Fulford et al v. Climbtek, Inc.

Filing 155

RULING AND ORDER: The 144 Motion for Sanctions; Motion to Strike Defendants' Defenses and Motion to Strike Defendants' Expert, Thomas Bayer are DENIED. Signed by Magistrate Judge Erin Wilder-Doomes on 2/1/2019. (KAH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

MARVIN FULFORD
AND RENA FULFORD

CIVIL ACTION
NO. 16-16-BAJ-EWD

VERSUS
MICHIGAN LADDER COMPANY,
LLC, ET AL.
RULING AND ORDER
Before the Court is a combined Motion for Sanctions (the “Motion for Sanctions”) and
Motion to Strike Defendants’ Defenses and Defendants’ Expert, Thomas Bayer (the “Motion to
Strike”), 1 filed by Marvin Fulford (hereinafter, “Marvin”) and Rena Fulford (“Rena”)
(collectively, “Plaintiffs”). The Motions are opposed by Defendants Michigan Ladder Company,
LLC, Robert Nissly (“Nissly”), Thomas P. Harrison, Nissco, Inc., Amherst Fund, II, LLC,
Harrison Industries, LLC, Michigan Ladder Properties, LLC, and Michigan Ladder Company, Inc.
(collectively, “Defendants”). 2 For the reasons that follow, the Motion for Sanctions is DENIED
and the Motion to Strike is DENIED.
I.

Background
On or about February 2, 2015, Marvin was attempting to light a heater suspended from the

ceiling while in the course of his employment with the LSU Sweet Potato Research Institute in
Winnsboro, Louisiana when the “Climbtek” 3 ladder that he was standing on, unexpectedly

1

R. Doc. 144.
R. Doc. 153.
3
“Climbtek” was originally named as a defendant and alleged to be the manufacturer of the ladder at issue. Climbtek
was ultimately dissolved and/or went out of business. See R. Doc. 113, p. 8 and R. Doc. 152, p. 2. Plaintiffs have
amended several times to name a number of additional defendants, including Defendant Michigan Ladder, Inc. (which
was ultimately sold to new owners and became Defendant Michigan Ladder, LLC), as allegedly bearing liability for
and/or being associated with the subject Climbtek ladder. See R. Doc. 113, pp. 2, 8-9. For ease of reference, the Court
will refer to the ladder herein as the “Climbtek” ladder.
2

collapsed. 4 The collapse allegedly caused Marvin to strike his head on the concrete floor and to
suffer serious injuries, including a fractured vertebra in his neck and a brain injury. 5
On January 8, 2016, Plaintiffs filed suit in this Court on the basis of diversity jurisdiction
under 28 U.S.C. § 1332, alleging that Marvin’s injuries were caused by Defendants’ Climbtek
ladder, which was unreasonably dangerous under the Louisiana Products Liability Act, La. R.S.
9:2800.51, et seq., and negligently designed/manufactured. 6 Plaintiffs seek a combined $3.5
million dollars in damages for medical expenses, lost earnings/loss of earning capacity, physical
impairment, loss of enjoyment of life, and loss of consortium for Rena. 7
On October 4, 2018, Plaintiffs filed the instant Motion for Sanctions and Motion to Strike.8
On October 11, 2018, Defendants filed their opposition thereto. 9 On October 19, 2018, a status
conference and hearing was held on the Motion for Sanctions and Motion to Strike, at which time
the parties presented argument. 10
II.

Arguments of the Parties
A. Motion for Sanctions
1. Plaintiffs’ Arguments
Plaintiffs aver that, at the April 2017 and August 2018 depositions of Nissly, the former

President of Michigan Ladder Company/Climbtek, testified that all business records relating to the
design, testing, manufacture and assembly for the Climbtek ladder at issue were destroyed

4

R. Doc. 144-1, p. 1 and R. Doc. 102, ¶ 6.
R. Doc. 144-1, p. 1 and R. Doc. 102, ¶¶ 6, 31-32.
6
R. Doc. 102, ¶¶ 1, 12-20. As mentioned, Plaintiffs have filed three amended complaints adding additional
Defendants.
7
R. Doc. 1, ¶¶ 31-32.
8
R. Doc. 144.
9
R. Doc. 146.
10
R. Doc. 149. Currently pending before the District Judge is a Motion to Permit Destructive Testing and to Add
Expert Metallurgist Based on Critical New Evidence and for Expedited Consideration, also filed by Plaintiffs. R.
Doc. 140. As the Motion for Testing raised issues related to the issues presented by the Motions for Sanctions and to
Strike, the parties were permitted to present argument as to all of the Motions at the October 19, 2018 hearing.
5

