Bishop et al v. The Goodyear Tire and Rubber Company et al

Filing 71

ORDER granting 44 Motion for Discovery; granting 46 Motion to Compel. Signed by Chief Judge Jeffrey L. Viken on 9/23/15. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
OTTO BISHOP; and STATE FARM
MUTUAL AUTOMOBILE INSURANCE
COMPANY,

CIV. 13-5062-JLV
ORDER

Plaintiffs,
vs.
GOODYEAR TIRE AND RUBBER
COMPANY; and GOODYEAR DUNLOP
TIRES NORTH AMERICA, LTD.,
Defendants.
INTRODUCTION
Plaintiff Otto Bishop and State Farm Mutual Automobile Insurance
Company (“Mr. Bishop”) move the court for leave to supplement the designation
of expert witnesses after the passage of the deadline to disclose expert
witnesses. (Docket 44). Mr. Bishop also moves the court for an order granting
his motion to compel discovery. (Docket 46). Defendants Goodyear Dunlop
Tires North America, Ltd. and the Goodyear Tire and Rubber Company
(“defendants”) resist both motions. (Dockets 49 & 60).
This case arises out of a motorcycle accident on Interstate 90 in Jackson
County, South Dakota, on August 1, 2010. (Docket 31 at p. 2). Mr. Bishop
allegedly sustained injuries in the accident because of a failure in the rear tire
which caused him to lose control of the motorcycle. Id. On July 22, 2013, Mr.

Bishop filed a complaint against defendants asserting, in part, that the tire’s
defective condition directly and proximately caused him mental and physical
injuries. (Docket 31 at p. 3). The court first considers Mr. Bishop’s motion to
compel discovery of information related to the allegedly defective tire (Docket
46) and, subsequently, Mr. Bishop’s motion to supplement his designation of
expert witness disclosures. (Docket 44).
I.

Motion to Compel Discovery
BACKGROUND
The tire under debate is a Dunlop D402 MU85B16M/C Tire bearing DOT

number DAF4M17M3107 with black sidewalls. (Dockets 46 at p. 5; 60 at p. 2).
Mr. Bishop asserts the manufacturing defects of excess mold ring flash and
non-fill in the bead area caused the tire to lose air pressure and triggered the
crash. (Docket 31 at pp. 1-2). Mr. Bishop seeks an order compelling
defendants to produce discovery related to the same Dunlop tire, only with
white sidewalls. (Docket 46). Defendants resist Mr. Bishop’s motion to the
extent he requests additional testing data and design drawings for the tire in
question. (Docket 60).
DISCUSSION
Mr. Bishop requests the testing data and design drawings for the
Dunlop D402 MU85B16M/C white sidewall tires. Mr. Bishop asserts the
information is relevant due to similarities between the white sidewall tire and
the black sidewall tire. (Docket 46 at p. 6). Mr. Bishop further requests the
deposition transcript of Ian Willetts, a prior corporate representative for
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Goodyear Dunlop Tires North America, Ltd., from an earlier case, along with
four deposition exhibits. Id. at 1-4, 6-7. Defendants do not object to the
distribution of Ian Willetts’ deposition transcript and four exhibits. (Docket 60
at p. 1). The court grants Mr. Bishop’s motion to compel with regard to the
referenced transcript and four exhibits from Mr. Willetts’ prior deposition.
Defendants object to Mr. Bishop’s request for the testing data and design
drawings of the white sidewall tires. Id. Defendants maintain because the
white sidewall tire is not “built and cured” under the same specifications as the
black sidewall tire, the data and drawings of the white sidewall tire are
irrelevant to this case. (Docket 60 at pp. 5-6). Defendants assert the data from
the internal testing Mr. Bishop requests determines neither “a tire’s air sealing
capability [n]or whether mold ring flash or non-fill could contribute to air loss.”
Id. at 6. Because Mr. Bishop’s main argument contends the crash was caused
by excess mold ring flash and non-fill in the bead area, the defendants assert it
is not relevant to include it in discovery because the information does not
concern either of the alleged defects. Id. Defendants argue “[s]imply because
the [black and white sidewall] tires have the same load/speed index . . . does
not make them substantially similar for purposes of this lawsuit.” Id. at 4.
A.

