Martin et al v. Interstate Battery System of America, Inc. et al

Filing 93

OPINION AND ORDER by Judge John E Dowdell ; denying 66 Motion to Strike; granting in part and denying in part 79 Objection to Magistrate Judge's Order (SAS, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
GEORGE MARTIN and
JANET MARTIN, Husband and Wife,

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Plaintiffs,
v.
INTERSTATE BATTERY SYSTEM
OF AMERICA, INC., et al.,

Defendant(s).

Case No. 12-CV-184-JED-FHM

OPINION AND ORDER
Before the Court are Plaintiffs’ Objections to the Court’s December 12, 2013 Opinion
and Order (Doc. 79), authored by Magistrate Judge Frank H. McCarthy. Plaintiffs request that
the Court reverse Judge McCarthy’s decision (Doc. 78) denying the plaintiffs’ motion to compel
the defendants to respond to certain discovery requests regarding other lead-acid battery
explosions occurring in the past five years.

Plaintiffs have also filed a Motion to Strike

Duplicative Expert Witness (Doc. 66), which asks the Court to limit defendants to the use of a
single causation expert.
I.

Plaintiffs’ Objections to the Magistrate Judge’s Opinion and Order (Doc. 78)
BACKGROUND
This products liability case involves the explosion of a deep cycle marine battery used by

George Martin to power a trolling motor on his boat. On September 30, 2011, Mr. Martin
hooked the marine battery up to his battery charger for approximately the fifth time since its
purchase 17 months earlier. The next day, he traveled with his boat to Ft. Gibson Lake,
unloaded the boat into the lake and attempted to operate his trolling motor, which did not
function properly. Thereafter, Mr. Martin inspected the battery and its connections. During that

process, the battery exploded into Mr. Martin’s face and eyes, causing him severe injuries. The
plaintiffs, Mr. Martin and his wife, Janet, seek to hold the defendants liable for his injuries,
alleging that the battery at issue was defective.
On October 11, 2013, plaintiffs filed a motion to compel which sought full and complete
responses to certain interrogatories and requests for production. In his December 12, 2013
Opinion and Order ruling on plaintiffs’ motion, the Magistrate Judge noted that plaintiffs had
failed to identify exactly what the motion sought by way of additional discovery.1 It was
surmised that the plaintiffs wanted information regarding other lawsuits or complaints about
similar explosions of the defendants’ batteries. The Opinion and Order focused on Interrogatory
No. 17 as the only discovery request which was arguably directed at the information sought in
plaintiffs’ motion to compel:
INTERROGATORY NO 17. Please identify any and all complaints, lawsuits, or
claims submitted or known to you relating to the alleged defect(s) of similar
makes and models of the subject product referenced in Plaintiffs’ Petition, and for
those that are or have been in litigation, include the case name, case number and
venue of litigation.
(Doc. 78, at 2).2 Defendant Johnson Controls Battery Group, Inc (“Johnson Controls”)3 response
to this interrogatory provides as follows:

1

Judge McCarthy referenced numerous other deficiencies in the plaintiffs’ motion. These
include plaintiffs’ reliance upon the former version of Fed. R. Civ. P. 26, which contained a
broader scope of permissible discovery, and plaintiffs’ failure to identify and include the full
recitation of the specific discovery requests which allegedly lacked a sufficient response.
2

The Opinion and Order also stated that plaintiffs’ reply brief had “mentioned Request for
Production Nos. 7 and 13 for the first time, but did not make any specific argument related to
those requests.” (Doc. 78, at 2 n.2). This Court concurs with Judge McCarthy’s assertion that
discovery requests beyond Interrogatory No. 17 were not the subject of argument or authority
advanced in the plaintiffs’ or defendants’ briefing on the motion to compel.
3

Plaintiffs also pursue their claims against Interstate Battery System of America, Inc., Interstate
All Battery Center, Inc., and Distributor Operations, Inc. (hereafter, the “other defendants”).
2

