Fassett et al v. Sears Holdings Corporation et al

Filing 114

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Matthew W. Brann on 1/27/2017. (jn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DANIEL FASSETT and LESLIE FASSETT,
husband and wife, individually and as parents and
natural guardians of J.F., an minor,
Plaintiffs,
v.
SEARS HOLDINGS CORPORATION, SEARS,
ROEBUCK AND CO., SEARS HOMETOWN
AND OUTLET STORES, INC., SEARS
AUTHORIZED HOMETOWN STORES, LLC,
KENMORE CRAFTSMAN DIEHARD
INTELLECTUAL PROPERTY, LLC, BRIGGS &
STRATTON CORPORATION, SIMPLICITY
MANUFACTURING and KOHLER CO.
Defendants.
And
BRIGGS & STRATTON POWER PRODUCTS
GROUP, LLC,
Defendant/Third-Party Plaintiff,
v.
BEMIS MANUFACTURING COMPANY,
a Foreign Corporation,
Third-Party Defendant.
MEMORANDUM
January 27, 2017
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No. 4:15-cv-00941
(Judge Brann)

Some personal injury cases spring from highly questionable circumstances,
and others from undeniably life-altering events. Setting aside ultimate questions of
liability and damages, this litigation is tragically one of the latter. When Plaintiff
Daniel Fassett heard sputtering sounds emitting from his lawnmower, he attempted
to relieve the pressure in its fuel tank by loosening the cap. As he did so, gasoline
sprayed from the machine onto his body, igniting in flames. Mr. Fassett sustained
serious injuries and shortly thereafter initiated this products liability action.
Although the litigation has progressed in a timely fashion since its inception
in May 2015, the parties have recently reached a rather technical impasse. That
quandary involves, among other questions, the extent to which material about
alternative fuel cap designs and distinct lawnmower layouts may be discoverable.
In other words, the parties have struggled to define the outer bounds of discovery
in this case: what, if anything, can be discovered about parts or mowers not
involved in the subject fire? By presenting such a question, this dispute necessarily
calls upon the Court to apply the proportionality provision of recently amended
Federal Rule of Civil Procedure 26 to the case’s technologically nuanced facts.
As explained more fully below, I hold that in a products liability suit such as
this one, faithful adherence to amended Rule 26(b)(1)’s renewed proportionality
mandate is furthered considerably by implementation of a sliding scale analysis:
material corresponding to alternative designs or components that exhibit significant
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similarities to the design or component at issue should be discoverable in the
greatest quantities and for the most varied purposes; however, material
corresponding to alternative designs or components that share less in common with
the contested design or component should be incrementally less discoverable—and
for more limited purposes—as those similarities diminish.
I.

BACKGROUND
The alleged mechanism by which Mr. Fassett sustained his injuries, though

difficult to recount, is central to an appropriate disposition. Mr. Fassett had been
operating a Sears Craftsman “Zero Turn” riding lawnmower in May 2013 for about
one hour when he heard what he described as “spitting” or “sputtering” in the gas
tank. ECF No. 105 at 3. The noise reminded him of the sound of water having
seeped into the gas. See id. After moving the lawnmower into his garage and
turning it off, Mr. Fassett lifted the seat so that he could reach the fuel tank. Id.
Upon visualizing the tank, he observed that the hissing was coming from
underneath the gas cap, and he saw that the gas tank had visibly expanded. Id.
In an effort to release what he believed was built-up pressure in the tank, he
began to turn the gas cap. Id. While the cap rotated, gasoline sprayed from the tank
and “doused” his clothes and body. Id. As he turned away from the machine to run,
the gas cap burst off the tank, and more gasoline sprayed from within. See id.
Almost immediately, Mr. Fassett “heard the gas ignite and knew he was on fire.”
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Id. Flames covered his back and the left side of his body, traveling as high as the
back of his head and portions of his face. See id.
Two years later, on May 13, 2015, Plaintiffs filed the instant lawsuit.
Averments central to their complaint identified “gas geysering from the mower”
and “pressurized gas exploding from the gas tank” as alleged defects. Id. at ¶¶ 32,
34, 39. In particular, Plaintiffs brought claims for ordinary and gross negligence,
strict liability, breach of warranty, loss of consortium, and negligent infliction of
emotional distress. ECF No. 1. On August 28, 2015, this Court granted
Defendants’ motion to dismiss as to the claims for breach of implied warranties
and negligent infliction of emotional distress. See ECF Nos. 37–38. Importantly,
however, I concluded that a punitive damages claim could survive the motion to
dismiss stage, as Plaintiffs alleged sufficient facts plausibly suggesting that the
Defendants continued to design, manufacture, and sell the subject lawnmower
“despite knowledge of the dangers.” ECF No. 37 at 7.
During the spring of 2016, counsel for Plaintiffs brought to the Court’s
attention what might initially have been described as a percolating discovery
dispute. In essence, the parties disagreed about the extent to which material related
to gas cap or lawnmower designs other than those specific ones involved in the
accident should be discoverable. See ECF Nos. 68, 72, 78, 106. The Court held
telephonic status conferences on May 5, July 26, and November 9 of that year.
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During each conference, I provided the parties with applicable legal citations upon
which I would likely rely in reaching a determination and encouraged the parties to
attempt to sort out the dispute without further judicial intervention.
After that guidance proved unsuccessful in resolving the pending disputes in
their entirety, Plaintiffs filed the instant motions to compel. One motion seeks
discovery primarily as to alternative cap designs from Bemis Manufacturing
Company, the manufacturer of the gas cap at issue. ECF No. 94. The other seeks
similar but more numerous discovery from Briggs & Stratton Corporation and
Briggs & Stratton Power Products Group, LLC (referred to collectively as the
Briggs & Stratton Defendants), the manufacturers of the lawnmower in question.
ECF No. 93. Plaintiffs’ motions to compel are granted in part and denied in part in
accordance with the reasoning that follows.
II.