2

(collectively referred to herein as “design and testing records”). 11 Plaintiffs also contend that
Nissly testified on December 21, 2010 in a different lawsuit, Horton v. Climbtek, 12 then pending
in the U.S. District Court for the Middle District of Florida, that the design and testing records
were destroyed. 13
On September 27, 2018, Plaintiffs notified Defendants of their intention to file a Motion
for Destructive Testing and to Add Expert Metallurgist (the “Motion for Testing”) because of
Nissly’s testimony that the records were destroyed. The next day, while Plaintiffs were in the
process of electronically filing their Motion for Testing (which is currently pending before the
District Judge), Plaintiffs aver that they received an email from defense counsel, wherein
Defendants enclosed a link to a file that contained over 1,000 design and testing records for the
Climbtek ladder that Nissly was able to obtain from Climbtek’s Third-Party Administrator/claims
handler (“TPA”). 14 Plaintiffs claim that Nissly has never provided an explanation as to why he
previously testified that the records had been destroyed. 15
Plaintiffs now seek sanctions against Nissly and the TPA (but not defense counsel) for
Nissly’s failure to admit that the design and testing records existed and for Nissly’s and the TPA’s
failure to produce them in a timelier manner to Plaintiffs. Plaintiffs argue that it is implausible
that Nissly could have been unaware that design and testing records existed, and Plaintiffs find it
suspicious that the records were produced only after Plaintiffs informed Defendants of their
intention to file the Motion for Testing and after the expiration of “all expert deadlines.” 16
Plaintiffs concede that Fed. R. Civ. P. 37 does not appear to apply to the instant scenario,

11

R. Doc. 144-1, pp. 1-2, citing R. Doc. 144-2. See id. at pp. 25- 28, 31-32, 35.
Civ. No. 10-413, (M.D. Fl. May 13, 2010).
13
R. Doc. 144-1, p. 9 citing R. Doc. 144-2.
14
R. Doc. 144-1, pp. 1-2.
15
R. Doc. 144-1, p. 5.
16
R. Doc. 144-1, pp. 2-3.
12

3

and, while the Court may have authority under Fed. R. Civ. P. 26(e) and/or 26(g) to impose
sanctions, Plaintiffs argue the Court should rely on its inherent power to award sanctions due to
Nissly’s and the TPA’s egregious bad faith conduct set forth above. 17 Plaintiffs suggest sanctions
in the form of an award of Plaintiffs’ attorney’s fees, travel expenses, videographer and court
reporter costs associated with Nissly’s deposition and/or an admonishment to Nissly and the TPA
for failing to provide the design and testing records prior to the expiration “of all expert deadlines.”
Plaintiffs also seek an explanation from Nissly and the TPA as to why the records were not
produced earlier. 18
2. Defendants’ Opposition
Defendants oppose Plaintiffs’ Motion for Sanctions on several grounds. 19

First,

Defendants argue that Nissly, age 81, truthfully and accurately testified in his April 2017 and
August 2018 depositions that he did not maintain any records for Climbtek after the company went
out of business 8-9 years ago in 2009-2010. 20 In support of this contention, Defendants proffer
Nissly’s affidavit, wherein Nissly states that he truthfully testified in both depositions associated
with this case that he had not maintained any design or testing records for Climbtek after the
business closed. 21 Nissly avers that after his August 2018 deposition, he discussed with his counsel
and the TPA for this case the possibility that the design and testing records could have been kept

17

R. Doc. 144-1, p. 4 citing Bratka v. Anheuser-Busch Company, No. 93-694, 164 F.R.D. 448 (S.D. Ohio Dec. 11,
1995).
18
R. Doc. 144-1, p. 5.
19
Defendants’ Opposition urges several arguments that are not relevant to the issues presented by the instant Motions,
including arguments relating to which entity bears responsibility for the Climbtek ladder at issue, the Court’s personal
jurisdiction over Defendants (which issue has already been ruled upon by the District Judge), what caused Plaintiff to
fall from the ladder, as well as response to Plaintiffs’ extraneous argument regarding the type of locking bolt and bolt
coating allegedly used in the Climbtek ladder (which forms the basis for Plaintiffs’ Motion for Testing). R. Doc. 153,
pp. 2-5 and pp. 11-14. As these arguments and proffered evidence in support thereof do not have bearing on the
Court’s resolution of the instant Motions, they are not considered herein.
20
R. Doc. 153, p. 6.
21
R. Doc. 153-2, ¶¶ 2-3.

