Whitley v. Pinnacle Entertainment, Inc. of Delaware et al

Filing 61

ORDER granting in part and denying in part 25 Motion for Order Permitting Destructive Testing and Motion for Extension of Expert Report Deadlines. Joint Status Report due by 10/21/2016. Telephone Conference set for 10/26/2016 at 02:00 PM before Magistrate Judge Richard L. Bourgeois Jr. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 9/26/2016. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CAROLYN WHITLEY

CIVIL ACTION

VERSUS

NO. 15-595-BAJ-RLB

PINNACLE ENTERTAINMENT, INC.
OF DELAWARE, ET AL.

ORDER
Before the Court is Plaintiff’s Motion for Order Permitting Destructive Testing & Motion
for Extension of Expert Report Deadlines (R. Doc. 25) filed on June 28, 2016. The Motion is
opposed. (R. Docs. 28, 29, and 31). Plaintiff filed a Reply. (R. Doc. 36).1
Oral argument was held on the foregoing motion on September 21, 2016. (R. Doc. 60).
I.

Background
In her Amended Complaint, Carolyn Whitley (“Plaintiff”) alleges that while she was

sitting playing the slot machine at a casino owned and operated by Defendants PNK (Baton
Rouge) Partnership d/b/a L’Auberge Casino & Hotel and Pinnacle Entertainment, Inc. of
Delaware (collectively, “PNK”), the gas cylinder supporting her chair failed, causing the chair to
violently drop and Plaintiff to suffer injuries. (R. Doc. 15 at 3). In addition to PNK, Plaintiff
named as a defendant Gasser Chair Co., Inc. (“Gasser”), the manufacturer and distributor of the
chair. (R. Doc. 15 at 2). Gasser filed a third-party complaint against Hunt Components, LTD.
and Federal Insurance Company (“Hunt”), the alleged component manufacturer of the gas
cylinder and its insurer. (R. Doc. 22).2

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Plaintiff filed the Reply without seeking leave of court as required by Local Rule 7(g). Having reviewed
the Reply, the Court finds good cause for allowing it to remain in the record.
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The Court collectively refers to PNK, Gasser, and Hunt as “Defendants” in this Order.

On June 1, 2016, Plaintiff’s counsel requested, through an e-mail, the opportunity to
“schedule a lab/evidence examination of the chair at issue with all of [the parties’] experts
present.” (R. Doc. 25-2 at 9). Plaintiff’s counsel also asked whether PNK had an exemplar chair
that could also be examined by Plaintiff’s expert. Counsel for PNK responded that “PNK is not
in possession of an exemplar chair” to be examined by Plaintiff’s expert. (R. Doc. 25-2 at 8).
After an additional inquiry, PNK confirmed that it was not in possession of an extra chair to be
used as an exemplar because all possible exemplar chairs were in use. (R. Doc. 25-2 at 5-7).
On June 16, 2016, Plaintiff served Requests for Production on PNK, Gasser, and Hunt,
one of which requested the production of “[a]n exemplar chair which is at issue in this case.” (R.
Doc. 25-3). Plaintiff’s counsel then attempted to have the other parties to agree on a protocol for
inspection of the subject chair at issue, as well as an exemplar chair. (R. Doc. 25-2 at 1-4).
On June 28, 2016, just two weeks after serving the discovery request, Plaintiff filed the
instant Motion. Plaintiff seeks an order (1) requiring Defendants to make available an exemplar
chair for the purposes of inspection, testing, and comparison; (2) allowing testing of both an
exemplar chair and the chair at issue to be performed by Plaintiff’s expert Thomas Baker, P.E.,
consistent with his protocols; (3) permitting destructive testing on both an exemplar chair and the
chair at issue; (4) setting a proper location where the tools and equipment required for testing are
available to Mr. Baker; and (5) extending all deadlines through the filing of dispositive motions.
(R. Doc. 25 at 6). Plaintiff has filed into the record Mr. Baker’s proposed protocols for testing of
the subject chair and an exemplar chair. (R. Doc. 25-4).
PNK opposes the Motion on various grounds. (R. Doc. 28). First, PNK argues that the
motion fails to comply with Local Rule 7(d), which requires that all contested motions must be
accompanied by a separate memorandum. (R. Doc. 28 at 1-2). Second, PNK argues that the

