Gardiner v. Kelowna Flightcraft, Ltd

Filing 68

DISCOVERY ORDER: The Court Grants Kelowna's motion to compel # 44 IN PART. Plaintiff is hereby ORDERED to produce the materials cited by Donald E. Sommer as items reviewed in the expert report he produced in Gardiner v. Air Tahoma, Inc. She is hereby ORDERED to produce the materials cited by Rodney Doss as items reviewed in the expert report he produced in Gardiner v. Air Tahoma, Inc. She is further ORDERED to produce the deposition exhibits from the 10/22/2010 and 11/23/2010 depositions of Rodney Doss in Gardiner v. Air Tahoma. Plaintiff's motion for leave to file a sur-reply addressing sanctions # 58 is DENIED AS MOOT. Signed by Magistrate Judge Mark R. Abel on 06/06/2011. (sr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Karen Gardiner,

:

v.
Kelowna Flightcraft, Ltd.,
Defendant

:

Civil Action 2:10-cv-947

:

Plaintiff

Judge Sargus

:

Magistrate Judge Abel

:
DISCOVERY ORDER

This action arises out of a September 1, 2008 plane crash involving an Allison
Convair FV-580 airplane owned and operated by nonparty Air Tahoma, Inc. (“Air
Tahoma”). Defendant Kelowna Flightcraft, Ltd. (“Kelowna”) is the Type Certificate
Holder for this airplane, and sells the maintenance manual for it. Plaintiff
previously sued Kelowna and Air Tahoma in state court in Florida (the “Florida
action”); she settled out of court with Air Tahoma, and the trial court dismissed
Kelowna for lack of personal jurisdiction. In the Florida action, Plaintiff retained
two aviation experts, Donald Sommer (“Sommer”) and Rodney Doss (“Doss”).
Sommer produced a report, which apparently opined, inter alia, that the Allison
Convair maintenance manual contained vague and ambiguous instructions. Doss

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produced a report concerning regulatory compliance.1 After Kelowna’s dismissal
from the Florida Action, Air Tahoma took Sommer’s deposition, at which he gave
testimony concerning his opinion that the maintenance manual contained vague
and ambiguous instructions.
In this proceeding, Kelowna has propounded the following interrogatories:
[2-]2 1. State with specificity the section(s), page(s), instruction(s) and
diagram(s) with respect to the Allison Convair CV-580
maintenance manual which Plaintiff alleges did not properly
and safely ensure that the subject aircraft’s design and
maintenance were performed in an airworthy manner without
defects in whole or in part.
[2-] 2. State with specificity the section(s), page(s), instruction(s) and
diagram(s) with respect to the Allison Convair CV-580
maintenance manual and/or design instructions which Plaintiff
alleges Kelowna should have updated as required for continued
airworthiness regarding safety and maintenance related
information, specifically with request to the risk of reverserigging of the elevator trim cables.
[2-] 3. State with specificity the section(s), page(s), instruction(s) and
diagram(s) with respect to the Allison Convair CV-580
maintenance manual which Donald E. Sommer opined are
vague and ambiguous and which do not provide an adequate
warning of the danger of reverse-rigging of the elevator trim
cables and stated on page 20 of his October 12, 2010 deposition.
In addition, Kelowna has made the following requests for production of documents:
[2-] 6. All documents and items listed in the “Items Reviewed”
Appendix (numbered 1-4, 8-16 & 18-19) to the Report of
Findings dated August 30, 2010 reviewed by Donald E. Sommer,

