NEW JERSEY MANUFACTURERS INSURANCE GROUP A/S/O KECIA ELLIS AND KATHLEEN BRAND v. ELECTROLUX, INC.

Filing 145

OPINION FILED. Signed by Judge Anne E. Thompson on 4/22/2013. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

NEW JERSEY MANUFACTURERS
INUSRANCE GROUP A/S/O KECIA ELLIS
AND KATHLEEN BRAND,
Civ. No. 10-1597

Plaintiff,

OPINION

v.
ELECTROLUX HOME PRODUCTS, INC.,
Defendant.

THOMPSON, U.S.D.J
This matter has come before the Court on Plaintiff’s motion to amend the Final Pretrial
Order, (Docket Entry No. 120), which Defendant opposed. (Docket Entry No. 129). The Court,
having denied Plaintiff’s motion in an order dated April 19, 2013, (Docket Entry No. 143), now
files this opinion explaining its ruling.
Under Federal Rule of Civil Procedure 16, final pretrial orders may be modified “to
prevent manifest injustice.” FED. R. CIV. P. 16(e). The moving party has the burden to
demonstrate that manifest injustice will result without amendment. Lentz v. Mason, 32 F. Supp.
2d 733, 738 (D.N.J. Jan. 11, 1999). “Four criteria guide courts in deciding whether or not to
modify a final pretrial order: (1) the prejudice or surprise in fact to the opposing party, (2) the
ability of the party to cure the prejudice, (3) the extent of disruption of the orderly and efficient
trial of the case, and (4) the bad faith or willfulness of the non-compliance.” Jacob v. Nat’l R.R.
Passenger Corp., 63 Fed. Appx. 610, 612 (3d Cir. 2003) (quotations omitted).

1

In this case, the Final Pretrial Order, signed by Judge Lois H. Goodman, was filed on
November 16, 2012. (Docket Entry No. 61). It appears that following the pretrial conference,
Plaintiff learned through another case involving Defendant, Charter Oak Fire Insurance
Company a/s/o Mavruk v. Electrolux Home Products, Inc., No. 10-1351 (E.D.N.Y.), of a
potential discovery issue. In the Charter Oak case, Defendant had filed a motion to enforce
collateral estoppel against the subrogating insurer because Defendant had prevailed against one
of the insurer’s subsidiaries in still another case, Newcomb, that involved the same dryer type.
The court decided in the Charter Oak case that since Defendant had withheld significant
discovery items, the Newcomb case was not fairly presented, and therefore, collateral estoppel
did not apply. 1
Plaintiff first brought this issue to the Court’s attention in a letter dated December 21,
2012. (Docket Entry No. 85). As the discovery dispute was pending before Judge Falk in
another case, New Jersey Manufacturers Ins. Grp. a/s/o Linda Pawlowski v. Electrolux, Inc., No.
10-1952 (D.N.J.), and both parties favored waiting for Judge Falk’s decision, (Docket Entry Nos.
85, 86), the Court entered a letter order on January 3, 2013 agreeing to let Judge Falk resolve the
issue. (Docket Entry No. 87).
By April 9, 2013, however, no such decision had been issued in the Pawlowski case.
(Docket Entry No. 120). Due to the rapidly approaching April 22, 2013 trial date, Plaintiff filed
a letter asking the Court to resolve the matter by permitting Plaintiff to amend the Final Pretrial
Order to add Brian Ripley (“Ripley”), one of Defendant’s design engineers, as a trial witness.

1

As the full case name was not provided to the Court, this case is referred to as the “Newcomb” case.

2

(Id.). Ripley’s deposition transcript was one of the eight items allegedly withheld in the Charter
Oak and Pawlowski cases. 2
Plaintiff contends that manifest injustice will result if the Court denies Plaintiff’s request
to amend the Final Pretrial Order to include Ripley as a witness or, alternatively, to permit
Plaintiff to read Ripley’s deposition testimony at trial. According to Plaintiff, Ripley’s
significance as a witness relates to his testimony concerning certain lint testing conducted in
2008. Plaintiff contends it was not only unaware of such lint testing despite requesting such
information during discovery, but had declined to make additional discovery requests concerning
lint testing after Defendant’s Rule 30(b)(6) witness represented that no such tests had been
conducted.
Plaintiff makes essentially two arguments. First, Plaintiff contends that Defendant was
obligated to disclose the 2008 lint test in response to (1) Request for Production No. 29, which
sought information concerning any testing “of any defects or alleged defects involving the
accumulation of lint within the chambers and/or partitions within the body of the specific make
and model of the Electrolux clothes dryer subject to this action;” and (2) Interrogatory No. 10,
which asked for information concerning studies “pertaining to the accumulation of lint within the
chambers and partitions of the specific make and model of the Electrolux clothes dryer that it
(sic) subject to this action.” (Docket Entry No. 133). Therefore, according to Plaintiff,
Defendant improperly withheld evidence of the 2008 lint test, and manifest injustice will result if
Plaintiff is denied the opportunity to present Ripley’s testimony at trial.
The Court disagrees. As a preliminary matter, the Court notes that both Interrogatory No.
10 and Request for Production 29 seek only information pertaining to “the specific make and

