orders). GM cannot take a

limited view of its duty to comply with discovery requests simply

because it is customary for it to do so. GM was ordered to produce

the summaries because they were supposed to lead to the production

of all available 1241 reports. Because GM's assurance failed, so

does its interpretation of the discovery order.

-8-

reports in early August, just prior to trial. The district court's

6

finding of prejudice is supported by
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the produced documents themselves. GM's late production of the 1241

reports prevented the plaintiffs from researching them completely,

essentially depriving them of the information which they were due. GM's

conduct, therefore, clearly justified the imposition of Rule 37 sanctions.

However, this conclusion does not end our inquiry. We must determine

whether the sanction imposed was just and specifically related to the claim

at issue in the discovery order. See Fed. R. Civ. P. 37(b)(2); Insurance

Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707

(1982). In this case, we do not believe the sanction met that standard.

As this court has stated previously, "[t]here is a strong policy

favoring a trial on the merits and against depriving a party of his day in

court." Fox, 516 F.2d at 996. The sanction in this case failed to achieve

a balance between the policies of preventing discovery delays and deciding

cases on the merits. Such a balance recognizes that the opportunity to be

heard is a litigant's "most precious right and should be sparingly denied."

Edgar, 548 F.2d at 773. GM was not given the right to be heard. Instead,

the jury was asked, essentially, to place a monetary value on the loss of

human life. Before issuing such a sanction, fairness required the court

to consider whether a more "just and effective" sanction was
 In so doing, we acknowledge the United States Supreme Court's 7

recent decision in BMW of North America, Inc. v. Gore, 1996 WL

262429 (U.S. May 20, 1996) (reversing "grossly excessive" punitive

damages award as violative of Fourteenth Amendment's Due Process

Clause). Although that decision does not affect this analysis, the

district court may wish to consider its teachings on remand. 

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available. Id. In this situation, other, less severe sanctions (including

monetary fines against GM and continuances for the plaintiffs) were both

available and appropriate. 

While we do not condone GM's failure to meet its discovery

obligations, we find that the sanction chosen by the district court was

simply too severe for the facts presented and should have been drawn more

narrowly. See English v. 21st Phoenix Corp., 590 F.2d 723, 728 (8th Cir.),

cert. denied, 444 U.S. 832 (1979). By providing that the fuel pump was

defective and continued to operate here, the sanction forced the jury to

find for the plaintiffs. Although the case ostensibly proceeded to trial

on the issue whether the defect "directly caused or directly contributed

to cause" Garner's death, in effect, the jury instructions had already

decided the matter for the jury. Because the district court abused its

discretion in entering such a broad sanction, we reverse for imposition of

a lesser sanction and for a new trial.

 

 B. The Aggravating Circumstance Instruction

GM also argues that aggravating circumstance damages under Missouri

law are in fact punitive damages and that it was subjected to such damages

without the procedural safeguards required by Pacific Mut. Life Ins. Co.

v. Haslip, 499 U.S. 1 (1991). Because we reverse on the issue of

liability, we must vacate the award of damages. However, we address this

issue to avoid error on retrial.7

 
 Consequently, we find the appellees' argument that Bennett

8

should only be given prospective application unavailing. Even if

we found that Bennett announced a new principle of law, which we do

not, we would apply the Bennett decision retroactively. See

Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07 (1971); Elliot v.

Kesler, 799 S.W.2d 97, 102 (Mo. Ct. App. 1990). Under Chevron, a

decision is to be given prospective application only if: (1) it

established a new principle of law; (2) its retroactive application

would retard its operation; and (3) its retroactive application

would produce inequitable results. Chevron, 404 U.S. at 106-07.

In this case, we find that prospective application of Bennett would

produce inequitable results. The United States Supreme Court's

decision in Haslip, with which the instructions in this case failed

to comply, preceded, by two years, the trial of this case. Haslip,

499 U.S. at 1. To approve of, in hindsight, proceedings which were

clearly in violation of Supreme Court precedent at the time of

their occurrence, would be inequitable. Furthermore, we find, as

would Missouri courts, that because Bennett clarified applicable

substantive law, not merely procedural law, it should be given

retroactive effect. See Dietz v. Humphreys, 507 S.W.2d 389, 392

(Mo. 1974); Prayson v. Kansas City Power & Light Co., 847 S.W.2d

852, 854 (Mo Ct. App. 1992), cert. denied, 114 S. Ct. 95 (1993).

