Huang v. Continental Tire the Americas, LLC

Filing 44

OPINION AND ORDER granting 41 Joint Motion to Extend Deadline; and granting in part and denying in part 35 Plaintiff's Amended Motion to Compel Discovery. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DONGDONG HUANG,
Plaintiff,
v.

Case No. 10-12598

CONTINENTAL TIRE THE AMERICAS, LLC,
Defendant.
/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S
AMENDED MOTION TO COMPEL DISCOVERY AND
GRANTING JOINT MOTION TO EXTEND DEADLINE
Plaintiff has moved to compel Defendant to respond to certain interrogatories and
requests for production. Fed. R. Civ. P. 37(a)(3)(B). The parties have jointly moved to
extend certain discovery deadlines. The court heard argument on Plaintiff’s motion
June 27, 2011. For the reasons that follow, the court will grant in part and deny in part
Plaintiff’s motion, and will grant the motion to extend.
I. BACKGROUND
This case is a product liability action that arose after the driver’s side rear tire of
Plaintiff’s Nissan Quest allegedly blew out in 2007, and he claims negligent
manufacture, negligent design, breach of implied warranty of fitness, and gross
negligence. The tire at issue, a “General Tire” brand “Ameri*GS60,” was designed and
manufactured by Defendant. The tire was manufactured in March 1999 at Defendant’s
plant in Mount Vernon, Illinois.

The case was filed in June 2010, and the parties have been engaged in
discovery since September 2010. Since that time, the parties have moved for a
protective order, and Plaintiff has moved to extend the scheduling order deadlines, for
an order establishing a tire inspection protocol, to modify the protective order,1 and
twice to compel (including the pending motion).
II. STANDARD
Rule 26(b)(1) of the Federal Rules of Civil Procedure allows discovery
regarding any nonprivileged matter that is relevant to any party’s claim or
defense . . . . For good cause, the court may order discovery of any
matter relevant to the subject matter involved in the action. Relevant
information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.
The broad reach of Rule 26(b)(1) is tempered by Rule 26(b)(2)(C), which mandates the
court to limit discovery if the discovery sought “is unreasonably cumulative or
duplicative,” can be obtained from another, more economical source, if the discovery
seeker already had a chance to obtain the information, or if the cost-benefit analysis
disfavors production when properly placed in the context of the case. In addition, for
good cause a court may “requir[e] that a trade secret or other confidential research,
development, or commercial information not be revealed or be revealed only in a
specified way.” Fed. R. Civ. P. 26(c)(1)(G).
“It is within the sound discretion of the trial court to decide whether trade
secrets are relevant and whether the need outweighs the harm of
disclosure. Likewise, if the trade secrets are deemed relevant and
necessary, the appropriate safeguards that should attend their disclosure

1

The court issued a protective order in the form proposed by Defendant.
(2/18/11 Protective Order 6.)
2

by means of a protective order are also a matter within the trial court’s
discretion.”
R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262, 269 (6th Cir. 2010) (quoting
Centurion Indus., Inc. v. Warren Steurer & Assocs., 665 F.2d 323, 326 (10th Cir. 1981)).
“Relevant” in the context of the rules of discovery is necessarily broader than
“relevant” as that term is used in the rules of evidence. See EEOC v. Konica Minolta
Bus. Solutions U.S.A., Inc., 639 F.3d 366, 369 (7th Cir. 2011); NLRB v. New England
Newspapers, Inc., 856 F.2d 409, 414 n.4 (1st Cir. 1988). But any analysis of what types
of information are reasonably likely to lead to the discovery of admissible evidence
begins with a determination of that which would be admissible; the admissibility inquiry,
in turn, begins with evidentiary relevance. Relevant evidence means “evidence having
any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Fed. R. Evid. 401. Thus, to determine whether a discovery request will yield
relevant evidence, or information that is likely to lead to the discovery of relevant
evidence, the court must look to the elements of the cause of action.
As noted above, the complaint alleges two product liability claims under Michigan
law—negligent manufacture and negligent design—as well as breach of implied
warranty of fitness and gross negligence. “To prove a manufacturing defect claim, a
plaintiff must establish a causal connection between the claimed defect and the harm
done.” Am. & Foreign Ins. Co. v. Gen. Elec. Co., 45 F.3d 135, 139 (6th Cir. 1995)
(citing Caldwell v. Fox, 231 N.W.2d 46, 50-51 (Mich. 1975)).
To prove a design defect under Michigan law, a plaintiff must show that
the product was “not reasonably safe for its foreseeable uses” and that a
3

