Hauck v. Wabash National Corporation
MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales granting in part and denying in part 137 Motion for Summary Judgment. (tah)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LINDA HAUCK, as personal
representative of the Estate of
Deborah A. Chambers,
No. CV 18-471 KG/LF
WABASH NATIONAL CORPORATION,
MEMORANDUM OPINION AND ORDER
Presently before the Court is Defendant Wabash National Corporation’s (Wabash)
Motion for Summary Judgment (Motion) (Doc. 137). The Motion is now fully and timely
briefed. See (Doc. 146, Response, Doc. 149, Reply). The Court notes jurisdiction under 28
U.S.C. § 1332. After review of the parties’ briefing and the relevant law, the Court grants in part
and denies in part Wabash’s Motion (Doc. 137).
Undisputed Material Fact Summary
On the evening of September 6, 2016, Deborah Chambers’ PT Cruiser collided into the
side of a Wabash dry-van trailer that was pulled across both lanes of traffic on Route 66. (Doc.
137) at 3, ¶ 1. Because of “[t]he mismatch of the deck height of the Wabash trailer and the front
of Ms. Chambers’ vehicle,” Ms. Chambers’ drove under, or “under-rode,” the trailer, “causing
passenger compartment intrusion of Ms. Chambers’ vehicle.” (Doc. 146) at 5, ¶ 2. Ms.
Chambers was severely injured in the accident and later died in the hospital. Id. at 1. Linda
Hauck, as personal representative, brought this action to recover damages on behalf of Ms.
Chambers’ estate. Id. at 23-24.
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At the time of Ms. Chambers’ collision, the Wabash trailer was not equipped with a side
guard to prevent vehicle under-riding. (Doc. 146) at 8, ¶ 27; (Doc. 137) at 3, ¶ 2. The National
Highway Traffic Safety Administration (NHTSA) does not require the installation of side-guard
protectors on trailers. (Doc. 137) at 4, ¶ 6. Installation of such a device would “necessarily add
weight to [the] trailers.” Id. at ¶ 10. However, “[v]arious designs of side underride protection
have been crash tested on multiple occasions.” (Doc. 146) at 6, ¶ 9. Testing of these devices
“show the ability of side underride guards to prevent underride and passenger compartment
intrusion.” Id. Furthermore, Federal Motor Vehicle Safety Standards “did not prevent Wabash
from equipping its trailers with a side underride guard.” Id. at 10, ¶ 40. Notably, the NHTSA
does require the installation of “rear impact guards,” a device that prevents under-riding when a
vehicle collides with the back of a trailer. Id. at 9, ¶ 28. In accordance with these regulations, a
rear impact guard was installed on Wabash’s trailer at the time of the accident. (Doc. 137) at 3, ¶
By the year 2000, “Wabash knew the deck heights of its trailers, and knew that the tops
of the fronts of passenger vehicles were less than the deck heights of its trailers.” (Doc. 146) at
7, ¶ 17. In addition, Wabash “was aware of the risks that a vehicle could underride its trailers …
because the trailer’s deck height was higher than the top of the front of most passenger vehicles.”
Id. at ¶ 18. Wabash was also “aware that an underride of its trailers could expose an occupant of
a passenger vehicle to risks of injury or death.” Id. at 8, at ¶ 22. Despite this knowledge,
“Wabash had not conducted any testing as it relates to side underride of its trailers.” Id. at ¶ 25.
Between 2007 and 2010, “Wabash began to develop a side underride guard for its
trailers,” and received a patent for the design in April 2012. Id. at 11, ¶ 46. Since receiving the
patent, “Wabash continues its efforts to develop, design, test and commercial a side impact
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guard, despite any mandate or requirement by the government for side underride guards on semitrailers.” Id. at 13, at ¶ 60. To date, Wabash has not installed side-guard protectors on its trailers
that travel on U.S. roads and highways. See id. at 8, ¶ 27.
