Wilson v. Tabletops Unlimited, Inc.
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
: CIVIL ACTION NO. 16-00621-KD-B
TABLETOPS UNLIMITED, INC.,
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.
A discovery conference was conducted by
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
contends that the pressure cooker was in a defective condition
when it was manufactured, sold, distributed, and placed into the
stream of commerce.
Plaintiff seeks to ship the
subject pressure cooker from her counsel’s office in Mobile,
Alabama, to consultants in Pennsylvania for testing.
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.”
counsel and its consultant.
Additionally, Plaintiff seeks to
Defendant objects to the testing proposed by Plaintiff’s
counsel on the ground that by testing the pressure in a manner
irreparably prejudiced because it will be denied the opportunity
unaltered and undamaged condition.
Defendant argues that if
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
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
cooker in compliance with the operating instructions and usage
Federal Rule of Civil Procedure 34 governs the pretrial
production and inspection of tangible materials in discovery,
and authorizes a party to “serve on any other party a request
requesting party. . .to inspect, copy, test, or sample. . .any
designated tangible things. . . .”
“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,
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
proposed inspection will aid in the search for truth against the
burdens and dangers created by the
Glencore Ltd., Inc., 2013 U.S. Dist. LEXIS 5425259, 2013 WL
1681836, *3 (E.D. Tenn. Apr. 17, 2013) (citations omitted).
destructive alike, “rests within the sound discretion of the
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,
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
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,
Id., 235 F.R.D. at 614.
“Where courts have ordered
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
destructive testing consistent with the protocol established by
testing of the windows at issue outside the presence of [the
“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
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
pressure cooker would not suffice.
involving “the incident or exemplar pressure cooker.”
Indeed, in the “Proposed
In the absence of anything before the Court suggesting that
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
the testing of an exemplar would not suffice, and given that the
potentially result in damage to the pivotal evidence in this
case, or the pressure cooker could get lost or damaged while
pressure cooker will aid in the search for the truth, while also
Plaintiff’s request to ship the incident pressure cooker for
testing is DENIED.
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
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