LAW
“It is well established that the scope and conduct of discovery are within the

sound discretion of the trial court . . . and that after final judgment of the district
court . . . our review is confined to determining if that discretion has been abused.”
Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir. 1983) (Aldisert, J.).
“To find such abuse it is usually necessary to conclude that there has been an
interference with a substantial right . . . or that the discovery ruling is seen to be a
gross abuse of discretion resulting in fundamental unfairness in the trial of the
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case.” Id. Thus, the United States Court of Appeals for the Third Circuit has
forewarned litigants that it “will not interfere with a trial court’s control of its
docket except upon the clearest showing that the procedures have resulted in actual
and substantial prejudice to the complaining litigant.” In re Fine Paper Antitrust
Litig., 685 F.2d 810, 817–18 (3d Cir. 1982) (Aldisert, J.).
“Discovery need not be perfect, but discovery must be fair.” Boeynaems v.
LA Fitness Int’l, LLC, 285 F.R.D. 331, 333 (E.D. Pa. 2012) (Baylson, J.). “The
responses sought must comport with the traditional notions of relevancy and must
not impose an undue burden on the responding party.” Hicks v. Arthur, 159 F.R.D.
468, 470 (E.D. Pa. 1995). “[T]he scope of [ ] discovery is not without limits.”
Kresefky v. Panasonic Commc’ns & Sys. Co., 169 F.R.D. 54, 64 (D.N.J. 1996). As
such, “[d]iscovery should be tailored to the issues involved in the particular case.”
Id. As amended Federal Rule of Civil Procedure 26(b)(1) states:
Parties may obtain discovery regarding any nonprivileged matter that
is relevant to any party’s claim or defense and proportional to the
needs of the case, considering the importance of the issues at stake in
the action, the amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense
of the proposed discovery outweighs its likely benefit. Information
within this scope of discovery need not be admissible in evidence to
be discoverable.
“To determine the scope of discoverable information under Rule 26(b)(1),
the Court looks initially to the pleadings.” Trask v. Olin Corp., 298 F.R.D. 244,
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263 (W.D. Pa. 2014) (Fischer, J.). In ascertaining which materials are discoverable
and which are not, a district court must further distinguish between requests that
“appear[ ] reasonably calculated to lead to the discovery of admissible evidence,”
Bell v. Lockheed Martin Corp., 270 F.R.D. 186, 191 (D.N.J. 2010), and demands
that are “overly broad and unduly burdensome.” Miller v. Hygrade Food Products
Corp., 89 F. Supp. 2d 643, 657 (E.D. Pa. 2000).
“[T]he discovery rules are meant to be construed quite liberally so as to
permit the discovery of any information which is relevant and is reasonably
calculated to lead to the discovery of admissible evidence.” Fid. Fed. Sav. & Loan
Ass’n v. Felicetti, 148 F.R.D. 532, 534 (E.D. Pa. 1993). “As an initial matter,
therefore, all relevant material is discoverable unless an applicable evidentiary
privilege is asserted. The presumption that such matter is discoverable, however, is
defeasible.” Pearson v. Miller, 211 F.3d 57, 65 (3d Cir. 2000).
Federal Rule of Civil Procedure 37(a)(3)(B) states that “[a] party seeking
discovery may move for an order compelling an answer, designation, production,
or inspection.” “In order to succeed on a motion to compel discovery, a party must
first prove that it sought discovery from its opponent.” Petrucelli v. Bohringer &
Ratzinger, 46 F.3d 1298, 1310 (3d Cir. 1995) (Cowen, J.) (citing Fed. R. Civ. P.
37(a)(1)). In addition, “[t]he party seeking the discovery has the burden of clearly

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showing the relevancy of the information sought.” Caver v. City of Trenton, 192
F.R.D. 154, 159 (D.N.J. 2000).
III.

ANALYSIS
The starting point is amended Federal Rule of Civil Procedure 26(b)(1).

