HOFFMAN et al v. CHAMPION POWER EQUIPMENT, INC.

Filing 60

ORDER: IT IS HEREBY ORDERED that 57 MOTION to Compel is GRANTED IN PART AND DENIED IN PART, as follows: The Motion is DENIED as to Plaintiffs' First Set of Interrogatories, Nos. 22 and 23, as well as Plaintiffs' Second Set of Interroga tories, Nos. 5-8, 12. The Motion is GRANTED as to Plaintiffs' Second Set of Interrogatories, Nos. 2 & 9, as described more completely above. The discovery deadline is reset to 7/31/2017. All other case management deadlines shall remain unchanged. Counsel for Defendant shall serve the required supplemental responses on counsel for Plaintiffs no later than 7/3/2017. Signed by Honorable Matthew W. Brann on 6/12/2017. (See Order for further details.) (jn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JAMES HOFFMAN and CHERYL
HOFFMAN, h/w,
Plaintiffs,
v.
CHAMPION POWER EQUIPMENT,
INC.,
Defendant.

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No. 4:15-CV-01828
(Judge Brann)

ORDER
JUNE 12, 2017
BACKGROUND:
1.

Plaintiffs James and Cheryl Hoffman, husband and wife, filed this
products liability action when one of Defendant’s generators allegedly
malfunctioned and caused a substantial house fire.

2.

One potential defense advanced by Champion is that the subject
generator, due to its manufacture and sales dates, did not belong to a
known recall of defective generators.

3.

Shortly after I issued an Order narrowing the scope of the Defendant’s
Rule 30(b)(6) deposition, Plaintiffs cancelled that deposition and
returned to the Court on the day before it was scheduled to request
supplemental interrogatory responses.

LAW:
4.

“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.” MarroquinManriquez 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 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.).

5.

“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

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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.
6.

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.

7.

“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, 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

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burdensome.” Miller v. Hygrade Food Products Corp., 89 F. Supp. 2d
643, 657 (E.D. Pa. 2000).
8.

“[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).

9.

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

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10.

Rule 37(a)(1) requires that a party moving to compel discovery
“include a certification that the movant has in good faith conferred or
attempted to confer with the person or party failing to make disclosure
or discovery in an effort to obtain it without court action.”

ANALYSIS:
11.

For the sake of expedience and judicial economy, I conclude that our
prior conference calls generally satisfied Rule 37(a)(1)’s requirement,
though a more direct attempt at extrajudicial resolution is preferable in
the future.

12.

The first substantive dispute centers on three interrogatories regarding
the details of any complaints about property damage caused by, or
alleged malfunctioning associated with the generator at issue. Those
requests include Plaintiffs’ First Set of Interrogatories, Nos. 22 and
23, as well as Plaintiffs’ Second Set of Interrogatories, No. 12.

13.

I have reviewed the responses and note that Defendant has already
supplied Plaintiffs with a list of 18 names and locations of apparent
complaint sources. Moreover, subsequent correspondence between the
parties during June 2016 and then again during August 2016 appears
to have addressed any alleged shortcomings with these interrogatories.

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14.

In particular, the Defendant avers that “upon review, none of the
claims identified in the initial interrogatory response were reported
during that time frame and there was, therefore, nothing to
supplement.” ECF No. 58.

15.

Last, Plaintiffs have had the benefit of these responses and
communications for nearly one year, and they have sat idly by. See,
e.g., Joan Summy-Long v. Pennsylvania State Univ., 2016 WL 74767,
at *1 (M.D. Pa. Jan. 7, 2016) (denying motion to compel brought “on
the final day of the fact discovery period” that “would enlarge the
temporal scope of this already-prolonged litigation”).

16.

The second substantive dispute concerns the Defendant’s seeming
unwillingness to disclose relevant details about the subject generator’s
relations or lack thereof to a known 2012 generator recall.

17.

“[I]n 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 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

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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.” Fassett v.
Sears Holdings Corp., — F.R.D. — 2017 WL 386646, at *1 (M.D.
Pa. Jan. 27, 2017) (Brann, J.).
18.

“Generally, different models of a product will be relevant if they share
with the accident-causing model those characteristics pertinent to the
legal issues raised in the litigation.” Fine v. Facet Aerospace Prod.
Co., 133 F.R.D. 439, 441 (S.D.N.Y. 1990).

19.

Additional factors include: “(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.” Fassett, 2017 WL 386646, at *5.

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20.