Scope of Discovery

The scope of discovery is broad under Fed. R. Civ. P. 26(b). See 8 Wright
& Miller, Fed. Practice & Procedure § 2007 (3d ed.). “Parties may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s
claim or defense . . . . Relevant information need not be admissible at the trial
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if the discovery appears reasonably calculated to lead to the discovery of
admissible evidence. All discovery is subject to the limitations imposed by Rule
26(b)(2)(C).” Fed R. Civ. P. 26(b)(1). If “the burden or expense of the proposed
discovery outweighs its likely benefit, considering the needs of the case, the
amount in controversy, the parties’ resources, the importance of the issues at
stake in the action, and the importance of the discovery in resolving the
issues,” then the court must limit discovery. Fed R. Civ. P. 26(b)(2)(C)(iii).
District courts are given wide discretion when dealing with issues of discovery.
See Cook v. Kartridg Pak Co., 840 F.2d 602, 604 (8th Cir. 1988).
While the United States Court of Appeals for the Eighth Circuit has not
specifically addressed whether to allow discovery of two “substantially similar”
tires, the court has dealt with comparable questions in analogous product
defect cases. In Hofer v. Mack Trucks, Inc., the Eighth Circuit determined
there was “no black letter rule of law regarding [product liability] discovery . . .
other than to state that discovery of similar, if not identical, models is generally
permitted.” 981 F.2d 377, 380 (8th Cir. 1992). The Hofer court noted that
“courts have undertaken a fact specific determination of the extent of the
similarities or dissimilarities, and have inquired about the basis for the
discovery request.” Id.; see also Fine v. Facet Aerospace Products Co., 133
F.R.D. 439, 441 (S.D.N.Y. 1990) (“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.”).

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The United States District Court for the District of South Carolina
addressed a similar situation. See Hartsock v. Goodyear Dunlop Tires N. Am.
LTD, No. 2:13-cv-00419-PMD, 2013 WL 6919715, at *6 (D.S.C. Nov. 22, 2013),
aff’d sub nom., Hartsock v. Goodyear Tire & Rubber Co., No. 2:13-cv-00419PMD, 2014 WL 51237 (D.S.C. Jan. 7, 2014). In Hartsock, the defendant
Goodyear Tire & Rubber Co., objected to allowing discovery information of ten
tires with “different specifications, components, and . . . load capacities” than
the subject tire. Id. at 6. The plaintiff argued one of his liability theories
warranted demonstrating the tire’s inner liner became overly thin during a
faulty manufacturing process. Id. at 8. The court ruled for the plaintiff. Id. In
reaching its decision, the court noted that discovery about similar tires is
generally permitted and, at that point in the trial, the ten “other” tires were
discoverable because the court had not yet been provided with information
differentiating the specific inner liners of the tires. Id. at 6-8.
In light of the broad inclusion of similar tires in Hartsock, the Eighth
Circuit’s guidance in undertaking a fact specific determination, and Fed R. Civ.
P. 26(b)(1) which states “[r]elevant information need not be admissible at the
trial if the discovery appears reasonably calculated to lead to the discovery of
admissible evidence,” the court finds the white sidewall tire testing data and
design drawings are discoverable. The black and white sidewall tires, though
not identical, are substantially similar. The tires have the same load/speed
index, overall diameter, overall width, tread depth and maximum load. (Docket
48-3); see also Hofer, 981 F.2d at 380; Hartsock, 2013 WL 6919715, at *6-8.
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The court notes defendants agreed Mr. Bishop may use a prior deposition
transcript of Richard Scavuzzo, a non-retained expert witness of the
defendants, in lieu of deposing him again. (Docket 64-2). Mr. Scavuzzo’s prior
deposition testimony dealt with the “Inflation Retention Test Results of
Motorcycle Tire Test,” specifically MU85-16 narrow white sidewall tires.
(Docket 64-3 at pp. 2, 4). Defendants’ agreement is more than a tacit
admission that there are at least some substantial similarities between the
black and white sidewall tires as related to the alleged defects. If the
differences between the two tires were profound, defendants would not rely on
this testing to refute Mr. Bishop’s allegations involving the excess mold ring
flash and non-fill in the bead area. (Dockets 60 at p. 3; 64-1 at p. 2).
Defendants’ concerns regarding the degree of similarity between the
white sidewall tires and the black sidewall tires can be resolved if and when
Mr. Bishop offers the discovery information into evidence. See Fed. R. Civ. P.
26(b)(1) Advisory Committee’s Notes, 2000 Amendment. The court grants Mr.
Bishop’s motion to compel the defendants to respond to the discovery requests.
B.

Sanctions

Federal Rule of Civil Procedure 37(a)(5) provides:
If the motion [to compel discovery] is granted—or if the disclosure
or requested discovery is provided after the motion was filed—the
court must, after giving an opportunity to be heard, require the
party or deponent whose conduct necessitated the motion, the
party or attorney advising that conduct, or both to pay the
movant’s reasonable expenses incurred in making the motion,
including attorney’s fees. But the court must not order this
payment if:

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(i)

the movant filed the motion before attempting in good faith
to obtain the disclosure or discovery without court action;

(ii)

the opposing party’s nondisclosure, response, or objection
was substantially justified; or

(iii)

other circumstances make an award of expenses unjust.