From the outset, I note that the Court is mindful of Defendants’ concerns about the
mounting expense of unbridled discovery. Nevertheless, I cannot agree with the
threshold assertion that what is discoverable is strictly limited to material that is
ultimately relevant or otherwise admissible. As the parties well know, Rule
26(b)(1) envisions a broader universe of discoverable material than that. It makes
clear, for instance, that “[i]nformation within this scope of discovery need not be
admissible in evidence to be discoverable.”
At the same time, however, “[t]his concept of relevance is tempered . . . by
principles of proportionality.” Cope v. Brosius, No. 4:12-CV-2382, 2016 WL
5871157, at *2 (M.D. Pa. Oct. 7, 2016) (Carlson, Mag. J.). Accord Stabilus, A Div.
of Fichtel & Sachs Indus., Inc. v. Haynsworth, Baldwin, Johnson & Greaves, P.A.,
144 F.R.D. 258, 265 (E.D. Pa. 1992) (“While the scope of relevance in discovery is
far broader than that allowed for evidentiary purposes, it is not without limits.”)
(internal citations omitted).
As amended Rule 26(b)(1)’s proportionality mandate provides:
Parties may obtain discovery regarding any nonprivileged matter that
is relevant to any party’s claim or defense and proportional to the
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needs of the case, considering the importance of the issues at stake in
the action, the amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense
of the proposed discovery outweighs its likely benefit.
Thus, it has been said that the amended rule “restores the proportionality factors to
their original place in defining the scope of discovery.” Wertz v. GEA Heat
Exchangers Inc., No. 1:14-CV-1991, 2015 WL 8959408, at *2 (M.D. Pa. Dec. 16,
2015) (Mehalchick, Mag. J.). See also Summy-Long v. Pennsylvania State Univ.,
No. 1:06-CV-1117, 2016 WL 74767, at *8 (M.D. Pa. Jan. 7, 2016) (quoting Fed.
R. Civ. P. 1) (“[I]t is now unmistakable that the Court and the parties in any federal
civil action must constantly strive to resolve unsettled disputes with the ultimate
end of a ‘just, speedy, and inexpensive determination of every action and
proceeding.’”).
Considering the factors set forth at Rule 26(b)(1), the parties’ access to
relevant information is undeniably lop-sided in this case: Defendants are repeat
players in this genre of litigation, and they consequently enjoy the benefits of
sweeping protective orders. See ECF No. 105 at 11–12 n.3. On the other hand, the
Plaintiffs lack nearly all avenues other than judicially-sanctioned ones to obtain the
requisite records that rest in Defendants’ possession.
Moreover, the importance of the issues at stake in the litigation militates
slightly in Plaintiffs’ favor. Although this is not a case involving, for instance,
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constitutional rights or matters of national significance, to these particular litigants,
it is a matter of grave import. Further, its outcome may impact the marketability of
a widely sold piece of home machinery or some of its components.
Just as important, I believe that the utility of the proposed discovery
outweighs its attendant expenses. Certainly, the Defendants can readily produce
electronically stored records relevant to the aforementioned models and can engage
in a good faith effort to gather whatever data might not have been documented
electronically. In the same vein, I am confident that production of the requested
material will bear directly upon resolution of the cores issues in this case. It may
also clarify any lingering issues as to the most appropriate defendants.
Turning now to Rule 26(b)(1)’s application in product liability cases, the
Plaintiffs here allege negligence and strict liability claims, two theories whose
proof necessarily entails such questions as: what the Defendants knew or foresaw,
Phillips v. Cricket Lighters, 576 Pa. 644, 657 (2003); what safety tests they
conducted, Tincher v. Omega Flex, Inc., 628 Pa. 296, 313 (2014); and what
designs they considered. Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 41 (3d Cir.
2009) (quoting Habecker v. Clark Equipment Co., 36 F.3d 278, 281 (3d Cir.1994)
(“The determination of whether a product was negligently designed turns on
whether ‘an alternative, feasible, safer design would have lessened or eliminated
the injury plaintiff suffered.’”)).
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The touchstone used to distinguish discoverable inputs from others in
products liability cases was set forth in Fine v. Facet Aerospace Prods. Co., 133
F.R.D. 439 (S.D.N.Y.1990), and reiterated by this Court in Horner v. Cummings,
No. 1:14-CV-00639, 2015 WL 4590959, at *4 (M.D. Pa. July 29, 2015) (Saporito,
Mag. J.). The Fine decision outlined the following test:
In product liability actions it is frequently difficult to judge which of a
manufacturer’s products are sufficiently similar to the allegedly
defective product to be subject to discovery. Generally, different
models of a product will be relevant if they share with the accidentcausing model those characteristics pertinent to the legal issues raised
in the litigation. For example, where a plaintiff alleged that threewheel all-terrain vehicles are inherently unstable, he was entitled to
discovery with respect to each of the manufacturer’s models. See
Culligan v. Yamaha Motor Corp., 110 F.R.D. 122, 124, 126
(S.D.N.Y.1986). Similarly, an injured party who contended that the
redesigned motor mounts that had failed in his vehicle had not
eliminated the defects of earlier models was granted discovery
concerning the predecessor versions. See Swain v. General Motors
Corp., 81 F.R.D. 698, 699–700 (W.D.Pa.1979). Finally, a plaintiff
arguing that the left front spring main leaf on his vehicle failed could
obtain discovery regarding all types of vehicles with that component,
not merely the identical model. See Uitts v. General Motors Corp., 58
F.R.D. 450, 452 (E.D.Pa.1972) (“Uitts I”).
Id. at 441.
Moreover, the Fine court explained that “a plaintiff who raises a design
defect claim is entitled to broader discovery than, for example, if the claim were
solely one of negligent manufacture,” so long as the requested materials “are truly
alternatives and that they are potentially safer.” Id. at 442–43. This does not
require the moving party to prove its case on the merits at the discovery stage. See
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id. at 443. Instead, this threshold showing might be satisfied by, for example, the
affidavit of an expert in engineering. See id.
The United States District Court for the Western District of Louisiana,
confronted a strikingly similar discovery dispute to the instant one in Bourque v.
CNH America, LLC. No. 6:10-CV-01347, 2011 WL 4904430, at *2 (W.D. La. Oct.
14, 2011), aff’d, No. CIV.A. 10-1347, 2012 WL 393620 (W.D. La. Feb. 6, 2012).
The plaintiff in Bourque alleged that the gas cap on his tractor’s fuel tank spewed
gasoline and ignited. Id. at *1. Thus, he alleged that the gas cap designs were
defective “in that they allowed for ‘geysering’ of gasoline when pressure built up
in the fuel tank due to heating from the engine.” Id. The defendant contended that
material relating to gas gaps of “a different size” were not discoverable, but the
court rejected that argument. Id. at *2. Instead, it emphasized the underlying
claimed defective event (geysering due to pressurization), explaining as follows:
However, even if the gas cap is of a different size as maintained by
CNH, the undersigned cannot find that the information sought can
have “no possible bearing” on the claims of the plaintiff given that the
same type of event, “geysering,” occurred in the same or similar
model tractors, with the same or similar fuel systems at about the
same period in time as the subject tractor was on the market. If there
existed an alternative design that would have prevented the claimant’s
accident that came about through the recall/Mandatory Modification
Program, it may certainly have a bearing on the plaintiff’s claims.
Id. Acknowledging that the Bourque decision was more precisely premised on
differences in size rather than differences in design, its inclination toward
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functional analysis rather than restrictive, formalistic notions of discoverable
material in such cases is well taken.
I will now proceed to consider the particular types of material requested,
keeping in mind the factors set forth in Rule 26, including the importance of the
discovery to the issues in dispute relative to the expenses that the Defendants
would likely incur with production. Although the hallmark factor in my analysis is
the extent to which the sought-after discovery shared those relevant characteristics
with the accident-causing component, I also weighed several additional factors in
arriving at what I determined was the appropriate scope of discovery. Those factors
included: (1) the extent to which the contested discovery can achieve the same
functionality as the accident-causing part, despite facial design distinctions; (2) the
extent to which the contested discovery could be safety tested using the same
procedures and standards as would be used for the accident-causing part;
(3) whether, compared with the accident-causing part, the contested discovery was
an interchangeable component or a distinct system; and (4) the extent to which the
moving party has supported its technical assertions with testimony by a witness
who possesses adequate knowledge of the design, development, and functionality
of the contested components.1