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motion is premature because the 30-day period to respond to the request for production of an
exemplar chair had not expired at the time the motion was filed. (R. Doc. 28 at 2). Third, PNK
argues that the motion should be denied because PNK does not have an exemplar chair to
produce because all similar chairs are in use. (R. Doc. 28 at 3).3 Fourth, PNK argues that
Plaintiff has not demonstrated that an exemplar chair is necessary for Plaintiff’s expert to provide
an opinion, that destructive testing of an exemplar chair is necessary, or that the chair at issue
needs to be shipped to Plaintiff’s expert in Pensacola, Florida for testing and inspection. (R. Doc.
28 at 3-4). Finally, PNK argues that the only deadlines that should be extended are those
regarding “the inspection of the chairs, preparation of expert reports, and the conclusion of
expert discovery.” (R. Doc. 28 at 4).
Hunt describes the motion as seeking “judicial enforcement of discovery efforts which
are excessive, premature, and with which Hunt cannot comply” because it does not have an
exemplar chair in its possession. (R. Doc. 29 at 1, 4). Hunt further notes that the chairs in use at
PNK’s facility have been subject to “unknown wear and tear and cannot be verified as a
standardized version of the subject chair.” (R. Doc. 29 at 4). Hunt argues that Plaintiff’s
proposed inspection protocol is overly burdensome, as the protocol requires disassembly of the
subject chair; shipment to an independent lab for CT scanning; reassembly of the chair and a
battery of tests; full disassembly of the chair and cylinder; and finally storage in a “permanently
disassembled state.” (R. Doc. 29 at 4). As an alternative, Hunt suggests that the parties evaluate

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There is no dispute that the chair at issue is custom designed and cannot be purchased on the open
market. Gasser and Hunt represent that they do not have a chair to produce in their possession, custody, or
control. PNK has provided a declaration by Travis Holland, a risk manager, representing that “[t]here are
no slot machine chairs similar to the one at issue . . . available to provide for destructive testing; all are in
use in operations of the casino which is open 24 hours a day, seven days a week, 365 days a year” and
that removing and providing one of the used chairs would have a “negative impact” on PNK because of
lost revenue. (R. Doc. 28-2 at 1-2).
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whether the chair properly functions and only if a problem in functionality is determined should
the parties disassemble any part of the chair. (R. Doc. 29 at 5). Hunt does not, however, object
to the extensions in the deadlines requested by Plaintiff. (R. Doc. 29 at 6).
Gasser adopts the arguments of its co-defendants, specifically stating that it opposes the
motion on the ground that Plaintiff’s suggested protocol would destroy the chair at issue before
there was any determination of whether the chair has an operational problem and on the ground
that Gasser does not have possession or control over an exemplar chair. (R. Doc. 31).
II.

Law and Analysis
A.

Motion to Compel

Plaintiff’s Motion seeks an order compelling Defendants to provide an exemplar chair
and to allow for destructive testing of the exemplar chair and the chair at issue. Plaintiff asserts
that she seeks this relief “pursuant to Rule 34.” (R. Doc. 25 at 1). Rule 34 does not authorize the
party to seek relief regarding a request for production or for the Court to enforce the discovery
sought. Rule 37, on the other hand, provides that “[a] party seeking discovery may move for an
order compelling an answer, designation, production, or inspection . . . if a party fails to produce
documents or fails to respond that inspection will be permitted – or fails to permit inspection – as
requested under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B)(iv). Accordingly, the Court will construe
Plaintiff’s motion as brought pursuant to Rule 37.
The Court agrees with PNK that Plaintiff’s motion is premature with regard to Plaintiff’s
Rule 34 discovery requests as the motion was filed just 14 days after the service of those
requests. Rule 34 provides a party with 30 days after service of a request for production and/or
inspection to respond or object unless otherwise agreed upon by the parties or ordered by the
Court. See Fed. R. Civ. P. 34(b)(2)(A). Only after the deadline to respond has expired can a