4

by the TPA as part of prior Climbtek claim files, and Nissly authorized the TPA to search for them
and provide them to counsel if they were found. 22 According to Nissly and/or Defendants, the
TPA found the applicable design and testing records and provided them to defense counsel, who
then produced them to Plaintiffs herein. 23 However, Nissly avers that none of those records were
in his personal possession after Climbtek went out of business, and prior to his discussions with
counsel and the TPA described above, he was also not aware that the TPA maintained these
records. 24
Defendants further contend that in Nissly’s December 2010 deposition testimony given in
the Horton matter, and relied on by Plaintiffs, Nissly does not state that the documents at issue
were destroyed at that time. 25 Rather, according to Defendants, Nissly’s Horton testimony shows
that some records were produced in Horton, 26 and ultimately, the Horton records from the TPA’s
closed Horton file were those produced to Plaintiffs in this case (and that Plaintiffs should have
known the documents were produced in Horton, see discussion, infra.). Defendants admit that
they also did not think to look in the Horton file for the design and testing records either until after
Nissly’s August 2018 deposition. Once they did think to do so, they located the design and testing
records and then produced them to Plaintiffs within fifteen days of defense counsel’s receipt. 27
Defendants assert that the design and testing records were not intentionally hidden from
Plaintiffs; rather, Defendants have also endeavored to locate design and testing records so that
Defendants can establish their defense that there is/was no defect in the Climbtek ladder. In fact,

22

R. Doc. 153-2, ¶ 5.
R. Doc. 153-2, ¶ 6.
24
R. Doc. 153-2, ¶ 7.
25
R. Doc. 153, p. 6.
26
R. Doc. 153, p. 7 citing R. Doc. 153-4, p. 26 (“Q: ‘Did you—what did you retain when the company was closed
out? Are there any documents retained from the company?’ A: ‘All the documents that have been provided to you
are what we retained.’”)
27
R. Doc. 153, p. 7.
23

5

Defendants contend, the documents recently produced actually assist Defendants in defending the
case because the documents allegedly show that the Climbtek ladder met or exceeded all applicable
testing requirements and was subjected to independent testing by a third party. 28 Defendants state
that defense counsel and Nissly discussed on several occasions the possibility of locating the old
Climbtek design and testing records but Nissly contended that he did not maintain any after the
business closed. The parties brainstormed other potential repositories and ultimately asked the
TPA, which proved fruitful. 29 Defendants contend that counsel was reviewing the design and
testing records to determine what they were, in the midst of working other cases, when he received
notification from Plaintiffs of their intention to file their Motion for Testing. Defense counsel
claims that he did not withhold the records until Plaintiffs’ notice of filing; rather, Plaintiffs’ notice
simply prompted counsel to voluntarily forward the records he had recently received from the TPA
as a supplement to Defendants’ Rule 26 disclosures, which was timely. 30
Defendants argue that Plaintiffs incorrectly insinuate that there was an outstanding
discovery request for the design and testing records, but that Plaintiffs have not provided any such
discovery request to the Court. Rather, Defendants aver that Plaintiffs only propounded discovery
related to the design and testing records to Climbtek, an entity which is not in existence or
represented herein, and to Nissly, after the design and testing records were produced. 31 Defendants
argue that Plaintiffs’ authority in support of sanctions is distinguishable on the facts 32 and assert
that Plaintiffs’ Motion for Sanctions should be denied because Defendants have not made
misrepresentations to Plaintiffs, have not violated court orders, and have timely produced the

28

R. Doc. 153, pp. 8 and 11.
R. Doc. 153, pp. 8-9.
30
R. Doc. 153, pp. 9-10.
31
R. Doc. 153, p. 10.
32
R. Doc. 153, p. 18, citing Bratka, 164 F.R.D. 448.
29