“risk-utility analysis” favored a safer design. Under this approach, a
plaintiff must show that (1) the product was not reasonably safe when it
left the control of the manufacturer; and (2) a “feasible alternative
production practice was available that would have prevented the harm
without significantly impairing the usefulness or desirability of the product
to users.”
Croskey v. BMW of N. Am., Inc., 532 F.3d 511, 515-16 (6th Cir. 2008) (quoting Mich.
Comp. Laws § 600.2946(2)). “‘[The] risk-utility balancing test . . . considers alternative
safer designs and the accompanying risk pared [sic] against the risk and utility of the
design chosen.’” Bouverette v. Westinghouse Elec. Corp., 628 N.W.2d 86, 90 (Mich.
Ct. App. 2001) (editorial mark in original) (quoting Gregory v. Cincinnati, Inc., 538
N.W.2d 325 (Mich. 1995)). Next,
[w]hen a products liability action is premised on a breach of implied
warranty of fitness, the plaintiff must prove that a defect existed at the time
the product left the defendant’s control, which is normally framed in terms
of whether the product was reasonably fit for its intended, anticipated or
reasonably foreseeable use.
Id. (internal quotation marks omitted). The risk-utility test is also incorporated into the
breach of implied warranty analysis. See Hollister v. Dayton Hudson Corp., 201 F.3d
731, 738 (6th Cir. 2000); see also Bouverette, 628 N.W.2d at 90 (citing Prentis v. Yale
Mfg. Co., 365 N.W.2d 176, 186 (Mich. 1984)) (explaining that negligence and breach of
implied warranty causes of action, while distinct, involve the same elements and proofs
in certain design defect cases).
If a defendant was grossly negligent, as asserted by Count IV of the amended
complaint, the cap on noneconomic damages for death or permanent loss of a vital
bodily function is inapplicable. Mich. Comp. Laws § 600.2946a. “‘Gross negligence’

4

means conduct so reckless as to demonstrate a substantial lack of concern for whether
injury results.” Mich. Comp. Laws § 600.2945(d).
III. DISCUSSION
The motion seeks compliance with four interrogatories (numbers 1, 3, 4, and 6)
and three requests for production (numbers 1, 3, and 4). The court will follow Plaintiff’s
lead in discussing Interrogatory 1 and Requests for Production 1 and 3 as relating to
“eyewitnesses to manufacturing conditions and practices,” Interrogatories 3 and 4 as
relating to “alternative tire designs,” Request for Production 4 as relating to “prior claims
involving the same failure mode of tires made at the same plant,” and Interrogatory 6 as
relating to “discovery from cases Mr. Huang’s counsel and expert have already
reviewed.”
A. Eyewitnesses to Manufacturing Conditions and Practices
Interrogatory 1 seeks information about former or current employees of
Defendant who were “responsib[le] for making or inspecting passenger car tires at
Continental’s Mount Vernon, Illinois plant in March or April of 1999.” (Mot. Br. 9.)
Request for Production 1 seeks “job training material and the criteria . . . used” by the
employees referenced in Interrogatory 1 “when performing their jobs.” (Id.) Plaintiff has
agreed to limit this first Request for Production to documents on certain specified
subject matter. (Id. at 10.) Request for Production 3 seeks existing “affidavits, signed
statements, trial testimony, and depositions” of those with first-hand knowledge of the
conditions at the Mount Vernon plant between March 1994 and March 2004. (Id. at 910.) The motion avers Plaintiff is also willing to limit the reach of Request for Production

5

3 to only ten depositions, as well as a “privilege log type list of any other materials”
responsive to the request.2 (Id. at 11.)
Defendant argues that it offered to produce a Mr. Stowers for deposition in
response to these discovery requests, and Defendant represents that Mr. Stowers is
“knowledgeable about these areas.” (Resp. Br. 3.) It says that the requests are not
appropriately limited in scope because the requests relate to all employees at the plant
during the relevant time period regardless of the type of tire on which those employees
were working. (Id. at 7, 12.) Defendant contends these requests are unduly
burdensome, Plaintiff has not shown necessity, and contrary to Plaintiff’s assertion,
Defendant has not claimed a privilege. (Id. at 12-18.)
The court will grant Plaintiff’s motion with respect to these three discovery
requests, but with caveats. Defendant will be required to produce the list of employees
sought in Interrogatory 1, the documents sought by Request for Production 1 that are
related to innerliner splicing and placement, belt splicing and placement, and the final
finish cured tire inspection process, and no more than ten depositions in response to
Request for Production 3. Defendant will not be required to submit any log of additional
documents in its possession.
This resolution is in accordance with Rule 26. Defendant’s claims of overbreadth
are overstated. Plaintiff’s suit alleges negligence in the design and manufacture of tires
in March 1999. Therefore, the conditions of the Mount Vernon plant will clearly be
2