Summary judgment is appropriate if the moving party shows “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). Once the movant meets its initial burden of demonstrating the absence of a genuine issue
of material fact, the burden shifts to the non-movant to set forth specific facts showing a genuine
issue for trial. Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 767 (10th Cir.
2013). A fact is “material” if it could effect the outcome of the lawsuit. Smothers v. Solvay
Chems., Inc., 740 F.3d 530, 538 (10th Cir. 2014) (quoting Tabor v. Hilti, Inc., 703 F.3d 1206,
1215 (10th Cir. 2013)). A dispute over a material fact is “genuine” only if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The Court views the facts in the light most favorable to
the nonmoving party and draws all reasonable inferences in the nonmoving party’s favor. Tabor,
703 F.3d at 1215.
In its Motion, Wabash requests summary judgment on each of Ms. Hauck’s two claims
for relief, strict products liability and negligence. (Doc. 137) at 6-13. Alternatively, Wabash
argues that if Ms. Hauck’s claims survive summary judgment, this Court should conclude that
she is unable to recover punitive damages. Id. at 13-14. Finally, Wabash asserts that because
Ivy Chambers, Deborah Chambers’ surviving daughter and statutory beneficiary, did not
participate in discovery, she should be barred from receiving any damages awarded in this case.
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Id. at 14. Ms. Hauck contests the basis for each of Wabash’s arguments in favor of summary
judgment. See (Doc. 146). As a result, the Court will address each of Wabash’s contentions in
A. Strict Products Liability Claim
To recover under a strict products liability theory in New Mexico, a plaintiff must
demonstrate that: (1) “the product was defective;” (2) “the product was defective when it left the
hands of the defendant and was substantially unchanged when it reached the user or consumer;”
(3) “because of the defect the product was unreasonably dangerous to the user or consumer;” (4)
“the consumer was injured or damaged;” and (5) “the defective product was the proximate cause
of the injury or damage.” Garner v. Raven Indus., Inc., 732 F.2d 112, 114 (10th Cir. 1984). In
considering whether a product is “unreasonably dangerous,” a plaintiff must demonstrate that “a
reasonably prudent person having full knowledge of the risk would find [the risk] unacceptable.”
Bustos v. Hyundai Motor Co., 2010-NMCA-090, 149 N.M. 1, at *12 (citing UJI 13-1407
NMRA). The question of “[w]hether a product is unreasonably dangerous, and therefore
defective, is ordinarily a question for the jury.” Nowell v. Medtronic, Inc., 372 F.Supp. 3d 1166,
1228 (D.N.M. 2019) (Browning, J.) (quoting Smith ex rel. Smith v. Bryco Arms, 2001-NMCA090, ¶ 14, 131 N.M. 87).
When considering whether a product is defective to support liability, the jury is instructed
to engage in “a risk-benefit calculation” and “balance meritorious choices for safety made by the
manufacturer while minimizing the risk that the public will be deprived needlessly of beneficial
products.” Id. (quoting Smith, 2001-NMCA-090, at ¶ 14). In reaching its conclusion, the jury
(1) the usefulness and desirability of the product…; (2) the availability of other
and safer products to meet the same need…; (3) the likelihood of injury and its
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probable seriousness, i.e., ‘risk,’…; (4) the obviousness of the danger…; (5)
common knowledge and normal expectation of the danger (particularly for
established products)…; (6) the avoidability of injury by care in use of the
product (including the effect of instructions or warnings)…; and (7) the ability to
eliminate the danger without seriously impairing the usefulness of the product or
making it unduly expensive.
McDonald v. Zimmer, Inc., 2020-NMCA-020, ¶ 33, 461 P.3d 930 (citing UJI 13-1407 NMRA,
The parties dispute whether Ms. Hauck can establish that Wabash’s trailer was
unreasonably dangerous and, thus, whether a jury could conclude it was defective and reach a
verdict in her favor. Ms. Hauck presents significant evidence of the risk, obviousness, and
common knowledge associated with driving a trailer unequipped with a side-guard protector.