6

design and testing records.
B. Motion to Strike
1. Plaintiffs’ Arguments
As a sanction for Defendants’ failure to timely produce the design and testing records,
Plaintiffs’ Motion to Strike seeks exclusion of Defendants’ defenses, Defendants’ expert Thomas
Bayer (“Bayer”), and Bayer’s expert report, pursuant to Fed. R. Civ. P. 37(c)(1), “Failure to
Disclose or Supplement,” which provides:
If a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at a hearing,
or at a trial, unless the failure was substantially justified or is
harmless. In addition to or instead of this sanction, the court, on
motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including
attorney’s fees, caused by the failure;
(B) may inform the jury of the party’s failure; and
(C) may impose other appropriate sanctions, including any of the
orders listed in Rule 37(b)(2)(A)(i)-(vi).
Fed. R. Civ. P. 37(b)(2)(A)(i)-(iii) provides for the following sanctions (when a party disobeys a
discovery order):
(i)

directing that the matters embraced in the order or other
designated facts be taken as established for purposes of the
action, as the prevailing party claims;

(ii)

prohibiting the disobedient party from supporting or
opposing designated claims or defenses, or from introducing
designated matters in evidence; and,

(iii) striking pleadings in whole or in part….
Plaintiffs argue that, in order to determine whether Defendants’ failure to timely produce

7

the design and testing records was “substantially justified or harmless” as referenced in Fed. R.
Civ. P. 37(c)(1), the following factors, set forth by this Court in Broussard v. Go-Devil
Manufacturing Co. of La, Inc. (the “Broussard factors”), should be considered: (1) the importance
of the evidence; (2) the prejudice to the opposing party of allowing the evidence to come in; (3)
the possibility for curing such prejudice by granting a continuance; and,(4) the explanation, if any,
for the party’s failure to comply with the disclosure requirements. 33 Plaintiffs further contend that
the burden is on Defendants, as the parties failing to disclose the information, to prove their failure
was harmless, and exclusion of evidence and/or a witness is appropriate when late disclosure of
evidence deprives a party of the opportunity to conduct an effective deposition of a witness. 34
Analyzing the above factors, Plaintiffs recognize that the design and testing records are
“critical” (i.e., important), 35 but contend that Defendants have not offered a credible explanation
for their failure to timely produce the records. Plaintiffs point out that Defendants failed to produce
the design and testing records until thirty-three months after the lawsuit was filed (and after the
expert deadlines had passed), which establishes that Defendants failed to exercise due diligence in
searching for them. 36 Further, Plaintiffs now face prejudice because they must submit 1,188 pages
of newly-produced design and testing records to Plaintiffs’ liability expert for a complete reevaluation of all of Plaintiffs’ expert’s opinions as set forth in his July 16, 2018 report. 37 Plaintiffs
therefore contend that Defendants’ explanation for their failure to produce the requested design
and testing records for the Climbtek ladder in a more timely manner is unjustified. 38

33

R. Doc. 144-1, p. 6 citing Broussard v. Go-Devil Manufacturing Co. of La., Inc., 2014 WL 354525 (M.D. La. Jan.
23, 2014).
34
R. Doc. 144-1, p. 6 citing Harmon v. Georgia Gulf Lake Charles, LLC, 476 F.App’x 31, 39 (5th Cir. 2012).
35
R. Doc. 144-1, p. 7.
36
R. Doc. 144-1, pp. 6-7.
37
Id. at p. 7.
38
Plaintiffs’ Opposition presents argument that is not relevant to the instant Motions for Sanctions and to Strike;
specifically, Plaintiffs’ arguments that the Climbtek ladder at issue appears to contain the same mechanisms as those

