Electric Insurance Company v. BrassCraft Manufacturing Company et al

Filing 80

ORDER granting in part and denying in part 62 Motion to Compel. So Ordered by Magistrate Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Electric Insurance Company,
as subrogee of John M. Dineen
v.

Civil No. 10-cv-435-PB

BrassCraft Manufacturing Company;
Lakeside Plumbing & Heating, Inc.;
The Granite Group Wholesalers, LLC;
Kohler Co., Inc.; and LSP Products
Group, Inc.

O R D E R
In this subrogation action, which involves a productsliability claim based on a design defect, defendant BrassCraft
Manufacturing Company (“BrassCraft”) moves to compel codefendant LSP Products Group, Inc. (“LSP”) to produce certain
exemplar parts for testing.

LSP objects.

For the reasons that

follow, BrassCraft’s motion to compel is granted in part and
denied in part.
Background
This case arises from losses sustained by plaintiff’s
subrogor, John Dineen, when a compression coupling fitting that
was part of a water line leading to a bathroom faucet in
Dineen’s house failed, causing substantial water damage.
fitting that failed was manufactured by BrassCraft.

The

BrassCraft,

in turn, alleges that its fitting failed as a result of, among
other things, design defects in two other parts to which its
fitting was connected.

Those parts, a nut and an insert

fitting, were components of a flexible water supply line, part
number UO2522-J2Z7, that was manufactured by LSP and
incorporated into the Kohler faucet that Lakeside Plumbing &
Heating installed in Dineen’s bathroom.

BrassCraft has asked

LSP to produce 100 nuts and 100 insert fittings for testing.
LSP has declined to do so, arguing that it no longer
manufactures the UO2522-J2Z7 and, as a consequence, has no
access to either the nuts or the insert fittings BrassCraft
requested.

Moreover, it says that the only nuts and insert

fittings to which it does have access are significantly
different from the parts at issue, which exempts them from
discovery.
The Relevant Law
In a recent order on which both parties rely, Judge
Laplante wrote:
As the defendants point out, “the party seeking
information in discovery over an adversary’s objection
has the burden of showing its relevance.” Caouette v.
OfficeMax, Inc., 352 F. Supp. 2d 134, 136 (D.N.H.
2005) (citing cases).
This burden, however, should not be overstated.
As the court of appeals has instructed, “district
courts are to interpret liberally the discovery
provisions of the Federal Rules [of] Civil Procedure
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to encourage the free flow of information among
litigants.” Heidelberg Ams., Inc. v. Tokyo Kikai
Seisakusho, Ltd., 333 F.3d 38, 41 (1st Cir. 2003).
This philosophy extends to the relevance standard of
Rule 26(b)(1), which “[m]ost courts [to] have
addressed the issue find . . . is extremely broad.” 8
Charles Alan Wright et al., Federal Practice and
Procedure § 2008, at 133 (3d ed. 2010).
This liberal approach extends to products
liability cases like this one. As one treatise notes,
“[c]ourts routinely permit discovery of similar, if
not identical models in products liability litigation,
provided they share with the accident-causing model at
least some characteristics pertinent to the legal
issues in the litigation,” as well as “[i]nformation
regarding whether other purchasers or users
experienced similar problems with the product.” 3
Louis R. Frumer & Melvin I. Friedman, Products
Liability § 17 .01[1][c][I], at 17–6 (rev. ed. 2001 &
2011 supp.) (footnotes omitted).
West v. Bell Helicopter Textron, Inc., No. 10-cv-214-JL, 2011 WL
6371791, at *2 (D.N.H. Dec. 20, 2011).