Most notably, Wabash agreed that it “w[as] discussing side underride and side underride guards
at least as of 2007.” (Doc. 147) at 10, ¶ 44. In addition, Wabash developed its own “side
underride guard for its trailers, filing a patent for a side underride guard in April of 2010[.]” Id.
at 11, ¶ 46. By 2016, Wabash admits it was moving forward “with development and testing of a
side impact guard to commercialize a guard able to stop a passenger from underride with no
passenger compartment intrusion.” Id. at ¶ 49. In 2017, “Wabash developed and displayed a
side impact guard at a commercial motor vehicle show.” Id. at ¶ 53.
Wabash then installed on its trailer, for purposes of testing, a side-guard protector. Id. at
12, ¶ 56. At present, “Wabash continues its efforts to develop, design, test and commercial a
side impact guard, despite any mandate or requirement by the government for side underride
guards on semi-trailers.” Id. at 13, ¶ 60. Wabash further admitted that the purpose of its sideguard protector was specifically developed to prevent and minimize “the risk of passenger
compartment intrusion of passenger vehicles that may strike the side of a Wabash trailer.” Id. at
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While this evidence is not conclusive on the elements of risk, obviousness, or common
knowledge, it is sufficient for a reasonable jury to construe the facts in favor of Ms. Hauck. See
Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996) (internal citation omitted) (explaining that
“issue of material fact is genuine if a reasonable jury could return a verdict for the non-movant”).
Indeed, Ms. Hauck has presented evidence, which, if the jury accepts, demonstrates that Wabash
independently researched, tested, and designed its own mechanism for protecting against vehicle
underride. Based on this evidence, the jury could infer that this danger was obvious, foreseeable,
common knowledge, and, therefore, unreasonable, rendering the product defective. In arguing to
the contrary, Wabash asserts that “Ms. Hauck must present proof of a feasible alternative design
to support her strict liability claim.” (Doc. 149) at 8.
However, “[u]nder New Mexico law, the existence of a reasonable alternative design is a
relevant consideration by a jury but, contrary to Defendants’ argument, a specific finding on this
issue is not required.” Bustos, 2010-NMCA-090, at ¶ 54 (citing Morales v. E.D. Etnyre & Co.,
382 F.Supp. 2d 1278, 1284 (D.N.M. 2005)). Indeed, “while a jury is required to make riskbenefit calculations, consideration of alternative designs is but one of several risk-benefit
considerations that a jury may balance in determining whether a product created an unreasonable
risk of injury.” McDonald, 2020-NMCA-020, at ¶ 33 (emphasis in original) (citing Bustos,
2010-NMCA-090, at ¶ 54). New Mexico courts have endorsed an “unreasonable-risk-of-injury”
test that allows “argument under any rational theory of defect.” Id. (citing Brooks v. Beech
Aircraft Corp., 1995-NMSC-043, ¶ 32 n.2, 120 N.M. 372).
In this way, “the New Mexico Supreme Court made clear that a ‘defect giving rise to
strict products liability is not measured by comparison with a prototype.’” Bustos, 2010-NMCA090, at ¶ 54 (quoting Brooks, 1995-NMSC-043, at ¶ 32). The Morales opinion, which Wabash
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cites in support of its position, has been subsequently applied by New Mexico courts for the
principle that “a ‘rigid showing in the plaintiff’s prima facie case’” of a feasible alternative
design is not required. See id. at ¶ 57 (quoting Morales, 382 F.Supp. 2d at 1284). However, in
framing the holding in Morales, the Bustos Court recognized that a plaintiff cannot “come to
court and merely criticize a product.” Id. at ¶ 57 (quoting Morales, 382 F.Supp. 2d at 1284).
Consistent with New Mexico precedent, this Court is not persuaded that such a rigid
“requirement” of a feasible alternative design exists under the theory of strict products liability.