On pages 10 and 11 of his brief, Plaintiff refers to “Request for Production 1
and 2.” However, on page 9, Plaintiff labeled the requests at issue as 1 and 3. The
court therefore assumes the latter references are erroneous, and that Plaintiff intends to
reference Request for Production 3 rather than 2 on pages 10 and 11.
6

relevant, for example, to a determination of whether Defendant was negligent or grossly
negligent in manufacturing Plaintiff’s tire. Moreover, Rule 26(b)(1) allows discovery into
information that is broader than that which will be admissible at trial; it permits discovery
into that which is “reasonably calculated to lead to the discovery of admissible
evidence.” A list of employees who worked at the Mount Vernon plant is, in fact,
reasonably calculated to lead to the discovery of evidence that very likely would be
admissible at a trial, regardless of whether each employee worked on the particular
model of tire at issue here, because the statements of those employees may either be
or lead to sources of admissible evidence. And production of that list, while perhaps
burdensome, is not unduly burdensome. In fact, it may well be less burdensome to
produce a complete list of employees of the plant in March and April 1999 than it would
be to sort through the list to determine which employees had any connection with the
tire model at issue.
Defendant’s offer to produce for deposition a single employee who is
knowledgeable about the type of information sought in Interrogatory 1 is insufficient to
meet Defendant’s discovery obligations. As in any case, Plaintiff is entitled to interview
and depose multiple witnesses to events relevant to his case in search of evidence in
support of his claims. Defendant is in possession of the names of those witnesses, and
may not cherry pick a single employee as the definitive source of information relevant to
this issue.3

3

The strictures of Rule 33(b), governing responses to interrogatories, are not
satisfied by the designation of a Rule 30(b)(6) witness.
7

Similarly, the training materials and criteria used when Defendant’s employees
manufactured tires in March or April 1999 may also be relevant—or lead to the
discovery of evidence relevant—to Plaintiff’s claim of negligent manufacture. The court
also finds that Defendant has not shown that the production of these materials would be
unduly burdensome, for the same reasons stated above. To the extent that these
materials constitute the class of information covered by Rule 26(c)(1)(G), the court finds
that the protective order—which was drafted by Defendant’s counsel—is sufficient to
protect Defendant’s interests.
Finally, the court thinks it not unduly burdensome to produce ten depositions
from plant employees that have already been created in the course of other litigation
and may be relevant here. Such a request is reasonable, and may avoid additional
costs associated with re-deposing such employees in this matter. By contrast, the court
finds it would be unduly burdensome to require Defendant to produce a log of all such
materials in its possession, which would likely lead to Plaintiff filing yet another motion to
compel the production of more of these documents. The list of employees, along with
their training materials, and no more than ten depositions, will be sufficient to allow
Plaintiff’s case to proceed without placing an undue burden on Defendant, weighing the
likely benefit of any additional discovery against the burden and expense of it.

B. Alternative Tire Designs
Interrogatories 3 and 4 relate to Plaintiff’s attempt to discover information about
alternative tire designs, as Plaintiff, in pursuing his breach of implied warranty and
design defect claims, bears the burden of showing there was a reasonable and
8

practicable alternative design that would have reduced the foreseeable risk of harm
when the tire was manufactured. See Hollister v. Dayton Hudson Corp., 201 F.3d 731,
738 (6th Cir. 2000). Interrogatory 3 seeks a list of all tires of a certain class
(“P215/70R15” tires)4 made by Defendant from January 1999 to the present, which list
must contain information regarding whether those tires were reinforced with nylon.
(Mot. Br. 14.) Interrogatory 4 asks for a list of all tires made by Defendant in March
1999 that meet certain size requirements, and also information about the nylon
reinforcements in those tires. (Id.)
Defendant again argues that such information is irrelevant, and also states it has
offered to stipulate to the feasibility of a nylon reinforcement design. (Resp. Br. 12-18.)
Defendant adds that the interrogatories are directed toward information regarding
dissimilar tires, and the production of the lists would be unduly burdensome. (Id.)
The court again disagrees with Defendant. A feasability stipulation is no
substitute for the list of tires sought by Plaintiff, just as the deposition of a hand-picked
witness is no substitute for a list of employees. This is because while the stipulation will
allow Plaintiff to argue to the jury that there were alternative tire designs that were
possible, that is not the only fact Plaintiff may wish to prove at trial. For example,
Plaintiff may need to show that not only was the design feasible, but that Defendant
used the alternative design for other tires, which is relevant to Michigan’s “risk-utility”
analysis. Stated differently, the lists of tires may show not only what was possible, but
4

