Bennett v. Segway, Inc. et al
Filing
49
ORDER granting 35 Motion to Compel. Signed by Magistrate Judge Dennis Howell on 10/19/11. (ejb) (Main Document 49 replaced on 10/19/2011 with correct PDF) (ejb). NEF Regenerated on 10/19/2011 (ejb).
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:11cv09
MAY K. BENNETT,
Plaintiff,
v.
SEGWAY, INC. and ELECTRIC
AVENUE, INC.,
Defendants.
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ORDER
Pending before the Court is the Plaintiff’s Motion to Compel [# 35].
Plaintiff brought this action against Defendants asserting claims for negligence and
breach of implied warranty of fitness and merchantability. Plaintiff now moves to
compel Defendant Segway, Inc. (“Defendant”) to produce documents responsive to
her First Request for Production of Documents. The Court GRANTS the motion
[# 35].
I.
Background
Plaintiff brought this action against Defendants after she was thrown off the
first generation Segway XT she was operating at the North Carolina Arboretum.
Plaintiff contends that she was operating the Segway in accordance with the
instructions she received at the Arboretum when “the device suddenly stopped and,
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without warning, threw [her] off the machine, causing her to strike her leg and hip
and body against the pathway.” (Pl.’s Compl. ¶ 6.) She further alleges that she
fractured her hip and leg in the fall. (Id.) Plaintiff contends that the Segway she
was operating was defectively designed and brought this action asserting claims for
negligence and breach of implied warranty of fitness and merchantability.
After bringing this action, Plaintiff served Defendant with her First Requests
for Production of Documents. Request No. 57 requested Defendant to produce:
All deposition transcripts and copies of trial testimony for Gerald
Rigdon, David Robinson, John Morrell, Mike Gansler, Douglas Field,
Jane Davison, and Dean Kamen that relate to any personal injury action.
(Pl.’s First Request for Production of Documents (Pl.’s Request”) at p. 20.)
Defendant offered several objections to this request, including that most, if not all,
of the requested deposition transcripts are subject to Confidentiality Agreements
and Protective Orders from other cases. (Def.’s Resp. to Pl.’s First Request for
Production of Documents (“Def.’s Resp.”) at p. 57.)
In Request No. 2, Plaintiff requested that Defendant produce:
All documents which relate to or concern, in any manner any complaints,
claims, or accident or incident reports regarding any accident to or injury
suffered by any person while using any Segway manufactured, produced,
or sold by you regardless of place where the system was used. This
request includes, but is not limited to those incidents listed in Exhibit A
hereto.
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(Pl.’s Request at p. 3.) Defendant offered a number of objections to this requests.
(Def.’s Resp. at p. 2.)
Plaintiff’s Request No. 11 sought the production of:
Any and all incident reports or accident reports, lawsuit complaint, or
any other report, memoranda, notation, or study concerning or regarding
any injuries which involve in any way any Segway regardless of where
located or installed. This request includes but is not limited to those
incidents listed in Exhibit A hereto.
(Pl.’s Request. at pp. 5-6.)
Again, Defendant objected to this request on
several grounds. (Def.’s Resp. at p. 5.) Defendant, however, agreed to produce
limited documents responsive to the request upon the entry of a protective order by
the Court. (Id. at p. 4-5.)
After a series of discussions between the parties over these three requests
and the limited documents produced by Defendant in response to the requests,
Plaintiff filed a motion to compel the production of all responsive documents.
Plaintiff’s motion is now properly before the Court.
II.
Legal Standard
Generally speaking, parties are entitled to discovery regarding any nonprivileged matter that is relevant to any claim or defense. Fed. R. Civ. P. 26(b)(1).
