Mt Carmel Mutual Insurance Association v. CNH America LLC
Filing
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ORDER granting in part and denying in part 40 Motion to Compel. See text of Order. Mt. Carmel's request for an award of costs and attorney fees associated with the motion is denied. Signed by Magistrate Judge Leonard T Strand on 12/2/14. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
MT. CARMEL MUTUAL
INSURANCE ASSOCIATION, as
subrogee of Jacob Kuker, insured,
Plaintiff,
No. C12-4112-DEO
vs.
ORDER
CNH AMERICA, L.L.C.,
Defendant.
____________________
I.
INTRODUCTION
This case is before me on plaintiff’s motion (Doc. No. 40) to compel defendant to
supplement discovery responses.1 Defendant has filed a resistance (Doc. No. 55) and
plaintiff has filed a reply (Doc. No. 58).
I heard oral arguments by telephone on
November 26, 2014. Attorney Allyson Dirkson appeared for plaintiff while attorneys
Maureen Bickley and Richard Kirschman appeared for defendant. The motion is fully
submitted and ready for decision.
II. RELEVANT BACKGROUND
Plaintiff Mt. Carmel Mutual Insurance Association (Mt. Carmel) filed this action
in an Iowa state court on September 17, 2012. Doc. No. 2. Defendant CNH America,
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Plaintiff failed to file a supporting brief, as required by Local Rule 7(d). While I will,
nonetheless, address this motion on its merits, plaintiff is advised that any future noncomplying
motion is likely to be denied summarily.
L.L.C. (CNH), removed the case to this court on December 18, 2012, on the basis of
diversity jurisdiction. Doc. No. 1. As Judge O’Brien previously summarized:
This case arises out of a fire that destroyed a piece of farm equipment;
specifically, a combine, owned by Jacob Kuker. The Plaintiff is Mr.
Kuker’s insurance company. After the fire destroyed Mr. Kuker’s
combine, the Plaintiff reimbursed him for his loss. CNH American
L.L.C. . . . manufactured or sold the combine.
Doc. No. 15 at 1-2.
In its petition, Mt. Carmel alleges that the combine was designed defectively in
that CNH used a plastic material, rather than metal, to construct the fuel tank. Doc.
No. 2 at ¶¶ 9-10. Mt. Carmel contends that on October 29, 2010, a small fire started
when grain dust and crop debris ignited during use of the combine and that such fires are
reasonably foreseeable. Id. at ¶¶ 3, 5, 12. Mt. Carmel alleges that the fire should
have been easily extinguished with little or no damage to the combine by use of two fire
extinguishers that Mr. Kuker discharged upon discovering the fire.
Id. at ¶ 8.
However – and here is where the alleged defect comes into play – the fire instead spread
because it allegedly melted a hole in the plastic fuel tank, causing diesel fuel to spill onto
the flames, thus intensifying the fire.
Id. at ¶ 9.
According to Mt. Carmel:
“A
reasonable alternative design employing a metal fuel tank would have prevented it from
melting from the small grain fire, avoiding the release of diesel fuel into the flames, and
in allowing the small grain fire to be easily extinguished and avoiding any significant
damage to the combine.”
Id. at ¶ 11. CNH has filed an answer in which it denies
liability and raises various defenses.
Doc. No. 3.
Trial, having recently been
continued, is now scheduled to begin May 4, 2015. Doc. No. 52.
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III. THE CURRENT DISPUTE
During discovery, Mt. Carmel served two sets of interrogatories and document
requests. CNH served its responses to the first set on May 22, 2013, and its responses
to the second set on August 30, 2013. About one year later, as the September 1, 2014,
discovery deadline was looming, Mt. Carmel requested that CNH supplement certain
responses. Doc. No. 40-1 at 3-10 (letter dated August 26, 2014). Because Local Rule
37(c) requires that all discovery motions be filed no later than fourteen (14) days after
the close of discovery, Mt. Carmel filed its motion to compel on September 15, 2014.
Mt. Carmel noted that negotiations about the disputed issues were ongoing.
The motion raised issues about CNH’s responses to the following discovery
requests: (a) Interrogatories 10, 11 and 28 and (b) Document Requests 6, 23, 31, 32, 33,
37, 38 and 39. CNH then sought (Doc. No. 47) an extension of its deadline to resist,
stating that the parties had reached a “tentative resolution” of the pending discovery
disputes. Doc. No. 47. The deadline was extended to November 5, 2014. Doc. No.
48. CNH filed its resistance on that date, stating that the parties have, in fact, reached
agreement on nearly all of the disputed issues.
However, CNH reported (and Mt.
Carmel agrees) that the parties could not resolve their disagreement over the scope of
Document Requests 31, 32 and 33, which read as follows:
REQUEST NO. 31: All documents or entries in the ASIST Knowledge
database regarding fuel tanks in any combine, including but not limited to,
the combine involved in the incident in question.
