Doucet et al v. Dormont Manufacturing Company

Filing 31

RULING granting in part 20 Motion to Compel Discovery. Signed by Magistrate Judge Stephen C. Riedlinger on 05/29/2014. (NLT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

DAVID DOUCET, ET AL.
CIVIL ACTION
VERSUS
NUMBER 13-251-SDD-SCR
DORMONT MANUFACTURING COMPANY
RULING ON MOTION TO COMPEL DISCOVERY
Before the court is the Motion to Compel State Farm to provide
supplemental discovery responses filed by the defendant.
document number 20.

Record

The motion is opposed.1

This case arose out of a fire that occurred at the home of
plaintiffs

David

and

Suzanne

Doucet

on

January

17,

2012.

Plaintiffs David and Suzanne Doucet, their children, and their
insurer, State Farm Fire and Casualty Company, filed suit in state
court

asserting

a

products

liability

claim

against

defendant

Dormont Manufacturing Company (“Dormont”). Plaintiffs alleged that
Dormont manufactured a gas line which supplied natural gas to the
Doucet’s kitchen range, the gas line was defective, and it caused
the fire in their home.
Dormont served its first set of Interrogatories and Request
for Production of Documents to plaintiff State Farm on November 7,

1

Record document number 22.
Defendant filed a reply
memorandum. Record document numbers 25 and 26 (same document).
Plaintiff filed supplemental opposition and the defendant filed a
supplemental reply.
Record document numbers 28 and 29,
respectively.

After receiving the plaintiff’s responses,2 the defendant

2013.

contested the answers to Interrogatories Nos. 4 - 6 and the
responses to Requests for Production Nos. 8 - 13.

Defendant

received supplemental discovery responses from the plaintiff on
February 4, 2014.3

Defendant asserted that these supplemental

responses were also insufficient and filed this motion to resolve
the dispute.

Plaintiff served its Second Supplemental Answers to

Interrogatories and Requests for Production of Documents on March
26, 2014.4

Defendant argued in its supplemental reply memorandum

that the plaintiff’s second supplemental discovery responses are
still not satisfactory.
After reviewing all of the plaintiff’s discovery responses and
the parties’ arguments, the discovery disputes are resolved as
follows.
In Interrogatory Nos. 4, 5, and 6, the defendant sought the
facts supporting the allegations in the state court Petition for
Damages concerning the unreasonably dangerous characteristics and
design of the defendant’s gas line and the failure to provide
adequate warnings.
production

2

of

all

Request for Production Nos. 8 - 13 sought
documents

and

identification

of

all

laws

Record document number 20-2, Exhibit B.

3

Record document number 20-4, Exhibit D, Supplemental Answers
to Interrogatories and Requests for Production of Documents.
4

Record document number 28-1.
2

supporting the plaintiff’s responses to Interrogatory Nos. 4, 5,
and 6.
Plaintiff State Farm initially responded to Interrogatory Nos.
4, 5 and 6 by making unsupported objections.

In its Supplemental

Answer to Interrogatory No. 4 served on February 4, 2014 the
plaintiff

referred

to

its

“knowledge

of

and

experience

with

numerous failures in similarly constructed stainless steel gas
lines caused by electrical arcing.”

State Farm asserted that

“[e]xtensive literature which discuses these issues is as equally
available to the defendant as it is to plaintiffs,”
concluded

its

answer

with

this

statement:

Plaintiff

“Additionally,

the

allegation that the Dormont stainless steel gas connector has
unreasonably dangerous thin-wall characteristics is supported by
conversations with consulting experts.”5
A more evasive response can hardly be imagined.
First, from its answer it appears that plaintiff State Farm
intends to prove its claim with facts gleaned from other failures
involving other steel gas lines, and not the alleged failure of the

5

Plaintiff did not withdraw its original answer to
Interrogatory No. 4, in which it asserted that the discovery
request is premature, and also asserted the attorney-client
privilege and work product protection. There is no indication that
State Farm produced a privilege log or actually withheld any
information based on the asserted privilege or protection. Clearly
the discovery request was not premature, and State Farm’s assertion
to the contrary was frivolous. As to the asserted privilege and
protection, in the absence of a timely-produced privilege log,
these assertions are baseless.
3

gas line installed in the Doucet’s home, and not even failures of
the stainless steel gas lines manufactured by the defendant.