Throughout the briefing and during certain of my prior
communications with the parties, the Defendant has advanced the
argument that the subject generator was not part of the 2012 recall.
Against that backdrop, I believe that certain of the requested
information that pertains to the recall is discoverable for two reasons:
(1) the responses may clarify the basis for Defendant’s assertion that
Plaintiffs’ generator was excluded from the recall; and (2) the
responses may ensure that even if Plaintiffs’ generator was not subject
to the recall, Defendant possessed a valid business justification for
excluding it. See DiFrischia v. N.Y. Cent. R. Co., 307 F.2d 473, 476
(3d Cir. 1962) (“In Pennsylvania, under some circumstances where
the cause of the accident or the defective or dangerous condition is
unknown or disputed, evidence of the occurrence of similar accidents
is admissible, in the sound discretion of the trial judge, for the purpose
of establishing (1) the character of the place where occurred, (2) their
cause, (3) the imputation of notice to the owner of the place where
they occurred, and (4) the likelihood of injury.”). See also Uitts v.
Gen. Motors Corp., 58 F.R.D. 450, 452 (E.D. Pa. 1972) (allowing
discovery of information from “recall campaign” because “similar

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accidents with identical equipment” were relevant to causation and
notice).
21.

However, Plaintiffs should also recognize that discoverability and
ultimate relevance may diverge in cases like this one. See Bizzle v.
McKesson Corp., 961 F.2d 719, 722 (8th Cir. 1992) (affirming
exclusion of recall evidence with “minimal probative value” where
plaintiff provided only “minimal evidence” suggesting that the
litigated model was the same as the recalled model). See also Uitts, 58
F.R.D. at 452 (“Our decision on this discovery, however, should not
be taken as a ruling on admissibility.”).

22.

Accordingly, I will require Defendant to supplement its responses to
Plaintiffs’ Second Set of Interrogatories as follows:
a.

No. 2: This interrogatory is not overbroad and unduly
burdensome to the extent that it seeks the factual basis for
Defendant’s contention that Plaintiffs’ generator was not
subject to the 2012 recall. The serial number has been
adequately identified. However, in light of Plaintiffs’
contention that the unit was charred, Defendant shall clarify
how it determined that serial number. Moreover, the Defendant
shall explain why, as a matter of mechanics, the model
corresponding to Plaintiffs’ generator was not subject to the
2012 recall.

b.

No. 9: This interrogatory is not overbroad and unduly
burdensome to the extent that it seeks to eliminate the
possibility that Plaintiffs’ generator, although not itself subject
to the 2012 recall, was a refurbished version of a recalled
generator that experienced a subsequent failure. Accordingly,
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the Defendant shall clarify whether Plaintiffs’ generator was a
factory new generator; whether it was a refurbished generator
that had not previously been recalled; and whether it was a
refurbished generator that had previously been subject to the
2012 recall.
c.

Nos. 5–8: The Court is of the view that these interrogatories are
overbroad and unduly burdensome in light of Defendant’s
representation that Plaintiffs’ generator was not subject to the
2012 recall. To the extent that Defendant’s supplemental
responses to Interrogatory Nos. 2 and 9 reveal that this
contention is inaccurate, I may be inclined to revisit this
determination. However, to the extent that Defendant’s
supplemental responses reveal that Plaintiffs’ generator was
reasonably excluded from the recall, my determination will
remain unchanged.

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AND NOW, THEREFORE, IT IS HEREBY ORDERED that:
1.

Plaintiffs’ Motion to Compel, ECF No. 57, is GRANTED IN PART
AND DENIED IN PART, as follows:
a.

The Motion is DENIED as to Plaintiffs’ First Set of
Interrogatories, Nos. 22 and 23, as well as Plaintiffs’ Second
Set of Interrogatories, Nos. 5–8, 12.

b.

The Motion is GRANTED as to Plaintiffs’ Second Set of
Interrogatories, Nos. 2 & 9, as described more completely
above.

2.

The discovery deadline is reset to July 31, 2017. All other case
management deadlines shall remain unchanged.

3.

Counsel for Defendant shall serve the required supplemental
responses on counsel for Plaintiffs no later than July 3, 2017.

4.

The Court is confident that the parties are capable, on their own terms
and without judicial dictation, of rescheduling an appropriate 30(b)(6)
deposition following Defendant’s supplemental response deadline but
before the renewed discovery deadline.

5.

The parties are also respectfully encouraged to avoid future discovery
brinksmanship, as this action has recently demanded a

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disproportionate expenditure of judicial resources relative to its
comparative significance with other of this Court’s matters.
6.

The Clerk of Court is directed to docket this Order as a “written
opinion,” pursuant to the E-Government Act of 2002.

BY THE COURT:

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

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