Wilson v. Conair Corporation

Filing 104

STIPULATION and ORDER re protocol for destructive testing of plaintiff's curling iron. Order signed by Magistrate Judge Stanley A. Boone on 12/28/2015. (Rooney, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DELIA WILSON, on Behalf of Herself and
All Others Similarly Situated,
Plaintiff,

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v.

Case No: 1:14-cv-00894-WBS-SAB
ORDER ON STIPULATION RE
PROTOCOL FOR DESTRUCTIVE
TESTING OF PLAINTIFF’S CURLING
IRON

CONAIR CORPORATION,

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Defendant.

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Defendant Conair Corporation (“Conair”) and Plaintiff Delia Wilson (“Plaintiff”)

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(collectively, the “Parties”) enter into this Stipulation regarding the Protocol for Testing

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Plaintiff’s Curling Iron and hereby agree as follows:

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I.

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Statement of General Intent
1.

The general intent of this Stipulation is to establish a protocol for testing

Plaintiff’s Conair Instant Heat Curling Iron, model CD87. A prior testing took place on June

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2, 2015 and June 3, 2015 by Plaintiff. This protocol is for testing conducted by defendant

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Conair.

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2.

Conair’s expert consultant Kurt Breitenkamp of Exponent will be present and

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oversee the testing. Plaintiff’s counsel and/or Plaintiff’s expert consultant(s) have the right to

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be present to observe and/or electronically record the testing and events that occur at the

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inspection and testing.

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3.

Conair will in writing inform plaintiff of the date(s) and location for each test at

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least 3 business days prior to the tests. If plaintiff intents to attend or record the testing, no

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later than five (5) days before the scheduled testing date(s), Plaintiff’s counsel will provide

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Conair’s counsel with (a) the identity of all persons who will be present at the testing on

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Plaintiff’s behalf, and (b) the number and type of electronic recording devices Plaintiff’s

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representatives intend to use during the testing and events that occur at the testing.

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4.

Conair will bear the costs of this testing.

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5.

To the extent Plaintiff intends to conduct its own testing of the Curling Iron,

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Plaintiff will submit a proposed protocol to Conair’s counsel and obtain written consent at

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least five (5) days before the scheduled testing date(s). To the extent the Parties cannot agree

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on any proposed protocol submitted by Plaintiff, Conair’s testing of the Curling Iron will

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proceed, as long as the consent to Plaintiff’s proposed protocol is not unreasonably withheld.

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If Plaintiff does not conduct any testing at this time, Plaintiff preserves all rights and privileges

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to conduct testing at a later time. Each party will bear the costs of their own testing.

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6.

Conair will produce the collected “Raw Data” and other information described

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in Section II, Paragraph 7 to Plaintiff’s Counsel within five (5) business days following receipt

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by either Conair or its consultant from the testing laboratory.

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unprocessed collection of numbers and characters that will later be used, measured and/or

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analyzed, and whereupon it can be visualized using graphs or images. “Raw Data” shall also

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mean graphs, plots, outputs of measuring devices, spectra, interpretations thereof, images,

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films, video and/or digital video created by the laboratory as part of the testing process.

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“Raw Data” shall mean

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7.

This Stipulation is not intended to and does not create or modify any standard

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for the admissibility of evidence and is not intended to waive or otherwise alter any objections,

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privileges or rights, including but not limited to, privileges and other rights under the Federal

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Rules of Civil Procedure and Federal Rules of Evidence. All Parties preserve all objections

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and rights.

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II.

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Conair’s Protocol for Testing Subject Curling Irons
1.

Plaintiff will be required to bring or provide to Conair’s counsel both of the

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entire Curling Irons, including the power cords from both the curling iron and the “control”

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curling iron that was used at Plaintiff’s testing to this testing conducted by Conair.

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2.

Conair’s expert, Kurt Breitenkamp intends to visually examine and capture

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electronic and/or digital images of the entire Curling Iron. This inspection and digital imaging

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will take place at Exponent’s facility at 149 Commonwealth Drive, Menlo Park, California,

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94025.

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3.