The Sommer and Doss expert reports are not in evidence in this proceeding,
although the parties do not appear to dispute their general natures.
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From Kelowna’s Second Set of Interrogatories.
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P.E. in order to prepare the report and formulate his opinion. A
copy of the Appendix is attached hereto and marked as Exhibit
“A.”
[2-] 7. A copy of the specific pages of the Allison Convair maintenance
manual Donald E. Sommer claims is vague and ambiguous as
stated in opinion no. 7 of the Report of Findings and Mr.
Sommer’s October 15, 2010 deposition, page 20, lines 9-20.
Copies of the relevant portions of Mr. Sommer’s report and
deposition are attached hereto and marked as composite Exhibit
“B.”
[3-] 6. A copy of the FAA AC43.13-1A regulatory document discussing
cautions about cross control cable possibilities as referenced by
Rodney Doss in his October 22, 2010 deposition, pg. 36, ln. 1-4.
[3-] 8. All documents reviewed, referenced and considered by Rodney
Doss in formulating his opinion in his expert report and in his
depositions of October 22, 2010 and November 23, 2010.
(Docs. 44-1; 44-2; 44-3.) Plaintiff generally objected to these discovery requests on
grounds that they sought premature expert testimony. She also later sent
supplemental responses, which the parties appear to agree satisfied Request No. 36.3 Now before the Court is Kelowna’s motion to compel better answers to its
interrogatories and the production of responsive documents. (Doc. 44.)
Interrogatories Nos. 2-1, 2-2, 2-3, and Request No. 2-7.
Plaintiff’s complaint in this action alleges that Kelowna failed to properly
update the maintenance manual for the Convair aircraft following a similar

Kelowna argued, in its reply memorandum, that Plaintiff had also failed to
properly respond to its Request No. 2-1, which asked Plaintiff to identify and
produce a copy of the maintenance manual Air Tahoma had been using at the time
of the accident. However, as Kelowna did not refer to Request No. 2-1 in its motion
to compel (see Doc. 44 at 5-6), the Court will not address it in this analysis.
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incident in 1997, and that the crash occurred after Air Tahoma maintenance
personnel attempted to follow certain directions in the manual and did so
improperly. It sets forth causes of action for negligence and strict liability, relating,
at least in part, to an allegedly defective maintenance manual.
These interrogatories, Kelowna states, “simply ask Plaintiff to state with
specificity which pages of the maintenance manual Plaintiff alleges are defective”.
(Doc. 44 at 4.) It argues that, without Plaintiff’s specific identification of the alleged
defects upon which her claims are based, it cannot present a defense. “With only
vague allegations that the maintenance manual is somehow defective, Kelowna is
forced to speculate as to which section or pages of the maintenance manual
allegedly were defective.” (Id. at 9.) Plaintiff argues that, in asking it to provide a
response based upon Sommer’s opinion, Kelowna is essentially demanding that it
make a premature expert opinion disclosure. Kelowna rejoins that it is not asking
for information concerning experts in this proceeding, but rather information which
was produced by experts in another and which is now within Plaintiff’s personal
knowledge.
Fed. R. Civ. P. 33(a), which provides for the service of interrogatories,
provides that an interrogatory “may relate to any matter that may be inquired into
under Rule 26(b)”, and that an interrogatory “is not objectionable merely because it
asks for an opinion or contention that relates to fact or the application of law to
fact”. Nevertheless, a party cannot be compelled to disclose information that it does
not know.
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Kelowna is entitled to an answer to Interrogatories Nos. 2-1 and 2-2. While
Plaintiff has complained obliquely that Kelowna never moved for a more definite
statement, or that it “is well aware” of her allegations, liberal notice pleading
standards are a tool for avoiding technical formality in pleading, not for concealing
from a defendant the nature of the suit against it. Plaintiff has alleged that
Kelowna is liable for producing a defective maintenance manual, and she must give
Kelowna a definitive answer as to what Plaintiff claims those defects are. However,
she has given the following supplemental response:
Notwithstanding and without waiving this objection, without seeking
further input from her aviation expert(s), Plaintiff, through her
counsel, can state that the diagram on Fig. 8.2.108 of Section 8 of the
Allison Convair CV-580 Maintenance Manual is ambiguous concerning
whether the elevator trim cables cross, and that Section 8 of that
manual contains no warnings about the risk of crossed cables.
Plaintiff reserves the right to amend this answer after consultation
with her aviation expert(s) within the schedule set by the Preliminary
Pre-Trial Order.
(Doc. 56-4 at 4.) The Court finds this response satisfactory, provided that Plaintiff
timely supplements her answer as required by Fed. R. Civ. P. 26(e).
However, Kelowna’s Interrogatory No. 2-3 is of a different nature. It is, in
the first place, somewhat confusingly phrased. By “which Donald E. Sommer
opined are vague and ambiguous... and stated on page 20 of his October 12, 2010
deposition”, Kelowna apparently meant that Plaintiff was to state the sections of
the maintenance manual to which Sommer was referring in his response on that