REQUEST NO. 32: All documents or entries in Applix regarding fuel
tanks in any combine, including but not limited to, the combine involved in
the incident in question.
REQUEST NO. 33: All materials in eTim regarding fuel tanks in any
combine, including but not limited to, the combine involved in the incident
in question.
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Doc. No. 55 at 2. CNH states that the ASIST and Applix databases are one in the same,
meaning Requests 31 and 32 seek identical information. CNH further states that the
“eTim” database referenced in Request 33 is actually called “TIM.”2
The parties have agreed that a search of these databases for documents containing
the terms “fuel tank” and “fire” is appropriate.
However, CNH seeks to limit its
production of documents returned by those searches to those involving its “20-Series” of
combines, while Mt. Carmel contends that it is entitled to all documents returned by the
searches, regardless of combine model.
IV. DISCUSSION
A.
Applicable Standards
Generally, a party may obtain discovery regarding any nonprivileged matter that
is relevant to any claim or defense. See Fed. R. Civ. P. 26(b)(1).
permissible discovery is broader than the scope of admissibility.
The scope of
See, e.g., Hofer v.
Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992). Nonetheless, “[s]ome threshold
showing of relevance must be made before parties are required to open wide the doors of
discovery and to produce a variety of information which does not reasonably bear upon
the issues in the case.” Id. Moreover, discovery must not only be relevant, it must
also be proportional to the needs of the case. See Fed. R. Civ. P. 26(b)(2)(C).
2
CNH argues that I should deny Mt. Carmel’s motion with regard to Request 33 because Mt.
Carmel did not address that request in its August 26, 2014, letter. See Doc. No. 40-1 at 3-10.
Thus, CNH contends, Mt. Carmel failed to make the required good faith effort to resolve
disputes about Request 33 informally. See Fed. R. Civ. P. 37(a)(1); Local Rule 37(a). While
this seems like a good argument at first glance, it crumbles on close inspection. In fact, Mt.
Carmel incorrectly referred to Request 33 as “Request No. 29” in its letter while clearly
addressing the substance of Request 33. Doc. No. 40-1 at 8. CNH obviously understood that
Mt. Carmel meant to refer to Request 33, as it too addressed the substance of Request 33 in its
response. Doc. No. 40-1 at 18-19. In both letters, the discussion of “Request No. 29” is
located immediately after the discussion of Request 32 and immediately before the discussion of
Request 34. Under these circumstances, CNH’s procedural argument is baseless.
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Evidence of other, allegedly-similar incidents is often admissible in product
liability cases. See, e.g., Chism v. CNH America L.L.C., 638 F.3d 637 (8th Cir. 2011);
Katzenmeier v. Blackpowder Products, Inc., 628 F.3d 948 (8th Cir. 2010). A plaintiff
may use such evidence to show “defendant’s notice of defects, the defendant’s ability to
correct known defects, the magnitude of the danger, the product’s lack of safety for
intended uses, or causation.”
Lovett ex rel. Lovett v. Union Pacific R. Co., 201 F.3d
1074, 1081 (8th Cir. 2000). However, “[u]nless the facts and circumstances of other
incidents are ‘substantially similar,’ such evidence is inadmissible because admitting such
evidence could ‘raise extraneous controversial issues, confuse the issues, and be more
prejudicial than probative.’”
Katzenmeier, 628 F.3d at 951.
The party seeking
admission of evidence concerning other incidents has the burden to show that the
circumstances between the incidents are substantially similar.
J.B. Hunt Transport, Inc.
v. General Motors Corp., 243 F.3d 441, 445 (8th Cir. 2001) (citation omitted). The
other party may then need to rebut the “substantial similarities.”
Estate of Thompson v.
Kawasaki Heavy Industries, Ltd., 933 F. Supp. 2d 1111, 1140 (N.D. Iowa 2013).
Discovery concerning other incidents is not strictly limited to the exact product
model at issue, as information about similar models may be relevant.
at 381.
Of course, the question is always:
Hofer, 981 F.2d
“How similar is similar enough?”
In
Hofer, the Eighth Circuit Court of Appeals reviewed decisions from other jurisdictions
in considering this question and found, under the facts present in that case, that the burden
of producing documents concerning certain prior truck models outweighed any limited,
potential relevance.
Id. at 381.
The court favorably-referenced one case for the
proposition that “[g]enerally, different models of a product will be relevant if they share
with the accident-causing model those characteristics pertinent to the legal issues raised
in the litigation.” Id. (quoting Culligan v. Yamaha Motor Corp., USA, 110 F.R.D. 122,
126 (S.D.N.Y. 1986)). The court then noted, by contrast:
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[D]iscovery has been denied where the predecessor models did not share
pertinent characteristics with the products at issue. Sufficiently dissimilar
characteristics have been found to exist where a plaintiff sought information
about a vehicle recall, but the models recalled did not have the same
component as the one at issue in the litigation . . . .