RESPONSE: Defendant objects to this request as over broad, unduly burdensome
and not reasonably calculated to lead to the discovery of relevant and/or
admissible evidence to the extent that it is unlimited in time or scope so that it
relates to substantially similar occurrences. Defendant further objects that the
phrase “the alleged defect(s)” is vague and confusing because Plaintiff has not
alleged any defect with sufficient specificity to inform Defendants of what the
alleged defect is. Notwithstanding and without waiving its objections, and in the
spirit of cooperation, Defendant states that Mr. Jacobson has issued a report on
behalf of Plaintiff which wrongly contends that the subject battery was defective
for failing to include two warnings he has created and, to the best of Defendant’s
understanding, it is Plaintiff’s intent to allege Mr. Jacobson’s conclusion as “the
alleged defect.” Accordingly, Defendant has searched to identify any complaints
for the five (5) year period prior to plaintiff’s alleged accident with respect to the
same make and model where the complaint contains allegations substantially
similar to the opinion of defect in Mr. Jacobson’s May 1, 2103 report. There were
none. Defendant then broadened the search to determine if during that same
period there were any allegations substantially similar to the opinion of defect in
Mr. Jacobson’s May 1, 2103 report for the other models of marine batteries sold
by defendants. There were none. (The search was not limited to warnings. It
included the underlying substance of the proposed warnings to identify any
occurrence where a claimant asserted personal injury caused by an explosion due
to plate growth and electrolyte loss resulting from overcharge.)
(Id., at 2-3). Judge McCarthy found that Johnson Controls’ response adequately answered the
interrogatory based upon a finding that plaintiffs’ expert witness, Dr. Dean Jacobson, had opined
that the only defect present in the battery at issue was a failure to provide adequate warnings.
(See id., at 3 (“Plaintiffs’ expert has not identified any specific design or manufacturing defect in
the subject battery, except that the battery lacked sufficient warnings.”)). Hence, the Magistrate
Judge denied plaintiffs’ motion to compel on this basis, among others:
Considering the content of Plaintiffs’ expert’s testimony, Defendant’s adequate
response to Interrogatory No. 17, the lack of specificity in Plaintiff’s arguments,
the fact that the date for identification of experts and submission of expert reports
is long past (May 1, 2013), that Plaintiff’s expert was deposed months ago (July
30, 2013), the fact that Plaintiffs’ motion to compel was filed on October 11, 2013
when at the time the discovery deadline was set for October 31, 2013, and the
four-times extended discovery deadline is set to expire on December 31, 2013, the
court finds that Fed. R. Civ. P. 26(b)(2)(C)(iii)3 is properly applied to deny
Plaintiffs’ motion to compel.
(Id., at 4).
3

Plaintiffs now object to the Opinion and Order, arguing that it is clearly erroneous and
contrary to law.
STANDARD
The district court reviews a magistrate judge's order on a non-dispositive motion under a
“clearly erroneous or contrary to law” standard. 28 U.S.C. § 636(b)(1)(a); Fed.R.Civ.P. 72(a).
“A finding is clearly erroneous when although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm conviction that a mistake has been
committed.” Somerlott v. Cherokee Nation Distributors, Inc., 686 F.3d 1144, 1148 (10th Cir.
2012) (quoting Rio Grande Silvery Minnow (Hybognathus amarus) v. Bureau of Reclamation,
599 F.3d 1165, 1175 (10th Cir. 2010)).

A magistrate is afforded broad discretion in the

resolution of non-dispositive discovery disputes, and “the court will overrule the magistrate's
determination only if this discretion is abused.” Aircraft Fueling Sys., Inc. v. Sw. Airlines Co., ,
2011 WL 4915549, at *1 (N.D. Okla. Oct. 17, 2011).
DISCUSSION
This Court has thoroughly reviewed the plaintiffs’ motion to compel and the related
briefing, the Opinion and Order issued by Judge McCarthy, and the plaintiffs’ objections to the
Opinion and Order and the related briefing. The Court finds plaintiffs’ objections are without
merit, with one exception, that being plaintiffs’ objection regarding the scope of their product
defect claim and related discovery.4 The primary issue is that plaintiffs did not adequately

4

Determining the merit of this particular objection is complicated by the poor presentation made

by plaintiffs before the Magistrate Judge. Judge McCarthy correctly pointed out serious
deficiencies in plaintiffs’ motion to compel and that such deficiencies alone could have justified
denying the motion. However, in the interest of ensuring complete discovery and a full
opportunity for the parties to develop and litigate their dispute, the Court has fully examined the
merits of plaintiffs’ objections.
4

