McAllister-Lewis v. Goodyear Dunlop Tires North America, LTD. et al

Filing 169

ORDER granting in part and denying in part 157 Motion to Compel; granting 165 Motion to Quash. Signed by U.S. District Judge Lawrence L. Piersol on 5/17/18. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

*

JUDITH McALLISTER-LEWIS,

*

individually, and as Special Administrator

CIV 14-4103

*

of the Estate of Robert L. Lewis, Deceased, *
Plaintiffs,

*
*

*

vs.

ORDER

*

GOODYEAR DUNLOP TIRES

NORTH AMERICA,LTD., an Ohio
limited liability company.
Defendant.

*
H!

Pending before the Court are Plaintiffs' Motion to Compel Live Trial Testimony of Joseph

Dancy and Michael Manning,(doe. 157) and Defendant's Motion to Quash Subpoena of Joseph
Daney,(doc. 165).

Defendant Goodyear intends to bring its Rule 30(h)(6) witness, Joseph Dancy, who is
additionally acting as Goodyear's Rule 26 expert witness, as a live witness during Goodyear's case-

in-chief. Goodyear will not agree to produce Mr.Dancy as a live witness during Plaintiffs' case-inchief. Plaintiffs ask the Court to compel Goodyear to produce Mr.Dancy,and they have also served
Mr.Daney with a subpoena to appear at a deposition on May 22,2018 in Canton, Ohio. Defendants
ask the Court to quash the subpoena of Mr. Dancy.

Both parties refer to a deposition of Mr. Manning,but Plaintiffs did not designate portions
of his deposition testimony to he read at trial, and Defendant has decided not to call Mr. Manning

at trial. Plaintiffs ask the Court to allow them to read Mr. Manning's deposition testimony at trial,

or to take his trial testimony, or to compel Mr. Manning to testify for Plaintiff live at trial.

Mr. Manning

As Plaintiffs point out,if Mr. Manning was high-level employee or officer of Defendant,the
Court could compel him to appear and testify at trial even though he resides outside this district and

beyond the 100-mile limit of Rule 45. See, e.g., Am. Fed'n of Gov't Employees Local 922 v.
Ashcroft,354 F. Supp.2d 909,915(E.D. Ark. 2003). But Plaintiffs have made no showing that Mr.
Manning is a high-level employee. Thus the Court will deny Plaintiffs' motion to compel Mr.
Manning's testimony at trial but will allow Plaintiffs to use his deposition testimony at trial.

Mr. Dancv

The Court will keep Plaintiffs' case in chief open until Mr. Dancy is called as a witness

during Defendant's case-in-chief. When Defendant concludes direct examination of Mr. Dancy,

Plaintiffs may cross-examine Mr. Dancy but will not be limited to the subject matter of the direct
examination.

Plaintiffs' motions forjudgment as a matter oflaw under Rule 50,if any,can be made after

Mr. Dancy's testimony has concluded. If Plaintiffs' punitive damage claim survives the Rule 50
motions,then the Court will allow evidence ofDefendant's net worth to be presented to thejury after
that ruling is made. No such evidence is to be mentioned before that time. Accordingly,
IT IS ORDERED:

1.

That Plaintiffs' Motion to Compel Live Trial Testimony, doc. 157, is
denied as to Mr. Manning and granted as to Mr. Dancy to the extent
set forth above.

2.

ThatDefendants' Motion to Quash Subpoena ofMr.Dancy,doc. 165,
is granted.

Dated this _0^ay of May,2018.
BY THE COURT:

Lawrence L. Piersol

United States District Judge
ATTEST:

MATTHEW W.THELEN,CLERK
iW
CLEF
BY:

Deputy