Yet,

the plaintiff refused to disclose these other failures, and the
details of them, or the manufacturers of these other gas lines. If
the plaintiff intends to rely, at least in part, on such facts to
support its claim, the plaintiff must disclose these facts.
Second, assuming that there is much literature available on
the subject, surely it is important for the defendants to know what
particular literature State Farm is relying upon to support its
claim.

State Farm cannot credibly assert that it is aware of all

literature on the subject and that all literature on the subject
supports its claim.
Third, it appears that plaintiff State Farm intends to rely on
“facts” obtained from “conversations with consulting,” i.e., nontestifying, experts.

Plaintiff has not explained how this is

possible under the Federal Rules of Civil Procedure and the current
discovery deadlines.

The deadline for the plaintiffs to identify

their expert witnesses who will testify at trail was September 16,
2013, and the deadline for the plaintiffs to produce any required
expert reports was May 14, 2014.6

Plaintiff State Farm served its

Supplemental Answer to Interrogatory No. 4 on February 4, 2014. By
then the plaintiff must have known who its trial experts would be.

6

Record document number 8, Scheduling Order, p. 2, item D;
record document number 17, Amended Scheduling Order, item E.
4

Yet, the plaintiff’s Supplemental Answer to Interrogatory No. 4
indicates it will rely on “facts” from consulting experts.

At a

minimum, the plaintiff had to identify these “consulting” experts
so that the defendant would know whether they would be testifying
at trial, in which case the experts should have been previously
identified and should have produced their reports by now, or they
are non-testifying experts who would not produce a report.

Absent

such information, the plaintiff’s answer Interrogatory No. 4, is
evasive.
In its Second Supplemental Answers to Interrogatories and
Requests for Production of Documents, plaintiff State Farm reasserted its frivolous prematurity objection, as well as its
baseless attorney-client privilege and work product protection
objections.

It mentioned it will timely produce an expert report.

Then it stated, presumably as a “fact” - which is what the
interrogatory sought - “that the Dormont stainless steel flexible
gas line is unreasonably dangerous due to its susceptibility to
fail when exposed to errant electricity because of its thin-wall
characteristics, failure to be grounded, and failure to be bonded.”
Plaintiff

also

referenced

a

2009

article,

“CSST

Response

to

Lighting and Transients, A Technical Analysis,” mentioned that the
article refers to additional articles and literature, and cited the
Louisiana Products Liability Act, LSA-R.S. 9:2800.51, et seq.
Plaintiff did not purport to rely on any other specific published

5

article or other literature - the supplemental answer merely
mentioned that the cited article refers to other articles and
literature.
Other than the statement that the defendant’s gas line was not
grounded and bonded, the plaintiff’s Second Supplemental Answers to
Interrogatories Interrogatory No. 4, merely asserts the conclusion
that the defendant’s product is unreasonably dangerous.
statement

that

it

has

“thin-wall

characteristics”

is

The
vague.

Presumably the plaintiff contends it is too thin for the intended
purpose.
fact.

If so, the thinness (or lack of thickness) is a relevant

But the plaintiff failed to give even this basic fact.

Stripped of the conclusory language, the facts identified in the
answer, as supplemented, supporting the plaintiff’s claim are
these: the gas line is not grounded and not bonded.

That the

plaintiff will produce an expert report does not relieve it of the
obligation to timely identify “facts” supporting its claim in
response to an interrogatory.
Stripped of the same frivolous and baseless objections and
conclusory language, the plaintiff’s Second Supplemental Answer
Interrogatory No. 5 provides this “fact”: the product had no
warnings.