1

This Court’s use of the term “accident-causing” is in no way meant as an assignment of fault.
Rather, it is merely the way I distinguish the unit or component used by the complainant at
the time of the accident from other units or components under consideration.

13

The first factor—the extent to which the contested discovery can achieve the
same functionality as the accident-causing part—speaks, in many ways, directly to
the core issue here. In particular, Bemis contends that the only type of gas cap
design about which the Plaintiffs may discover information is the open design,
because that is the cap design used on Mr. Fassett’s lawnmower. Although not
outlandish, that suggestion is likely overly restrictive. “[A] party should not be
limited by its opponent’s theory of the case in determining what is discoverable.”
Trask v. Olin Corp., 298 F.R.D. 244, 265 (W.D. Pa. 2014) (Fischer, J.).
Of great weight is the deposition testimony of Michael J. Holtz, a corporate
designee and the gas cap’s product design and engineering manager. See ECF No.
105 at 4, 15–20. In addition to the open style vent cap, Mr. Holtz identified three
other variations: the screw vent cap, the duckbill cap, and the covered vent cap. See
Holtz Dep. 17:17–21. Although the three variations are distinguishable from an
open vent cap in that they possess different structural designs, all of these caps
could function at a partly open setting. See id. at 18:06–08; 22:09–13; 26:04–12. In
fact, Mr. Holtz testified that each cap was designed to be placed on an open setting
while the lawnmower was activated, but closed while it was shut off and being
transported. See id. at 18:16–18; 22:09–13.
The second factor that I considered was the extent to which the contested
discovery could be safety tested using the same procedures and standards as would
14

be used for the accident-causing part. That was true here, and in my view, that fact
goes a long way in making the test results as to all of those design caps
discoverable. As the reasoning goes, testing using the same protocol makes the
results comparable and therefore relevant to such issues as the existence of a safer
alternative design and the Defendants’ prior knowledge. In fact, as Mr. Holtz
explained, his company had previously conducted a type of test that measured
airflow through orifices with or without foam baffles. See id. at 106:13–24. This
protocol could be applied to all free venting caps, including screw, closed, and
duckbill designs.
The third factor I considered was whether, compared with the accidentcausing part, the contested discovery was an interchangeable component or a
distinct system. As to the discovery sought from Bemis, the requested discovery
materials are components that could be easily interchanged with the accidentcausing parts. Their use on the accident-causing model would not require, for
instance, wholesale refurbishing of the entire lawnmower or total replacement of
its fuel unit. Barring some surface-level adjustments, distinct fuel cap designs can
easily be substituted. This factor is highly relevant in cases such as these: if the
various components are readily interchangeable, then the cost of exchanging
dangerous parts with safer ones is comparatively low.