“Relevant information need not be admissible at the trial if the discovery appears
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reasonably calculated to lead to the discovery of admissible evidence.” Id. Where
a party fails to respond to an interrogatory or a request for production of
documents, the party seeking discovery may move for an order compelling an
answer to the interrogatories or the production of documents responsive to the
request. Fed. R. Civ. P. 37(a)(3)(B). “Over the course of more than four decades,
district judges and magistrate judges in the Fourth Circuit . . . have repeatedly ruled
that the party or person resisting discovery, not the party moving to compel
discovery, bears the burden of persuasion.” Kinetic Concepts, Inc. v. ConvaTec
Inc., 268 F.R.D. 226, 243 (M.D.N.C. 2010) (collecting cases); Mainstreet
Collection, Inc. v. Kirkland’s, Inc., 270 F.R.D 238, 241 (E.D.N.C. 2010); Billips v.
Benco Steel, Inc., No. 5:10cv95, 2011 WL 4005933 (W.D.N.C. Sept. 8, 2011)
(Keesler, Mag. J.).
III.
Analysis
Plaintiff moves to compel Defendant Segway to produce two categories of
documents. First, Plaintiff moves to compel the production of all trial and
deposition transcripts of the individuals specified in Request No. 57. Second,
Plaintiff moves to compel Defendant to produce copies of all documents related to
prior complaint of accidents involving a Segway received by Defendant, as well as
the documents related to the investigation of these claims.
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A.
Documents Related to Prior Accidents Involving a Segway
Plaintiff moves to compel Defendant Segway to produce all documents
related to prior complaints of incidents or accidents involving a Segway.
Defendant, however, contends that these documents are not relevant because the
prior accidents and incidents at issue did not occur under substantially similar
conditions.
As a threshold matter, Defendant misstates the applicable standard for
determining whether the documents at issue are subject to discovery. The cases
from this Circuit cited by Defendant address whether to admit evidence of other
accidents at trial, not whether the documents are relevant for purposes of
discovery. See e.g., Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378, 1386 (4th Cir.
1995); Mirchandani v. Home Depot USA, Inc., 470 F. Supp. 2d 579, 583 (D. Md.
2007); Buckman v. Bombardier Corp., 893 F. Supp. 547, 552 (E.D.N.C. 1995).1 As
the district court explained in Buckman:
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Defendant also cites the unpublished case Pugh v. Louisville Ladder, Inc., 361 F.
App’x 448, 450 (4th Cir. 2010), for the proposition that Plaintiff must set forth the similarity
between the various models of Segways prior to allowing discovery. The quoted portion of this
case, however, is from the Fourth Circuit’s summary of the ruling of the district court regarding
the testimony of the plaintiff’s expert witness. Pugh, 361 F. App’x at 450. Aside from the fact
that the district court’s ruling addressed the scope of the testimony of an expert, not discovery,
the Fourth Circuit did not even address this issue on appeal because plaintiff did not appeal the
district court’s ruling to limit the testimony of his experts. Id. at 451. The Court will give
Defendant the benefit of the doubt regarding this citation and assume that Defendant was not
attempting to mislead the Court. Going forward, however, the Court will strike any pleadings by
Defendant that contain such inaccurate or misleading citations.
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Evidence of other accidents is highly prejudicial. Therefore, it is well
settled that, before evidence of other accidents can be admitted into
evidence, plaintiff must present a factual foundation for the court to
determine that the other accidents were “substantially similar” to the
accident at issue.
893 F. Supp. at 552. Thus, because of the highly prejudicial nature of evidence of
other accidents, a plaintiff seeking to introduce this evidence at trial must show that
the other accidents are substantially similar to the accident that caused the
plaintiff’s injury. Id.
The same concerns regarding the prejudicial nature of the evidence,
however, is not present during discovery. Instead, the question is whether the
evidence of other accidents is relevant to Plaintiff’s claims. Fed. R. Civ. P.
26(b)(1). It does not matter that the evidence may not ultimately be admissible at
trial, provided that the “the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.” Id.