If the plaintiff attempts to rely on information or

documents responsive to Interrogatory No. 5 and the corresponding
requests for production, but it does not produce such information
and documents to the defendant in a timely manner, it can be

6

prohibited from using such information and documents to support its
claims under Rule 37(c)(1), Fed.R.Civ.P.
Both the plaintiff’s Supplemental Answer to Interrogatory No.
6,

and

Second

Supplemental

Answer

to

Interrogatory

No.

6,

maintained the same frivolous and baseless objections, and also
stated that “numerous alternative designs ... are available on the
market.”

Once

again,

omitting

the

frivolous

and

baseless

objections and conclusory statements, the plaintiff’s answer is
vague and evasive.

The existence of alternative designs is a fact

the plaintiff intends to rely on to support its claim.

If there

are numerous alternative designs, which one(s) does the plaintiff
rely on?

Again, that the plaintiff will produce an expert report

does not relieve it of the obligation to timely identify “facts”
supporting its claim.

Plaintiff is required to identify each

specific alternative design it intends to rely on to support its
claim.

Because

Request

for

Production

Nos.

12

and

13

seek

documents, laws, and industry standards related to the response to
Interrogatory No. 6, the plaintiff is also required to supplement
is responses to these requests.
The argument set forth by the plaintiff concerning contention
interrogatories is without merit.

Interrogatories seeking to

clarify the contentions of parties are specifically permitted by

7

Fed.R.Civ.P. 33(a)(2).7
February 21, 2014.

Defendant’s motion to compel was filed on

The discovery deadline set at that time was

March 17, 2014 and the trial was set for December 15, 2014.

Based

on the progression of the case, the plaintiff should have been
adequately prepared by then to respond to these discovery requests.
Under Rule 37(a)(5)(A), Fed.R.Civ.P. if a motion to compel is
granted or discovery is provided after filing, the court must
require the party whose conduct necessitated the motion to pay the
movant’s

reasonable

expenses

incurred

in

making

the

motion,

including attorney’s fees, unless the court finds that (1) the
movant filed the motion before making a good faith attempt to
obtain the discovery without court action, (2) the opposing party's
failure was substantially justified, or (3) other circumstances
make an award of expenses unjust.

Rule 37(a)(5)(A) is applicable

because the defendant provided substantive supplemental responses
after the motion to compel was filed, but still failed to provide
responsive, non-evasive answers to Interrogatory Nos. 4 and 6 and
produce documents responsive to Requests for Production Nos. 8, 9,
12 and 13.
Nothing in the record supports finding that the plaintiff’s

7

An interrogatory otherwise proper is not necessarily
objectionable merely because an answer to the interrogatory
involves an opinion or contention that relates to fact or the
application of law to fact, but the court may order that such an
interrogatory need not be answered until designated discovery is
complete or until a pretrial conference or some other time.
8

failure

was

circumstances
Therefore,
expenses.

substantially
which

justified

would

make

is

entitled

defendant

an

or

award
to

an

that
of

there

are

expenses

award

of

any

unjust.

reasonable

Defendant did not claim a specific amount of expenses

incurred in filing its motion. However, a review of the motion and
memoranda supports the conclusion that an award of $450.00 is
reasonable.

Conclusion
Accordingly, the Motion to Compel Discovery From State Farm is
granted in part.

With respect to Interrogatory Nos. 4 and 6, and

Requests for Production Nos. 8, 9, 12 and 13, plaintiff State Farm
shall supplement its answers and produce responsive documents,
without objections, within 14 days.

Plaintiff’s supplemental

answers pursuant to this ruling shall comply with Rule 33(b)(1)(B)
and (b)(5), Fed.R.Civ.P.8

Pursuant to Rule 37(a)(5)(A), plaintiff

is ordered to pay defendant, within 14 days, reasonable expenses in
the amount of $450.00.
Baton Rouge, Louisiana, May 29, 2014.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

8

Plaintiff’s
attorney.

earlier

answers
9

were

signed

only

by

its