The “P” denotes a class of passenger tires. “215” indicates the cross-sectional
tire width in millimeters. “70” is the aspect ratio of the height of the sidewall of the tire to
the total width. “R” means the tire is a radial tire. “15” is the size of the rim in inches
that the tire is designed to fit.
9

what Defendant knew or should have known was practicable or superior. Therefore, the
feasability stipulation is insufficient to obviate Plaintiff’s need for requested discovery.
Nor does the court think that producing a list of tires is unduly burdensome, as
the burden and expense does not outweigh the likely benefit. Defendant claims that
complying with the interrogatory will require “reviewing tens of thousands of pages of
specifications, which could potentially require multiple employees to work several
hundreds of hours.” (Resp. Br. 13.) This may be so. As a provisional resolution, the
court will limit Interrogatory 3 to a list of the specifications of those Ameri*GS60 tires
produced during the production run of the original equipment tires distributed for the
Nissan Quest. At the hearing, counsel advised that the run lasted from approximately
1998 until 2002, and since the interrogatory seeks only tires made from January 1999
on, the relevant time period will be from that month until the end of the run. The court is
mindful of counsels’ averment that the Ameri*GS60 name encompasses more than the
tires produced from the “common green” used for the batch of Ameri*GS60 tires
distributed to Nissan, which batch included the tire at issue here, and that the name
covers specifications designed for other models, such as the Ford Windstar and Buick
LeSabre. These specifications must also be included in the list, but only those used up
until the time that the production run for the specific tire at issue here terminated.
Interrogatory 4 is time-limited by its own terms, but the court will impose an identical
tire-class restriction: Defendant will be required to list only those tires made in March
1999 and marketed under the Ameri*GS60 name.
This ruling is provisional, and after the parties have complied, Plaintiff is free to
move the court for additional discovery if this initial list has not proven satisfactory, at
10

which time the court will weigh the benefit of additional discovery against the burden of
production. Therefore, the court will grant in part and deny in part Plaintiff’s motion with
respect to these two interrogatories.
C. Prior Claims
Next, Plaintiff seeks information about prior claims involving the same failure
mode of tires made at the same plant. Interrogatory 6 requests a list of all claims of
damage, injury, or death that resulted from a tire manufactured at the Mount Vernon
plant between March 1994 and March 2004. (Mot. Br. 16.) Plaintiff argues that
“‘evidence of similar accidents in admissible to prove the existence of a particular
defect, to prove causation, or to prove defendant’s knowledge of the danger.’” (Id. at 15
(quoting Lohr v. Stanley-Bostitch, Inc., 135 F.R.D. 162, 164 (W.D. Mich. 1991).)
Defendant responds that the interrogatory is overly broad, irrelevant, involves dissimilar
tires, and requests confidential information without a showing of necessity. (Resp. Br.
18-19.)
The court will grant in part and deny in part this part of the motion, imposing the
same additional restrictions discussed in Part II.B, supra. Interrogatory 6 will be limited
to those claims that resulted from an Ameri*GS60 tire manufactured at the Mount
Vernon plant during the production run of the model of tire at issue here, from
approximately 1998 to 2002, and further restricted to those claims that were filed (in a
court, with the company, or in some other forum) by the date that this case was filed,
June 30, 2010.
Defendant’s attempt to avoid providing a full and fair answer to this interrogatory
fails for reasons similar to those already stated above. First, the interrogatory seeks
11

