Whitaker v. General Motors Corporation

Filing 35

ORDER AND REASONS re 29 Motion for Leave to File Second Amended Complaint. ORDERED that Whitaker's Motion for Leave to Amend is GRANTED in part; on or before Friday, April 14, 2017, Whitaker shall file a revised Second Amended Complaint for Damages, identical in all respects except for specifically pleading the theory of relief under the LPLA. Signed by Magistrate Judge Janis van Meerveld. (gec)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DOMINIQUE NICOLE WHITAKER
individually and on behalf of her minor
children KW and NW

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VERSUS
GENERAL MOTORS CORP.

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CIVIL ACTION NO. 16-3421
SECTION: “G”(1)
JUDGE NANNETTE JOLIVETTE
BROWN
MAGISTRATE JUDGE
JANIS VAN MEERVELD

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ORDER AND REASONS
Before the Court is the Motion for Leave to File Second Amended Complaint filed by
plaintiff Dominique Nicole Whitaker, individually and on behalf of her minor children KW and
NW (“Whitaker”) (Rec. Doc. 29). For the following reasons, the Motion is GRANTED in part.
Background
Whitaker filed her original complaint on April 19, 2016, alleging injuries arising out of a
car accident involving a Chevrolet Suburban in which Whitaker was a front seat passenger. She
asserted that the Suburban’s passenger side airbag failed to deploy during a collision and that she
suffered severe injuries as a result. She named General Motors Corporation (“GM”, which has
appeared in this lawsuit as General Motors, LLC) as a defendant, urging that GM is liable as
manufacturer for the defective airbag that rendered the Suburban unreasonably dangerous.
Whitaker has also filed the action on behalf her minor children, alleging that the children have
suffered a loss of nurture, guidance and support as a result of her injuries.
Whitaker amended her complaint on May 11, 2016, to name General Motors LLC as the
successor to vehicle manufacturer General Motors Corporation. (Rec. Doc. 5). Trial in this matter
was originally set to be held on June 26, 2017, and the deadline to amend pleadings was August

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29, 2016. After holding a status conference with the parties on March 6, 2017, and noting
Whitaker’s ongoing medical treatment, the District Court granted Whitaker’s request for a
continuance and reset the trial to September 11, 2017. Whitaker’s expert report deadline is now
May 23, 2017, and GM’s expert report deadline is June 23, 2017. The discovery deadline is July
11, 2017. The deadline to amend pleadings was not extended.
Whitaker now moves to amend her complaint a second time to add a new theory of relief,
also under the Louisiana Products Liability Act, La. Rev. Stat. § 9:2800.51 et seq. (LPLA).
Whitaker asserts that after review of numerous documents produced by GM and in conjunction
with additional research and analysis, including a review of photographs, her expert (who
inspected the vehicle on June 2, 2016) now suspects that Whitaker’s seatbelt uncoupled at impact
and that seatbelt failure also played a role in causing Whitaker’s injuries. More specifically,
Whitaker’s proposed second amended complaint alleges she was thrown from the vehicle “as a
result of the failure of her seatbelt to remain coupled upon impact, a characteristic of the 2003
Chevrolet Suburban that rendered it unreasonably dangerous during reasonably anticipated use
under Louisiana law.” According to this proposed pleading, Rec. Doc. 29-2, p. 2, Whitaker’s
injuries “were proximately caused and/or enhanced in whole or part by the failure of the passenger
side seat belt as stated herein.” Id. She requested expedited hearing and this Court set the matter
for hearing with oral argument on April 12, 2017. GM opposes.
Law and Analysis
1. Amendment of Pleadings under Rule 16
Where, as here, the court ordered deadline for amending pleadings has passed, that
schedule “may be modified” to allow for additional amendments “only for good cause and with
the judge’s consent.” Fed. R. Civ. Proc. 16(b)(2); see S&W Enterprises, L.L.C. v. SouthTrust Bank

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of Alabama, NA, 315 F.3d 533, 536 (5th Cir. 2003) (“We take this opportunity to make clear that
Rule 16(b) governs amendment of pleadings after a scheduling order deadline has expired.”).
When determining whether the movant has shown good cause, the Court considers “(1) the
explanation for the failure to [timely move for leave to amend]; (2) the importance of the
[amendment]; (3) potential prejudice in allowing the [amendment]; and (4) the availability of a
continuance to cure such prejudice.’ ” S&W Enterprises, 315 F.3d at 536 (quoting Reliance Ins.
Co. v. Louisiana Land & Expl. Co., 110 F.3d 253, 257 (5th Cir. 1997)) (alterations in original).
Thus, in S&W Enterprises, the Fifth Circuit affirmed the district court’s denial of leave to amend
because the movant had offered “effectively no explanation,” additional discovery would be
required, and a continuance would unnecessarily delay the trial. Id. at 536-37; see Santacruz v.
Allstate Texas Lloyd's, Inc., 590 F. App'x 384, 389 (5th Cir. 2014) (affirming the district court’s
denial of a motion for leave to amend the complaint to add a breach of contract claim filed four
months after the scheduling order deadline passed where the amendment would reopen discovery
and permit the refiling of a dispositive motion).
2. Whitaker’s Proposed Amendment
Whitaker’s brief argues simply that document discovery and expert analysis revealed the
seatbelt theory of relief and that she did not have sufficient information to allege this theory at the
time of the pleading amendment deadline. At oral argument, Whitaker’s counsel further explained
that while there was no particular document that triggered the revelation, the expert developed the
theory over time. Counsel represented that he first learned of the seatbelt theory from the expert in
late January 2017 and that it was late February when counsel first received written notes from the
expert regarding the theory. He raised the possibility of this new claim with GM’s counsel around
the time of the status conference with the District Judge on March 6, 2017, although it was not

