Lopez v. Cooper Tire & Rubber Company
Filing
11
ORDER granting in part and denying in part 9 Motion to compel. See Order for details. Signed by Magistrate Judge Joel B. Toomey on 7/25/2011. (ADM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ABRAHAM LOPEZ,
Plaintiff,
v.
CASE NO. 3:11-cv-375-J-25JBT
COOPER TIRE & RUBBER COMPANY,
Defendant.
_________________________________/
ORDER
THIS CAUSE is before the Court on Defendant, Cooper Tire & Rubber
Company’s Motion to Compel Production of the Subject, Companion and Spare
Tires and Rims (“Motion”) (Doc. 9) and Plaintiff’s Response thereto (“Response”)
(Doc. 10). For the reasons stated herein, the Motion is GRANTED in part and
DENIED in part. In short, the Motion is due to be granted to the extent Defendant
seeks custody and possession of the subject evidence for ninety (90) days “to
conduct non-destructive evaluation and testing in its own facilities, without any
observation or videotaping by Plaintiff or anyone acting on his behalf” (Doc. 9 at 10),
except as stated herein. The Motion is denied in all other respects.
I.
Nature of the Action
This is a product liability action allegedly arising out of a single-vehicle
automobile accident, causing the death of the driver (the “Decedent”). (Doc. 1, ¶¶
7-8.) The Complaint alleges that at the time of the accident, a tire manufactured by
Defendant was mounted on the left rear side of the Decedent’s vehicle. (Id. at ¶ 7.)
The tire tread on the subject tire allegedly “experienced a catastrophic tread
separation, causing [the Decedent] to lose control of the truck, and in the ensuing
crash, to be ejected from the truck.”
(Id. at ¶ 8.)
Plaintiff, as Personal
Representative of the Decedent, alleges that Defendant, inter alia, negligently
designed, manufactured, tested, and/or inspected the subject tire, which caused or
contributed to the accident and the resulting death. Plaintiff also brings a strict
liability claim based on alleged defects in the subject tire. (Id. at ¶¶ 19-28.)
II.
Standard
“A party seeking discovery may move for an order compelling . . . production
. . . if: . . . (iv) a party fails to respond that inspection will be permitted—or fails to
permit inspection—as requested under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B). Rule
34 provides that “[a] party may serve on any other party a request . . . (1) to produce
and permit the requesting party or its representative to inspect, copy, test, or sample
. . . (B) any designated tangible things,” Fed. R. Civ. P. 34(a)(1)(B), but the request
“must specify a reasonable time, place, and manner for the inspection and for
performing the related acts,” Fed. R. Civ. P. 34(b)(1)(B).
III.
Discussion
Defendant’s Motion seeks to compel production of the subject tire, the
companion and spare tires, and rims (collectively, the “evidence”), for the purpose
of conducting a non-destructive forensic examination thereof for a period of ninety
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(90) days1 at Defendant’s facility in Findlay, Ohio, where specialized equipment and
laboratory facilities are available. (Doc. 9.) Defendant requests that Plaintiff ship the
evidence, at Defendant’s expense, “within the next ten (10) days” pursuant to
Defendant’s shipping instructions (see Doc. 9-7). (Doc. 9.) Defendant further
requests that the testing occur “without any observation or videotaping by Plaintiff
or anyone acting on his behalf” and that all parties abide by the terms of Defendant’s
proposed Tire Inspection Agreement (Doc. 9-8). (Doc. 9.)
Plaintiff responds he has agreed to allow Defendant access to the evidence
to “conduct non-destructive testing, wherever and however it chose to do so” and his
“only conditions were that the Defendant be accountable and responsible for the
Plaintiff’s property for the entire time it was in the Defendant’s possession, and the
Defendant document their removal and demounting of the companion tires.” (Doc.
10 at 2.) Thus, Plaintiff asks that the Court condition the transfer of possession of
the evidence on Defendant’s execution of the Tire and Wheel Inspection and
Shipping Agreement (see Doc. 10-1). (Doc. 10 at 5-6.) With respect to the ninetyday period requested by Defendant, Plaintiff asserts that thirty (30) days is more than
adequate time to complete the inspection because Defendant has not shown good
cause for the ninety-day period and its attorneys have previously agreed that sixty
(60) days would be sufficient. (Id. at 3-5.) Plaintiff also requests that “should the
1
The Affidavit of Cooper Tire & Rubber Company (Doc. 9-11), signed by Anthony
Brinkman, provides that “90 days is the minimum reasonable time period [for testing] in
order to accomplish all [that is listed herein].”
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Defendant wish to take custody and possession of the tires and rims for inspection,
it do so within ten days of the date of the Order.” (Id. at 6.)