8

As a Rule 37 sanction for Defendants’ lack of justification for their untimely production
and the prejudice faced by Plaintiffs, Plaintiffs specifically seek exclusion of Bayer’s anticipated
testimony and Bayer’s report. 39 Defendants retained Bayer as their liability expert in Horton v.
Climbtek. 40 Therein, Bayer submitted two affidavits, both dated March 4, 2011 (“the Horton
Affidavits”). 41 Plaintiffs argue that Bayer claims to have reviewed voluminous design and testing
records produced by Climbtek in the Horton Affidavits. 42 Further, Bayer submitted his expert
report in this case on September 17, 2018, also allegedly having reviewed those records. Plaintiffs
argue that they are prejudiced, particularly with respect to the current March 25, 2019 trial date,
by the foregoing, because Bayer reviewed the newly-produced Climbtek documents in the Horton
litigation (and the litigation herein) prior to submitting his expert report, but Plaintiffs did not
receive the documents until after Bayer produced his expert report and after Plaintiffs produced
their expert report. Plaintiffs argue that they have been “ambushed,” and it is suspicious that Bayer
submitted the Horton Affidavits in March 2011, which reference the design and testing records
ultimately produced here, after Nissly testified on December 21, 2010 that the Climbtek documents
were destroyed. For these reasons, Plaintiffs request that Bayer’s report be stricken and that Bayer
be prohibited from testifying at trial. 43
2. Defendants’ Opposition
Defendants argue that Bayer did not review the design and testing records recently
produced to Plaintiffs to reach his conclusions in his expert report produced herein, as Bayer did

involved in a recall of a different ladder. R. Doc. 144-1, pp. 7-8. This argument may be relevant to Plaintiffs’ Motion
for Testing but has no bearing on the Court’s resolution of the instant Motions.
39
While Plaintiffs’ Motion references striking Defendants’ defenses, Plaintiffs offer no argument or authority in
support of this relief.
40
R. Doc. 144-1, p. 8.
41
R. Doc. 144-7.
42
R. Doc. 144-1, p. 9.
43
R. Doc. 144-1, p. 9.

9

not have the design and testing records at the time he drafted his report in this case because
Defendants had not yet given Bayer those records. Defendants contend that Bayer reviewed only
the records listed in his report to reach his conclusions. 44 Defendants further argue that it is not
unfair for Defendants to call Bayer as an expert simply because he examined a Climbtek ladder
and had access to Climbtek records in the past. Rather, Defendants contend that it is commonplace
for parties to retain experts with prior experience about a disputed issue so that the expert’s opinion
will be given more weight, and further, courts consider an expert’s personal experience with the
issues for which he is retained. 45 Defendants argue that Bayer and/or his report should not be
excluded because Bayer worked on another case involving a Climbtek ladder, and there is no
authority supporting this position. 46
Furthermore, Defendants point out that Plaintiffs, not Defendants, have been obtaining
Horton filings, including Bayer’s Horton Affidavits, since Nissly’s April 2017 deposition. In
Defendants’ view, Plaintiffs presumably knew, or should have known, that the recently-produced
design and testing records were also produced to the Horton plaintiffs, considering that one of
Bayer’s Affidavits in Horton references his review of those records. 47 Defendants contend that
Plaintiffs, like Defendants, simply missed the fact that the records might be available because they
were produced in Horton. Defendants suggest that Plaintiffs are now raising this argument in an
attempt to have relevant information regarding whether there is a defect in the subject ladder
excluded. 48
Defendants urge the Court to apply the following factors, set forth in Verzwyvelt v. St. Paul

44

R. Doc. 153, p. 15, citing R. Doc. 146-4.
R. Doc. 153, pp. 15-16.
46
Id.
47
Id. at p. 17.
48
R. Doc. 153, p. 17.
45

10

Fire & Marine. Ins. Co., in considering sanctions: (1) the party’s explanation, if any, for failure to
comply with the scheduling order; (2) the prejudice to the opposing party of allowing the witness
to testify; (3) the possibility of curing such prejudice by granting a continuance; and (4) the
importance of the witness’s testimony. 49 Defendants contend that none of these factors, or the
similar Broussard factors, support the striking of Defendants’ expert, as Defendants have provided
an explanation for why the records were not identified sooner, and any potential prejudice could
be cured by a continuance of either the trial date or at least the expert deadlines. 50
III.