Fed. R. Civ. P. 37(a)(5)(A) (emphasis added).
Because the court grants Mr. Bishop’s motion to compel, it must
evaluate expenses, including attorney’s fees, unless one of the three exceptions
is applicable. The first exception does not apply as Mr. Bishop made good faith
efforts to resolve this matter without the court’s intervention. (Docket 46 at pp.
4-6).
However, the second exception, that is, whether the objection was
substantially justified, applies in this case. A litigant’s position is
“substantially justified” under Rule 37 when “there is a ‘genuine dispute’ . . . or
‘if reasonable people could differ as to [the appropriateness of the contested
action] . . . .” Oyen v. Land O’Lakes Inc., No. CIV. 07-4112, 2009 WL 536606,
at *2 (D.S.D. Mar. 3, 2009) (quoting Pierce v. Underwood, 487 U.S. 552, 565
(1988)). Courts consider whether “an impartial observer would agree that a
party had a good reason to withhold discovery.” Handi-Craft Co. v. Action
Trading, S.A., No. 4:02 CV 1731 LMB, 2003 WL 26098543, at *12 (E.D. Mo.
Nov. 25, 2003) (quoting Brown v. State of Iowa, 152 F.R.D. 168, 173 (S.D. Iowa
1993)).
Defendants’ objection to Mr. Bishop’s motion to compel on the basis that
he provided an insufficient correlation between the white sidewall tires and his
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allegations of excess mold ring flash and non-fill in the bead area are welltaken, though ultimately unpersuasive. Mr. Bishop supplied sufficient
evidence demonstrating that the testing data and design specifications for the
white sidewall tires are reasonably calculated to lead to discoverable
information. The court understands that “substantially justified does not
mean ‘clearly justified’ or ‘highly justified.’ ” Handi-Craft Co., 2003 WL
26098543, at *13 (citations omitted). The court finds defendants’ objections
were genuine, and the defendants withheld the requested information for
reasonable and legitimate reasons. Mr. Bishop is not entitled to recover any
costs or fees associated with the motion to compel.
II.

Motion to Designate an Expert Witness
BACKGROUND
On October 2, 2013, the parties held a planning meeting and submitted

a report in accord with Fed. R. Civ. P. 26(f) agreeing to certain deadlines,
including those deadlines regarding expert witness disclosures. (Docket 19).
Based on the parties’ submissions, the court issued a scheduling order setting
April 30, 2014, as the deadline for Mr. Bishop to make expert witness
disclosures and June 30, 2014, as the deadline for defendants. (Docket 22 at
p. 3). On April 11, 2014, the court extended those deadlines to June 30, 2014,
for Mr. Bishop and August 29, 2014, for defendants. (Docket 38 at p. 1). On
June 30, 2014, Mr. Bishop filed his designation of expert witnesses, identifying
25 non-retained medical experts and 15 organizations. (Docket 50-1).

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Following his disclosures, Mr. Bishop made an appointment with Dr.
Daniel R. Kraeger. (Docket 45-2 at p. 2). On September 22, 2014, Mr.
Bishop’s counsel delivered the records of that appointment to defense counsel.
(Docket 50 at p. 3). Although Ministry Medical Group – Rice Clinic, was listed
as a non-retained medical expert, Dr. Kraeger was not specifically mentioned in
Mr. Bishop’s expert witness disclosure list. (Docket 50-1 at p. 7). On October
10, 2014, Mr. Bishop moved the court to supplement his expert witness
disclosure by designating Dr. Kraeger as a supplemental expert witness along
with a provider who planned to complete a functional capacity exam. (Docket
44).
Mr. Bishop maintains because he designated Dr. Kraeger’s medical
facility, Ministry Medical Group, the addition of Dr. Kraeger as a supplemental
expert witness will not cause any undue prejudice to the defendants. Id. at 1.
Mr. Bishop argues Dr. Kraeger is treating his orthopedic injuries and is best
able to comment on his past, present and future ailments. Id. at 3-4.
Defendants object to Mr. Bishop’s motion, arguing: (1) organizations are not
expert witnesses under Rule 26(a)(2), so Mr. Bishop’s purported
supplementation of Dr. Kraeger as an expert witness under the umbrella of
Ministry Medical Group should be disallowed; (2) Dr. Kraeger is not a treating
physician but rather an expert witness retained solely for trial; and (3) Mr.
Bishop has not shown good cause or excusable neglect justifying an extension
of the expert witness disclosure deadline and defendants will be prejudiced if
the belated disclosure is allowed. (Docket 49).
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DISCUSSION
A.

