Underhill et al v. Coleman Company

Filing 80

ORDER re 79 Discovery Dispute Conference. See Order for specifics. Settlement Conference RESET for 5/13/2013 at 09:00 AM in East St. Louis Courthouse before Magistrate Judge Donald G. Wilkerson. Parties are reminded that the requirements contained in the Order and Notice 21 remain in effect. Signed by Magistrate Judge Donald G. Wilkerson on 2/5/13. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
PAULA UNDERHILL, Individually and as
Special Administrator of the Estate of Galen
Underhill and SEAN UNDERHILL,
Plaintiffs,
v.
COLEMAN COMPANY, INC.
Defendant.

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Case No. 3:12-cv-129-JPG-DGW

ORDER
WILKERSON, Magistrate Judge:
On February 5, 2013, this Court held a hearing on a discovery dispute regarding destructive
testing of the propane heater that is the subject of this lawsuit. Attorney Lytle appeared on behalf
of Plaintiff and Attorneys Lang and Heise appeared on behalf of Defendants. The attorneys
presented arguments on their respective positions; Plaintiffs presented the affidavit of Gary Hutter
(an expert) (Ex. A); and, Defendants presented the affidavits of attorney Scott R. Schillings (Ex.
1), Richard J. Roby (an expert) (Ex. 2), and Philip G. Dinsmore (Defendant’s employee) (Ex. 3).
The Defendants conducted non-destructive testing of the Powermate 5045 on January 28
and 29, 2013 with the Plaintiffs and their experts observing. Plaintiffs represented to the Court
and Defendant that they did not intend on doing any independent testing on the heater. The
results of the testing (in addition to other evidence) have led Defendants to suspect (or have
suspicions confirmed) that the heater, the tank, and/or the connection between the two have been
altered from the original manufacture. In light of this, Defendants seek to perform destructive
testing of the heater and attached propane tank. By “destructive,” the Defendants seek to
disassemble the heater from the propane tank and conduct independent testing on each unit.

At the hearing, Plaintiffs did not object to the testing that Defendant suggests but merely to
the timing of the testing. Plaintiffs state that before they could agree to the destructive testing
they would like to examine the raw data from the tests already completed, consider whether they
would like to do any additional testing on the unit prior to disassembly, and they would like to have
a copy of the expert report of Defendant’s expert, Richard J. Roby. Defendant states that it will
provide the raw data and that it would like to participate in and/or observe any further testing by
Plaintiff. Defendant, however, has indicated that it will be unable to produce an expert report by
February 15, 2013 because, without the additional testing, such a report would be incomplete.
In light of these representations and the affidavits submitted by the parties, the following is
hereby ORDERED:
1. Defendants SHALL provide the raw data from the testing conducted on January 28 and 29,
2013 to Plaintiffs within ten (10) days of the date of this Order.
2.

Plaintiffs SHALL inform Defendant and the Court whether they wish to perform any

additional (non-destructive) testing within ten (10) days of receipt of the raw data and shall provide
the proposed testing protocols to Defendant should they seek additional testing of the unit in its
current condition. Such testing may only be done with leave of court.
3. As to the testing requiring disassembly of the unit, the parties SHALL confer as to any
additional testing they wish to perform and are granted leave to perform additional, joint
destructive testing that is mutually agreeable.
4. In the event that the parties cannot reach an agreement as to the type, location, or timing (or
any other related issues) of additional testing, the parties SHALL immediately contact chambers
to set up a discovery dispute conference.

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5. The production of Richard J. Roby’s expert report is STAYED pending completion of any
testing. A new deadline will be set once the Court is satisfied as to the schedule governing
additional testing.
6. The settlement conference in this case is RESET to May 13, 2013 at 9:00 a.m. in East St.
Louis, Illinois.

DATED: February 5, 2013
DONALD G. WILKERSON
United States Magistrate Judge

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