51

Law and Analysis
A. Motion for Sanctions
Plaintiffs seek sanctions upon Nissly and/or the TPA who housed the records that were

ultimately produced to Plaintiffs for their “bad faith conduct” pursuant to the Court’s inherent
power to impose sanctions, and not pursuant to any particular federal rule. The Court does have
the inherent power to impose sanctions for bad faith conduct, “and the inherent power of a court
can be invoked even if procedural rules exist which sanction the same conduct.” 52 Plaintiffs’ basis
for sanctions against Nissly and/or the TPA is solely due to Plaintiffs’ contention that Nissly failed
to admit that these records existed in his April 2017 and August 2018 depositions, failed to produce
the design and testing records to Plaintiffs until after “all expert deadlines [had] passed, 53 and
allegedly testified in 2010 in the Horton matter that the documents “had been disposed of,” yet

49

Verzwyvelt, No. 99-2364, 204 F.R.D. 309, 311 (W.D. La. Sept. 27, 2001) citing Barrett v. Atlantic Richfield Co.,
95 F.3d 375, 380 (5th Cir. 1996).
50
R. Doc. 153, p. 19.
51
Defendants contend that Plaintiffs’ reliance on Harmon, wherein the Fifth Circuit upheld the lower court’s decision
to strike the plaintiff’s experts’ reports because they failed to comply with Fed. R. Civ. P. 26, to strike their testimony
because it was inadmissible under Fed. R. Evid. 401 and 702, and to strike plaintiff’s other experts because they were
not timely designated as “will-call” witnesses, is misplaced because the Harmon plaintiff repeatedly violated the
court’s scheduling order and attempted to add witnesses two days before trial, all of which is factually distinguishable
from the instant matter. R. Doc. 153, pp. 20-21 citing Harmon, 476 F.App’x at 34, 37-38 and 40.
52
Chambers v. NASCO, Inc., 501 U.S. 32, 49, 111 S.Ct. 2123, 2135, 115 L. Ed. 2d 27 (1991).
53
R. Doc. 144-1, pp. 3, 5, and 7.

11

one year later, Climbtek’s expert Bayer attested in his Horton Affidavit that Bayer reviewed those
documents. 54
As an initial matter, contrary to Plaintiffs’ continued assertion in brief, the production of
the design and testing records was not after “all expert deadlines” had expired. The production
was September 28, 2018; the deadline to complete fact and expert discovery was October 31,
2018. 55
Next, Plaintiffs offer their speculation that Nissly was untruthful, based on Nissly’s
deposition testimony from all three depositions. However, a review of all of the Nissly testimony
provided does not establish untruthfulness. The 2010 Nissly deposition transcript provided does
not indicate that Nissly specifically testified that the design and testing records at issue were
destroyed or disposed of at that time, as Plaintiffs contend. 56 At most, Nissly testified in 2010 that
payroll, personnel files, organizational charts, engineer notes, logs and diaries, and documents that
“were kept for tax purposes” were not retained, 57 but referred to at least some documents being
produced in Horton (although they are not described). 58 Nissly’s deposition testimony in this case
in 2017 and 2018 suggests that no records were maintained by the company, 59 these depositions
were taken 7-8 years after the 2010 deposition, and it is not unusual for a deponent’s recall of
events to falter over that period of time.

54

R. Doc. 144-1, pp. 1-2, 9.
R. Doc. 135, May 22, 2018 (Amended Scheduling Order).
56
R. Doc. 144-2, pp. 12-23.
57
Compare R. Doc. 144-2, p. 26-27 and R. Doc. 153-4, p. 2.
58
R. Doc. 153-4, p. 2.
59
In his August 2018 deposition in this case, Nissly was asked: “So when you gave your deposition on December 21,
2010, do you recall saying that all the records were destroyed?” Nissly answered: “Right.” R. Doc. 144-2, p. 26.
Nissly further testified in 2017 that he had previously testified in Horton that he had no records of any personnel that
assembled the ladders at the time of the 2010 Horton deposition. R. Doc. 144-2, p. 32. Also in 2017, when asked
about retention of testing records, Nissly testified that everything “was no longer needed once the company was gone.”
R. Doc. 144-2, pp. 31-32.
55

12

Further, the deposition transcripts reflect that Nissly testified in 2017 and 2018 that
Climbtek did not retain any design and testing records, and those records were ultimately found in
the possession of the TPA.

Therefore, Nissly’s testimony does not appear contradictory.