Cf. Morales, 382 F.Supp. 2d at 1283-84 (concluding in 2010 that “plaintiff had to show an
alternative design”) with Bustos, 2010-NMCA-090, at ¶ 57 (interpreting Morales and finding
New Mexico law does not require “prima facie” evidence of alternative design) and McDonald,
2020-NMCA-020, at ¶ 33 (interpreting New Mexico law in 2019 and concluding “consideration
of alternative designs is but one of several risk-benefit considerations that a jury may balance”)
(emphasis in original). Simply stated, while Morales may have claimed such a standard exists,
that requirement has been limited and refined by subsequent New Mexico Court of Appeals
decisions. See id.
As a diversity action involving the question of New Mexico state law, this Court must
follow the legal reasoning and restrictions adopted by New Mexico courts. See Wankier v.
Crown Equip. Corp., 353 F.3d 862, 866 (10th Cir. 2003) (explaining that “under diversity
jurisdiction, the task of the federal court is not to reach its own judgment regarding the substance
of the common law, but simply to ascertain and apply the state law”). This is especially true,
where, as here, the mandate for a rigid showing of alternative designs has been repeatedly
denounced by the state court. See Bustos, 2010-NMCA-090, at ¶ 56 (internal citation omitted)
(explaining that Morales “forecast[ed]” what the New Mexico Supreme Court “would most
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likely” do, but “Brooks had already recognized that New Mexico’s existing law, at least to some
degree, applies the risk-utility considerations advocated by the Restatement (Third)”).
Nevertheless, to the extent that New Mexico law can be construed to require a feasible
alternative design, Ms. Hauck has provided evidence that if the jury finds probative and accepts,
can be utilized to infer the existence of a feasible alternative design. Most notably, Ms. Hauck
presents evidence that Wabash manufactured and placed a side-guard protector on its trailers for
testing and began discussing the inclusion of such devices over a decade ago, in 2007. See
McDonald, 2020-NMCA-020, at ¶ 32 (explaining testimony “and exhibits such as research
articles and [defendant’s] own internal data” supported conclusion that product was defective).
In addition, Ms. Hauck presents a host of exhibits in support of alternative designs, which the
jury may assess during its risk-benefit calculus and evaluation of Wabash’s ability to eliminate
the danger. See (Doc. 146-5) at 23 (explaining sideguard testing in 2008); id. at 24 (explaining
sideguard testing in 2006); id. at 25-31 (analyzing news excerpts and articles on underride
guards). This Court is, therefore, satisfied that even if New Mexico law requires proof of a
feasible alternative design, Ms. Hauck has presented sufficient evidence from which the jury
could infer that such a design existed. Accord McDonald, 2020-NMCA-020, at ¶ 34 (concluding
that evidence of “Defendants already market[ing] a design that avoids the risk … suffice[s] to
demonstrate that  court considered the ability to eliminate the danger without impairing the
usefulness of the product or rendering it unduly expensive”).
In conclusion, Ms. Hauck has presented sufficient evidence to demonstrate that, when
considering the risk-benefit calculation to ascertain the dangerousness of Wabash’s tractor-trailer
design, a reasonable jury could find in her favor and ultimately conclude that the product was
unreasonably dangerous and defective. In addition, even if New Mexico law requires proof of a
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feasible alternative design, Ms. Hauck has presented sufficient evidence to prove the existence of
design alternatives—including Wabash’s own blueprints and design plans. Thus, despite the
exclusion of Mr. Ponder and Dr. Batzer’s testimony, the Court is not persuaded that judgment
should be afforded as a matter of law. Therefore, the Court concludes that summary judgment in
favor of Wabash is not appropriate on Ms. Hauck’s strict products liability theory of recovery.
For these reasons, the Court denies Wabash’s Motion on this claim.
B. Negligence Claim
To sustain a negligence claim under New Mexico law, a plaintiff must demonstrate “a
duty from a defendant to a plaintiff, breach of that duty, which is typically based on a standard of
reasonable care, and the breach being a cause-in-fact and proximate cause.” Nowell, 372 F.Supp.
3d at 1225 (citing inter alia, Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 6, 134 N.M. 43).