2

The deposition of Ripley was taken on June 1, 2012 in another case, State Farm Gen. Ins. Co. v. Electrolux Home
Prods., No. EC053578, (Cal. Sup. Ct.). (Docket Entry No. 133).

3

model” of the dryer at issue in this case. Although Plaintiff contends that the dryers in the 2008
test and the dryer at issue in this case involve the same ball-hitch design, it is not clear to the
Court that all dryers that employ a ball-hitch design are necessarily of the same make or model
as all other such dryers. In particular, the Court notes the disagreement between Plaintiff and
Defendant about whether the 2008 lint test, which was performed on an electric dryer, is relevant
to the present matter, which involves a gas dryer. (Docket Entry Nos. 133, 138).
Furthermore, Interrogatory No. 10 is limited to information pertaining to testing of
“defects of alleged defects.” (Docket Entry No. 133). The segments of Ripley’s deposition
testimony that were submitted to the Court, however, do not suggest that the testing was
conducted due to any defect or alleged defect. (See Ripley Dep., Docket Entry No. 141, Ex. A).
Instead, it appears that the 2008 lint test involved “placing lint around the electric heater in the
proximity of the coil to see if there was ignition.” (Id. at 82:13-14). As such, Plaintiff has not
shown that evidence of the 2008 lint test was responsive to Interrogatory No. 10, which was
limited to tests pertaining to defects or alleged defects. In sum, Plaintiff has not established that
Defendant withheld information properly sought through Interrogatory No. 10 or Request for
Production No. 29 and that manifest injustice will, therefore, result if the Final Pretrial Order is
not amended to include Ripley as a witness.
Second, Plaintiff argues that Defendant was obligated to prepare Carl King, Defendant’s
Laundry Safety Engineer and Corporate Designee, to testify accurately regarding the 2008 lint
test because he was a Rule 30(b)(6) witness. In reaching this conclusion, Plaintiff contends that
Defendant was required to prepare King to testify about the testing because the notice required
King to testify about (1) “the design of the dryer at issue in this matter, and the design of the
model family involved in this matter;” (2) “any design changes, improvements or enhancements

4

concerning the model family at issue in this matter;” (3) “the maintenance of the model family of
dryer at issue;” and (4) “the operation of the family model of dryers which apply to the dryer
involved in this matter.” (Docket Entry No. 138). According to Plaintiff, Defendant was
obligated to correct any error in King’s testimony after the deposition, and therefore, when King
testified that he knew of no such lint tests, Defendant was obligated to disclose the 2008 lint test
to Plaintiff.
Again, Plaintiff has failed to show that manifest injustice will result if the Final Pretrial
Order is not amended. While “[t]he organizational entity has the duty to designate, produce, and
prepare [a] Rule 30(b)(6) deponent,” that duty is limited to information “called for by the
deposition notice.” In re Neurontin Antitrust Litig., 2011 WL 253434, at *6-7 (D.N.J. Jan. 25,
2011). Here, the Court cannot say that the four categories listed in the Rule 30(b)(6) notice
obligated Defendant to prepare King to testify about lint testing at all. Furthermore, the
reasonableness of interpreting the Rule 30(b)(6) notice to include the 2008 lint test is further
undermined by the fact that it is not clear that the 2008 lint test, which was apparently conducted
on an electric dryer, is relevant to a proceeding involving a gas dryer. (Docket Entry Nos. 133,
138). As such, the Court finds that Defendant did not withhold information it was obligated to
disclose during discovery, and thus, the Court finds that Plaintiff has not met its heavy burden of
establishing manifest injustice. For the foregoing reasons, Plaintiff’s motion to amend the Final
Pretrial Order is denied.

/s/ Anne E. Thompson
ANNE E. THOMPSON, U.S.D.J.

DATE:

April 22, 2013
5