In another opinion on

which both parties rely, Judge Duffy further explained:
Although there is “no black letter rule of law
regarding discovery of [other] models in products
liability cases . . . discovery of similar, if not
identical, models is generally permitted.” Hofer v.
Mack Trucks, Inc., 981 F.2d 377, 381 (8th Cir. 1992).
Courts generally undertake a “fact specific
determination of the extent of the similarities and
dissimilarities” of claimed similar vehicle models to
determine if discovery of a model other than that
involved in an accident in litigation should be
allowed under Rule 26. Id. at 381. “[D]ifferent
models of a product will be relevant if they share
with the accident-causing model those characteristics
pertinent to the legal issues raised in the
litigation.” Fine v. Facet Aerospace Prods. Co., 133
F.R.D. 439, 441 (S.D.N.Y. 1990). The models must
share “pertinent characteristics” as they relate to
the accident at issue. Hofer, 981 F.2d at 381. What
is required is a specific factual showing of
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substantial similarity. Conclusory statements of
alleged similarity are not enough. See Piacenti v.
Gen. Motors Corp., 173 F.R.D. 221, 225 (N.D. Ill.
1997).
Gibson v. Ford Motor Co., 510 F. Supp. 2d 1116, 1120 (N.D. Ga.
2007).
The Nut
LSP contends that: (1) BrassCraft’s request for 100 nuts is
excessive; (2) the nut it currently uses, which is the only one
to which it has access, is not manufactured by the same supplier
that manufactured the nut it incorporated into the UO2522-J2Z7.
To demonstrate the dissimilarity between the old nut and the new
one, LSP offers the affidavit of its Director of Engineering,
Marshall Henningsen, who states:
LSP still uses the Nut in the manufacture of some
of its hoses. LSP does not manufacture the Nut, but
purchases it from two suppliers. The two suppliers
LSP uses now are different from the two suppliers it
used when the [UO2522-J2Z7] was manufactured. The
suppliers LSP used at the time the [UO2522-J2Z7] was
manufactured were located in the U.S. Today’s
suppliers are in China. I do not know whether the
suppliers LSP currently uses manufacture the [N]ut in
the same manner in which the Nut was manufactured.
Given the passage of more than five years, it is
extremely likely that the chemical composition,
hardness and/or machining process of the Nut changed
during that time, especially given the fact that the
Nut is now manufactured in China.
LSP’s Obj., Ex. A, Henningsen Aff. (doc. no. 64-1) ¶ 4.
Henningsen’s affidavit says it all, and carries the day for
BrassCraft.

According to Henningsen, LSP still uses the same
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nut that was used to manufacture the UO2522-J2Z7.

Thus, this is

not a situation in which the court must analyze BrassCraft’s
entitlement to the discovery of an item that is merely similar
to the object at issue.

See Hofer, 981 F.2d at 381 (denying

discovery concerning model F and W trucks, designs of which were
predecessors to design of the MH model truck involved in
products-liability action); Gibson, 510 F. Supp. 2d at 1121
(denying discovery concerning Ford F-150 pickup truck in
products-liability action involving Ford F-350 Super Duty pickup
truck); Piacenti, 173 F.R.D. at 226 (denying discovery
concerning Suzuki Samurai in products-liability action involving
General Motors GEO Tracker); Schaap v. Exec. Indus, Inc., 130
F.R.D. 384, 387 (N.D. Ill. 1990) (allowing discovery into
Prestige motor homes from model years 1982 through 1989 in
breach of contract and warranty action based upon deficiencies
in 1989 model Prestige motor home).

At the very least,

Henningsen’s affidavit confirms that the nut LSP now uses has
the same dimensions and design as the UO2522-J2Z7.

As for

differences, Henningsen’s affidavit consists of nothing more
than conjecture.

As BrassCraft suggests, LSP is free to inquire

into the validity of any test results at trial but, at this
point, Henningsen’s rank speculation about the composition and
manufacture of LSP’s current nut gives LSP no valid basis for
declining to provide BrassCraft with the 100 nuts it requested.
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The Insert Fitting
The insert fitting, a part LSP refers to as the “Brass
Barb,” is a bit more complicated.

BrassCraft asked LSP for 100

of the insert fittings used in the UO2522-J2Z7.

As with the

nut, LPS said that it stopped making the UO2522-J2Z7 in 2008,
and no longer has any of the Brass Barbs BrassCraft asked for.
Here is where things get a bit complicated.
Henningsen describes the Brass Barb as “a ‘hard cone,’
comprised of a solid brass fitting with barbs at the end,”
Henningsen Aff. ¶ 8, and further states that “[n]one of the
other products LSP currently manufactures contain the Brass
Barb,” id. ¶ 5.