In determining whether a defendant has breached a duty owed to the plaintiff, the fact finder
must ascertain “what a reasonably prudent person would foresee, what an unreasonable risk of
injury would be, and what would constitute an exercise of ordinary care in light of all the
surrounding circumstances.” Herrera, 2003-NMSC-018, at ¶ 33. This inquiry is inherently
“factual,” and requires the trier of fact to determine whether a defendant acted “reasonably or
negligently” under the circumstances. Id.
Wabash contends that Ms. Hauck cannot demonstrate that its trailer was “unreasonably
dangerous.” (Doc. 137) at 12. However, Ms. Hauck presents a detailed history of the risks
associated with driving a trailer not equipped with a side-guard protector. Most notably, Ms.
Hauck attaches a detailed report, authored by Paul Lewis, explaining the injuries Ms. Chambers
sustained because of the vehicle underride in her collision. (Doc. 146-5) at 8. Mr. Lewis details
that Ms. Chambers would have survived if a side underride protector was installed on Wabash’s
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trailer at the time of the collision. Id. at 31. In addition, Mr. Lewis explains that Ms. Chambers
was travelling at 27 miles per hour when her vehicle collided with the trailer, and she was unable
to see the trailer stretching across her travel lane because its headlights produced a “wall of
light.” Id. at 21.
Mr. Lewis further explains that, because no side-guard protector was installed on the
trailer, it took first responders ten minutes to remove Ms. Chambers from her vehicle, as she
“moaned,” “unresponsive,” and pinned inside the vehicle. Id. at 4. After removing her from the
vehicle, she declined from “minimally responsive at scene” to being intubated and sedated. Id. at
5. Ultimately, she sustained “multiple intracranial injuries and cervical spine injuries” and her
neurological status “continued to decline over the course of her stay” at the hospital. Id. at 8.
Mr. Lewis explains that Ms. Chambers was extubated at the hospital and within two hours, she
was pronounced dead. Id.
This evidence is sufficient to demonstrate an “unreasonable risk of injury.” Specifically,
a jury could conclude that this risk, stemming from a vehicle travelling 27 mph and colliding
with a trailer that it could not adequately see because of its headlights—resulting in a ten-minute
extraction and a week in the hospital before death—is unreasonable. At a minimum, this
evidence is colorable to the point that a jury could conclude that a reasonably prudent
manufacturer should have foreseen injuries of this nature, and Wabash, therefore, failed to
mitigate the unreasonable risk of injury and death.
Wabash combats this contention by arguing that because no trailer manufacturers
currently utilize side-guard protectors, its current design cannot be considered unreasonably
dangerous, or otherwise subject it to a negligence holding. (Doc. 137) at 13. However,
“evidence of industry custom or usage, and evidence of compliance with applicable regulations,
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is relevant to whether the manufacturer was negligent or whether the product poses an
unreasonable risk of injury, but that such evidence should not conclusively demonstrate whether
the manufacturer was negligent or the product was defective.” Brooks, 1995-NMSC-043, at ¶
38. The New Mexico Supreme Court explained, “[w]e hesitate to embrace a standard that would
allow an industry to set its own standard of reasonable care and to determine how much productrelated risk is reasonable.” Id. at ¶ 40; see also Gonzales v. Surgidev Corp., 1995-NMSC-036, ¶
49, 120 N.M. 133 (concluding evidence of compliance with federal regulations “is not
dispositive of the issue of negligence or recklessness”).
Taking the facts in the light most favorable to Ms. Hauck and drawing all reasonable
inferences in her favor, this Court concludes a reasonable jury could find that Wabash’s trailer
posed a foreseeable and unreasonable risk of injury under the circumstances, even though it
complied with federal regulatory guidelines and requirements. See also Rivera v. Volvo Cars of
North America, LLC, 2015 WL 11118064, at *10 (D.N.M.) (Gonzales, J.) (denying summary
judgment for manufacturer even though “subject vehicle complied with all governmental
standards, the subject switch is non-defective according to Defendant[’s]  expert,  and there is
no evidence of prior  cases involving [the malfunction]”). As a result, the Court denies
summary judgment for Wabash on Ms. Hauck’s negligence claim.