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page.4 This is, on its face, a request for Kelowna to explain or interpret what
Sommer meant.5
Plaintiff has objected to this request on grounds that she is not obligated to
make any disclosures concerning her experts and their opinions until the expert
disclosure deadline set in the preliminary pretrial order. In the alternative, she
would have to contact Sommer to obtain his answer to this question, incurring the
expense of obtaining his opinion. Kelowna asserts, in response, that it is not
seeking information from Sommer, but rather from Plaintiff herself. “Contrary to
this assertion, Mr. Sommer would not have to be contacted to provide information
because, after the completion of Sommer’s report, it is now within Plaintiff’s
personal knowledge.” (Doc. 56 at 16.)

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Sommer testified at deposition:

Q. When you say in opinion number seven, “The maintenance
instructions for this aircraft are vague and ambiguous,” you were
referring to which specific instructions?
A. Most of the instructions to tell you how to connect the trim are
contained in the maintenance manual under 8.2.108, which are
instructions on how to rig the trim tab controls, and I find portions of
those to be overly complicated and probably not deal with some issues
that they should deal with like the ones I explained earlier in regard to
the warnings and the fact that this system can be connected
backwards.”
(Doc. 44-2 at 12. [Deposition p. 20])
Kelowna confirms in its reply memorandum that it “asks Plaintiff to
specifically identify [parts of the manual]... that were allegedly vague and
ambiguous as expressed by Plaintiff’s former expert Donald E. Sommer in
deposition.” (Doc. 56 at 3.)
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Under the Federal Rules of Civil Procedure, interrogatories are directed
towards “any other party”. Fed. R. Civ. P. 33(a)(1). Sommer was an expert witness
in a different proceeding, who produced a report and who was deposed by counsel
during that proceeding. The statements Sommer made in his report and deposition
speak for themselves. To the extent that Sommer gave opinions which identified
portions of the maintenance manual he thought “vague and ambiguous”, those
opinions can be found in the report and in the portion of the deposition transcript
cited by Kelowna in its interrogatory.6 Plaintiff cannot be asked to answer “fully in
writing under oath” what it was that another person meant by his testimony, and
Sommer’s opinion is, by definition, not part of Plaintiff’s personal knowledge.
Kelowna is free to subpoena Sommer for deposition if it wishes to ask him about the
testimony he offered in a different proceeding. Its motion to compel on these
grounds, however, is not well taken. The Court will not overrule Plaintiff’s
objections to Interrogatories No. 2-3, and, for the same reasons, will not overrule
Plaintiff’s objections to Request for Production of Documents No. 2-7.
Requests for Production of Documents Nos. 2-6, 3-8.
These two requests are similar; Request No. 2-6 seeks all materials listed in

Plaintiff states: “The irony of these requests is that Kelowna is seeking
discovery from the Florida action which it could well have taken itself had it not
decided to battle Plaintiff on personal jurisdiction in that forum. Kelowna
complains that did not attend the depositions in question. But that lack of access
was the product of Kelowna’s own choice to escape the Florida forum in favor of
litigating this case here.” (Doc. 51 at 7-8, citations omitted.) The Court will not
entertain Plaintiff’s apparent suggestion that Kelowna should be penalized for
having failed to voluntarily subject itself to the jurisdiction of the Florida courts.
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the “Items Reviewed” appendix to Sommer’s report in the Florida action, and
Request No. 3-8 seeks all documents reviewed, referenced, and considered by Doss
in producing his expert report and preparing deposition testimony in that action.
Plaintiff objects to these requests on grounds that the documents in question are
not in her possession, as, except to the extent that such materials were produced as
exhibits in that action, Doss and Sommer retained their own files. Plaintiff also
objects on grounds that Kelowna’s requests amount to premature expert discovery.
Kelowna rebuts that several courts have held that discovery from one proceeding
can be used in another, and that to do so eliminates waste and delay.
Rule 34(a) of the Federal Rules of Civil Procedure provides that a party may
request documents of another so long as the materials are in the “possession,
custody, or control of the party upon whom the request is served.” As the language
of the rule implies, actual possession is not the standard; instead, simply having the
“legal right to obtain the documents on demand” is enough to constitute control. In