Documents related to prior complaints of incidents or accidents involving a
Segway, as well as documents related to Defendant’s investigation of these
complaints is relevant to Plaintiff’s claim that the Segway she was operating when
the accident occurred was defectively designed. Moreover, Defendant may not
limit discovery to complaints involving the Segway XT Generation 1 vehicle.2
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Again, Defendant relies on cases addressing whether such evidence is admissible at
trial, not whether it is relevant for purposes of discovery. See e.g., Lovett v. Union Pac. R.R. Co.,
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Finally, Defendant has not shown that the production of the documents at issue
would be unduly burdensome or expensive. See Fed. R. Civ. P. 26(b)(C)(iii).
Accordingly, the Court GRANTS the Motion to Compel as to Requests No. 2 &
11.
B.
The Deposition and Trial Transcripts
Plaintiff also seeks copies of all deposition transcripts and copies of trial
testimony for specified employees of Defendant Segway, relating to any personal
injury action. Defendant contends that the Court should limit the production “to
testimony in actions involving allegations that a first generation Segway stopped
suddenly and threw the complainant off, while the complainant was proceeding
slowly outdoors.” (Def.’s Resp. at pp. 15-16.) In addition, Defendant contends
that most or all of these transcripts are subject to protective orders that were
entered in the courts where these prior cases were pending, and, therefore, the
transcripts may not be produced to Plaintiff without violating a court order. (Id. at
16.)
Like the discovery related to prior complaints of accidents or incidents
201 F.3d 1074 (8th Cir. 2000) (holding that district court did not abuse it discretion by excluding
evidence of similar incidents at trial); Rodriguez v. Crown Equip. Corp., 923 F.2d 416 (5th Cir.
1991) (finding that the record contained no proof that the accidents were substantially similar
and, thus, issue of whether or not district court erred in excluding evidence was not preserved for
appeal); Bado-Santana v. Ford Motor Co., 482 F. Supp. 2d 197 (D.P.R. 2007).
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involving a Segway, Defendant’s attempts to narrow the scope of discovery is
misplaced. Although much of this evidence may not be admissible at trial, the
transcripts are relevant to Plaintiff’s claims and, therefore, discoverable.
Accordingly, the Court GRANTS the Motion to Compel as to Request No. 57.
Defendant Segway shall produce all deposition transcripts and copies of trial
testimony for Gerald Rigdon, David Robinson, John Morrell, Mike Gansler,
Douglas Field, Jane Davison, and Dean Kamen that relate to any personal injury
action stemming from the operation or use of a Segway. To the extent that any of
these transcripts are subject to a protective order in place in another court, the
Court DIRECTS Defendant to provide Plaintiff with a privilege log setting forth
the transcript that is responsive to the discovery requests and the specific portion of
the protective order that prohibits its disclosure. In addition, Defendant shall
provide a copy of the entire protective order to Plaintiff. Plaintiff may then seek
an Order from the Court where the protective order is in place or an appropriate
Order from this Court. The Court INSTRUCTS Defendant that if the Court later
determines that it withheld a transcript from Plaintiff without a reasonable basis,
the Court will consider appropriate sanctions against both Defendant and/or its
attorneys.
IV.
Conclusion
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The Court GRANTS Plaintiff’s Motion to Compel [# 35]. Consistent with
this Order, Defendant shall produce within twenty (20) days of the entry of this
Order all documents of prior complaints of incidents or accidents involving a
Segway, as well as documents related to Defendant’s investigation of these
complaints. In addition, Defendant shall produce within twenty (20) days of the
entry of this Order all deposition transcripts and copies of trial testimony for
Gerald Rigdon, David Robinson, John Morrell, Mike Gansler, Douglas Field, Jane
Davison, and Dean Kamen that relate to any personal injury action stemming from
the operation or use of a Segway. To the extent the transcripts are subject to a
protective order, the Court DIRECTS Defendant to produce a privilege log and the
relevant protective orders to Plaintiff within twenty (20) days of the entry of this
Order. Finally, the Court INSTRUCTS Defendant that if the Court later
determines that it withheld a transcript from Plaintiff without a reasonable basis,
the Court will consider the appropriate sanctions against both Defendant and/or its
attorneys.
Signed: October 19, 2011
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