Grimm v. Werner Co.

Filing 52

ORDER granting 31 Motion for Leave. Plaintiff shall allow defendant to test the Keller model KMT2-13 in plaintiff's garage in the manner defendant describes on page 2 of its brief in support of motion to allow testing. Such testing shall take place prior to June 30, 2012. Defendant's Motion to Extend 34 is granted; Defendant's expert disclosure deadline is extended to June 30, 2012. Ordered by Senior Judge Lyle E. Strom. (ADB)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
THOMAS GRIMM,

)
)
Plaintiff,
)
)
v.
)
)
WERNER CO.,
)
)
Defendant.
)
______________________________)

8:11CV392

ORDER

This matter is before the Court upon defendant’s motion
to allow testing (Filing No. 31) and motion to extend expert
disclosure deadline (Filing No. 34).

This lawsuit involves an

accident which occurred while plaintiff was standing on his
Keller model KMT2-13 articulated ladder (“the ladder”) in his
garage.

Plaintiff alleges the ladder unexpectedly slipped out

from under him, causing him to fall and sustain injuries.
Following the accident, plaintiff filed suit against defendant,
the manufacturer of Keller ladders, asserting products liability
claims for both negligence and strict liability.
The defendant moves the Court for an order compelling
plaintiff to allow defendant to conduct testing on the ladder
which plaintiff was using when the accident occurred.

Defendant

further requests such testing take place in plaintiff’s garage
where the accident occurred.

Defendant also moves the Court to

extend the expert disclosure deadline because without said
testing, defendant cannot obtain a complete expert opinion with

respect to the integrity of the ladder which is the subject of
this lawsuit.

The Court has reviewed the motions and the

relevant law and will grant both of defendant’s motions.
“On notice to other parties and all affected persons,
a party may move for an order compelling disclosure or discovery.
The motion must include a certification that the movant has in
good faith conferred or attempted to confer with the person or
party failing to make disclosure or discovery in an effort to
obtain it without court action.”
Accord NELR 7.01(I).

Fed. R. of Civ. P. 37(a)(1);

“For good cause, the court may order

discovery of any matter relevant to the subject matter involved
in the action.”

Fed. R. of Civ. P. 26(b)(1).

On April 2, 2012, plaintiff allowed defendant’s counsel
and its expert to inspect plaintiff’s garage and to perform
various tests in the garage using an exemplar ladder.

During

that inspection, counsel for plaintiff noted the exemplar’s feet
were different from the feet of the actual ladder.

Defendant’s

expert has been allowed to visually inspect and photograph the
actual ladder, but he was not allowed to perform any testing on
the ladder.

Plaintiff has denied defendant’s subsequent requests

to allow its expert to test the actual ladder because plaintiff’s
counsel fears the ladder’s condition may be altered.
The Court finds defendant’s expert should be allowed to
test the ladder in plaintiff’s garage where the accident occurred

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in the manner defendant describes on page 2 of its brief in
support of motion to allow testing.

See Filing No. 32, page 2.

Without such testing, it cannot be stated with any certainty
whether the ladder was defective or whether any such defect could
have caused plaintiff’s accident.

Defendant claims its testing

of the ladder will not cause destruction to, or otherwise alter
or effect the current physical condition or design of the ladder.
In order to preserve the post-accident state of the ladder,
however, the Court finds defendant shall photograph the ladder
both before and after testing and videotape the ladder’s testing
in order to ensure that any damage is memorialized.
The final progression order for this lawsuit provides
“[o]n or before April 16, 2012, the defendant shall identify all
expert witnesses and shall serve the plaintiff with the statement
required by Fed. R. Civ. P. 26(a)(2) regarding each expert
witness it expects to call to testify at trial . . . .”
Defendant filed its motion to allow testing on April 11, 2012,
prior to the relevant expert deadline.

Thus, the Court will

extend such expert deadline to June 30, 2012.

Accordingly,

IT IS ORDERED:
1)

Defendant’s motion to allow testing (Filing No. 31)

is granted.
2)

Plaintiff shall allow defendant to test the Keller

model KMT2-13 in plaintiff’s garage in the manner defendant

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describes on page 2 of its brief in support of motion to allow
testing.

Such testing shall take place prior to June 30, 2012.
3)

Defendant shall photograph the ladder both before

and after testing and videotape the ladder’s testing in order to
ensure that any damage is memorialized.
4)

Defendant’s motion to extend expert disclosure

deadline (Filing No. 34) is granted.

Defendant’s expert

disclosure deadline is extended to June 30, 2012.
DATED this 6th day of June, 2012.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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