Wilson v. Tabletops Unlimited, Inc.

Filing 40

Order denying Plaintiff's request to ship the incident pressure cooker for testing. Status Conference via telephone is set for 7/11/2017 at 10:00 AM in US Courthouse, Courtroom 1A, 113 St. Joseph Street, Mobile, AL 36602 before Magistrate Judge Sonja F. Bivins. Signed by Magistrate Judge Sonja F. Bivins on 6/26/2017. (srd)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION SHIRLEY WILSON, : : : : CIVIL ACTION NO. 16-00621-KD-B : : : vs. TABLETOPS UNLIMITED, INC., Defendant. ORDER This action is before the Court as a result of the parties’ dispute over Plaintiff’s proposed testing of the pressure cooker at issue in this case. telephone on May A discovery conference was conducted by 30, 2017, and pursuant to the Court’s directive, the parties filed written memorandums in support of their respective positions on June 6, 2017. (Docs. 35, 36). In her complaint, Plaintiff alleges that she was burned and severely injured designed, while manufactured, operating and sold a pressure by cooker Defendants. that was Plaintiff contends that the pressure cooker was in a defective condition when it was manufactured, sold, distributed, and placed into the stream of commerce. (Doc. 34). Plaintiff seeks to ship the subject pressure cooker from her counsel’s office in Mobile, Alabama, to consultants in Pennsylvania for testing. at 1). (Doc. 35-1 According to Plaintiff’s counsel, the proposed testing is neither destructive nor intrusive as “no parts of the machine will be removed and the condition of the pressure cooker will not be changed.” have said (Doc. 35). testing conducted counsel and its consultant. Additionally, Plaintiff seeks to outside the purview of defense (Doc. 35). Defendant objects to the testing proposed by Plaintiff’s counsel on the ground that by testing the pressure in a manner that violates pressure the cooker manufacturing will be operating damaged, and instructions, Defendant will the be irreparably prejudiced because it will be denied the opportunity to present the pressure cooker to unaltered and undamaged condition. Plaintiff’s expert is permitted the jury in its present, Defendant argues that if to conduct the requested testing, Plaintiff should be subjected to evidentiary sanctions if the pressure cooker is altered, impaired, or damaged as a result of said testing, or if the pressure cooker is lost or damaged while Pennsylvania. in transit to Plaintiff’s consultant in Defendant further contends that if Plaintiff’s expert is allowed to proceed with said testing, Defendant and its consultant should be allowed to first test the pressure cooker in compliance with the operating instructions and usage warning, and depose Plaintiff as to the specifics of the incident. Federal Rule of Civil Procedure 34 governs the pretrial production and inspection of tangible materials in discovery, 2 and authorizes a party to “serve on any other party a request within the scope of Rule 26(b); to produce and permit the requesting party. . .to inspect, copy, test, or sample. . .any designated tangible things. . . .” In turn, Rule 26(b) contemplates Fed.R.Civ.P. 34(a)(1)(B). parties obtaining discovery “regarding any nonprivileged matter that is relevant to any . . . claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed.R.Civ. P. 26(b)(1). “If the parties differ as to whether an inspection or test is appropriate, ‘the court must balance the respective interests by weighing the degree to which the proposed inspection will aid in the search for truth against the burdens and dangers created by the inspection.’” Hunley v. Glencore Ltd., Inc., 2013 U.S. Dist. LEXIS 5425259, 2013 WL 1681836, *3 (E.D. Tenn. Apr. 17, 2013) (citations omitted). decision whether to allow testing, destructive and The non- destructive alike, “rests within the sound discretion of the court.” Ostrander v. Cone Mills, Inc., 119 F.R.D. 417, 419 (D. Minn. 1988); see also Coleman v. Anco Insulators, Inc., 2017 U.S. Dist. LEXIS 62987, 2017 WL 1735038, *2 (M.D. La. Apr. 26, 3 2017); Jeld-Wen, Inc. v. Nebula Glasslam Int’l, Inc., 249 F.R.D. 390, 395 (S.D. Fla. Mar. 6, 2008). The Court notes, as a preliminary matter, that the parties disagree about consultant is whether the destructive or testing proposed non-destructive by Plaintiff’s testing. Where destructive testing is involved, courts have repeatedly applied a four-factor test in determining whether to permit destructive testing, see Mirchandani v. Home Depot, USA, Inc., 235 F.R.D. 611, 613-14 (D. Md. 2006). Under the four-factor test, the Court considers 1) whether the proposed testing is reasonable, necessary and relevant to proving the movant’s case; 2) whether the nonmovant’s ability to present evidence at trial will be hindered, or whether the nonmovant will be prejudiced in some other way; 3) whether there are any less prejudicial alternative methods of obtaining the evidence sought; and 4) whether there are adequate safeguards to minimize prejudice to the non-movant, particularly trial. the non-movant’s ability Id., 235 F.R.D. at 614. materials to be subject to to present evidence at “Where courts have ordered destructive testing, they almost unanimously allow the opposing party to bear witness to the inspection and testing, either in person or via another avenue. . . .” Ramos v. Carter Express Inc., 292 F.R.D 406, 409 (S.D. Tex. July 10, 2013)(collecting cases); see also Jeld-Wen, 249 F.R.D. at 398 (“[A]lthough [the 4 defendant] may conduct destructive testing consistent with the protocol established by the [court’s previous demonstrated ‘good order,]. cause’ . . [the sufficient to defendant] justify has not destructive testing of the windows at issue outside the presence of [the plaintiff].”). “In contrast, when courts compel production of materials for non-destructive testing, they habitually refuse to allow the presence of an opposing party.” Ramos, 292 F.R.D. at 409. In assertion however, this case, that the neither Defendant proposed party has takes issue testing will presented any with be Plaintiff’s non-destructive; probative evidence indicating whether the testing protocol proposed by Plaintiff’s expert will damage the pressure cooker or materially change the appearance and condition of the pressure cooker.1 Plaintiff has not indicated why the pressure cooker would not suffice. Pressure Cooker memorandum, the Evaluation” suggested testing of an along protocol with Plaintiff’s references involving “the incident or exemplar pressure cooker.” 2). exemplar Indeed, in the “Proposed submitted test Additionally, testing (Doc. 35- In the absence of anything before the Court suggesting that 1 It appears that the subject pressure cooker was made available for examination by Defendant’s consultant, in the presence of Plaintiff’s counsel, on May 12, 2017. (Doc. 35-1). There is no indication that testing of any kind was conducted at that time. 5 the testing of an exemplar would not suffice, and given that the proposed testing of the incident pressure cooker could potentially result in damage to the pivotal evidence in this case, or the pressure cooker could get lost or damaged while being shipped Pennsylvania, from the Mobile undersigned to Plaintiff’s finds that use consultant of an in exemplar pressure cooker will aid in the search for the truth, while also preserving the pivotal evidence in this case. Accordingly, Plaintiff’s request to ship the incident pressure cooker for testing is DENIED. This action is scheduled for a status conference via telephone on July 11, 2017 at 10:00 a.m. DONE this 26th day of June, 2017. /s/ SONJA F. BIVINS UNITED STATES MAGISTRATE JUDGE 6

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