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)
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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