Id. [citations omitted]. Thus, identifying “pertinent characteristics,” and determining if
other models share those characteristics, is important to determining the scope of
permissible discovery concerning other incidents.
B.
Analysis
As noted above, the design defect Mt. Carmel alleges in this case arises from the
material used to construct the combine’s fuel tank. Mt. Carmel contends that the risk
of fire is foreseeable during use of a combine and that the damage caused by the fire in
this case was exacerbated by CNH’s use of a non-metal fuel tank. According to Mt.
Carmel, if the tank had been metal, it would not have failed and fuel would not have
escaped to intensify the fire. Doc. No. 2 at ¶¶ 9-11. Based on this theory, there is
little doubt that some amount of discovery concerning other combine fires is appropriate.
And, as noted above, the parties have agreed that CNH should search its databases for
documents containing the terms “fuel tank” and “fire.” The dispute is whether CNH
may limit its production of the resulting documents to those involving its “20-Series” of
combines.
CNH notes that the combine at issue in this case is a model 8120, which is part of
a family of combine models that also includes models 7120 and 9120. CNH contends
that it should not have to produce documents relating to its other series of combines,
whether manufactured before or after the fire at issue here. CNH states that it has
manufactured axial flow combines for over 35 years, with numerous design changes
occurring over time.
CNH has submitted deposition testimony (albeit from another
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case) indicating that the fuel tanks on the predecessor series (the “10-Series”) were shaped
differently and were placed in a different location than those on the 20-Series. Doc.
No. 55 at 4 (citing Doc. No. 55-6).3 According to CNH, neither the 10-Series nor any
other series of its combine models is similar enough to the 20-Series to permit discovery
of incidents involving those other series.
Thus, while CNH does not argue that it would
be overly burdensome or expensive for it to search its databases for incidents involving
other models, it argues that incidents concerning those other models are irrelevant.
Mt. Carmel disagrees. It argues that differences in the shape and/or location of
fuels tanks on other models are immaterial, as its claim is based entirely on the fact that
a non-metal material was used to construct the 8120’s fuel tank. Mt. Carmel points to
testimony that this material “has been a standard for many, many years.” Doc. No. 58
at 7 (citing Doc. No. 58 at 23). While the shape and location of the fuel tanks may have
changed, it appears that the material used to construct those tanks has been largely
unchanged over several of CNH’s combine series. Doc. No. 58 at 7-8 (citing CNH’s
interrogatory answers). According to Mt. Carmel, this makes CNH’s effort to limit
discovery to the 20-Series unfairly restrictive.
In addition, Mt. Carmel argued during the hearing that evidence of incidents
involving combines with metal fuel tanks may also be relevant, as it is Mt. Carmel’s
position that a metal tank would have prevented this loss. If, for example, CNH has
numerous incident reports concerning combine fires near metal fuels tanks, and none of
those reports reflect that the metal tanks failed, that evidence is conceivably relevant to
Mt. Carmel’s design-defect theory.
Thus, Mt. Carmel contends that all documents
returned by use of the agreed search terms should be produced.
3
The witness did indicate, however, that the material used to construct the fuel tank did not
change between the 10-Series and the 20-Series. Doc. No. 55-6 at 3 (Dep. at 181).
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I agree with Mt. Carmel.
It has made the threshold showing of potential
relevance necessary to require that CNH produce all documents that are returned when
its databases are searched, regardless of which combine model was involved. Simply
put, the “pertinent characteristic” for determining the proper scope of discovery is the
fuel tank – regardless of the material used to construct it. By agreeing to limit the
database searches to documents that include the terms “fuel tank” and “fire,” Mt. Carmel
has taken reasonable steps to narrow its requests to documents that may lead to the
discovery of admissible evidence.
Of course, this says nothing about whether evidence of any particular incident will
be admissible at trial. For purposes of discovery, however, CNH may not limit its
production of the documents that are returned when its databases are searched for the
agreed terms.
Mt. Carmel is entitled to discover all such documents, regardless of
which combine model was involved.
V.
CONCLUSION
For the reasons set forth herein, Mt. Carmel’s motion (Doc. No. 40) to compel is
granted in part and denied in part, as follows:
1.
The motion is granted with regard to Mt. Carmel’s document requests 31,
32 and 33. On or before December 17, 2014, CNH shall supplement its responses to
those requests by producing all documents returned when the databases at issue are
searched for the terms “fuel tank” and “fire” in relation to any combine.
2.
The motion is denied as moot with regard to all other discovery requests
addressed in the motion.
3.
Mt. Carmel’s request for an award of costs and attorney fees associated
with the motion is denied.
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IT IS SO ORDERED.
DATED this 2nd day of December, 2014.
________________________________
LEONARD T. STRAND
UNITED STATES MAGISTRATE JUDGE
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