But he also says this:

LSP currently manufactures flexible supply lines
with either a hard cone, or a soft cone. The
components which comprise the connection end (i.e. the
“cone”) of the current hoses are different than the
components which comprise the connection end of the
[UO2522-J2Z7]. The brass connection components in the
[UO2522-J2Z7] were manufactured using C36000 (free
machining) brass. In the hoses which LSP currently
manufactures - both the “hard cone” and the “soft
cone” hoses - the brass connection components are
manufactured using low lead Enviro brass. The types
of brass used to make the connection components in the
[UO2522-J2Z7] and today’s hoses are different and
would yield different results if tested in the manner
in which BrassCraft intends. The two brass components
have different hardnesses, have different
characteristics, have significantly different chemical
compositions, and underwent different machining
processes[.]
Id. ¶ 7.

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Based on Henningsen’s affidavit, the hard cone LSP
currently uses to manufacture its flexible supply lines could be
identical to, or substantially similar to the Brass Barb with
respect to the relevant characteristics, which, according to
BrassCraft, are its dimensions.

Or, the new insert fitting

could be entirely dissimilar to the Brass Barb.

In any event,

it is BrassCraft’s burden to show substantial similarity.

See

West, 2011 WL 6371791, at *2; Gibson, 510 F. Supp. 2d at 1120.
With respect to the nut, BrassCraft did not have to produce any
evidence because Henningsen’s affidavit provided BrassCraft with
all the proof it needed.
But with respect to the insert fitting, Henningsen’s
affidavit is not so supportive of BrassCraft’s position.
BrassCraft argues:
LSP’s opposition is based upon a claim that the
supply line it has been assembling in China since 2008
[is] not similar to the supply line that was attached
to the Kohler faucet installed at the Dineen
residence. LSP answered interrogatories which stated
they first began manufacturing the incident supply
line for Kohler beginning in 2001 and made “no changes
to the design since then.” [emphasis added] See, Ex.
G, LSP’s answers to interrogatories.
BrassCraft’s Reply (doc. no. 70) ¶ 5.

There are two problems

with BrassCraft’s argument.
First, BrassCraft does not appear to have accurately quoted
LSP’s interrogatory answer.

Rather than saying that it had made

“no changes to the design since then,” LSP actually said:
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If BrassCraft is seeking information pertaining
to the model of supply line identified by Kohler in
its discovery responses, one of which may have been
affixed to the Kohler faucet involved in the alleged
incident, which LSP has not substantiated, then LSP
responds that the supply line was first manufactured
in 2001. Answering further, no major changes were
made to this model of supply line. As LSP does not
manufacture all of the supply line’s component parts,
it is unable to respond as to those components it does
not manufacture.
BrassCraft’s Reply, Ex. G, at 5-6.

BrassCraft’s unfortunate

misquotation of LSP’s interrogatory answer leads to the second,
more substantive problem with its argument.
While BrassCraft portrays LSP as saying that the design of
the supply line it currently manufactures has not changed since
2001, LSP only said that it had made no major changes to the
“model of supply line” that may have been affixed to Dineen’s
faucet.

According to Henningsen, the model of supply line that

may have been affixed to Dineen’s faucet was the UO2522-J2Z7.
Henningsen has also testified that the UO2522-J2Z7 was
discontinued in 2008.

So, by saying that it had made no major

changes to the model of supply line that may have been affixed
to Dineen’s faucet, LSP said nothing about similarities between
the UO2522-J2Z7 and the hard-cone supply line it currently
makes.

The discontinuation of the UO2522-J2Z7 may be a red

herring, and the UO2522-J2Z7 may be similar enough to LSP’s
current hard-cone supply line to justify ordering LSP to produce
100 of the current supply line’s insert fittings for testing.
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But BrassCraft bears the burden of making “a specific factual
showing of substantial similarity,” Gibson, 510 F. Supp. 2d at
1120 and, at this point, is has failed to carry that burden.
Conclusion
For the foregoing reasons, BrassCraft’s motion to compel,
document no. 62, is granted in part and denied in part.
Specifically, LSP is ordered to provide BrassCraft with 100
nuts.

But, as to the insert fitting, BrassCraft’s motion to

compel is denied.

That denial, however, is without prejudice to

BrassCraft’s filing a properly supported motion to compel the
production of the insert fittings it seeks.
SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge
May 2, 2012
cc:

Doreen F. Connor, Esq.
Andrew D. Dunn, Esq.
Gerard O. Fournier, Esq.
Robert J. Gallo, Esq.
Russell F. Hilliard, Esq.
Kelly Martin Malone, Esq.
Kenneth Eric Rubinstein, Esq.
William H. Whitney, Esq.

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