15

The final factor that I evaluated was the extent to which the moving party
supported its technical assertions with testimony by a witness who possesses
adequate knowledge of the design, development, and functionality of the contested
components. Again, as to the Bemis requests, the considerations underlying that
factor have been satisfied as by Plaintiffs’ citations to the deposition testimony of
Michael J. Holtz, a corporate designee and the gas cap’s product design and
engineering manager.
With that analysis in mind, Plaintiffs’ motion seeks the following
information from Defendant Bemis:
[A]ll previously demanded documents, including claims, litigation,
warranty, testing data, or any other materials evidencing
overpressurization and/or geysering, spewing, fountaining or other
hazardous or catastrophic release of gasoline from a tank that has
become overpressurized due to inadequate venting. Plaintiffs therefore
demand that Kelch/Bemis produce previously demanded documents
for any of its free venting caps.
ECF No. 94 at 5 ¶ 17. Because application of all of the aforementioned factors
reveals that warranty information, testing data, and any other materials evidencing
over-pressurization or geysering corresponding to each of the enumerated free
venting caps designs (open, screw, covered, and duckbill) are relevant to a number
of Plaintiffs’ theories, those materials are discoverable so long as they are not work
product. See Serrano v. Chesapeake Appalachia, LLC, 298 F.R.D. 271, 277 (W.D.
Pa. 2014) (“[E]ven if documents were prepared for a different case, work product
16

protection may apply as long as the cases ‘are closely related in parties or subject
matter.’”).
My conclusion is different, however insofar as Plaintiffs’ requests for claims
and other litigation material in all cases involving every variety of the free venting
cap. “In products liability cases evidence of prior accidents involving the same
product under similar circumstances is admissible to show notice to the defendant
of the danger, to show existence of the danger, and to show the cause of the
accident.” Gumbs v. Int’l Harvester, Inc., 718 F.2d 88, 97 (3d Cir. 1983) (Becker,
J.). That being said, “[t]he almost universal requirement, however, is that the prior
occurrence must involve facts and circumstances which are substantially similar to
those involved in the case under consideration or they will be excluded.” Barker v.
Deere & Co., 60 F.3d 158, 162 (3d Cir. 1995) (Cowen, J.).
At a superficial level, it appears that all of the contested cap designs could be
characterized generally as “free venting caps” because they contain a specified
orifice that allows air to permeate them in some fashion or another. See id. at
107:01–108:02. Nevertheless, based upon Mr. Holtz’s characterization of the
different cap designs, the screw and covered vent caps appear most like the open
vent cap in design and operation, with the duckbill being the most distinct as a
consequence of its unique shaping. The notion that information relating to all prior

17

free venting claims is discoverable because all of those accidents involved failed
venting is much too high a level of abstraction.
As for screw, covered, and duckbill caps, the differences in design and what
tend to be the distinct factual circumstances render them beyond the scope of
discovery. Specifically, each prior claim is capable of differing on a number of
grounds: the age and prior history of the lawnmower; whether the lawnmower was
a riding or push unit; the period of time for which lawnmower had been running on
the date of the accident; the atmospheric conditions at the site of the accident; and
the varied actions of the accident victims. In fact, Mr. Holtz recalled that at least
one of the prior claims involved a missing gas cap altogether. See Holtz Dep. at
14:13–18.
In my view, then, Plaintiffs have not met their burden of showing substantial
similarity as to the accidents involving these other designs. Accordingly, although
material unprotected by the work product doctrine in prior claims involving the
open gas cap design is discoverable, the same is not true of prior claims or
litigation involving screw, cover, or duckbill caps.
I consider this outcome to be an amenable compromise between the two
overbroad and underinclusive proposals that have been presented. So often,
discovery is not properly construed as an all-or-nothing game. Rather, it is a means
for uncovering truth—the strengths and weaknesses of one’s case—rationally
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bounded by efficiency and cost concerns. It is that dynamic that makes discovery a
trade-off between knowledge and expenditure. The district court’s role under Rule
26, then, is to discern that middle ground between two countervailing pressures,
the optimal solution to the information-cost equations. It is my belief that the
reasoning outlined above fulfills that dictate.
The parties have also raised a dispute regarding production of privilege logs.
Consistent with the foregoing analysis, Defendants shall produce a privilege log
detailing with sufficient specificity any items that would be discoverable but for
the claiming of a valid privilege or protection. Obviously, Defendants need not log
any items that fall beyond the scope of the discovery as detailed herein. Further,
work product privilege should not be claimed for performance or testing results
that were not truly prepared in preparation for litigation. However, Plaintiffs must
also accept that materials shielded by good faith work product claims are likely
beyond reach. It is this Court’s belief and expectation that this Memorandum and
the accompanying Order will sufficiently aid all parties in pinpointing the bounds
of discovery and should thereby eliminate the need for subsequent motions to
compel on these issues.
I now turn to the discovery requested from the Briggs & Stratton
Defendants, those entities responsible for manufacturing the lawnmower at issue.
Accordingly, the primary issue as to this subsequent motion is not the similarity of
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individual components but that of whole lawnmower units themselves. That being
said, the applicable factors are largely similar, allowing, of course, for differences
in scale. The motion also raises certain issues as to documents that came to light in
connection with recent depositions.
Plaintiffs’ first two requests deal with field and pressure testing documents
relating to the fuel tank or gas cap used on the instant lawnmower model or on any
of Defendants’ other products. I tend to agree with the Defendants, however, that
Plaintiffs fail to provide any information as to what constitutes a similar or
comparable mower to the one at issue. See ECF No. 110 at 6. According to the
Briggs & Stratton Defendants, they have already provided or are in the process of
providing documentation for four other lawnmowers that share similar
characteristics with Mr. Fassett’s mower. Id. Those models are the Simplicity
Axion, the Snapper 150Z, the Craftsman ZT7000, and the Craftsman ZT75000. Id.
In persuasive fashion, those Defendants explain that the lawnmower models
they selected “have the same gas cap, same tank, same frame, the same engine/gas
tank layout, and the same heat shielding.” Id. at 6–7. In my view, those are
particularly useful decision metrics for a district court sitting in precisely this
discovery posture. In fact, were I to compile a list of factors similar to that above, it
would necessarily include such inquiries as: (1) whether the product shared the
same accident-causing component; (2) whether the product shared the same
20