Defendants set forth a credible explanation for the delay in the finding of these records, which is
that they did not think to ask the TPA for them. 60 Nissly’s affidavit supports this explanation,
wherein he states he was simply unaware that the TPA would have the design and testing records. 61
The Court simply does not find any indication of untruthfulness or bad faith conduct in Nissly’s
testimony, certainly not enough to warrant the imposition of sanctions. 62
The Court also does not find any indication of bad faith conduct in the timing of the
production of the design and testing records by Defendants, although Defendants incorrectly argue
that there were no specific outstanding discovery requests for these records (prior to their
production). 63 While Plaintiffs have not provided discovery requests that seek the design and
testing records as an exhibit to the instant Motion, a review of the exhibits attached to the Motion
for Testing reveals that Plaintiffs propounded discovery requests on September 5, 2018, which
appear to encompass some requests for the design and/or testing records. 64 Even so, Defendants
produced the design and testing records on September 28, 2018, which was before their deadline
to respond to Plaintiffs’ written discovery pursuant to Fed. R. Civ. P. 34 (e.g., October 5, 2018),
and thus timely. 65 Defendants also aver, without dispute, that the records were produced within

60

R. Doc. 153, p. 7, 9
R. Doc. 153-2.
62
The Court also finds Plaintiffs’ authority, Bratka, 164 F.R.D. 448, factually distinguishable, in that there was
evidence of more egregious conduct in the failure to produce the requested records in that case. Id. at 460-463.
63
R. Doc. 153, p. 10.
64
See, e.g., R. Doc. 140-5, pp. 2, 14-16 served on “your client, Michigan Ladder Company, Inc.,” the alleged
predecessor of Defendant Michigan Ladder Company, LLC. There are no earlier-served discovery requests in the
record.
65
R. Doc. 144-3 and see R. Doc. 135 (Amended Scheduling Order setting an October 31, 2018 fact discovery
deadline.)
61

13

fifteen days of receipt as a supplement to their initial disclosures, which is reasonably timely under
Fed. R. Civ. P. 26(e). 66
As it stands, Defendants likely also had an interest in obtaining the design and testing
records so that they can establish their defenses. It does not logically follow that Defendants would
have intentionally withheld these records, which they will presumably rely on to attempt to
establish that the subject ladder was not defective (and indeed, they aver that the design and testing
records bolster this defense). 67

Further, and as Defendants point out with no dispute from

Plaintiffs, Plaintiffs have been culling documents and testimony from the Horton case since 2017,
and incorporated such information into Nissly’s 2017 deposition. 68 It would seem then that
Plaintiffs were aware that at least some documents related to design and testing were produced in
Horton, particularly because Nissly testified in Horton that Climbtek documents were produced in
Horton, and Bayer also referred to reviewing records in Horton in order to prepare his affidavits
in that case (which Plaintiffs noted herein), 69 yet it does not appear from Nissly’s deposition
testimony submitted that he was asked specific questions in this case about the design and testing
records referenced in Horton.
After considering the briefs, the exhibits thereto, and the argument at the hearing on the
Motions, the Court does not find that Plaintiffs have made a showing of bad faith conduct by Nissly
in this matter warranting sanctions, and there is no indication of any bad faith conduct by the TPA.

66

Fed. R. Civ. P. 26(e) provides, in pertinent part: “(1) In General. A party who has made a disclosure under Rule
26(a)--or who has responded to an interrogatory, request for production, or request for admission--must supplement
or correct its disclosure or response: (A) in a timely manner if the party learns that in some material respect the
disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise
been made known to the other parties during the discovery process or in writing….”
67
R. Doc. 153, pp. 8, 11.
68
R. Doc. 153, p. 7.
69
R. Doc. 153-4, p. 26, R. Doc. 144-7, pp. 2, 7, 10, and R. Doc. 144-1, p. 9.