establish the scope of their products liability claim by attempting to rebut the defendants’
characterization of Dr. Jacobson’s opinions. Instead of supplying Dr. Jacobson’s expert report to
the Magistrate Judge—as they have done in their objections—the plaintiffs relied upon the
allegations in their Amended Complaint. The Magistrate Judge relied upon Dr. Jacobson’s
deposition testimony, which was cited by defendants, to reach the conclusion that plaintiffs’
claims were limited to an allegation of inadequate warnings.
While Dr. Jacobson did state in his deposition testimony that his opinions regarding
defects in the battery were based solely on a failure to warn, his report, upon which defendants’
discovery responses are based, is clearly not so narrow. In his report, Dr. Jacobson makes
numerous assertions of defect in the subject battery as a result of its construction, which
allegedly created a situation where an internal electrical arc in the battery could ignite the
flammable vapors which had built up from overcharging of the battery. To that end, the report
states as follows:
16.7 The subject battery experienced significant positive plate growth, which
resulted in contact with the negative elements (strap and lugs) which led to the
generation of an internal arc, which detonated the hydrogen-oxygen mixture in the
battery cell ullage spaces.
16.8 If a given cell shorts by positive to negative metal contact, the other cells go
into over-charge during charging. The charger is going to continue charging the
battery and gassing is going to be generated by the overcharge of the unshorted
cells and positive plate growth in the overcharging cells can be excessive.
*

*

*

16.35 It is opined that Mr. Martin was not responsible for the battery explosion
which caused his injuries. There was no evidence of misuse of the battery that
was not related to a lack of warnings and information with the battery design.
The battery conditions appeared seriously degraded even though the use was
consistent with foreseeable operation and typical maintenance. The plate growth
and resultant defective conditions resulting in the explosion were not caused by
Mr. Martin, but rather by Johnson Controls.

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16.36 It is opined that the subject battery, that was only used for 17.5 months
(less than 1.5 years), had degraded grids with excessive plate growth which
resulted in contact between positive and negative structure. The act of checking
the wires between the subject battery and the electric trolling motor only served to
generate a condition whereby Mr. Martin was in the danger zone of the exploding
battery.
16.37 The defective plate growth and corresponding structural degradation
conditions in the subject battery resulted in an unreasonably dangerous product
which created a substantial risk of personal injury due to the lack of
implementation of available and established industry standards and practices and
state of the art technology relative to marine battery design, warnings,
instructions, fabrication and quality control necessary for safe battery operation
and reasonable conformity with consumer expectations.
(Doc. 79, at 93; 97-98).
It is clear from these excerpts of Dr. Jacobson’s report that, in addition to a failure to
warn, he opined that the battery itself was defective and that the purported defect may have
resulted in the condition that brought about the explosion. Defendant Johnson Controls has
therefore incorrectly characterized the scope of Dr. Jacobson’s report in its response to
Interrogatory No. 17. While the response to Interrogatory No. 17 purports to have provided
information with respect to “any occurrence where a claimant asserted personal injury caused by
an explosion due to plate growth and electrolyte loss resulting from overcharge”, it is evident
that the defendants do not believe themselves to be obligated to provide such information.
To the extent the Opinion and Order suggests that discovery should have been limited to
claims and defenses regarding only a failure to warn, it is inconsistent with the opinions set forth
in Dr. Jacobson’s report. While this was certainly not the fault of the Magistrate Judge, it does
warrant modification of the Opinion and Order. Defendant Johnson Controls is ordered to
provide, within 14 days of the date of this Opinion and Order, a supplemental response to
Interrogatory No. 17 which complies with this Opinion and Order and fully embraces the scope

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of Dr. Jacobson’s expert report. The Magistrate Judge’s Opinion and Order is affirmed in all
other respects.5
II.

Plaintiffs’ Motion to Strike Duplicative Expert Witness (Doc. 66)
Plaintiffs request that the Court enter an order limiting the defendants to a single expert to

testify as to causation of the battery explosion. The plaintiffs suggest that the two expert
witnesses identified by the defendants, John L. Devitt and Dr. Joseph E. Liedhegner, are
duplicative and that one should be stricken under Fed. R. Evid. 403. Plaintiffs identify opinions
in Mr. Devitt’s expert report and Dr. Liedhegner’s Rule 26 disclosures which substantially
overlap—specifically as to the cause of the battery’s explosion. Defendants counter that Mr.
Devitt and Dr. Liedhener have different areas of expertise and will testify as to different aspects
of the issues raised in plaintiff’s expert’s report. More specifically, the defendants state that:
Mr. Devitt is an electrical engineer who will testify regarding electrical aspects of
the battery and eliminate an internal electrical malfunction as the cause of the
alleged explosion. On the other hand, Mr. Liedhegner is a chemical engineer who
will testify regarding warnings and various chemical aspects of the battery,
including the fact that plate growth revealed misuse of the battery. Both conclude
that Mr. Martin’s injuries were not caused by a manufacturing or design defect,
but they each reach the conclusion via a distinct avenue based on their respective
qualifications.
(Doc. 72, at 8).6

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Plaintiffs’ motion to compel complained of the other defendants’ failure to respond to written
discovery. According to the parties’ briefing, all defendants were served with the same
discovery requests as those served on Johnson Controls. Judge McCarthy’s Opinion and Order
permitted the other defendants to have additional time to respond to the discovery requests
directed to them because of confusion as to service of the discovery requests. The discovery
requests served on the other defendants had not yet been answered at the time plaintiffs’
objections were filed. Accordingly, this decision applies with equal force to the other
defendants’ discovery responses.