information that is clearly relevant or reasonably calculated to lead to relevant evidence.
As observed by Plaintiff and the Lohr court, similar claims made against Defendant may
show the existence of a defect, causation, or knowledge of Defendant. Second, the
request, as modified by the court in the discussion above, is reasonably limited in scope
to reach only those claims concerning particular tires manufactured at a particular plant
during a particular time period. Third, compiling a list of claims is not unduly
burdensome. Finally, the court cannot see how the fact of litigation, and basic
information that would likely be found in the public pleadings of that litigation, can
constitute confidential information. To the degree that any such confidential information
would be produced in response to the interrogatory, the protective order is sufficient to
guard Defendant’s interests.
D. Discovery from Other Cases
Lastly, Plaintiff’s Request for Production 4 seeks Defendant’s documents and
current and former employees’ testimony from two other cases, Albee v. Continental
Tire North America Inc., No. S-09-1145 (E.D. Cal.), and Lampe v. Continental General
Tire, Inc., No. BC173567 (L.A. Cal. Sup. Ct.). (Mot. Br. 16-17.) Plaintiff’s counsel is or
was involved in those cases, and therefore avers that this discovery material would be
relevant here.5 (Id. at 17, 19.) Plaintiff has agreed to limit this request to the documents

5

Plaintiff apparently needs the discovery produced in this case, although
Plaintiff’s counsel presumably has possession of the materials, because the protective
orders in those other cases bar Plaintiff’s counsel from using the materials here.
Defendant has provided the court with a motion for sanctions filed in Albee, which
argues that Plaintiff’s counsel has violated the protective order in that case by his
representations in filing the motion to compel in this one. (See Resp. Ex. E.) An
untimely reply filed by Plaintiff informs that the motion was denied.
12

and testimony listed on the plaintiffs’ trial exhibit lists and “proposed trial deposition
cuts” in those cases. (Id. at 19.)
Defendant argues that the tires at issue in Albee and Lampe are different from
the tire at issue here, because those tires are of a different specification and size, and
they were manufactured at a different time. (Resp. Br. 7-8.) Thus, Defendant says, the
request involves dissimilar tires and is overbroad and irrelevant, and seeks confidential
information.
Defendant again slices the matter too thin. The discovery from those cases is
clearly relevant. Those cases involve tires manufactured at the Mount Vernon plant
within ten years of the incident here. If Plaintiff’s theory of the case is one of systemic
negligence at this plant over several years, then other cases involving different models
of tires manufactured at the same plant are relevant to this action. That the tires are
different or the time separation between the manufacture of the tires too great is an
argument for a motion in limine, or for the jury—not for the court in an effort to avoid
discovery where the burden posed is de minimis. Additionally, the protective order will
adequately preserve the confidentiality of any information produced in response to this
request for production.
Simply put, the evidence sought by Plaintiff is likely to be relevant or to lead to
the discovery of relevant evidence. Defendant, having prepared these materials for
other litigation, has them on hand. They must be produced here.
E. Joint Motion to Extend
Finally, the parties have jointly moved the court to extend the previously set
discovery deadlines to designate experts and to submit expert reports. Given the
13

complexity of the case, the extensions sought are warranted. Therefore, the court will
grant the motion.
IV. CONCLUSION
Accordingly, IT IS ORDERED that Plaintiff’s “Amended Motion to Compel
Discovery” [Dkt. # 35] is GRANTED IN PART AND DENIED IN PART. It is GRANTED
in that Defendant must respond to the four interrogatories and three requests for
production that are the subject of the motion. However, Defendant must comply with
those interrogatories and requests only to the extent described above; namely, where
Plaintiff has offered to limit the scope of an interrogatory or request, it is so limited. The
motion is DENIED in that Defendant is not required to produce a log in response to
Request for Production 3. In addition, Defendant must comply with the discovery
requests only to the extent that those requests have been limited by the court in this
opinion. Specifically, Defendant need produce information regarding the tires and prior
claims only from the Ameri*GS60 specifications used during the production run of the
tire at issue in this case, from approximately 1998 to 2002. The list of prior claims need
include only those filed as of June 30, 2010. The denial is without prejudice to Plaintiff’s
right to return to the court to seek additional discovery regarding other tires or claims, at
which time the court will weigh the likely benefit of such discovery against the burden it
would place on Defendant.
IT IS FURTHER ORDERED that the parties’ joint “Motion to Extend Deadline for
Designation of Experts and Discovery Deadline” [Dkt. # 41] is GRANTED. Plaintiff’s
expert designations and reports shall be due thirty days after Plaintiff’s receipt of the
signed transcripts of the depositions of Defendant’s corporate representatives.
14

Defendant’s expert designations and reports shall be due forty-two days after Plaintiff’s
expert deadline.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: July 5, 2011
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, July 5, 2011, by electronic and/or ordinary mail.

s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C2 ORDERS\10-12598.HUANG.GrantInPartDenyInPartCompel.jmp.wpd

15