general layout as the defective product; (3) whether the product is the same general
type of equipment as the defective product; (4) in fire cases, whether the product’s
heating, shielding, and exhaust systems are similar to that of the defective product;
and (5) whether the moving party has supported its motion with effective technical
testimony as to these similarities.
“[W]here there has been no suggestion that the other models share pertinent
characteristics with the products at issue, discovery relating to those models will be
disallowed.” Horner, 2015 WL 4590959, at *3–4 (quoting Fine, 133 F.R.D. at
441–42 (S.D.N.Y.1990)). “[S]uch a showing could have been made, for example,
through the affidavit of an expert in [ ] engineering.” Fine, 133 F.R.D. at 443.
In essence, the parties dispute whether having the same gas cap, tank, frame,
and general layout are pertinent characteristics for “similar” products. I believe that
in a case such as this, where the alleged injuries stemmed from the geysering and
ignition of gasoline, similar products must share those attributes with the accidentcausing product. This appears to be the case for several reasons: the layout and the
frame dictate both the proximity of the tank to heat-emitting components and the
space available for expansion of the gas tank. They control how easily the tank and
cap may be accessed, or conversely, to what extent those parts are exposed. In my
view, they also influence the likelihood of fire, given that they determine the
closeness of the fuel cap and any attendant gasoline spills to the components of the
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lawnmower that are typically heated, such as a muffler or other exhaust
component.
Plaintiffs’ first two requests, as enumerated in their proposed order, seek
discoverable material on “any other of Defendants products.” An affidavit filed by
a Briggs & Stratton representative indicates that this request could reasonably be
read to include upwards of one hundred products. See ECF No. 110 at 9 (citing
Petraszak Aff.). I therefore agree that Plaintiffs’ first two discovery requests of the
Briggs & Stratton Defendants are overbroad, unsupported by sufficient technical
backing, and out of proportion with the needs of this case.
The Briggs & Stratton Defendants should produce or continue to produce
only those non-privileged records associated with the Simplicity Axion, the
Snapper 150Z, the Craftsman ZT7000, and the Craftsman ZT75000. They have
also indicated that they are producing similar documents that correspond to the
Coronet model, which documents they should also continue to produce. See ECF
No. 110 at 7. Accordingly, Defendants need not produce those documents
requested in Categories 1 and 2, except and to the extent that they pertain to the
five lawnmower models identified above.
Plaintiffs’ Category 3 request seeks information relating to the
Dortch/Reaves, Oliff, Milner, Reynolds, Steve Johnson, Timothy Johnson, James
Thomas, O. Alexander, Ron Sheets, or Earl Vinson mowers and lawsuits,
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including all prior warranty claims. ECF No. 93 Ex. 2 at 1. The Category 4 request
seeks all “In Depth Investigation” (IDI) records from the Briggs & Stratton
liability claims system. Consistent with my prior reasoning, those requests are
denied, except and to the extent that any of the previously named actions or
requests involved any of the five enumerated lawnmower models about which
material has been deemed discoverable (the Simplicity Axion, the Snapper 150Z,
the Craftsman ZT7000, the Craftsman ZT75000, and the Coronet). To the extent
that the Defendants believe that any of these materials are protected by the work
product doctrine or other rule or privilege, a log setting forth those protections in
good faith and with sufficient specificity should be provided to counsel for
Plaintiffs.
The next two requests (Categories 5 and 6) seek releases obtained by
Thomas Wise, a Briggs & Stratton products safety and compliance manager,
including drafts and any markups by Mr. Wise related to claims of venting
clogging of fuel caps, fires, or near misses, as well as cover letter or cover email
communications between Mr. Wise and claimants/owners from whom Mr. Wise
obtained releases regarding such claims. See ECF No. 93 Ex. 2 at 2. These
documents are beyond the scope of discovery, pursuant to Federal Rule of
Evidence 408, which bars the introduction of evidence of offers or statements

