Chapman et al v. Tristar Products, Inc.

Filing 112

Opinion & Order signed by Judge James S. Gwin on 7/6/17 granting plaintiffs' motion to compel Matthew Fisher's videoconference testimony. (Related Doc. 99 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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KENNETH CHAPMAN et. al.,
:
:
Plaintiffs,
:
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v.
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TRISTAR PRODUCTS, INC.,
:
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Defendant.
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:
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CASE NO. 1:16-CV-1114

OPINION & ORDER
[Resolving Doc. 99]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Plaintiffs Kenneth Chapman, Jessica Vennel, and Jason Jackson bought pressure cookers
(“Cookers”) from Defendant Tristar.1 Plaintiffs sued Tristar, alleging that the Defendant’s
Cookers have a design defect that “allows users to open the pressure cooker while [the pressure
cooker] still contains a significant and dangerous amount of pressure.”2
In its final pretrial filing, Defendant Tristar listed Chief Operating Officer (“COO”)
Matthew Fisher as one of its trial witnesses.3 In response, Plaintiffs asked Tristar to produce Mr.
Fisher for Plaintiffs’ case-in-chief.4 Tristar refused, but reserved the right to call Fisher for its
own case.5
Plaintiffs now move to compel Mr. Fisher to testify in Plaintiffs’ case-in-chief.6
Plaintiffs want Fisher to testify either in person or by videoconference.

1

Doc. 1 ¶¶ 35-46.
Id. ¶ 33.
3
Doc. 88-1 at 2.
4
Doc. 99-1 at 2-3.
5
Id. at 2.
6
Doc. 99. Defendant Tristar opposes. Doc. 102.
2

Case No. 1:16-CV-1114
Gwin, J.
The Court grants Plaintiffs’ request to compel COO Fisher’s videoconference testimony.
However, Fisher may also testify in person if Tristar prefers.
Under Civil Procedure Rule 43, “for good cause in compelling circumstances,” the Court
may permit videoconference testimony.7 Some district courts use a five-factor test “when
deciding whether compelling circumstances exist[] to allow for contemporaneous transmission.”8
These factors are:
(1) the control exerted over the witness by the defendant; (2) the complex, multiparty, multi-state nature of the litigation; (3) the apparent tactical advantage, as
opposed to any real inconvenience to the witness, that the defendant is seeking by
not producing the witness voluntarily; (4) the lack of any true prejudice to the
defendant; and (5) the flexibility needed to manage a complex multi-district
litigation.9
The relevant factors weigh in favor of requiring Fisher to testify via videoconference.
First, Tristar possesses substantial control over Fisher, its COO. Second, this lawsuit
spans three states, includes thousands of class members, and involves millions of dollars. Its
complexity weighs in favor of contemporaneous testimony. Third, given that Tristar plans to call
Fisher in its own case-in-chief, Tristar’s refusal to produce Fisher appears largely tactical.
Finally, Fisher’s videoconference testimony will not prejudice Tristar. Fisher is Tristar’s COO
and Plaintiffs have already deposed him. Tristar should not be surprised by, or unprepared for,
Fisher’s answers.

7

Fed. R. Civ. Pro. 43(a).
9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2414 (3d ed. 2008). See, e.g.,
Mullins v. Ethicon, Inc., 2017 WL 532102, at *4 (S.D. W. Va. Feb. 8, 2017).
9
In re Vioxx Prod. Liab. Litig., 439 F. Supp. 2d 640, 643 (E.D. La. 2006) (citing In re San Juan Dupont Plaza Hotel
Fire Litig., 129 F.R.D. 424, 426 (D.P.R. 1989) and In re Washington Pub. Power Supply Sys. Sec. Litig., 1988 WL
525314, at *3 (W.D. Wash. Aug. 9, 1988)).
8

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Case No. 1:16-CV-1114
Gwin, J.
Accordingly, the Court GRANTS Plaintiffs’ motion to compel Fisher’s videoconference
testimony.
IT IS SO ORDERED.

Dated: July 6, 2017

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

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