14

Therefore, Plaintiffs’ Motion for Sanctions against Nissly and the TPA pursuant to the Court’s
inherent power to issue sanctions is DENIED.
B. Motion to Strike
1. Motion to Strike Bayer and Bayer’s Report
Plaintiffs seek to strike Bayer, and his expert report, as Fed. R. Civ. P. 37(c) sanctions for
Defendants’ failure to timely disclose the design and testing records before the expert discovery
deadline, and because Plaintiffs allege Bayer has had the unfair advantage of reviewing the design
and testing records recently produced prior to providing his expert report in this case. In
determining whether to exclude evidence under Fed. R. Civ. P. 37(c) for untimely disclosure, the
Court must consider the following four factors: (1) the explanation for the failure to disclose the
evidence, (2) the importance of the evidence, (3) the potential prejudice to the opposing party in
allowing the evidence, and (4) the availability of a continuance. 70 However, the Court does not
need to apply these factors because it does not find that the sanctions that Plaintiffs seek are
appropriate in light of the complained-of conduct. While Fed. R. Civ. P. 37(c)(1)(C) allows for
the striking of pleadings in whole or in part, it provides for that relief when a party fails to timely
provide information or identify a witness as required by Fed. R. Civ. P. 26(a) or (e), unless the
failure was substantially justified. Plaintiffs admit, however, that they are not seeking to exclude
the design and testing records, which is the information the Defendants allegedly failed to timely
disclose. 71 Instead, Plaintiffs seek to strike Bayer and his report. The Court does not find that
striking Bayer or his report is an appropriate sanction because Plaintiffs have not established that
the report or disclosure of Bayer as a witness were untimely. There is no allegation that Defendants

70

Martino v. Kiewit New Mexico Corp., 600 F. App’x 908, 911 (5th Cir. 2015) citing CQ, Inc. v. TXU Min. Co., L.P.,
565 F.3d 268, 279–80 (5th Cir. 2009) and see Broussard, 2014 WL 354525 at *5.
71
R. Doc. 144-1, p. 6.

15

failed to timely identify Bayer or failed to timely produce his report. The design and testing records
were produced prior to the fact and expert discovery deadline of October 31, 2018. 72 Defendants
have provided an explanation for their failure to identify these records earlier in their Rule 26(a)
disclosures and have provided supplemental Rule 26(a) disclosures reflecting these documents,
which they are required to do under Rule 26(a) and (e).
Further, to the extent that Plaintiffs seek exclusion of the report on the grounds that Bayer
allegedly reviewed the recently-produced design and testing records in preparing his expert report
in this case, the evidence does not support this assertion. 73 Plaintiffs did not submit Bayer’s report
as an exhibit to the instant Motion, but Bayer’s September 7, 2018 report, attached to the Motion
for Testing, does not reflect that Bayer reviewed any design or testing records in connection with
this case. 74 Plaintiffs did not respond to the argument that Bayer’s report in this case makes no
reference to reviewing design and testing records. While Bayer’s Horton affidavits indicate that
Bayer reviewed Climbtek documents in connection with that case, 75 the Court declines to strike
Bayer and his report from this case simply because of Bayer’s review of documents eight to nine
years ago in unrelated litigation, particularly where those documents do not appear to have been
relied upon by Bayer for his expert report in this case.
Finally, the Court declines to strike Bayer and his report as a sanction for Defendants’
recent document production. Any prejudice to Plaintiffs arising out of the timing of the production
in proximity to the March 2019 trial date appears to have been ameliorated by the District Judge’s
Order granting of the parties’ joint motion for a continuance of the trial date, 76 as the parties

72

R. Doc. 135.
R. Doc. 153, p. 15.
74
R. Doc. 146-4.
75
R. Doc. 144-7.
76
R. Doc. 154.
73

16

premised the need for a continuance in part on the document production at issue, and Plaintiffs’
request that their expert be allowed an opportunity to review the design and testing records and
produce a supplemental report, which they will presumably have time to do in light of the
continuance. 77
2. Motion to Strike Defenses
While Fed. R. Civ. P. 37(b)(2)(A)(ii) and (iii) provide for sanctions that prohibit a
disobedient party from supporting or opposing designated claims or defenses and the striking of
pleadings in whole or in part, Plaintiffs do not offer any argument or authority in support of striking
Defendants’ defenses. Rather, Plaintiffs’ Motion to Strike only offers argument in support of
striking Bayer and his report. Even if properly briefed, the Court would decline to strike
Defendants’ defenses for the same reasons it declines to strike Bayer and his expert report.
IV.

Conclusion
Considering the briefs, the exhibits thereto, and the argument at the conference regarding

the Motions, Plaintiffs fail to establish grounds for the requested sanctions.
Accordingly,
IT IS HEREBY ORDERED that the Motion for Sanctions; Motion to Strike Defendants’
Defenses and Motion to Strike Defendants’ Expert, Thomas Bayer 78 are DENIED.
Signed in Baton Rouge, Louisiana, on February 1, 2019.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

77
78

R. Doc. 150, ¶ 10.
R. Doc. 144.

17