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(accepted or otherwise) made in the settlement context when such evidence is
offered to prove, among other things, “the validity . . . of a disputed claim.”
Though the Plaintiffs contend that such material would be admissible for the
alternative purpose of establishing the Defendants’ knowledge, I cannot agree that
the claimed admissible purpose is readily extricable from the inadmissible ones. I
also remain wary of piercing the sanctity of settlement negotiations for fear that
doing so would discourage extrajudicial resolution in future cases. This is
particularly true where, as here, the Plaintiffs also have the opportunity to establish
prior knowledge through a number of parallel avenues, such as internal testing and
reports. Likewise, as Defendants point out, “numerous factors play a role in
parties’ decisions to settle claims, including risks and expenses of litigation, a
party’s policy towards settlement, and the confidentiality assured by settlement.”
ECF No. 110 at 13. This is an eerily similar observation to one that this Court
recently made in a matter involving a good faith insurance claim:
[C]overage of some claims and denial of others is not per se evidence
of bad faith [ ] practices. For example, consider a hypothetical set of
five claims, all of which are “similar” but none of which the insurer
believes in good faith it is legally bound to offer coverage. The insurer
could, if it wanted, offer coverage in none or all or two or three of
those cases. Denial would not be made in bad faith under the law.
Rather, it would be made based upon a calculated business judgment,
risk avoidance, litigation forecasts, etc. The point is that “similarity”
among claims is a poor predictor of bad faith denials in cases where
either the claims’ alleged similarity or the claims’ coverage under the
policy is not clearly established.
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Westfield Ins. Co. v. Icon Legacy Custom Modular Homes, No. 4:15-CV-00539,
2016 WL 4502456, at *8 (M.D. Pa. Aug. 29, 2016). Given the relatively low need
for the material, their highly confidential nature, and their tendency to lack in
probative value, the Category 5 and 6 requests are therefore denied.
A related request is Category 7, which seeks records of the claims
review/warranty trend meetings with or claims personnel. Defendants suggest that
these items were not requested in Plaintiffs’ initial requests for production. That
being said, I believe the initial requests were sufficiently broad enough to put
Defendants on notice these materials would be sought. In addition, the fact that
certain documents were disclosed comparatively late or raised for the first time
during recent depositions also confirms for me that these records should likely be
discoverable. Accordingly, Plaintiffs may obtain the Category 7 information,
subject to the earlier limitation set as to the five enumerated models, as well as any
valid claim of privilege or related protection.
Category 8 seeks the Defendants’ purchase order file for the gas cap that was
used in the accident-causing mower. According to the Defendants, it is unable to
locate that file. ECF No. 110 at 14. I would encourage the Defendants to engage in
a reasonably broad search, but absent the requisite showing of bad faith destruction
or failure to preserve, I do not believe there is much for the Court to contribute as
to this request.
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Category 9 seeks claims, warranty, or other litigation files for the Coronet
riding lawnmower. Defendants attest that they have already provided all of the
warranty claims for the gas cap that was on the Coronet lawnmowers and are
attempting to locate any claims files or litigation involving a Coronet lawnmower
under similar circumstances. See id. at 14. The Court encourages the Defendants to
complete those productions, subject to the standard disclaimers reiterated
throughout this Memorandum.
Category 10 requests the production of materials for all Briggs & Stratton
gasoline engine products, whether they be lawnmowers, snowthrower, leafblowers,
etc. For the reasons set forth above, I believe those requests are overly broad.
Layout, frame, and other design specifications are critical to the propensities to
heat and ignite in a case such as this, and even despite generalized similarities as to
fueling, the entirely distinct patterns of usage among various power tools therefore
render adequate comparison suspect as a matter of law. If similarity in fueling
systems was the proper guideline for this Court to follow, it would seem
exceptionally difficult to exclude just about any power tool from the scope of
discovery. The line must be more acutely drawn than that. As such, the Category
10 request is denied, as Plaintiffs’ discovery is appropriately limited to the five
lawnmower models enumerated above.

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Another issue central to this discussion is the proper temporal scope of
discovery. In particular, Plaintiffs’ proposed order seeking discovery from Bemis
requests discovery from as early as 1970. Mr. Fassett purchased the subject
lawnmower on or around March 2, 2007, ECF No. 1 at 6 ¶ 18, and the Defendants
approximate that this particular mower was manufactured between February 16,
2005 and June 29, 2005. ECF No. 110 at 2. As such, requiring the production of
documents dating back to the 1970s would appear excessive in comparison with
the needs of the case. As the Honorable Richard A. Posner of the United States
Court of Appeals for the Seventh Circuit has described this dynamic generally:
In most suits against corporations or other institutions, and in both
Twombly and Iqbal—but also in the present case—the plaintiff wants
or needs more discovery of the defendant than the defendant wants or
needs of the plaintiff, because the plaintiff has to search the
defendant’s records (and, through depositions, the minds of the
defendant’s employees) to obtain evidence of wrongdoing. With the
electronic archives of large corporations or other large organizations
holding millions of emails and other electronic communications, the
cost of discovery to a defendant has become in many cases
astronomical. And the cost is not only monetary; it can include, as
well, the disruption of the defendant’s operations. If no similar costs
are borne by the plaintiff in complying with the defendant’s discovery
demands, the costs to the defendant may induce it to agree early in the
litigation to a settlement favorable to the plaintiff.
Swanson v. Citibank, N.A., 614 F.3d 400, 411 (7th Cir. 2010) (Posner, J.,
dissenting) (internal citations omitted). Thus, other courts have noticed that the
lack of reasonable temporal bounds in a discovery request may render it “abusive”

