Blumhorst v. Pierce Manufacturing Inc. et al

Filing 83

MEMORANDUM DECISION AND ORDER RE: THIRD-PARTY DEFENDANT WATEROUS COMPANYS MOTION FOR ORDER GRANTING LEAVE FOR SECOND DEPOSITION OF PLAINTIFF, ERVIN E. BLUMHORST AND FOR ENLARGEMENT OF TIME TO DESIGNATE EXPERT WITNESSES granting 64 Motion for Leave to File. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ERVIN E. BLUMHORST,
Plaintiff,
v.

Case No. 4:10-cv-00573-REB
MEMORANDUM DECISION AND
ORDER RE:

PIERCE MANUFACTURING, INC., a Wisconsin
corporation, AKRON BRASS COMPANY, a
Delaware corporation, and john Does I through X,

THIRD-PARTY DEFENDANT
WATEROUS COMPANY’S MOTION
FOR ORDER GRANTING LEAVE
Defendants.
FOR SECOND DEPOSITION OF
__________________________________________ PLAINTIFF, ERVIN E. BLUMHORST
AND FOR ENLARGEMENT OF
PIERCE MANUFACTURING, INC., a Wisconsin
TIME TO DESIGNATE EXPERT
corporation,
WITNESSES
Third-Party Plaintiff,

(DOCKET NO. 64)

v.
WATEROUS COMPANY, a Minnesota
corporation
Third-Party Defendant.

Currently pending before the Court is Third-Party Defendant Waterous Company’s
(“Waterous”) Motion for Order Granting Leave for Second Deposition of Plaintiff, Ervin E.
Blumhorst and for Enlargement of Time to Designate Expert Witnesses (Docket No. 64).
Having carefully reviewed the record and otherwise being fully advised, the Court hereby enters
this Memorandum Decision and Order:

CASE MANAGEMENT ORDER - 1

I. DISCUSSION
Plaintiff was deposed on April 21, 2011 – nearly six months before Waterous was
brought into this action as a Third-Party Defendant. Waterous now seeks to depose Plaintiff,
arguing generally that it had no opportunity to participate in Plaintiff’s April 21, 2011 deposition
and, more specifically, that Plaintiff’s subsequent expert disclosures dealing with the adequacy
of the warnings and operation instructions with respect to the drain valve warrant further inquiry.
See Mem. in Supp. of Leave for Second Depo., pp. 2-3 (Docket No. 65) (“Waterous, in
particular, and the First Party Defendants more generally, have not had an adequate opportunity
to discuss with Blumhorst the particular criticisms advanced against Pierce directly, and
Waterous secondarily, concerning the warnings and operation instructions related to the drain
valve, and which form the basis of Plaintiff’s expert witness criticisms of the Pierce fire truck
generally, and the Waterous pump and drain valve more specifically.”).
Relying upon FRCP 30 and FRCP 26, Plaintiff opposes Waterous’ efforts, responding
that the April 21, 2011 deposition already addressed “the warning on the drain valve and the
instructions for its use” and that “Defendants had ample opportunity to inquire about those
issues.” See Resp. to Mot. for Leave for Second Depo., p. 3 (Docket No. 68).
Plaintiff’s arguments ignore the fact that Waterous was not a party to the action when
Plaintiff was first deposed. While certain issues may or may not have been discussed during
Plaintiff’s first deposition, Waterous is entitled to its own opportunity to depose Plaintiff for its
own benefit, regardless of what other Defendants have already done by way of their own
respective defenses. Although it is true that Waterous is a Third-Party Defendant, brought into

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the case by a First-Party Defendant, the claims against Waterous would not have been raised but
for the claims made by Plaintiff in the first instance.
Accordingly, Waterous is granted leave to depose Plaintiff, however, only to the extent of
its described need for the deposition – that is, “the criticisms advanced against Pierce directly,
and Waterous secondarily, concerning the warnings and operation instructions related to the
drain valve, and which form the basis of Plaintiff’s expert witness criticisms of the Pierce fire
truck generally, and the Waterous pump and drain valve more specifically.” See Mem. in Supp.
of Leave for Second Depo., p. 3 (Docket No. 65). The deposition on these discrete issues will be
limited to 6 hours. All interested parties will be permitted to attend and participate in the
deposition, but any such additional participation is similarly limited to the subject matter set out
above.
II. ORDER
Based on the foregoing, IT IS HEREBY ORDERED that Third-Party Defendant
Waterous Company’s Motion for Order Granting Leave for Second Deposition of Plaintiff, Ervin
E. Blumhorst and for Enlargement of Time to Designate Expert Witnesses (Docket No. 64) is
GRANTED, consistent with the above-referenced rationale.
DATED: June 7, 2012

Honorable Ronald E. Bush
U. S. Magistrate Judge

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