Nguyen v. United Airlines, Inc. et al
Filing
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ORDER by Magistrate Judge Virginia K. DeMarchi re 44 January 23, 2025 Discovery Dispute re Plaintiff's Request for Inspection of Aircraft. (vkdlc2, COURT STAFF) (Filed on 1/27/2025)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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MAI NGUYEN,
Plaintiff,
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United States District Court
Northern District of California
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Case No. 23-cv-03220-PCP (VKD)
v.
UNITED AIRLINES, INC., et al.,
Defendants.
ORDER RE JANUARY 23, 2025
DISCOVERY DISPUTE RE
PLAINTIFF'S REQUEST FOR
INSPECTION OF AIRCRAFT
Re: Dkt. No. 44
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Plaintiff Mai Nguyen and defendants United Airlines, Inc. and Mesa Airlines ask the Court
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to resolve their dispute regarding Ms. Nguyen’s request for inspection of the aircraft on which she
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was a passenger when she was injured. Dkt. No. 44. The Court finds this dispute suitable for
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resolution without oral argument. Civil L.R. 7-1(b).
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Ms. Nguyen was injured on a flight from Houston, Texas to San Jose, California on
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August 18, 2021. On December 2, 2024, more than three years later, Ms. Nguyen served a request
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for inspection of the same Embraer 175 aircraft used on that flight; defendants objected. Dkt. No.
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44 at 7-8, 11-12. Ms. Nguyen argues that her expert requires “accurate measurements of the
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specific configuration of the subject Embraer 175 aircraft.” Id. at 2. She also argues that her
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attorney requires this same information “in order to prepare for an effective cross examination of
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defendants’ liability expert and defendants’ employees.” Id. Ms. Nguyen insists that it is
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necessary to inspect the specific aircraft on which she was a passenger because the relevant
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“details and configurations are not the same” for all Embraer 175 aircraft, even those that are “the
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same make, model and vintage.” Id. She suggests that defendants’ expert was provided access to
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the specific aircraft and that he based his expert report, in part, on his inspection of the aircraft. Id.
United States District Court
Northern District of California
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Defendants respond that Ms. Nguyen’s request comes too late, and that the inspection she
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seeks would not yield information that her expert could properly use. Specifically, defendants
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observe that Ms. Nguyen did not seek inspection of the aircraft until several weeks after her expert
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served his report, and in that report the expert did not discuss any of the “configuration” issues for
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which he now seeks detailed measurements. Id. at 3. Defendants maintain that their own expert
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did not have access to and did not inspect the specific aircraft, but instead relied on photographs of
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an Embraer 175 obtained from publicly available sources. Id. at 4. In addition, defendants
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contend that it would be unduly burdensome to require defendants to ground the specific aircraft
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(which apparently is still in commercial use) for purposes of the requested inspection. Id. at 4-5.
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Moreover, defendants suggest that such an inspection might not even yield the information Ms.
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Nguyen seeks—i.e. the precise configuration of the aircraft at the time of her injury—because,
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according to defendants, “[t]here is no indication that the aircraft equipment has not been replaced
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or is [not] in a different condition,” a point on which Ms. Nguyen took no discovery. Id. at 4.
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The inspection Ms. Nguyen seeks is the type of discovery that might be expected to yield
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information that is relevant and proportional to the needs of the case, had it been performed in a
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timely manner. See, e.g., Allen v. Purss, No. 3:22-cv-00009-IM, 2022 WL 17733679 (D. Or. Dec.
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16, 2022) (discussing request for preservation of vehicle involved in collision and subsequent
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failure to preserve evidence). However, it appears that the parties did not discuss the need for an
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inspection of the specific aircraft, or the need to preserve “configuration” information about the
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aircraft, during the 18 months this matter has been pending, see, e.g., Dkt. No. 26 at 3 (discussing
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discovery plaintiff intended to seek), nor did Ms. Nguyen make a prompt request for this
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information under Rule 34. Her present request for an inspection after the exchange of expert
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reports and after so much time has elapsed is unlikely to yield useful information on which her
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expert could properly rely. Cf. Britton v. Dallas Airmotive Inc., No. 07-cv-547-S-EJL, 2010 WL
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797177, at *8-*9 (D. Idaho Mar. 4, 2010) (permitting late second inspection of helicopter
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wreckage upon good cause shown).
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However, Ms. Nguyen is entitled to know all “facts or data considered by” defendants’
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expert. See Fed. R. Civ. P. 26(a)(2)(B)(ii). Thus, if in preparing the opinions disclosed in his
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expert report defendants’ expert relied solely on photographs of parts of an “Embraer 175
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[obtained] from the internet,” but did not inspect a physical aircraft, defendants need only disclose
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the source of those photographs. On the record presented, Ms. Nguyen’s motion to compel an
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inspection of the specific aircraft is denied.
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IT IS SO ORDERED.
Dated: January 27, 2025
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Virginia K. DeMarchi
United States Magistrate Judge
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United States District Court
Northern District of California
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