Based on the parties’ representations, it appears undisputed that Defendant
should be allowed to obtain the evidence for non-destructive testing at a facility of
its choice, at Defendant’s expense, without any observation or videotaping by
Plaintiff or anyone acting on his behalf during the testing. The parties’ main
disagreement concerns the issue of who should bear the risk of loss and/or damage
while the evidence is removed, demounted, and shipped.
Upon careful
consideration of the parties’ respective positions, the Court finds Plaintiff’s proposal
on this issue reasonable and, therefore, adopts Plaintiff’s Tire and Wheel Inspection
and Shipping Agreement to the extent it provides: “Defendant assumes the risk of
loss of the evidence, or damage to the evidence, during its removal from the vehicle
and transit.” (Doc. 10-1.) Further, such risk of loss remains with Defendant until the
evidence is received back by Plaintiff’s counsel.
The Court notes that neither Defendant’s shipping instructions (Doc. 9-7) nor
Defendant’s proposed Tire Inspection Agreement (Doc. 9-8), provides any guidance
on this issue. In addition, the Affidavit by Mr. Brinkman does not address the risk of
loss and/or damage except to state that “Cooper has never lost any tire in litigation
using these procedures.” (Doc. 9-11 at 4.) Moreover, the authorities cited by
Defendant, to the extent they should be considered by this Court as persuasive, also
do not directly address risk of loss as a disputed issue. Further, the Court is not
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willing to accept Defendant’s assurance that “[i]n the unlikely event that the integrity
of any of the tires or rims is compromised, Florida law regarding spoliation
adequately protects Plaintiff.”2 (Doc. 9 at 7.)
The Court does not agree that documenting the evidence, by photograph or
otherwise, before it changes possession, would be sufficient to protect Plaintiff’s
interests in case of loss and/or damage. Since Defendant is necessitating shipment,
which it has a right to do, it follows that it should bear the burden to ensure that no
loss or damage ensues, and to bear the risk of any such loss or damage. Therefore,
adoption of Plaintiff’s proposed language quoted above is appropriate. To the extent
this language conflicts with Defendant’s shipping instructions and/or Defendant’s
proposed Tire Inspection Agreement, Plaintiff’s language controls.
Further, since there will be no observation or videotaping by anyone acting on
Plaintiff’s behalf during Defendant’s testing, in accordance with Plaintiff’s proposal
the Court finds it appropriate to require Defendant to document its removal and
demounting of the evidence. Thus, the Court adopts Plaintiff’s Tire and Wheel
Inspection and Shipping Agreement to the extent it provides: “Defendant shall
videotape the removal of the companion tires and wheels from the subject Ford
Ranger, in its entirety, up through and including the enclosing of the tires and wheels
for shipment. Defendant shall also videotape the demounting of the companion
tires.” (Doc. 10-1 at 5.)
2
The Court expresses no opinion on this matter.
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Next, with respect to the duration of the testing, the Court finds Defendant’s
request for ninety (90) days justified based on the attestation in Defendant’s Affidavit
and the lack of contrary evidence presented by Plaintiff. Thus, the Motion is due to
be granted to the extent it seeks a ninety-day custody and possession of the
evidence for the purpose of testing. Further, although Defendant’s Motion requests
that Plaintiff undertake shipment “within the next ten (10) days” and Plaintiff’s
Response similarly asks that Defendant take custody of the evidence within ten days
of the date of this Order, in light of the Court placing the burden of shipping on
Defendant, it is appropriate to allow Defendant to take custody and possession of
the evidence within thirty (30) days of the date of this Order.
Finally, both parties seek attorney’s fees and costs pursuant to Rule 37.
(Docs. 9 & 10.) In granting in part and denying in part a motion to compel discovery,
the Court has discretion to “apportion the reasonable expenses for the motion.” Fed.
R. Civ. P. 37(a)(5)(C). The Court finds that a reasonable apportionment of the
expenses incurred in connection with the Motion is for each party to bear its own
costs. Thus, to the extent the Motion seeks attorney’s fees and costs, it is due to be
denied. Plaintiff’s request for attorney’s fee and costs is also due to be denied.
Accordingly, it is ORDERED:
The Motion (Doc. 9) is GRANTED in part and DENIED in part. The Motion
is granted to the extent it seeks custody and possession of the subject evidence by
Defendant for ninety (90) days “to conduct non-destructive evaluation and testing in
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its own facilities, without any observation or videotaping by Plaintiff or anyone acting
on his behalf,” except as stated herein. The Motion is denied in all other respects.
If Defendant still chooses to test the subject evidence, it must take possession of
such evidence on or before August 24, 2011.
The parties shall bear their
respective expenses incurred in connection with the Motion. See Fed. R. Civ. P.
37(a)(5)(C).
DONE AND ORDERED at Jacksonville, Florida, on July 25, 2011.
Copies to:
Counsel of Record
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