Dr. Kraeger’s Designation as an Expert Witness

Federal Rule of Civil Procedure 26(a)(2) sets forth the requirements for
expert disclosures, and provides, in pertinent part, as follows:
(A)

In addition to the disclosures required by Rule 26(a)(1), a
party must disclose to the other parties the identity of any
witness it may use at trial to present evidence under Federal
Rule of Evidence 702, 703, or 705.

(B)

Unless otherwise stipulated or ordered by the court, this
disclosure must be accompanied by a written report—
prepared and signed by the witness—if the witness is one
retained or specially employed to provide expert testimony in
the case or one whose duties as the party’s employee
regularly involve giving expert testimony. . . .

****
(C)

Unless otherwise stipulated or ordered by the court, if the
witness is not required to provide a written report, this
disclosure must state:
(i)

(ii)
(D)

the subject matter on which the witness is expected
to present evidence under Federal Rule of Evidence
702, 703, or 705; and
a summary of the facts and opinions to which the
witness is expected to testify.

A party must make these disclosures at the times and in the
sequence that the court orders. Absent a stipulation or a
court order, the disclosures must be made:
(i)

at least 90 days before the date set for trial or for
the case to be ready for trial; or

(ii)

if the evidence is intended solely to contradict or
rebut evidence on the same subject matter
identified by another party under Rule 26(a)(2)(B) or
(C), within 30 days after the other party’s
disclosure.
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(E)

The parties must supplement these disclosures when
required under Rule 26(e).

Fed. R. Civ. P. 26(a)(2).
Defendants correctly assert that a medical facility is not a valid expert
witness available to offer testimony. (Docket 49 at p. 6). Expert witnesses
must have the ability to testify at trial under Fed. R. Civ. P. 26(a)(2)(A).
Ministry Medical Group does not possess this attribute.
Mr. Bishop’s initial inquiry regarding the services of Dr. Kraeger was
made in the pursuit of medical treatment. (Docket 45-2 at p. 2). Mr. Bishop
testified he went to see Dr. Kraeger because Dr. Kraeger was an orthopedic
doctor, and Mr. Bishop wanted answers from an orthopedist rather than other
practitioners. (Docket 45-2 at p. 2). Plaintiff’s counsel neither sought out Dr.
Kraeger nor asked him to review medical records from a prior health provider
for the purpose of offering expert opinion testimony. Id. While Dr. Kraeger
asked Mr. Bishop to consult his lawyer before looking into a possible functional
capacity test (Docket 45-4 at p. 5), it is clear Mr. Bishop initially sought out Dr.
Kraeger’s assistance strictly for treatment purposes. (Docket 45-2 at p. 2).
Dr. Kraeger’s potential opinions are very important to Mr. Bishop’s
claims. (Docket 31). Dr. Kraeger is a treating physician of Mr. Bishop.
(Docket 45-4). Dr. Kraeger, as a sports medicine orthopedist, is likely better
able to diagnose and treat Mr. Bishop’s injuries than Dr. Jones, an internal
medicine specialist. (Dockets 45-3; 50-5). Because Dr. Kraeger knew Mr.
Bishop before the accident, he may be able to form a more comprehensive
opinion regarding the cause of Bishop’s injuries. Id. at 2-3. Testimony from a
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functional capacity examiner and Dr. Kraeger may be useful for the jury’s
resolution of issues at trial.
Under the circumstances of this case and in recognition of the Eighth
Circuit’s admonition that the exclusion of an expert witness is an extreme
sanction that should be used sparingly, the court will permit the supplemental
designation of Dr. Kraeger as an expert witness. See Citizens Bank of
Batesville, Ark. v. Ford Motor Co., 16 F.3d 965, 967 (8th Cir. 1994) (“[T]o have
not allowed [a witness’] testimony would have been a perversion of the trial
process as a search for the truth and could have resulted in a miscarriage of
justice.”).
Justice is better served by allowing the designation of Dr. Kraeger and a
functional capacity examiner as expert witnesses. Defendants are not
prejudiced unduly by this ruling because no trial date has been set. If
additional depositions are required in advance of trial, counsel must submit a
proposed schedule to the court for the completion of discovery. Thereafter a
pretrial order will be entered.
ORDER
In accord with the above discussion, it is
ORDERED that plaintiffs’ motion (Docket 44) is granted. Plaintiffs shall
designate Dr. Daniel Kraeger and a functional capacity examiner, if any, as
expert witnesses within fourteen (14) days from the date of this order.

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IT IS FURTHER ORDERED that plaintiffs’ motion to compel (Docket 46)
is granted. Defendants shall produce the discovery information to plaintiffs
within twenty-eight (28) days of this order.
IT IS FURTHER ORDERED that if additional depositions are required in
advance of trial as a result of this order, the parties shall submit a proposed
schedule for the completion of all discovery. An order setting a pretrial
conference and trial dates will follow.
Dated September 23, 2015
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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