Conair’s experts will also perform tests to evaluate whether there are chemical

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compositional differences in the power cord insulation. Multiple samples of the insulation will

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be taken at multiple locations on each of the two power cords. Fourier-transform infrared

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(FTIR) spectroscopy will be used in combination with organic-solvent extraction to

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gravimetrically assess the mass of chemical additives in the cord that can be dissolved. These

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extracted additives will be analyzed by gas chromatography-mass spectrometry (GC-MS) to

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possibly identify their composition and relative concentration. After organic extraction, the

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insulation samples will be analyzed by thermogravimetric analysis (TGA) to quantify the mass

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fraction of the material that is not combustible (i.e. inorganic additives and fillers). The non-

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combustible residue from the EDS experiment will be subsequently analyzed by energy

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dispersive spectroscopy (EDS) to qualitatively compare the inorganic components present in

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each sample. The residue from each sample will then be analyzed by inductively coupled

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plasma mass spectrometry (ICP-MS) to quantify the concentrations of inorganic elements in

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each sample. The FTIR test will be performed by Kurt Breitenkamp at Exponent’s Menlo

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Park facility. The GC-MS analysis of the extracted organic compounds will be performed by

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Susan Mackintosh, who is also employed by Exponent, at Exponent’s Menlo Park facility.

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The TGA and EDS analysis will be performed by Robert Farina at Exponent’s Bowie,

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Maryland facility located at 17000 Science Drive, Suite 200, Bowie, Maryland. The ICP-MS

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analysis will be performed by a different facility, K Prime Inc., located at - 3621 Westwind

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Blvd , Santa Rosa, California.

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4.

These samples will be taken from the power cord in the area of the alleged

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failure and the area near the failure. The samples will be taken from similar locations as

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performed during the testing done by Plaintiff.

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5.

These tests will require the removal of very small samples of insulation from

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the power cord (1/2 gram). In order to remove these samples, the laboratory will use a knife,

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scalpel or similar instrument (e.g., microtome) to remove samples of insulation from the power

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cord. The insulation will be removed at or near the break in the power cord and additional

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samples will be removed in and around the break, as well as farther down the power cord.

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Conair estimates that five (5) samples will be taken. Conair also reserves the right to test the

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five (5) samples previously taken by Plaintiff’s expert consultant for purposes of determining

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composition of the samples, to the extent the samples are still in the possession of the testing

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facility and available to Plaintiff. After its testing is completed, Conair will preserve all

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samples of the insulation taken by it from the power cords and provide them to Plaintiff upon

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request.

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6.

Insulation will also be taken from the same control Conair curling iron power

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cord that Plaintiff previously tested and testing performed by Conair in accordance with

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section II, subsections 3 through 5 as applicable. The samples will be taken from the similar

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locations as performed during the testing done by Plaintiff.

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7.

Plaintiff’s counsel will deliver the two curling irons to Defense counsel via

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federal express for delivery on or before December 28, 2015. Defense counsel will provide the

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curling irons to the experts. Defense counsel will create a chain of custody log, and at the end

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of the testing, will provide the two curling irons and all component parts back to Plaintiff’s

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counsel with a copy of the chain of custody log.

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Within five (5) business days following the receipt of the test results by either Conair

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or its consultant from the testing laboratory, Conair will produce the following to Plaintiff’s

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Counsel: (i) all Raw Data; (ii) documentation on how each test or analysis was performed; (iii)

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all test results and interpretation of such results (iv) documentation on how each test or

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analysis was interpreted and calculated and the resulting interpretation and calculations; and

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(vi) if a library of spectra was used in these interpretations, what was used and how it was

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derived.

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IT SO STIPULATED.

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Dated: December 24, 2015

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BLOOD HURST & O’REARDON, LLP
TIMOTHY G. BLOOD (149343)
LESLIE E. HURST (178432)
THOMAS J. O’REARDON II (247952)

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By:

s/ Leslie E. Hurst
LESLIE E. HURST

701 B Street, Suite 1700
San Diego, CA 92101
Tel: [phone]
619/338-1101 (fax)
[e-mail]
[e-mail]
[e-mail]
[e-mail]

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ODENBREIT LAW, APC
KATHERINE J. ODENBREIT (184619)

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___s/ Katherine J. Odenbreit_____________
KATHERINE J. ODENBREIT
15835 Algonquin Street, Suite 221
Huntington Beach, CA 92649
Tel: [phone]
[e-mail]
Attorneys for Plaintiff

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ROSEN ✧SABA, LLP
Dated: December 24, 2015
RYAN D. SABA (192370)
MOMO E. TAKAHASHI (238965)

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By: __s/ Ryan D. Saba
RYAN D. SABA

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_____

9350 Wilshire Boulevard, Suite 250
Beverly Hills, CA 90212
Tel: [phone]
310/285-1728 (fax)
[e-mail]
[e-mail]

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Attorney s for Defendant

Attorneys for Defendants

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ORDER

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Pursuant to the stipulation of the parties,

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IT IS SO ORDERED.

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Dated:

December 28, 2015
UNITED STATES MAGISTRATE JUDGE

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