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Pursuant to the Missouri Supreme Court's recent decision in Bennett

v. Owens-Corning Fiberglas Corp., 896 S.W.2d 464 (Mo. 1995), there is no

question that Missouri's aggravating circumstance damages are to be treated

as punitive damages. The Missouri Supreme Court not only equated

aggravating circumstance and punitive damages, but further stated, "[a]t

least since 1979, the damages attributed to `aggravating circumstances'

necessarily refers only to punitive damages." Id. at 466. In other words,

Bennett did not signal a change in the law, but merely clarified the law

as it had existed for quite some time in Missouri. As the Bennett court 8

stated, "[b]ecause aggravating circumstance damages are punitive in nature,

they may only be awarded if accompanied by the due process safeguards as

articulated in Haslip." Bennett, 896 S.W.2d at 466. Consequently, we must

examine whether the Haslip safeguards were met in this instance. 
 "Under the traditional common-law approach, the amount of the 9

punitive award is initially determined by a jury instructed to

consider the gravity of the wrong and the need to deter similar

wrongful conduct. The jury's determination is then reviewed by

trial and appellate courts to ensure that it is reasonable."

Haslip, 499 U.S. at 15. 

-12-

In Haslip, the United States Supreme Court held that the traditional

means of awarding punitive damages did not per se violate the Due Process 9

Clause of the United States Constitution. 499 U.S. at 15. However, the

Court cautioned that "unlimited jury discretion--or unlimited judicial

discretion for that matter--in the fixing of punitive damages may invite

extreme results that jar one's constitutional sensibilities." Id. at 18.

The Court further stated that factfinders "must be guided by more than the

defendant's net worth" in making such awards. Id. at 22. In Haslip, such

guidance included: (1) jury instructions which adequately informed the jury

as to the purpose of punitive damages--to punish the wrongdoer and to

protect the public from similar future harms; (2) post-trial procedures in

which the trial court scrutinized punitive damages awards; and (3) state

supreme court review, including a comparative analysis, to ensure awards

were "reasonable in their amount and rational in light of their purpose to

punish what has occurred and to deter its repetition." Haslip, 499 U.S.

at 19, 20, 21. 

In this case, there was neither any guidance for the jury nor any

restraint on its discretion in awarding punitive damages. Instead, the

jury was allowed to award aggravating circumstance damages without being

given a definition of what those damages entailed. This lack of guidance

rendered the jury instructions unconstitutionally vague and violated GM's

right to due process. See Bennett, 896 S.W.2d at 466. 

The jury also did not apportion its damages award between

compensatory and punitive damages, as required by Bennett. Trial
-13-

Trans. at 1706. This resulted in a lump sum award of 11.3 million dollars.

As GM stated in its objection to the lack of division, "the defendant under

these circumstances can be punished without knowing what the punishment is

since the damages are one figure." Trial Trans. at 1705-06. Because there

is no way to compare the punitive and compensatory damages awards, GM has

effectively been denied its right to trial court and appellate court review

of the punitive damages award. Therefore, the damages award was defective.

 

C. The Michigan Injunction

The constitutional full faith and credit principle requires that

federal courts give the same faith and credit to a state court judgment as

would the state court in which it was rendered. U.S. Const. Art. IV § 1;

28 U.S.C. § 1738. See also Matsushita Elec. Indus. Co. v. Epstein, 116 S.

Ct. 873, 877 (1996). GM asserts that the district court violated this

principle in allowing the plaintiffs to take Ronald Elwell's deposition and

in allowing him to testify at trial. GM argues that the district court

should instead have given full faith and credit to the Michigan injunction

barring Elwell's testimony. Because the district court's decision to not

extend the injunction full faith and credit involves a question of law, we

review it de novo. See In re Garner, 56 F.3d 677, 679 (5th Cir. 1995);

Southeast Resource Recovery Facility Auth. v. Montenay Int'l Corp., 973

F.2d 711, 712 (9th Cir. 1992). 

The district court refused to give the Michigan injunction full faith

and credit because it believed: (1) a "public policy" exception to full

faith and credit allowed Elwell's testimony, and (2) full faith and credit

implies the same faith and credit; therefore, an injunction which is

modifiable in Michigan is modifiable in Missouri. We first address the

district court's reliance on a "public policy" exception to full faith and

credit. 
 In so doing, we acknowledge the contrary authority cited by 10

the appellant on this issue. See, e.g., Howlett v. Rose, 496 U.S.

356, 382 n.26 (1990); Restatement (Second) of Conflict of Laws §

117 (1971) (sister state judgment recognized in other state

regardless of the fact that bringing the original action in the

recognizing state would offend that state's public policy).