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and “facially objectionable.” N.U. v. Wal-Mart Stores, Inc., No. 15-4885-KHV,
2016 WL 3654759, at *5 (D. Kan. July 8, 2016).
“[R]elevant information, which is otherwise discoverable, may be limited
both ‘geographically’ and ‘temporally’ in order to avoid overly broad and unduly
burdensome requests.” Briddell v. Saint Gobain Abrasives Inc., 233 F.R.D. 57, 60
(D. Mass. 2005). “Thus, the task of the trial court is to balance the clear relevance
of the information against the burden on the defendant.” Owens v. Sprint/United
Mgmt. Co., 221 F.R.D. 649, 655 (D. Kan. 2004). Though the appropriate bounds
will vary depending on the specific circumstances of each case, courts in this
Circuit have often taken the default position of limiting discovery to no earlier than
five years from the date on which the allegedly tortious conduct occurred. See
Grayson v. Dewitt, No. 1:15-CV-453, 2016 WL 5801699, at *6 (M.D. Pa. Oct. 5,
2016) (Carlson, Mag. J.) (citing Miller v. Hygrade Food Prod. Corp., 89 F. Supp.
2d 643, 657 (E.D. Pa. 2000) (collecting cases)).
I find this tendency to follow the so-called “five-year rule” instructive,
though I would modify it slightly for its application in the products liability setting.
In regard to such lawsuits where a defendant is alleged to have knowingly
designed, manufactured, or sold a defective product when safer, feasible
alternatives existed, I hold that the temporal bounds of discoveries should be set

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not from the date of the accident but from the time period during which the product
was manufactured and sold.
I believe that this determination rightly conforms to the nature of such
actions. For instance, the tortious conduct is more properly construed as having
occurred at the point of defective manufacture, design, or sale than at the point of
injury. Further, a plaintiff should be able to gather information regarding a
defendant’s decision-making process, as the propriety of that risk-utility analysis
occupies the core of such disputes. However, each case will present its own unique
circumstances, and a defendant’s showing that its production lines, components, or
designs have materially changed during that same timeframe would perhaps justify
a narrower tailoring of the discovery period.
Nevertheless, the timeline here is relatively clear: the lawnmower was
manufactured sometime in the spring of 2005; it was purchased in 2007; the
accident occurred in 2013; and this suit was filed in 2015. I will extend the
discovery period to five years from the approximate time of its manufacture,
thereby limiting the discovery of information and material relating to the
manufacture, design, or sale of the subject lawnmower or its parts (or those
comparable models and parts) to no earlier than January 1, 2000. See also N.U.,
2016 WL 3654759, at *1 (limiting discovery to no earlier than 2008 in a products
lability case involving children’s clothing that caught fire and was sold in Wal29

Mart stores during the 2012-2013 timeframe); Bates v. Michelin N. Am., Inc., No.
1:09-CV-3280-AT, 2012 WL 453233, at *2 (N.D. Ga. Jan. 13, 2012) (restricting
discovery in products liability case to “a four year period surrounding the date the
[defective] tire was manufactured”); Gassaway v. Jarden Corp., 292 F.R.D. 676,
682 (D. Kan. 2013) (upholding a discovery request seeking information from as
early as 2000 to 2003 about an allegedly defective heater eventually purchased in
2009).
As to an unrelated issue, Plaintiffs also request that their papers be unsealed.
Because Plaintiffs’ briefing contained direct excerpts from party depositions, out of
an overabundance of caution and in what might be an excessive showing of
deference toward the parties’ stipulated protective order, my preference is to leave
those documents sealed at this time. Moreover, I believe that this Memorandum
itself, which need not be sealed, serves a commensurate public purpose while
simultaneously avoiding any disclosure as contemplated by the protective order.
See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787 (3d Cir. 1994) (Cowen, J.).
I also will point out for the record that the Defendants themselves elected not to
seal their own papers after raising the issue with the Court in the first place.
Finally, I would caution that the purpose of this Memorandum is solely to
resolve the instant discovery dispute and not to assess liability. Specifically,
nothing herein should be read as concluding that the subset of similar components
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or designs for the purposes of discovery is coterminous with that subset of feasible
alternative components or designs for the purposes of a merits determination. In
fact, strong arguments can likely be made that merely as a consequence of the
breadth of discovery, the former subset is typically more populous than the latter.
IV.

CONCLUSION
Consistent with the foregoing reasoning, Plaintiffs’ motions to compel are

granted in part and denied in part. An appropriate Order follows, which enumerates
my rulings by motion and by individual requests. That Order also includes renewed
case management deadlines.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

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