C. Punitive Damages
To be liable for punitive damages under New Mexico law, “a wrongdoer must have some
culpable mental state, and the wrongdoer’s conduct must rise to a willful, wanton, malicious,
reckless, oppressive, or fraudulent level.” Clay v. Ferrellgas, Inc., 1994-NMSC-080, ¶ 12, 118
N.M. 266. For conduct to be deemed “reckless” to support an award of punitive damages, the
wrongdoer must engage in “the intentional doing of an act with utter indifference to the
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consequences.” Id. at ¶ 15. In addition, “compliance with federal regulations does not preclude
a finding of recklessness or an award of punitive damages.” Gonzales, 1995-NMSC-036, at ¶
Ms. Hauck presents evidence that the danger of vehicle underride was well known to
Wabash and within the trailer industry for at least two decades, a fact Wabash does not dispute.
See (Doc. 146) at 7, ¶ 18 (“As of at least the year 2000, Wabash was aware of the risks that a
vehicle could underride its trailers”). As a result, a reasonable jury could conclude that
Wabash’s intentional decision to not install side-guard protectors on its trailers amounted to
“utter indifference to the consequences,” most notably, the consequences Ms. Chambers suffered
after her vehicle under-rode the Wabash trailer. Therefore, summary judgment on the issue of
punitive damages is not appropriate because, given the undisputed material facts, a reasonable
jury could find in favor of Ms. Hauck and conclude that Wabash’s refusal to install side-guard
protectors was, at a minimum, reckless. The Court, thus, denies Wabash’s request on this claim.
D. Ivy Chambers
Lastly, Wabash asserts that Ivy Chambers, the daughter of Ms. Chambers, should be
precluded from recovering damages in this case because she did not participate in discovery and
failed to submit to a deposition. (Doc. 137) at 14. Notably, any damages awarded in this case
will go to Ms. Chambers’ estate, not her individual descendants, and Ivy Chambers is not a
named Plaintiff in this lawsuit. As a result, the estate’s distribution of any damage award in this
case, including whether it distributes funds to Ivy Chambers, is plainly outside the scope of this
Court’s jurisdiction. Simply stated, the question of asset distribution is handled by Ms.
Chambers’ estate, and this Court cannot command how those funds are distributed.
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However, the Court construes Wabash’s argument as one based in equity: that is,
because Ivy Chambers refused to participate or submit to questioning by defense counsel, Ms.
Hauck cannot argue that any damage award should reflect calculations of the injuries Ivy
Chambers sustained as a result of her mother’s death. To the extent that this is Wabash’s
argument, the Court agrees. As a sanction for her failure to participate in discovery, and her
refusal to be deposed, the Court will restrict Ms. Hauck from presenting evidence on the
damages Ivy Chambers sustained because of Ms. Chambers’ death. The ultimate distribution of
the estate’s funds, however, is left to the sound discretion of Ms. Hauck, as the executive of Ms.
Chambers’ estate. On this argument, therefore, the Court finds in favor of Wabash.
Based on the undisputed material facts of this case, the Court concludes that a reasonable
jury could find in favor of Ms. Hauck on her claims for strict products liability, negligence, and
punitive damages. As a result, the Court denies Wabash’s request for summary judgment on
these claims. In addition, because Ivy Chambers did not participate in discovery or submit to
questioning regarding the scope and extent of her injuries, Ms. Hauck may not present evidence
of her injuries to argue a calculable award of damages apportioned to her in any final judgment
or award. Therefore, the Court grants in part and denies in part Wabash’s Motion for Summary
Judgment (Doc. 137).
IT IS, THEREFORE, ORDERED that:
1. Wabash is not entitled to summary judgment on Ms. Hauck’s claims for strict
products liability, negligence, and punitive damages; and
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2. Ms. Hauck is precluded from arguing a damage award before the jury that includes
calculations of Ivy Chambers’ damages, as a sanction for her failure to participate in
discovery and her refusal to be deposed.
UNITED STATES DISTRICT JUDGE
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