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The district court found that the Michigan injunction violated

Missouri's public policy, as evidenced by Missouri's Rules of Civil

Procedure, which favors full disclosure of all nonprivileged, relevant

information. See, e.g., Mo. R. Civ. P. 56. Because the Michigan

injunction bars Elwell from testifying even as to nonprivileged

information, the district court refused to extend full faith and credit to

the injunction. Assuming, arguendo, that a public policy exception to the

full faith and credit command exists, we conclude that the district court 10

improperly relied on such an exception in this case because of Missouri's

equally strong public policy in favor of full faith and credit. 

Missouri public policy embraces the theory of full faith and credit,

as evidenced by the references to it in the state's statutes. See, e.g.,

Mo. Rev. Stat. §§ 511.760; 511.778. Missouri case law also contains

numerous discussions of the importance of the full faith and credit

requirement. See, e.g., Roseberry v. Crump, 345 S.W.2d 117, 119 (Mo.

1961); In re Veach, 287 S.W.2d 753, 759 (Mo. 1956); Bastian v. Tuttle, 606

S.W.2d 808, 809 (Mo. Ct. App. 1980); Corning Truck & Radiator Serv. v.

J.W.M., Inc., 542 S.W.2d 520, 524 (Mo. Ct. App. 1976). Under this

doctrine, Missouri courts must give full faith and credit to judgments of

sister state courts "unless it can be shown that there was lack of

jurisdiction over the subject matter, failure to give due notice, or fraud

in concoction of the judgment." Bastian, 606 S.W.2d at 809. No such

allegations have been made in this case. It is therefore difficult to see

how Missouri's public policy is any less supportive of full faith and

credit than it is of full and fair discovery. Consequently, the district

court incorrectly used Missouri's
-15-

interest in full and fair discovery to override its interest in giving full

faith and credit to a sister state's judgment. 

The district court's reliance on the modification argument is also

problematic. The district court found that the injunction was subject to

modification in Michigan. It then held that because the injunction was

modifiable in Michigan it need not be given full faith and credit in

Missouri, but only the same faith and credit as given by the issuing

state's court. U.S. Const. Art. IV § 1; 28 U.S.C. § 1738. See also

Matsushita, 116 S. Ct. at 877. However, the mere fact that an injunction

remains subject to modification in one state does not render it unworthy

of full faith and credit in another. See Restatement (Second) of Conflict

of Laws § 109 (1988 revisions) (judgment entitled to full faith and credit

despite fact that it remains modifiable in rendering state). 

The full faith and credit clause "is not so weak that it can be

evaded by mere mention" of the word "modification." Howlett v. Rose, 496

U.S. 356, 383 (1990). This is especially true on facts such as those

presented here. First of all, although the appellees claim that the

injunction may be modified by the Michigan court, they presented no

evidence that they requested a modification from that court. Secondly,

although it has been asked on several occasions to modify the injunction,

the Michigan court has yet to do so. Thirdly, the district court found

that Michigan law required a change in circumstances to warrant

modification of the injunction, see, e.g., First Protestant Reformed Church

v. De Wolf, 100 N.W.2d 254, 257 (Mich. 1960), but further found that there

had been no "classical" change in circumstances between GM and Elwell in

this case. Therefore, appellees have simply not presented sufficient

evidence to show that the Michigan court would modify this injunction.

To avoid its finding of unchanged circumstances, the district court

emphasized the importance of other interests, such as the
 The district court also attached some significance to the

11

fact that the GM/Elwell settlement agreement allowed Elwell to

testify, without violating its terms, when ordered to do so by a

court of competent jurisdiction. The settlement agreement

provides, in relevant part:

It is agreed that [Elwell's] appearance and testimony, if

any, at hearings on Motions to quash subpoena or at

deposition or trial or other official proceeding, if the

Court or other tribunal so orders, will in no way form a

basis for an action in violation of the Permanent

Injunction or this Agreement.

Settlement Agreement at 10. This language merely shows GM's

concession that some courts might fail to extend full faith and

credit to the injunction.

-16-

discovery rights of litigants, of which it believed the Michigan court was

unaware when it entered the injunction. Baker ex rel. Cress v. General 11

Motors Corp., No. 91-0991 (W.D. Mo. June 18, 1993) (reproduced in Addendum

to Appellant's Brief at 11). We find no evidence in the record to support

such a statement. A stipulation in which GM expressly approved of Elwell's

testimony in another case then pending was executed concurrently with the

injunction. The Michigan court was, therefore, aware of the existence of

at least some other parties' interests. The district court also would have

assumed, as did the parties, that other similar litigation would follow;

the injunction would otherwise have been unnecessary. Consequently, we

find that the appellees failed to establish that the Michigan injunction

was not entitled to full faith and credit. 

III. CONCLUSION

Because the district court erred in entering a Rule 37 sanction that

was too severe and in allowing Elwell to testify, we reverse and remand to

the district court for further proceedings consistent with this opinion.
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A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.