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mentioned to the District Judge at that conference. This Motion for Leave was filed on March 30,
2017. The Court recognizes that it may well have been possible for plaintiff’s expert to discover
the seatbelt theory at an earlier time. Certainly, ideally, plaintiff’s counsel would have pursued
this theory more aggressively once alerted to it. The Court also notes the validity of GM’s point
that in a motor vehicle accident involving an ejection, the potential role of the seatbelt should have
been considered from the outset. However, the Court finds that the other Rule 16 factors weigh
in favor of allowing the amendment, so as to outweigh any concerns the Court may have regarding
plaintiff’s explanation for the failure to amend prior to the August 29, 2016 pleading amendment
cutoff date, or to more timely amend thereafter.
As regards those other factors, the Court agrees with Whitaker that the amendment is
important to ensure that the case proceeds to trial under the appropriate legal theory. Indeed, as the
second of only two theories of liability, it could be the only way she is able to obtain relief.
Further, the Court finds that GM will not suffer any significant prejudice as a result of the
amendment. At oral argument, Whitaker’s counsel clarified that the seatbelt theory involves only
this one vehicle’s seatbelt and whether it malfunctioned, and not an overall attack on whether this
model of seatbelt was defective and/or appropriately used in vehicles at the time of its manufacture.
As such, Whitaker explained that only minimal, targeted written discovery would be required and
possibly one or two GM witness depositions regarding manufacturing. Whitaker’s counsel
committed to timely producing Whitaker’s expert report by the May 23, 2017, deadline, regardless
of what discovery responses were obtained in the interim. As Whitaker points out, GM’s expert
reports are not due until June 23, 2017, the discovery deadline is July 11, 2017, and the trial is set
to begin September 11, 2017. The Court agrees with Whitaker that such deadlines can be met. Nor

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is the dispositive motion deadline at risk. With a hearing/submission date of July 19, 2017, GM
can file by July 4, almost three months away.
GM counters that there is not enough time to respond to the new theory because it will need
time to identify and prepare an expert that can respond to it. The Court recognizes that additional
discovery and expert preparation will need to be done on a short timetable. The greatest burden
is clearly on plaintiff; Whitaker has only a month to do any necessary discovery and produce its
expert report by May 23, 2017. Whitaker has assured the Court that she can do so. GM will then
have a month to get its expert report together, or by June 23, 2017. That timeframe, however, is
standard in most courts’ scheduling orders; the defendant usually only has one month to respond
to plaintiff’s expert report(s) with its own expert report(s).

Nonetheless, the Court is not

unsympathetic to the additional burden allowing a seatbelt theory places on GM, which until now,
as GM points out, was defending only a fairly straightforward airbag case. In allowing the
amendment and thus imposing this burden on GM, the Court is strongly influenced by a) the
narrow focus of Whitaker’s inquiry on this particular seatbelt, and b) GM’s sophistication and
litigation experience. GM admitted that it had seatbelt experts on staff, although it claims it may
need to go to an outside expert in this case. It also admitted that the seatbelt had already been
examined. Furthermore, the parties agreed very little discovery has occurred thus far, although
GM produced about 23,000 pages worth of airbag information as part of its initial disclosures.
Only the plaintiff and two children have been deposed; their redeposition will not be necessary.
As to the fourth Rule 16 factor, whether a continuance is available to cure any prejudice,
the Court notes that at this time, it does not appear that a continuance will be necessary. Further,
the parties have not expressed any reason why, if necessary, a continuance would not be available.

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After consideration of all four factors, the Court finds that Whitaker has shown good cause
for her proposed amendment under the criteria set forth in Rule 16. However, the Court agrees
with GM that as currently drafted, Whitaker’s proposed amendment fails to clearly allege her
seatbelt theory of relief under LPLA. As noted above, Whitaker’s counsel clarified at oral
argument that Whitaker is challenging the composition or construction of the particular seatbelt at
issue and does not seek to raise any design, warning, or warranty issue.
Conclusion
Whitaker has shown good cause to amend her Complaint to add the seatbelt theory of relief,
however, her proposed amendment must be revised to clarify the theory of relief under LPLA.
Accordingly, Whitaker’s Motion for Leave to Amend is GRANTED in part; on or before Friday,
April 14, 2017, Whitaker shall file a revised Second Amended Complaint for Damages, identical
in all respects except for specifically pleading the theory of relief under the LPLA.
New Orleans, Louisiana, this ____ day of April, 2017.

Janis van Meerveld
United States Magistrate Judge

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