re Bankers Trust Co., 61 F.3d 495, 469 (6th Cir. 1995), citing Resolution Trust
Corp. v. Deloitte & Touche, 145 F.R.D. 108, 110 (D. Colo. 1992). See also Scott v.
AREX, Inc., 124 F.R.D. 39, 41 (D.Conn. 1989)(the word ‘control’ to be broadly
construed to include documents a party is able to obtain upon demand).
The Court finds that Kelowna’s requests are not barred as premature expert
witness discovery, because they seek a discrete body of documents examined in
connection with the past development of an already-extant report. With respect to
Sommer, as Kelowna has presented its request as one for the specific documents
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cited in the expert reports, it would not require Plaintiff to seek Sommer’s opinion.
Accordingly, the Court will order Plaintiff to produce all documents and items listed
in the “Items Reviewed” appendix to Sommer’s report. This appendix, as Sommer
drafted it, is somewhat vaguely phrased, and it is difficult to estimate how much
material it comprises.7 See Doc. 44-2 at 10. Plaintiff, after ascertaining what
materials are included on this list, may move for a protective order on grounds that
production of some or all of the categories would be unduly burdensome or
expensive.
Kelowna, in its reply memorandum, implies that what it sought in Request
No. 3-8 was likewise the materials in Doss’ expert report “items reviewed” list. “At
the end of their reports, both experts provided a list of the materials they reviewed
to formulate their opinions. Plaintiff would incur little to no expense in contacting
her experts and requesting that they provide copies of the specific documents set
forth in their respective lists.” (Doc. 56 at 17.) The request also refers to materials
considered by Doss “in his depositions”, however. As drafted, it is overbroad and
actually would require Plaintiff to consult Doss and ask him to recall, if it is
possible for him to do so, what documents he might have based deposition testimony
upon. The Court will limit this portion of the request to requiring Plaintiff to, if she
has not done so already, produce all exhibits from the October 22, 2010 and
November 23, 2010 Doss depositions. Beyond this, however, the Court will likewise

The vague phrasing, however, does not require Plaintiff to request from
Sommer an expert opinion as to what they were.
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order Plaintiff to produce all documents cited by Doss in his expert report. As the
list of materials considered from Doss’ report does not appear to be in evidence,
Plaintiff may also move for a protective order if a literal interpretation of this
request would be unduly burdensome due to the volume of responsive material.8
Conclusions.
For the foregoing reason, the Court GRANTS Kelowna’s motion to compel
(Doc. 44) IN PART. Plaintiff is hereby ORDERED to produce the materials cited by
Donald E. Sommer as items reviewed in the expert report he produced in Gardiner

v. Air Tahoma, Inc., Case No.: CACE 09-048068 (19), the Florida Action. She is
hereby ORDERED to produce the materials cited by Rodney Doss as items reviewed
in the expert report he produced in Gardiner v. Air Tahoma, Inc. She is further
ORDERED to produce the deposition exhibits from the October 22, 2010 and
November 23, 2010 depositions of Rodney Doss in Gardiner v. Air Tahoma. This
order is without prejudice to Plaintiff moving for a protective order pursuant to Fed.
R. Civ. P. 26(c)(1).
The Court does not find that Plaintiff’s initial response was substantially
unjustified, or that either her subsequent response or other circumstances warrant
an award of expenses. Fed. R. Civ. P. 37(a)(5)(A)(ii). Consequently, Plaintiff’s
motion for leave to file a sur-reply addressing sanctions (Doc. 58) is DENIED AS

The Court notes that in granting Kelowna’s motion to compel, it is
compelling production from Plaintiff, to the extent that she has the right to demand
such documents from Sommer and Doss, not from Sommer and Doss themselves.
Neither has been served with a subpoena duces tecum. Fed. R. Civ. P. 34(c).
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MOOT.
Under the provisions of 28 U.S.C. §636(b)(1)(A), Rule 72(a), Fed. R. Civ. P.
and Eastern Division Order No. 91-3, pt. F, 5, either party may, within fourteen
(14) days after this Order is filed, file and serve on the opposing party a motion for
reconsideration by the District Judge. The motion must specifically designate the
order, or part thereof, in question and the basis for any objection thereto. The
District Judge, upon consideration of the motion, shall set aside any part of this
Order found to be clearly erroneous or contrary to law.

s/Mark R. Abel
United States Magistrate Judge

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