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The defendants’ statement as to the subject of Mr. Devitt’s testimony seriously undermines
their statements in reference to plaintiffs’ objections discussed in section I, supra. Mr. Devitt’s
testimony clearly contemplates an allegation on the part of plaintiffs as to a defect in the battery
7

“While district judges have broad discretion to exclude expert witnesses, they may not do
so ‘arbitrarily, or on the basis of mere numbers.’” Nalder v. W. Park Hosp., 254 F.3d 1168, 1173
(10th Cir. 2001) (quoting Green Constr. Co. v. Kan. Power & Light Co., 1 F.3d 1005, 1014 (10th
Cir. 1993)). In discussing a district court’s decision to limit purportedly duplicative expert
testimony, the Nalder court stated:
We have several concerns about these decisions. Most importantly, they point to
nothing other than overlapping qualifications of plaintiffs' experts and the mere
possibility that duplicative testimony could result. Our review satisfies us that
plaintiffs took care to compartmentalize the areas of testimony of each of their
expert witnesses and that plaintiffs' amended expert designations thus contain
little or no actual overlap of the experts' proffered testimony—and certainly not
enough to support a blanket prohibition.
Id. at 1174 (emphasis in original).7
Here, the Court is guided by the rationale of Nalder. While some overlap is present in
the designated areas of testimony of Dr. Liedhegner and Mr. Devitt, the Court finds that their
testimony, as described by defendants, is sufficiently distinct to negate a finding that their
testimony is duplicative. It is true that the 85 page report of plaintiffs’ expert does largely
encompass both areas of testimony presented by defendants’ two experts. But it does not
necessarily follow that the defendants should be limited to a single expert. Defendants state that
Dr. Liedhegner and Mr. Devitt will testify as to distinct aspects of plaintiffs’ claims of defect in
the subject battery. It is also premature to speculate that their testimony will necessarily be as
duplicative as plaintiffs suggest. At the time of plaintiffs’ motion, neither expert had been
deposed by plaintiffs. Indeed, plaintiffs point out that the primary motivation underpinning their

beyond a failure to warn; specifically, that a defect in the battery caused an internal arc. In short,
Devitt’s opinions appear to be intended to rebut Dr. Jacobson’s opinions regarding the cause of
the battery’s explosion.
7

Despite these concerns, the Nalder court found that the district court had not abused its
discretion. Id. at 1175.
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motion is to avoid the cost of deposing both out-of-state experts. The Court is sensitive to the
costs resulting from such depositions, but cost alone is not sufficient cause to warrant the
limitation plaintiffs seek. Moreover, it does not appear that defendants seek to introduce both
experts for the purpose of increasing plaintiffs’ costs. The defendants do not seek to introduce
numerous experts in this case; only two. It is not unreasonable to expect that two experts would
be utilized to testify as to the complex scientific issues presented here. Should this case proceed
to trial, Mr. Devitt and Dr. Liedhegner will not be permitted to testify in a duplicative manner
and will be subject to the compartmentalization of their testimony which defendants have put
forth in support of their opposition to plaintiffs’ motion. See, e.g., Nalder, 254 F.3d at 1173;
Marsee v. U.S. Tobacco Co., 866 F.2d 319, 324 (10th Cir. 1989) (not error to exclude cumulative
evidence). Plaintiffs have not demonstrated that either of defendants’ experts should be stricken
as duplicative at this stage of the proceedings.
CONCLUSION
IT IS THEREFORE ORDERED that plaintiffs’ Objection (Doc. 79) is granted in part
and denied in part.
Defendant Johnson Controls is ordered to provide, within 14 days of the date of this
Opinion and Order, a supplemental response to Interrogatory No. 17 which complies with this
Opinion and Order and fully embraces the scope of Dr. Jacobson’s expert report. The other
defendants are likewise ordered to supplement their responses to Interrogatory No. 17 should
their responses be similarly deficient.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Strike Duplicative Expert
Witness (Doc. 66) is denied at this time.

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SO ORDERED this 28th day of March, 2014.

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