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party move to compel disclosure for appropriate sanctions pursuant to Rule 37. Accordingly, to
the extent Plaintiff’s motion seeks an Order compelling Defendants to comply with the Rule 34
Requests for Production, the Motion is DENIED as prematurely filed.
Nevertheless, there is no dispute between the parties that some inspection and/or testing
of the chair at issue is required in this product liability action. As discussed at oral argument, the
Court will require the Defendants (after any consultation with their experts) to respond to
Plaintiff’s proposed protocol and then meet-and-confer with Plaintiff regarding the inspection
and potential destructive testing of the chair at issue. PNK, Gasser, and Hunt, either jointly or
independently, must respond specifically to Plaintiff’s proposed protocols on or before October
7, 2016. The parties are then to meet-and-confer to discuss whether and to what degree
minimally invasive inspection and/or testing of the chair at issue (and if permitted by the Court,
an exemplar chair) can be conducted jointly by the parties’ experts to determine (1) whether the
chair functions properly to the satisfaction of PNK, Gasser, and Hunt; and (2) whether the
internal gas cylinder at issue was manufactured by Hunt to the satisfaction of Hunt. The parties
are also to discuss whether and to what degree any additional testing shall be conducted,
including the location of such testing.
After the parties meet-and-confer as described above, Plaintiff shall file a joint Amended
Status Report indicating the parties’ respective positions and any areas of agreement.
B.

Motion to Extend Deadlines

Plaintiff also requests the Court to extend, pursuant to Rule 16, all deadlines through the
filing of dispositive motions. (R. Doc. 25 at 6). Plaintiff does not propose any actual extensions.
On August 29, 2016, Hunt filed a motion requesting an extension of the deadlines
through the filing of dispositive motions. (R. Doc. 56). The Court granted the motion, stating

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that it would consider any appropriate modifications to the current scheduling order deadlines in
light of the unresolved discovery disputes and delay due to the recent historic flood in the area
after the Court held oral argument on the instant motion. (R. Doc. 57).
Consistent with that ruling, the Court finds good cause to GRANT Plaintiff’s request for
an extension of deadlines to the extent such deadlines concern the inspection and/or testing of the
chair at issue, which all of the parties have anticipated throughout this action. To facilitate the
rescheduling of the deadlines in this action, the Amended Status Report to be filed by Plaintiff
shall include the proposed deadlines of the parties and any agreements reached by the parties
regarding the inspection and/or testing of the chair at issue and an exemplar chair. To the extent
the parties disagree on proposed deadlines, such disagreements must be noted in the Amended
Status Report. The Court shall hold a telephone scheduling conference following the filing of
the Amended Status Report.
III.

Conclusion
Based on the foregoing,
IT IS ORDERED that Plaintiff’s Motion (R. Doc. 25) is GRANTED IN PART and

DENIED IN PART.
IT IS FURTHER ORDERED that on or before October 7, 2016, PNK, Gasser, and
Hunt, either jointly or independently, must respond specifically to Plaintiff’s proposed protocols
for inspection and destructive testing.
IT IS FURTHER ORDERED that on or before October 14, 2016, the parties shall
meet-and-confer to discuss the following issues regarding the inspection and/or testing of the
chair at issue:

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1. Whether and to what extent any minimally invasive inspection and/or testing of
the chair at issue can be conducted to determine, to the satisfaction of the PNK,
Gasser, and Hunt, whether the chair functions properly.
2. Whether and to what extent any minimally invasive inspection of the chair at
issue can be conducted to determine, to the satisfaction of Hunt, that the gas
cylinder within the chair was manufactured by Hunt.
3. Whether and to what extent the parties agree to jointly participate in Plaintiff’s
proposed protocols with regard to destructive testing of the chair at issue,
including whether an appropriate location for such testing is available in a
location closer to the forum than suggested by Plaintiff.
IT IS FURTHER ORDERED that on or before October 21, 2016, Plaintiff shall file a
joint Amended Status Report detailing the parties’ positions regarding inspection and testing, and
providing proposed modified deadlines for this action.
IT IS FURTHER ORDERED that a telephone status conference is set for October 26,
2016 at 2:00pm to discuss the status of the case and the entry of revised deadlines. Plaintiff’s
counsel shall initiate the call to chambers.
Signed in Baton Rouge, Louisiana, on September 26, 2016.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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